Turning a child into a pawn

The controversial theory of 'Parental Alienation Syndrome' is making its way into Irish courts, writes Carol Coulter

Child custody disputes are arguably the most fraught disputes that come before the courts. They arise in the context of broken relationships, when both parties are suffering from disappointment, anger and bitterness towards the other. Any children they have in common inevitably become embroiled in the battle, often to their detriment.

Judges are asked to adjudicate on who should be the primary carer, or whether the parents should have joint custody, which, if the relationship is already very hostile, can be difficult to implement. In doing so they can have the assistance of expert evidence, including that of child psychiatrists.

Expert witnesses are meant to provide assistance to the courts, but their role is not very clearly defined in Irish law or in the rules of court. Usually one party seeks the assistance of a child psychiatrist, who then interviews all relevant family members, including the other parent, and presents his or her report to the court.

In a recent case (see panel) an expert reportedly said in court that the child in the case suffered from Parental Alienation Syndrome (PAS), meaning that he had an irrational hostility to his father, as a result of alienation on the part of his mother. The existence of this syndrome is hotly contested by family lawyers and psychiatrists in the United States, where the term originated.

PAS was "discovered" by a psychiatrist called Dr Richard A. Gardner, who put forward the theory that a parent in a conflict situation, usually the mother, created such a negative attitude to the other parent in the child that the child developed an irrational and groundless fear of, and hostility to, the other parent.

If no objective basis to this hostility (documented abuse, for example) could be found, then the child suffered from PAS, classified by Dr Gardner as a disorder. The only cure for this disorder was exposure to the prolonged company of the alienated parent, usually by the transfer of custody. This theory was accepted by a number of the lower courts in different states in the US, and provided the basis for altering custody arrangements.

However, the existence of PAS has been accepted by neither the American Psychiatric Association nor the American Medical Association. Nor does it feature in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, the bible of American mental health professionals.

Dr Gardner, who committed suicide in 2003, had argued that his views had been accepted by a large number of courts, and that his theories had been widely published, though the publishing house that published most of his work was owned by himself. The Internet contains voluminous exchanges between him and his supporters on the one hand, and his detractors on the other.

Until now this controversy was nothing more than a sideshow in the fraught area of American family law, where entrenched positions are taken up by people on different sides of an increasingly bitter debate split along gender lines. Various attempts to introduce the theory into family courts in Europe have failed, and the existence of the syndrome has been vehemently rejected by the German courts, to name but one jurisdiction.

The Circuit Court in the Republic does not establish any legal precedent, and the fact that this theory has, apparently, got a hearing with an individual Circuit Court judge here means little more than an opportunity for Gardner's fans to quote the fact on their websites.

The acceptance of PAS, however, does have implications for the conduct of any custody case by the judge hearing the case. Because it holds that a child's hostility to a non-custodial parent is a manifestation of the "syndrome", and therefore a psychiatric disorder, it means that the court is obliged to dismiss the wishes of the child to stay with the custodial parent.

Instead, the child should be cured of its disorder by being forced into the custody of the other parent against its will.

This theory therefore trumps Section 3 of the 1964 Guardianship of Infants Act, which states: "The court shall, as it thinks appropriate and practicable having regard to the age and understanding of the child, take into account the child's wishes in the matter." Due to the in camera rule in family law hearings, it is not known what other psychiatric theories are presented in court, how they are contested, or indeed what the attitude of the courts is to them.

"In my personal experience the psychiatrists are very robust in doing their best for the child," says Muriel Walls, a solicitor specialising in family law.

But psychiatry is an inexact science, with differing opinions among psychiatrists, and it is surely in the public interest to know what role it is playing in our changing family structures. There is also little clarity on how the courts in Ireland view the role of experts.

"England and Wales have far greater controls on the role of experts. There are guidance notes," says Geoffrey Shannon, family law expert and author of the recently-published seminal text, Child Law. "An expert is there to give an objective assessment of what the situation is. If he or she forms a view different from the client he or she has a duty to say that. I don't think that has filtered through here."

He says both the Supreme Court and High Court have addressed the issue, making it clear that the primary adjudicator of the facts, and the final decision-maker, is the judge. But he adds that a more fundamental issue is at stake - the absence of any independent voice for the child in such proceedings.

A key element of the 1997 Children's Act was allowing for a guardian ad litem for the child "where the specifics of the case demanded it", says Shannon. "Some of the problems now emerging are caused by the non-implementation of that bit of the Act." Asked when this bit of the legislation would be implemented, a spokeswoman for the Department of Justice, Equality and Law Reform says officials from the Department are in consultation with the National Children's Office in the Department of Health over the commencement of the provision.