by Alison Brewin and Carla Lewis
Parental alienation syndrome (PAS) can be used as a tool in the most adversarial of approaches to family law: Some parents allege it in order to control the other spouse or the children.
History of PAS
PAS originated with child psychiatrist Richard Gardner in 1985. He used it to describe cases involving what he believed were false allegations of child sexual abuse. Gardner defined PAS as “a child’s campaign of denigration against a parent that results from ‘programming’ of the child by one parent to denigrate the other parent and self-created contributions by the child in support of the alienating parent’s campaign.”
Since 1985, the term PAS has come to be used in a variety of situations where a child refuses to visit a non –custodial parent and even where a child becomes estranged from a custodial parent. Originally, the cause of PAS was said to be the actions of the alleged alienator.
Gardner believes that women lie to manipulate the system and their ex-spouses. He argued that not only the mothers alleging abuse, but also any therapist that believed such allegations, was a man-hating woman. He asserted that allegations of abuse are, in and of themselves, evidence of PAS. He, and the strongest proponents of PAS today, seemed unaware of evidence that failure to exercise access is far more common than unfounded refusal to allow access.
According to Gardner, the treatment for extreme cases of PAS is to transfer custody of the child from the person doing the alienation to the victim, and sometimes to sever contact between the child and the alienator for some period of time.
In the 1990s, academics, psychologists and legal theorists began to examine Gardner’s theories, noting that his papers were not peer-revised and were mostly self-published articles. Commonly held principles of scientific rigour usually applied to the development of a “syndrome” were not applied by Gardner in his clinical exams.
By the late 1990s, it was accepted by most psychologists and courts that although situations similar to Gardner’s construct exist, they are much less frequent than he suggested and that PAS theory called for harmful responses.
Dr. Mary Korpach, a psychologist located in Surrey, B.C., says that initially courts in the U.S. and Canada were receptive to the idea of PAS and that some custody orders were reversed . In some cases, reversal of custody orders resulted in negative mental health outcomes for children.
Dr. Joan Kelly and Dr. Janet Johnson did research into access difficulties. They determined that a spectrum of problems arise around access, from resistance to visiting, refusal to visit, to a child being estranged (alienated) from a parent.
They also determined that access difficulties were not caused only or solely by the conduct of the primary caregiver. That might be all or part of the explanation for a child’s resistance to visit. The children’s age, developmental state and personality traits might contribute to or drive an access problem. Alternatively, the problem might be rooted in the interaction between the child and on or both parents.
Why is PAS still with us?
Why is statistically uncommon parental alienation elevated to a syndrome and media hot topic, while more common problems such as non-payment of support or failure to exercise access are ignored? Why is PAS the go-to argument when a child does not want to visit a parent?
The answer to these questions is another question: Who benefits if PAS is a live topic? PAS is still with us because it has been useful for some litigants.
In the context of lack of access to legal aid, this “syndrome” can be useful in various ways. From an emotional perspective, it is much more satisfactory to explain access problems as arising from conduct of the other spouse than from one’s own shortcomings. For those who see control of the children as an objective, or as a means to control the other spouse, PAS is a weapon. Those who engage in litigation harassment can increase the other parent’s legal costs by alleging PAS.
This allegation will usually convince a court that a custody and access report is needed. If the report finds PAS, the alleged alienator will have to pay another psychologist to critique the report. At the least, there will be the expense of preparing cross-examination of the psychologist. If the court accepts that there has been PAS, there may still be reversals of custody. The rules relating to costs apply to family law cases. And a costs order can include the bill for preparing the custody and access report.
Family law in Canada is “gender neutral” in its language. This is a result of lobbying in the 1980s by, ironically, both women’s advocates and father’s rights organizations.
Gender neutrality can slide into gender blindness if there is an unwillingness to acknowledge that, as in other aspects of life, men and women are affected differently by family breakdown. Sixteen percent of Canadian women who are married to or in common-law relationships with the father of their children live below the poverty line. Forty-three percent of single mothers and separated or divorced women live in poverty. This statistic alone demonstrates who can afford to litigate or respond to litigation demands for experts to refute PAS allegations.
Crisis in access to justice
Canada is suffering from a crisis in access to justice and legal aid that is recognized by the U.N. Committee on Economic, Social and Cultural rights and the Convention for the Elimination of Discrimination Against Women. The lack of legal aid for family law has a variety of negative effects on low and middle income men and women: inadequate or no support orders having to consent to custody and access arrangements that are not in children’s best interests, unfair property division and the prospect of self-representation. Women are disproportionately affected by cuts to legal aid.
Parent alienation as a “syndrome” illustrates why, now more then ever, it is important to openly discuss gender – meaning the experience of men and women and the power relationships between them – in family law.
Reprinted with permission from the authors, Alison Brewin and Carla Lewis.
This article appeared in The Lawyers Weekly dated May 29, 2009, Vol. 29, No. 4.