Perverse Reversal of Child Custody
By Charles Pragnell Nov 13, 2006
There is a very considerable and increasing public and political concern regarding the secrecy of the Family Courts in child protection hearings and it is hoped that by opening up such proceedings to public view that it will expose the injustices and unfairness which prevails in many of such proceedings. Parents report that they are at a serious disadvantage in such proceedings when faced with the financial and legal might of a local authority and they often do not qualify for legal aid or are advised by their own legal advisers merely to consent to the making of Care Orders in the hope that the local authority will return their children in a reasonable period of time – this does not happen of course and their children are permanently lost to forced adoption or the vicissitudes of State Care. Some parents claim, with reasonable evidence to support such claims, that the evidence presented against them is often distorted, embellished, and even fabricated by medical and social work witnesses and evidence which would exonerate or exculpate them is withheld or disregarded. Cases which have made headlines in the media in recent years and months appear to support their contentions.
But will opening up the Family Courts, per se’, lead to improved justice and fairness for parents?. It is a step in the right direction but a great deal more needs to be done to create a legal process which gives equality to parents facing abuse allegations to defend themselves. Not least that an adversarial legal arena does not necessarily examine the full range of evidence and the outcomes of such contests often depend more on the quality of legal representation than on the truth or otherwise of the evidence presented to the Courts. What is claimed to be “In the best interests of the child” is often no more than the opinions of social workers based, not on what is measurably and demonstrably to the benefit and advantage of the child, but on little more than fanciful speculation and misguided dogma regarding substitute care of children and an amour propre’ for `Permanency Planning’.
One area of the Family Courts’ work which will be unlikely to be opened up to public and political scrutiny are cases of dispute over child custody and contact after parental separation and yet there are many similar injustices and unfairness occurring with disturbingly regular frequency in such proceedings. Such injustices are occurring when children disclose or report to the parent with custody that they have suffered abuse by the other parent during contact visits and the child(ren) refuses to attend further contact visits. The non-custodial parent then takes the matter back to Court to obtain additional contact and even residency of the child(ren) and claims that the custodial parent has `coached’ or `indoctrinated’ the child into making the abuse allegations. Often the abuse allegations have been reported to the child protection agencies but in some instances they have refused to investigate as they suggest it is a matter for the Family Court to decide, or they carry out only a cursory investigation and suggest that the custodial parent is suffering from `Parental Alienation Syndrome’ or at least some of the symptoms of this mythical disorder which has been completely discredited in professional and legal circles.
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/disclosed to the residency parent that s/he has 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/ 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].
The American Prosecutors Research Institute 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 is not included in DSMIV, the diagnostic and statistical manual of the American Psychiatric Association [APA] and does not therefore qualify nor be deemed to be 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 to 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).
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 of this he finally realised that the entire nation was on to his scam, he committed suicide on May 25. Lets pray that his ridiculous, dangerous PAS foolishness died with him.”
Yet this discredited theory or its thinly-disguised elements are still being used in Family Courts in the U.K. and in Australia, and is being accepted by some members of the judiciary, and children are being placed with parents against whom they have made reports/disclosures of abuse without such reports having been thoroughly and competently investigated. There are even cases where the abuse has been shown to have occurred following a child protection investigation and yet the child(ren) have still been placed with the abusive parent.
An example of this is the case of a young mother who suffered extreme and frequent abuse from her husband throughout the five years of their marriage and stayed with him in the hope he would change and the marriage could be rescued, and despite social workers trying on several occasions to persuade her to leave him. After she finally decided to terminate the marriage, she suffered physical and mental ill health and agreed for her children to be looked after by the local authority on a voluntary basis whilst she recovered. However when she recovered from her ill health and sought the return of her children, the local authority refused to return them and sought Care Orders on the children, alleging she was likely to cause them harm. Her legal advisers deserted her and her legal aid was withdrawn and she was left to act as a litigant in person with no legal knowledge or experience. The Official Solicitor was requested to act in the case but merely consented to the Care Orders and so Care Orders were made to the local authority by `default’. The children were placed in the care of the abusive father by the local authority with the Court’s agreement and the mother has since been denied any direct contact and has even been actively prevented from participating in any decision-making processes regarding the children’s care and welfare. The Official Solicitor later apologised for his conduct in the proceedings but the children remain in the care of their father and any form of direct contact with their mother has been refused.
In another case a young woman gave birth to an illegitimate child after a very brief relationship with a wealthy professional man. She cared for and looked after her child for several years and the putative father was granted visitation contact. However as the child grew older he began to make reports and disclosures to his mother and to several health professionals which suggested that he was being sexually abused on these contact visits and he became extremely distressed and refused to attend such visits. The child protection authorities refused to investigate the allegations but were intent upon removing the child from the mother on the basis of alleged PAS but with no evidence to support such an opinion. The putative father brought legal action seeking a residency order and the claims that the mother was indoctrinating her four year old child were supported by a CAFCASS worker and the father was awarded custody of the child. The mother now has only sporadic contact with her child and he continues to make allegations of abuse to the mother and to his teachers and the child protection authorities continue to refuse to investigate because they unquestioningly accept the views of the original social workers.
Such cases of perverse reversal of child custody are increasing in the U.K. and Australia although they are in rapid decline in the U.S.A. after the exposure of PAS as a fraudulent and unsound theory.
It is difficult to comprehend how children can be placed in the care and custody of a parent against whom they have made an allegation of abuse without a full and thorough investigation of those allegations and merely an assumption that the child(ren) is lying and has been `coached’ into making such allegations, despite research evidence that such false allegations by children are extremely rare.
In other cases of custody and contact where children have been suffering serious ill health or disabilities, counter allegations have been made that the mother is suffering from Munchausen Syndrome By Proxy and has fabricated or induced the child’s illness or disability, which has similarly been discredited as having neither validity nor utility in child protection matters and not to exist as a medico-legal entity.
Ending the secrecy of the Family Courts will undoubtedly bring some improvements but much more needs to be done before full confidence can be brought to a system which has lost so much public confidence and trust and is continually and repetitively making such serious errors. Not least must be a re-examination of the presumption that parents should have an equal right to the custody of the child(ren) or contact even though the parent may not have taken any interest whatsoever in the child during the marriage and may be using this `right’ simply as a weapon of attrition against the custodial parent or wishes to continue their abusive and persecutory behaviour towards the child and/or the other parent.
ByCharles Pragnell
SMALL JUSTICE STORY LINE:
Small Justice follows paralegal Diane Hofheimer and her attorney husband as they represent three women, all loving mothers, who have lost custody of their children to men with demonstrated histories of sexual abuse and domestic violence.
These women, all articulate, thoughtful, educated, are just some of the women who tell of the horror of watching their children ripped from their arms to be handed over to the person who abused them.
New research, personal stories, as well as the letters and e-mails sent to Small Justice (www.smalljustice.com), indicate that the family courts are often biased against battered women and/or ignorant of the manipulations of batterers and abusers.
BACKGROUND ON THE ISSUE OF FAMILY COURT INJUSTICE:
In order to understand how and why this can happen, one must look at the system in the family courts.
Where the ordinary rules of evidence do not apply, where there are no guidelines for what should be accepted as "expert" testimony, and where judges routinely take children away from the protective parent and place them in the care of the person the children have named as their abuser.
The frightening, ugly truth is that manipulative abusive people, the kind that have made headlines from Boston to Los Angeles, tend to be great liars.
They are people with superficial charm, who make better witnesses in court, than the people that have been abused.
Without the checks and balances of the rules of evidence and cross examinations, children are frequently handed over to parents who have been demonstrated to be guilty of child rape and acts of deplorable, heartbreaking violence.
Something is terribly wrong.
This is the issue that Small Justice explores.
"Studies show that batterers have been able to convince authorities that the victim is unfit or undeserving of sole custody in approximately 70% of challenged cases."
The American Judges Foundation
"Domestic Violence and the Courtroom, Understanding the Problem...Knowing the Victim"
http://www.smalljustice.com/story.html
http://uk.youtube.com/watch?v=leHE3AxcCdE
PAS
Part 1 introduces the cases and looks into Parental Alienation Syndrome (or PAS, the reigning paradigm in family courts); plus we take a look at the role of court-appointed mediators, therapists & evaluators in a broken system run amok that is damaging the lives of far too many children. This is a national outrage- please spread this film link to educate everyone you know! Thanks- only together in numbers can we bring about real change.
