‘I don’t belong here’
Mothers trying to protect their children in the Family Court are instead accused of abusing them. Kirsty Johnston reports on the ‘‘syndrome’’ silencing victims.
James was just 14 years old when the police came for him. He was taken, in handcuffs, on a plane, to another country, his courtordered new home.
On arrival, James ran away. Three officers arrested him. A video shows James kicking and yelling, refusing to go with police. One officer kneels on the boy to get his arms behind his back. They have to forcibly lift his rigid body into the van. He is taken to a youth justice centre.
His crime? James didn’t want to see his father. But the Family Court decided he had to, because it was best for him. After 13 years of a custody battle, a judge found that James’ opinions about his father stemmed not from his father’s behaviour, but were, effectively, his mother’s fault.
His mother had turned James against his father, the court said, because of her own negative feelings. She had ‘‘alienated’’ him.
And so James was taken from the home where he had lived – except for school-holiday visits to his father – since he was two years old.
‘‘I don’t belong here,’’ James told the court during his appeal, held while he was still in the youth justice facility. ‘‘It’s not my home, I just want to go home.’’
What happened to James is rare in New Zealand only in that it is so extreme. But if you dig through the case notes to its beginning – where his mother raised domestic violence allegations during a divorce – it fits a pattern that advocates say is dangerously common in the Family Court, where mothers who accuse their ex-partners of violence are in turn accused of a behaviour called ‘‘parental alienation’’, a form of psychological abuse.
‘‘Alienation is a way of deflecting attention away from the father and on to the mother,’’ says psychologist and researcher Alison Towns. ‘‘It frames the mother as the abuser, so that she’s got the problem.’’
Often, an alienation accusation is dismissed by the court. Often, women are believed when they allege violence, and children are considered reasonable when they say they don’t want to see an abusive parent.
But in situations where a judge decides a vindictive or hostile parent is making up the violence, or ‘‘coaching’’ the child, the consequences can be devastating.
Court records detail how fathers were granted custody despite serious allegations of violence – and even when there was proof. Sometimes children are removed from both parents, and made wards of the state.
‘‘We see the damage. We see children living with an abusive parent. We see children having access with people who have sexually abused them,’’ says psychologist Kathryn McPhillips, chief executive of the sexual abuse agency Auckland HELP.
‘‘From a clinical perspective, if a parent is causing harm to that child then it is best for the child for that parent to have no or very limited access to the child. But when parental alienation is rolled out that’s not what happens.’’
McPhillips describes alienation as a ‘‘tool’’ used to manipulate the court process.
Deborah Mackenzie, from the charity Backbone Collective, says it’s particularly dangerous because it undermines women’s ability to continue to raise abuse concerns.
‘‘The more they seek to protect their children by sharing evidence of abuse, the stronger the case is made against them that they are alienating,’’ she says. ‘‘They can’t win.’’
Women are frequently warned about this risk of alienation by their lawyers. Some counsel will advise against bringing up the violence at all.
‘‘My fear is that the impact of this is to silence women raising abuse concerns,’’ says Auckland University professor of psychology Fred Seymour.
‘‘It puts women in an impossible dilemma. If they claim violence or raise fears of sexual abuse, they risk being accused of alienation, and if they don’t raise it they stand accused of neglect.’’
Seymour says the court needs to do better to protect victims. Women’s advocates have argued for years that there is no place for parental alienation in cases where violence is alleged.
And last year, the United Nations women’s rights committee said it needed to be ‘‘limited’’ within New Zealand custody disputes.
So why is it still in use?
Parental alienation theory was first popularised by child psychiatrist Richard Gardner in the 1980s, as ‘‘Parental Alienation Syndrome’’. By the time Gardner died in 2003, the validity of such a diagnosis was discredited as lacking scientific validity. And yet, the idea behind it lives on.
Professor Joan Meier, an international family law expert from the George Washington University Law School, describes alienation theory as now so widespread that it has ‘‘permeated’’ Family Court litigation – even when the term is not explicitly invoked.
Meier argues that one of the reasons the concept is so popular is that it has a ‘‘kernel’’ of common sense at its core. ‘‘No-one should dispute that separating or divorcing parents sometimes encourage their children to choose sides against their ex-partner.’’
But true cases of alienation – where children reject a parent without a valid reason for doing so – are a rarity, she says. It isn’t true that mothers are routinely malicious or ‘‘hostile’’.
In fact, research has consistently found that most mothers, including those who have experienced domestic abuse, try to promote contact with their child’s father as long as it is safe.
Seymour says alienation has become too easy to reach for because of the way it plays into harmful gender stereotypes. ‘‘It appeals to a highly negative politicised view of women especially. In that way, it has direct parallels to the use of rape myths in sexual violence trials.’’
Domestic violence experts say this is part of why alienation is so problematic. The courts have repeatedly been found to lack understanding about family violence dynamics. Women who raise allegations find it notoriously difficult to prove. With alienation in the mix, it’s made even harder.
‘‘The more you talk about it, the worse it gets. I was told by the police: stop coming to us,’’ says Aroha*, who believes her ex-partner was sexually abusing her daughter. ‘‘I feel like they’re trying to say that there’s something wrong with me, or that I’m lying.’’
Studies show, however, that women do not routinely make up stories of domestic abuse, and neither do children. False allegations are extremely rare. Rather, court workers are too quick to assume they are making up the abuse.
‘‘When women first come to court they’re often in quite a state because of trauma,’’ says Towns. ‘‘So women get labelled as negative and obstructive and more credit given to the abuser.’’
But Towns says data show the majority of custody cases involve abuse, particularly those labelled ‘‘high conflict’’. ‘‘People don’t understand that violence is so widespread.’’
Ironically, even if women are believed when making abuse allegations, that doesn’t necessarily prevent the violent party having contact with the children.
In 2014, researchers – led by Seymour – found fathers were frequently awarded custody, including overnight stays, even when there were domestic violence findings.
‘‘That was surprising to us,’’ he says. ‘‘I know judges consider the factors really carefully. On the other hand, I’m aware of cases that would surprise me that there were overnight visits.’’
The Family Court’s focus on parent ‘‘contact’’ is a growing point of contention for domestic violence advocates internationally, who believe it allows alienation to flourish.
A literature review from the United Kingdom’s Ministry of Justice recently found the ‘‘presumption of contact’’ had led to the marginalising of abuse, and a conflict with the focus of protecting children from harm.
‘‘Survivors [are] slipping between the cracks between the two court systems,’’ it says. ‘‘Where a perpetrator of domestic abuse is seen as a violent criminal in the criminal courts, but a ‘good enough’ parent in the family courts.’’
This tension is also present here. While New Zealand custody laws mandate that children must be safe, they also emphasise contact with both parents – and advocates argue that contact is often put first.
Critics say the court’s emphasis on negotiated settlements puts further pressure on parents to compromise, or be labelled obstructive.
The Family Court has persistently rejected that notion, arguing its focus is always on safety.
Acting Principal Family Court Judge Alan Goodwin says alienation cases are always complex; seldom are the issues black or white.
‘‘But I stress that every case is considered on its merits and all the evidence presented to a judge, often over many months and even years, usually with the input of independent experts while being mindful of guidance from the senior courts.’’
But there are tensions. Judgments make it clear that many experts believe that, to thrive, children need both parents in their lives above almost anything else.
One of New Zealand’s leading alienation experts, psychologist Sarah Calvert, says some studies show that children who have been separated from a parent – even if there was good reason – felt the loss was extremely detrimental to them as they grew up.
‘‘I think there is a very strong lobby in part of the domestic violence group, who see violence as a reason for a complete cessation of the child’s relationship with that parent,’’ she says. ‘‘I don’t think any of us have a right to make that decision for a child.’’
Sometimes, refusing to see a parent is a child’s way out of conflict, she says. ‘‘No matter what parents say . . . there’s a pressure to take sides. The more conflict goes on, the more kids go: ‘I’m over this, I’ll peg my colours to mum or I’ll peg my colours to dad, because it’s just too hard.’ ’’
She says alienating behaviours on behalf of parents, and what she calls ‘‘resist-refusal dynamics’’ from children, are sometimes linked to anxieties around separation, rather than abuse.
Calvert says she rarely sees egregious cases of violence in the Family Court, certainly not the type that agencies like Oranga Tamariki deal with, where children are killed. But she has seen parents tell their children ‘‘gobsmacking’’ things, such as that their mother wanted to abort them or their father impoverished them.
‘‘That’s what the Family Court has to deal with. Is this child’s resistrefusal caused by dad’s violence in the moderate range? Or is it caused by mum talking about him?’’ she says.
What is the answer to the alienation question? By now, most experts agree alienation should not apply to children in abuse cases.
At the least, they say it should be differentiated from ‘‘realistic estrangement’’, the term for when a child’s rejection to see a parent is justified.
Despite that, it is difficult to see this change being made quickly in New Zealand. One of the main problems in the Family Court debate – of which alienation is only a small part – is that it is deeply ideological.
‘‘People take strong positions on either side,’’ Seymour says. ‘‘With a lack of evidence, opinion prevails.’’
Accessing Family Court decisions is hugely difficult, which contributes to that evidence gap. Even the Family Violence Death Review Committee is unable to access judgments, meaning the links between custody cases and the murder of women and children is, largely, unknown.
But one proposed way to limit the impact of alienation claims is to improve the way the court treats children – a policy under review.
In the current system, children are expected to express their views via their own lawyer, called a Lawyer for Child, who then assesses their validity for the judge.
Family lawyer Simon Jefferson says that, after years working with children, he’s become uncomfortable with that practice, and believes it needs a rethink.
‘‘Imagine if you said that about any other client? ‘Here’s what he thinks, but here’s why you shouldn’t listen to him,’ ’’ Jefferson says.
‘‘And I’ve been doing it many years, I’m experienced. But would I expect to establish a rapport with every child I am randomly appointed to? No. Even in my wildest dreams I wonder if I have the skill set that is properly called for to represent children in the legal process.’’
Better training in family violence dynamics for legal practitioners would also help, advocates say. Domestic violence experts embedded in the courts could provide better analysis. And faster, earlier decisionmaking about the facts in a case needs to become routine.
To help with that, Women’s Refuge says there needs to be a mandated approach to what information must be before the court.
As it stands, the Care of Children Act requires only that protection orders be considered in custody cases. But Women’s Refuge says information held by police or violence services should have to be looked at as well.
They gave an example of a client who had a baby with her ex-partner. The woman had reported more than 12 breaches of a protection order. But none were prosecuted, therefore none were used to inform the court’s custody decision.
‘‘Despite his violence toward her involving threats to kill, strangulation, threats to kidnap the child . . . he was permitted regular unsupervised access with the infant.’’
Another major change that might see the issue progressed is the appointment of a minister for the prevention of sexual and family violence, Marama Davidson.
Davidson says she’s well aware of the alienation issue and plans to discuss it with her colleagues in the justice sector.
‘‘Even the term itself relies on an assumption that people are wanting to cease contact with someone and are talking about violence purely to cease contact with someone, as opposed to keeping their children safe,’’ she says. ‘‘That’s a dangerous narrative.’’
After nearly a month in the youth justice facility, the High Court upheld James’ appeal, and he was allowed to go home.
The court did not resile from its allegations of alienation against his mother. It did not address James’ allegations that his father had belittled him. But it did find James had minimal attachment to his father, and some of his refusal to see him was justified.
James told the judge he loves his mother and that he rejects she is abusive. He’s back living with her, and back at school.