EFCAP 2^nd international conference Basel 7-10 September 2010

Violation of the child´s legal and human rights to family life in parental alienation cases

Lena Hellblom Sjögren, PhD, licensed psychologist, mail@testimonia.se

Abstract

Background: The best interests of the child can be defined as the child´s legal and human rights to close contact with both parents, and to keep his/her identity through the family roots on both parents´ side. What happens with the obligation for all professionals to decide in accordance with the best interests of the child, defined as above, in severe custody conflicts?

Methods: The author, who has worked independently since 1990 as an investigative psychologist, is analyzing 60 of her case investigations of severe custody conflicts in her ongoing research project called “The best interests of the child and the child´s human rights in severe custody conflicts.” Two case studies, one about a boy 9 years old who was separated 2006 from his mother, and one about two sisters, 4 and 2.5 years old, who were separated from their father in 1992, are presented.

Results: In both these cases the children have been heavily alienated from the parent they were cut off from by the parent they live with. This parent accuses the other parent of abusing the children. Such abuse has not been substantiated, but the accusations have, over years, served as argument to protect the children from that parent. The systematic source critical analysis of direct and indirect statements and documents produced over time document a loving relationship that has been broken. The children develop a fear; they reject the parent they were separated from. This has served as foundation for the courts to make decisions in accordance with what appear to be the child´s own will.

Conclusion: The children´s legal and human rights have been violated. They have lost their identity. Thus we can conclude that there is an ongoing practice that is not in accordance with the laws and the best interests of the child. If social workers, mental health and legal professionals learn about parental alienation and how it effects children, harms them and violates their rights, then hopefully practice can be changed.

Unconditional love is a child´s fundamental need, above food, water, shelter. Usually this love is given by parents and grandparents.

Most parents love their child and want to give their child roots and wings.

When parents separate most couples come to an agreement after the first turbulence. But in some cases parents go to court (in Sweden 7-10 % of couples with children who separate) and in some of these cases the child is used as a weapon by one parent against the other parent. Sometimes this war includes one parent claiming the other parent has some mental problem, or has abused the child, this resulting in the conclusion that the child must be protected from the accused parent.

The accusing parent is usually the one who he is seen as the best protector of the child. When the accusations have been investigated  and   – in most severe custody conflicts with accusations – no foundation can be found,  time has passed and the accusing parent claims that the child doesn´t want to see the other parent, or that the child is afraid of the other parent.

A separation of a child from a parent can be justified when that parent has abused the child, exploited the child or betrayed the child. Those cases are not included in the research on which I base what I am saying now.

As we know from science and experience a healthy and close contact with both parents is what is best for the child, if the child is to develop mentally and physically as well as possible.

But what happens when the child is separated from a parent and the separation lasts for a long time or becomes permanent? What happens if the child, separated from its mother or father, is influenced to reject the separated parent and the child starts its own campaigns of denigration of that parent? In these cases the child can develop a black and white way of thinking where also other family members and friends of the separated parent are included as black.

Such a behaviour, without justification in something bad the separated parent has done, with the other parent identified as the one influencing the child was identified independently by at least six American mental health workers in the seventies/eighties. That was when the law changed and fathers could also be given custody after a divorce. One of them labelled the phenomenon they all observed, PAS (Parental Alienation Syndrome). Other labels have been used such as PA (parental Alienation), PAD (parental Alienation Disorder) or the alienated child.

I have in my investigations as an independent psychologist for 20 years identified 60 cases that I  in my research analyze.

 

What is the child´s best interests?

According to Swedish family law,  “Föräldrabalken,” Chapter 6 (Lag 2006:458) it says in

“2a§

The best interests of the child shall be decisive for all decisions regarding custody, living and visitation.

When judging what is in the best interest of the child special attention shall be taken to

• the risk that the child or someone else in the family is abused or that the child without permission is taken away or is detained or in some other way is treated badly, and
• the child´s need of a close and good contact with both parents.

The child´s will with reference to age and maturity must be considered.”

 

According to the Universal Declaration of Human Rights 1948 it says:

Article 16

(3)”The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

 

In The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 it says in:

Article 8

1. “Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In the UN Convention on the Rights of the Child 1989, it says in 

Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

In Article 9 it says:

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant toparagraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.”

 

 The national family laws and the child´s human rights help us define the concept of the best interests of the child

 The best interests of the child can be defined as the child´s legal and human right to close contact with both its parents, the right to keep its identity through the family roots on both parents´ side,  the right not to be abused mentally or physically and the right to express own opinions.

 Conclusions

To separate a child from a loved parent and influence,

or support the influence of that child, to reject the

separated parent is to punish the child.

It can result in severe damaging consequences

for the child´s health and development.

It is a violation of the child´s legal and human

rights to family life.

Thus alienation of a child ought to be seen

as a crime. In Brasil a new law regulating

sanctions for this crime was taken on August 27, in  2010./

If social workers, mental health and legal professionals learn about parental alienation and how it effects children, harms them and violates their rights, then hopefully practice can be changed.

 

Added information:

Sweden. The alienation process in high conflict custody cases has been described by psychologists (Öberg 1992, Hellblom Sjögren 1997) and a child psychiatrist (Kihlbom 1998).

Öberg, B., Öberg, G.: Father, see me! About rejected children and powerless fathers (Pappa, se mig! Om förnekade barn och maktlösa fäder), Förlagshuset Gothia, Stockholm 1992.

Kihlbom, M.: The relation to the parents – the foundation for the child´s mental development, in The child´s right to both parents (Barnets rätt till båda föräldrarna) Save the children (Rädda Barnen), 1998.

Norway. Dr Terje Torgersen, a psychiatrist in Oslo is the main founder of “The organization 2 parents (Foreningen 2 Foreldre), established 1985.” He contributed to a debate about PAS in 1995 when as professor Jan Brögger, a well known anthropologist, had introduced PAS in Norway (Brögger 1995).

Torgersen wrote, “ If a residence parent frightens the child to reject contact with the other parent although he/she has visiting rights, this strategy will often be successful. As long as our politicians do not realize how serious the situation is, there is little hope for  changes of the law (sole custody is still the norm).”

Programming of a child to reject a parent without justified cause in connection with PAS has been described in a book about being a part time parent, (Thuen, 2004, page 91-121)

Brögger,J.: When children develop a sick hate towards a parent (Når barn utvikler sykelig hat mot foreldre) in Aftenposten January 21 1995

Thuen, F.: The life as a part time parent (Livet som deltidsforeldre) , Fagbokforlaget 2004.

Denmark. A Danish judge, Svend Danielsen has written about PAS in his book from 2004, Parents´duties children´s rights (Foreldres pligter börns rettigheder, page 210-211)

The Danish “Organization Father in Support for Parents and Children,” founded in 1977  published a report after a conference held 2002 about parental alienation. The introduction is written by the director Erik Kofod. After the first International Conference on PAS in Frankfurt 2002 this organization published reports from that conference.