Family Law Cases
In the sequel to the highest liability lawsuit against Orange County in the US, a federal appellate court has confirmed recently that the county was not immune from liability for a 2000 incident in which a woman alleged that two social workers committed perjury to separate her from her mom when she was a young girl. The ruling issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals was based on events that caused a jury to award the mother $9.6 million from Orange County in 2011 after she alleged that social workers used fabricated evidence to cause a court to remove her two daughters from her custody for six and a half years. In this case, the Judge with reference to the conduct two state social workers stated, “No official with an IQ greater than room temperature in Alaska could claim that he or she did not know that the conduct at the center of this case violated both state and federal law,” – Judge Stephen.
In cases in which parental alienation was not caused by a parent but by a malfunctioning state authority courts elsewhere in the world have come to the aid of affected parents. In some of these cases the local authorities had failed to take effective measures to enforce the parent’s right to maintain contact with the child. In one case a Moldavian citizen and mother of two minor children had got divorced in 2006. Despite of her right to maintain contact with her daughter it took eight months to produce the first encounter between mother and daughter. This long period of mother absence had produced parental alienation in the girl against her mother with the consequence that it was difficult to re-establish contact. The conflicting situation led to a delay of another four years without measures to establish regular mother to daughter contact. Consequently, the mother sued the Moldavian authorities for violating her rights through omission and claimed that her rights were violated according to the Convention on the Rights of the Child that ensures the right to respect for private and family life. The European Court of Human Rights allowed the claim.
In a similar case a Bulgarian mother was not able to see her son for two years due to the father’s frustrating contact. She filed a lawsuit because of the lack of remedy by which to bring up her complaint under Bulgarian law and the delay of custody proceedings. She accused the local authorities of having failed to enforce her right to contact to her child referring to Convention on the Rights of the Child. She succeeded with a claim for damages.
In a case in Italy a failure of the social services to ensure that court decisions were complied with, prevented an Italian citizen from seeing his son for a period of seven years. This had produced parental alienation in the child with consequences that were difficult to make good. The applicant accused social services of omission in the administration of court decisions referring to the same legislation as mentioned in the other two cases above and was finally granted damages. The cases reveal, that incorrect or deficient enactment of legal provisions or lacunae in procedural law may cause parental alienation in children whose parents undergo a divorce.
According to Anthony Douglas, chief executive of the Children and Family Court Advisory and Support Service in the UK (Cafcass) divorced parents who brainwash their children against ex-partners are guilty of abuse. According to him the deliberate manipulation of a child by one parent against the other has become so common in family breakdowns these days that it should be dealt with like any other form of neglect or child abuse.
According to Cafcass, parental alienation in the UK is responsible for approximately 80% of the most difficult cases that come before the family courts. In South Africa, these kinds of cases are the most difficult cases for family lawyers to deal with.
Parental alienation targets the child, drawing them away from one parent through a series of emotionally manipulative behaviours that often sabotage the bond between parent and child. It puts one parent in the role of being a gatekeeper with a clear objective against the targeted parent to erase that mother or father from being a loveable parent.
Forms of parental alienation includes a parent constantly badmouthing or patronizing the other adult, limiting contact between the child and the targeted parent, forbidding discussion about the other parent, generating the impression the parent does not love the child and forcing the child to reject the parent ultimately. Alienation is a form of neglect or child abuse in terms of the impact it can have on the child.
In certain countries, governments have put in place legislation to prevent parental alienation. In Italy parents can be fined, whereas in Mexico, guilty adults can be given a 15-year jail term. In America “parenting coordinators” are ordered and supervised by the courts to help restore relationships between parents and children identified as “alienated”.
In South Africa, there is no specific criminal law that outlaws’ parental alienation apart from Section 35 in the Children’s Act. This section states that any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year. The problem is that this section is rarely put in to motion or applied in practice.
A child’s best interests are plainly furthered by nurturing the child’s relationship with both parents, and a sustained course of conduct by one parent designed to interfere in the child’s relationship with the other casts serious doubt upon the fitness of the offending party to be the custodial parent.
Our courts have come to the aid of targeted parents in the past by recognising parental alienation but these cases are few and far in-between, which is leading to some children being removed from the offending parent. But our family law system is fraught with difficulty and a very difficult process. The phenomenon is so broadly overlooked in the family law system that no official figures exist for the numbers of children it may affect. Inside the South African adversarial legal system, you often find an industry landscape plagued with lawyers, health care professionals and third party benefactors that sometimes confuse their own self-interests with that of the child’s best interests thereby muddling any chance for parents to have these cases properly adjudicated in a timely, cost effective and efficient manner. This often lead to unfortunate outcomes.
In far too many situations children get caught in the slow machinery of the family court system and are removed from one parent’s care, often at the hands of the other parent, by means of alienation abduction and sometimes both. It is recognised that children who are in the center of such extreme conflicts of loyalty between their parents may suffer short-term damage in anxiety and depression and longer term difficulties in education, mental illness and their own adult relationships.
In cases where the court ultimately sides with a targeted parent, they still often face a bureaucratic and time-consuming mountain to have the parental rights that were taken from them enforced after what usually amounts to having been a long and grueling campaign that takes a toll on the parent financially, emotionally and physically.
If one studies the experiences of many parents who have faced such circumstances the picture emerges of a system that is severely dysfunctional and in many cases ostensibly incompetent. Add high legal costs, time delays within our adversarial family law system, ruthless lawyers, incompetent or biased health care professionals and you have a recipe for disaster. It is therefore time that practices are imposed to effectively deal with these kinds of disputes.
The courts are often confronted with a dreadful problem where young children voice a determined preference not to see a parent. How can anybody be sure that the child is expressing true feelings that have been freely developed rather than a point of view which has been inculcated by a manipulative parent? Early intervention is essential. Where contact with children is being frustrated and the children themselves are rejecting a parent with whom they previously had a loving relationship, specialists in mediation and child psychology should get involved without delay. We need a form of therapeutic justice since the concern is that the adversarial nature of court proceedings and legal issues causes unnecessary emotional/mental damages caused by the present court systems rules, procedures, attorneys and judges.
Unfortunately, our courts do not understand parental alienation well enough to apply proper protocols to help prevent, intervene and stop the conduct. They inadvertently order counselling for the targeted parent and child to help them unite, but forget that unless the alienator is in counseling, the child will continue to be barraged with the anger and hate of the alienator. In fact, forcing a child into counseling gives the alienator even more control. Alienators use this as another tool to persuade the child that it is the other parent’s fault that he/she is in counseling convincing the child that it is not the courts forcing them but the other parent. With this trauma, the child, instead, go into the counseling process with hatred and anger often rejecting to do the work to heal their love, confusion and own low self-esteem brought about by the alienators psychological abuse.
Parental alienation has complex dynamics and as alienated parents know a child’s refusal to follow a court-ordered parenting visitation schedule can be a formidable obstacle to contact. The remedy for this problem has several layers to make courts accountable to ensure that everyone’s mental health is being addressed and cared for.
If the theory Therapeutic Jurisprudence were employed in parental alienation cases, so that counseling was mandatory for the parents, we would be able to better heal and help the parties to move forward in a positive healthy way. If the parents work through their issues of grief, anger, pain and depression, the children would be less affected by it and therefore not need counseling. Courts must include counseling for both of the parents in cases of high conflict aggressive divorce. Counseling orders must also include that the counsellor or therapist report back to the court on the progress of the parents. If a parent is not doing the work, which would be evident in the children’s behaviour or denial of access to the other parent, then certain penalties must be put in place to ensure cooperation.
As more awareness, active engagement, and attention focus on matters of exposing parental alienation, gate-keeping, and overall dysfunction in these ordeals, the better it may be the only way to bring about the sweeping changes needed in a system that is beyond shattered.
Compiled by: Bertus Preller – Family Law Attorney
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facsimile: +27 086 572 8373
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.