An unsafe and unsound theory of human behaviour which is leading to Perverse Reversal of Child Custody placing children at serious risk of harm
Parental Alienation Syndrome [PAS] and PAS-type thinking has gained gradual credence in some Courts and among some psychologists and social workers in the U.K., the U.S.A, and in Australia. It has led to a large number of children being legally removed in Family Court proceedings from the care and custody of protective parents and being placed in the care and custody of the other parent against whom the child has made reports/disclosures of abuse.
This has often occurred without a full and comprehensive investigation of the child’s allegations of abuse, or after investigations which have not been competently carried out, and even in circumstances where the abuse is proven and accepted by the Courts and Court officers but the child’s protestations and distress have been ignored. In such circumstances children are continuing to be abused with the collaboration and condonation of those Courts and Court officers.
Parental Alienation Syndrome – a Definition
The term Parental Alienation Syndrome [PAS] was created by Dr. Richard Gardner, an American psychologist, in 1985 and was based on his observations of disputed child custody cases that involved allegations of child sexual and/or physical abuse and an inventory he had previously created and which he termed Sexual Abuse Legitimacy Scale (SALS).
PAS, claimed Gardner, was a mechanism used by a parent, usually the mother, in a child custody dispute where the parent with residency alleges that the child has reported or disclosed to the residency parent that s/he had been subjected to a form of abuse by the non-residency parent. In this way, it was claimed that mothers gained advantages in custody litigation. The accused non-residency parent seeks to rebut this allegation with a counter-allegation that the child has been indoctrinated, coached or brainwashed by the residency parent into making such allegations in order to alienate the child towards the non-residency parent. The PAS theory then supports a remedy of placing the child with their alleged abuser and curtailing or severing completely their visitation contact with the former residency parent. In effect a Perverse Reversal of Child Custody (ProCC).
Descriptions of the elements in Gardner’s theory of PAS have included :
- The child is aligned with the alienating parent in a campaign against the target parent (alignment).
- The reasons given for the denigration are weak, frivolous, or absurd (dubious rationalisations).
- The child’s animosity toward the target parent lacks ambivalence (global rejection).
- The child asserts that the decision to reject the target parent is his/her own (independent thinker).
- The child persistently supports the parent with whom s/he is aligned (persistent alignment).
- The child expresses guiltless disregard for the feelings of the targeted parent (guiltless rejection).
- The child’s statements reflect the alienating parent’s themes (borrowed scenarios).
- Animosity spreads to the extended family and others (extension of alienation by association).
It has proved difficult to convince some courts that the abuse has occurred as there have been presumptions that family violence and child abuse “must be of an extreme nature and have a very firm evidential basis before it can be argued to be a `disqualifying factor in residence or contact applications”. Such allegations of child abuse have also not been seen as a priority by child protection agencies and there are recorded cases where agencies have refused to investigate such allegations of child abuse or have dealt with them in a cursory manner and have not conducted a full and thorough investigation as required under law.
Legislation has also now emphasised the need for shared or equal parenting after the breakdown of parental relationships and Courts are now seeking to implement such principles, but often without examining the quality of the relationship of the child with each parent prior to the breakdown.
Validity and Utility of PAS
The SALS was widely criticised within the psychiatric/psychological community as being without merit or utility (Bruch 2002) and in particular had been described by Professor Jon Conte of the Social Welfare Faculty of the University of Washington (quoted in Dallam 1999) as stating that, “It [SALS] is probably the most unscientific piece of garbage I’ve seen in the field in all my time…….to base social policy on something as flimsy as this is exceedingly dangerous.”.
Gardner subsequently withdrew SALS but it formed the basis of his formulation of his theory of PAS (Dallam 1999).
Dallam found no evidence that any research had been undertaken to quantify this theory (PAS) since it was first propagated. This was supported by the American Prosecutors Research Institute who stated in 2003 that, “PAS is based primarily upon two notions, neither of which has a foundation in empirical research.’’
PAS has never been put forward for verification and validation and therefore is not included in DSMIV, the diagnostic and statistical manual of the American Psychiatric Association (APA)/ It does not therefore qualify, and cannot be deemed, as a mental disorder. There is no body of knowledge to support its existence, and it is therefore outside of the expertise of psychiatrists and psychologists.
This is further testified by Dr. Paul J. Fink a past President of the APA and President of the Leadership Council on Mental Health, Justice, and the Media who has stated that,
“PAS as a scientific theory has been excoriated by legitimate researchers across the nation. Judged solely on its merits, Dr. Gardner should be a pathetic footnote of psychiatry, or an example of poor scientific standards” (cited in Bruch 2002).
Carolyn Quadro, Professor of Psychiatry at the University of New South Wales, is reported as stating that PAS has neither validity nor utility and, as an alleged non-diagnostic syndrome, may only be useful when it is known that an abuse allegation is a deliberately made false accusations. i.e. there must be proof that the allegation is untrue before an assumption can be made that it is an attempt at alienation.
There have also been wider criticisms of theories related to child abuse which lack scientific rigour. In a letter to the British Medical Journal in October 2004 concerning child abuse research, Patrick E. Lantz, a forensic pathologist at Wake Forest University Health Sciences in North Carolina, U.S.A, and forty other physicians and scientists stated that,
“Evidence based medicine is the conscientious, explicit, and judicious use of scientific evidence in making medical decisions and cautions against unsystematic, untested reasoning and institution-based clinical applications”.
It may be reasonably contended, therefore, that there is a strong body of opinion in the medical scientific community which is concerned about the lack of scientific rigour in many theories related to child abuse.
Judicial Findings and Principles relevant to the application of PAS
In the U.S.A. the Supreme Court has ruled, (Daubert vs. Merrill Dow) that “Medical evidence presented to a court must have been peer reviewed, generally accepted by the relevant medical community, and appropriately tested scientific evidence should be presented”. Courts in both the U.S.A. and the U.K. have commented that Courts must not be the place for fanciful speculations to be offered in evidence. PAS does not satisfy any of the Daubert requirements.
Richard Ducote an attorney at law in New Orleans stated in 2003 of Gardner and his PAS theory that “PAS is a bogus, pro-paedophiliac fraud concocted by Richard Gardner. I was the last attorney to cross-examine Gardner in Patterson New Jersey. …He has not been Court appointed to do anything for decades. The only two appellate Courts in the country who have considered the question of whether PAS meets the Frye test, i.e. whether it is generally accepted in the scientific community, said it does not. Gardner and his theory have done untold damage to sexually and physically abused children and their protective parents. PAS has been rejected by every reputable organisation considering it. In a Florida case in which I was recently involved, when the Judge insisted on a Frye Hearing, Gardner simply did not show up. Perhaps because he finally realised that the entire nation was on to his scam, he committed suicide on May 25. Let’s pray that his ridiculous, dangerous PAS foolishness died with him.”
Most recently in June 2004 in an Appeal Hearing, the Supreme Court of Queensland, Australia, have made the following findings in regard to Munchausen Syndrome by Proxy (also termed Fabricated and Induced Illness in Children) [R v LM  QCA 192.]which has a similar lack of a scientific basis and general acceptance of the relevant scientific community as PAS, “As the term factitious disorder (Munchausen Syndrome By Proxy) is merely descriptive of a behaviour, not a psychiatrically identifiable illness or condition, it does not relate to an organised or recognised reliable body of knowledge or experience”.
The Queensland Supreme Court further ruled that the determination of whether or not a defendant had caused intentional harm to a child was a matter for the jury to decide and not for the determination by expert witnesses, i.e. “the diagnosis of Drs. Pincus, Withers, and O’Loughlin that the appellant intentionally caused her children to receive unnecessary treatment through her own acts and the false reporting of symptoms of factitious disorder (Munchausen Syndrome by Proxy) is not a diagnosis of a recognised medical condition, disorder, or syndrome. It is simply placing her within the medical term used for the category of people exhibiting such behaviour. In that sense, their opinions were not expert evidence because they related to matters able to be decided on the evidence by ordinary jurors. The essential issue as to whether the appellant reported or fabricated false symptoms or did acts to intentionally cause unnecessary medical procedures to injure her children was a matter for the jury’s determination. The evidence of Drs. Pincus, Withers, and O’Loughlin that the appellant was exhibiting the behaviour of factitious disorder (Munchausen Syndrome by Proxy) should have been excluded.”
Principles of law and implications for legal processes which may be deduced from these findings are that :
- Any matters brought before a Court of Law should be determined by the facts, not by suppositions attached to a label describing a behaviour. i.e. MSBP/FII/FDBP.
- MSBP/FII/FDBP is not a mental disorder (i.e. not defined as such in DSM IV) and the evidence of a psychiatrist should not therefore be admissible.
- MSBPFII/FDBP has been stated to be a behaviour describing a form of child abuse, and not a medical diagnosis of either a parent or a child. A medical practitioner cannot therefore state that a person ‘suffers’ from MSBPFII/FDBP and such evidence should also therefore be inadmissible. The evidence of a medical practitioner should be confined to what they observed and heard, and what forensic information was found by recognised medical investigative procedures.
- A label used to describe a behaviour is not helpful in determining guilt and is prejudicial. By applying an ambiguous label of MSBP/FII to a woman is implying guilt without factual supportive and corroborative evidence.
- The assertion that other people may behave in this way i.e. fabricate and/or induce illness in children to gain attention for themselves (FII/MSBP/FDBY) contained within the label, is not factual evidence that this individual has behaved in this way. Again, therefore, the application of the label is prejudicial to fairness and a finding based on fact.
These principles and implications can be equally applied to PAS and further confirms that PAS does not exist as a psychiatric or psychological condition and has neither validity nor utility in a medico-legal context.
The newly revised 2006 edition of Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide, published by the National Council of Juvenile and Family Court Judges, includes a strong statement condemning the use of PAS which it calls a "discredited" syndrome that favours child abusers in custody determinations.
At the same time the Spring 2006 issue of the American Bar Association’s Children’s Legal Rights Journal provides a comprehensive analysis of all legal cases involving allegations of PAS. This definitive review concludes that science, law, and policy all oppose the admissibility of PAS in the courtroom.
Judge Sol Gothard is glad to see that the legal community has joined other professionals in recognizing the harm that PAS can cause. Recently retired from Louisiana’s 5th Circuit Court of Appeal, Judge Gothard has been involved in over 2000 cases of allegations of child sexual abuse. He states, "PAS has caused emotional harm, physical harm and in some cases, even death to children."
PAS and its appeal to abusive parents and their legal representatives
Gardner’s assumptions that 90 per cent of abuse raised during disputed custody proceedings are false is contrary to studies into the legitimacy of reports of child sexual abuse and physical abuse during custody disputes. Studies by Brown et al (2000 and 2001) of 200 cases in the Family Courts of Australia found that in a survey group of 200 families involving an allegation of abuse (child sexual abuse, physical abuse, or neglect etc.), only 9 per cent were found to be false.
In 2003 Dr. Elspeth McInnes of the University of South Australia reported that “The popularity of PAS survives extensive empirical research findings showing that false allegations of child abuse are very much the exception rather than the rule”. This is further confirmed by Bruch (2002) whose research found that “The majority of abuse allegations are well-founded.”
Bruch adds, “…..Gardner confounds a child developmentally related reaction to divorce and high parental conflict (including violence) with psychosis. In doing so, he fails to recognise parents’ and children’s angry, often inappropriate, and totally predictable behaviour following separation. This error leads him to the claim that PAS constitutes a frequent example of folie à deux or folie à trois, shared psychotic disorders that the American Psychiatric Association studies report occur only rarely.”
PAS has become a weapon of choice of abusive parents in several countries when accused of child abuse or molestation in custody or contact disputes. Dr. Elspeth McInnes has further stated that “PAS is a winner with violent parents because:
(a) it enables the abuser to occupy the role of the victim; and
(b) it assists and legitimises their continuing access for abuse (of the child and the other parent).
In his seminal essay, Understanding the Batterer in Visitation and Custody Disputes, Lundy Bancroft sums up the asymmetry in favor of the offender, “Batterers … adopt the role of a hurt, sensitive man who doesn’t understand how things got so bad and just wants to work it all out ‘for the good of the children.’ He may cry … and use language that demonstrates considerable insight into his own feelings. He is likely to be skilled at explaining how other people have turned the victim against him, and how she is denying him access to the children as a form of revenge … He commonly accuses her of having mental health problems, and may state that her family and friends agree with him … that she is hysterical and that she is promiscuous. The abuser tends to be comfortable lying, having years of practice, and so can sound believable when making baseless statements. The abuser benefits … when professionals believe that they can ‘just tell’ who is lying and who is telling the truth, and so fail to adequately investigate. Because of the effects of trauma, the victim of battering will often seem hostile, disjointed, and agitated, while the abuser appears friendly, articulate, and calm. Evaluators are thus tempted to conclude that the victim is the source of the problems in the relationship."
Joyanna Silberg, PhD, a Clinical Psychologist and Executive Vice President of the Leadership Council on Child Abuse and Interpersonal Violence, has also seen first hand the long-term emotional damage which this so-called syndrome has caused. "How do you explain to young children forced to live with abusers why the Courts have considered them liars and ignored their cries for help?" Silberg has found that it can take years for these children to get past their feelings of betrayal by the system that was supposed to protect them.
Dr. Silberg views PAS allegations as part of a larger strategy in which abusive parents try to fool the Courts, attorneys, child custody evaluators, and mental health professionals into believing that their children and ex-spouses are crazy when they raise concerns about safety.
Perverse Reversal of Child Custody
From a study of cases in the U.K. and Australia, The typical features of cases of Perverse Reversal of Child Custody [PRoCC] are :
1 The abuse has usually been evident prior to the separation and is one of the major reasons (usually the final straw) for the protective parent deciding on separation from the abusive parent. Such abuse and violence has taken the form of sexual, physical, or mental abuse or a combination of these forms of abusive behaviour. The abuse of the child(ren) has often followed on from violence by the abusive parent to the protective parent.
2 The abusive parent is most often, but not exclusively, the male parent/partner.
3 The forms of abuse are extremely painful to the children but sometimes do not leave physical evidence e.g. severe nipping, tight grasping of arms or shoulders, crushing of the chest from behind preventing or severely restricting breathing by the child, forms of sexual abuse such as digital manipulation or oral sex, constant verbal abuse of the child that the child is worthless/unwanted.
4 The (usually male) parent has personality characteristics of being highly plausible and manipulative, and often have substantial financial resources (which assists in the engagement of the most competent legal representatives) and with a position of power and influence in the community, and a reputation of respectability.
5 The abuse has been reported prior to the separation and disclosures have been made by the children to several professionals e.g. teachers, health visitors, doctors, police officers and social workers, who are convinced of the veracity of the child’s testimony.
The Perverse Reversal of Child Custody usually occurs after the contact visits with the abusive parent and the child complains to the protective parent who then refers the matter to child protection professionals. In his defence, (and it is easy to see why a respected, respectable person would wish to vigorously and vehemently oppose a child abuse accusation), the abusive parent counters with an application to the Courts for a Residence Order or Custody of the children and alleges that the protective parent has been coaching or indoctrinating the child(ren) [PAS] in the disclosures of the abuse or, if the child is chronically ill or disabled, that the protective parent suffers from Munchausen’s Syndrome by Proxy and is fabricating or inducing the child’s illness or disability.
In some cases the abusive parent is able to convince a key professional of the veracity of these allegations (often despite vehement opposition by the professionals who have received the disclosures) and this key professional supports the arguments of the abusive parent in the Courts. In several cases it is apparent that this key professional has abandoned professional principles of maintaining objectivity and impartiality and is gullibly persuaded by the plausibility of the abusive parent. The evidence of professionals who have received the initial disclosures and are convinced of their veracity are disregarded in evidence presented to the Court or are withheld or ignored.
Thus the Perverse Reversal of Child Custody occurs, with the child(ren) placed in the custody of the abusive parent. In most cases the abuse continues with the child(ren) continuing to make disclosures and to protest to the formerly protective parent who has now been labeled the emotional abuser. The result, however, is that further allegations of coaching or indoctrination are made against the protective parent and contact with the protective parent is decreased or terminated.
The abusive parent now has full protection and cover for the continuing abuse and the protective parent is left distraught and in complete despair.
PAS and Paedophilia
It is said by some writers that Gardner was an apologist and supporter of paedophilia, sexual abusers, and abusive parents (predominantly fathers) through his writings and his work. Gardner is reported as having stated, “If he (the molesting father) doesn’t know this already, he has to be helped to appreciate that paedophilia has been considered the norm by the vast majority of individuals in the history of the world. He has to be helped to appreciate that even today, it is a widespread and accepted practice among literally billions of people. He has to appreciate that in our Western society especially, we take a very punitive and moralistic attitude toward such inclinations. He has had a certain amount of back luck [sic] with regard to the place and time he was born with regard to social attitudes toward paedophilia. However these are not reasons to condemn himself.”
Gardner further states in regard to the attitudes of children towards abuse that “There is a whole continuum that must be considered here, from those children who were coerced and who gained no pleasure (and might even be considered to have been raped) to those who enjoyed immensely (with orgastic responses) the sexual activities.”
Gardner committed suicide in May 2003 and his autopsy report indicates three stab wounds in the neck and four stab wounds in the chest.
PAS and Child Abuse Studies
The assumptions in the reasoning behind PAS that children are always untruthful or that their statements are unreliable and inaccurate is contrary to all of the major research in this area of child abuse. Any contention that there is a high proportion of false allegations of child sexual abuse in child custody or contact disputes has no basis in research in Australia or internationally. In fact research shows that a lower proportion of false allegations occur in such cases than in the general reporting of child sexual abuse to statutory agencies.
To make an assertion or presumption that children cannot express their experiences and feelings of being abused is a serious error of judgment and similarly that they are easily manipulated or indoctrinated into giving false testimony is deeply flawed.
In the same way as adults, some children are accurate in their recollections of past events whilst others are inaccurate in their recollections or have distortions in their perceptions. Some embellish their accounts whilst others are meticulous in the accuracy of the detail of what has occurred. This points to the need for very careful interviewing of children who make allegations of abuse by a highly skilled and independent professional as soon as possible after the child reports or discloses the abuse, in order to minimise the possibility of contamination or corruption of their evidence.
Most commonly children are extremely reluctant and unwilling to report or disclose that they have been abused for a variety of reasons, including their own feelings of guilt and shame that they may have been to blame for what occurred, as it is a well-documented tactic of abusers to transfer their guilt onto the victim, or from fear that the abuser may cause them or their care-giver serious harm. Again the threat of further violence or even to fatally harm the child or other family members is a well-documented tactic of child abusers.
When children make a report or disclosure that they have been abused, what they say must never be dismissed, ignored, of disregarded by any adult but should be carefully listened to and inquiries made to establish corroborative evidence, much of which can be found in changes in their moods, temperament, and behaviours.
International Children’s Rights
The U.K and the Australian Governments endorsed and ratified the U.N. Convention on the Rights of the Child and are thereby bound by its provisions.
Of particular and pertinent note are :
1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2 States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
It is clear therefore that the rights of children in contact and custody proceedings are breached and violated by the application of PAS in any such proceedings in the absence of a full and thorough investigation of their reports or disclosures of abuse, and where such occurs then it has implications for the government and its administrative bodies in that it could reasonably be said to be failing in its duties and obligations under the U.N. Convention.
PAS has no credibility, validity or utility in the respective medical or child protection communities and in accordance with the Queensland Supreme Court ruling, the use of the label in judicial proceedings could be viewed as prejudicial to those proceedings in the absence of factual evidence and makes a presumption of guilt of the accused residency parent which it is proper for a Court to decide on the basis of factual evidence.
It is seriously flawed reasoning which assumes that a child is being untruthful about abuse without a very careful and thorough investigation of the child’s allegations and an examination of the corroborative evidence and that a parent is misrepresenting or falsely presenting the allegations of the child. When children make a report or disclosure that they have been abused, what they say must never be dismissed, ignored, or disregarded by any adult but should be carefully listened to and inquiries made to establish corroborative evidence, much of which can be found in changes in their moods, temperament, and behaviours.
In such cases, where an allegation of abuse is made, then the paramount consideration must be the safety and security of the children under the U.N. Convention on the Rights of the Child and the allegation must be comprehensively and thoroughly investigated by the relevant State Authorities responsible for child protection and the prevention of the abuse of children. Any such investigation which subsequently reports to the proceedings in a Family Court should advisedly include details of the respective relationship of each of the parent with each and all of the children of the union, and any evidence of domestic violence and abuse prior to the breakdown and separation of the parents as such incidents will be prior indicative evidence of each parent’s concern for the child(ren)’s needs and the need of a parent to assert overt control and manipulation over the other parent and the child(ren).
Charles Pragnell is an Expert Witness in Child Protection in the U.K. and Australasia and is a Child/Family Advocate.