Journal of Social Welfare & Family Law Vol. 28, Nos 3–4, September–December 2006, pp. 251–266

The Unbreakable Chain under Pressure: The Management of Postseparation Parental Rejection Dale Clarkson & Hugh Clarkson

Children who reject one parent after parental separation provide a major challenge for the family court in New Zealand, as in other countries. There are controversies about the causes and the management of these problems. This article reviews the available literature on the underlying causes of the problem, which we have called post-separation parental rejection, and discusses ways in which the legal systems in New Zealand and elsewhere can respond in order to maximise the chance of the child maintaining a relationship with both parents through the process of litigation, a process which can be prolonged and difficult in the most severe cases. Suggestions are given about ways of minimising delay, enforcing contact and even changing custody where necessary. Keywords: Parental Alienation; Contact; Intractable Access; Custody Change

Introduction On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his 7 year old daughter… (Re D [2004]1 FLR 1226)

The judge in this case went on to describe a battle which had endured for five years, across 43 hearings and with 16 different judges. Munby J. was highly critical of the system which had allowed this to happen, and went on to make a number of suggestions for a less traditional and destructive approach. This judge and others (V v V [2004] 2 FLR 851) have been outspoken in asking the UK Parliament and the criminal justice system for legislative changes, for better organisation of judicial rostering so as to allow single judge management and for greater resourcing for support services and for the scheduling of urgent hearings.

Correspondence to: Dale Clarkson, District Court Judge, Auckland, New Zealand. Email: [email protected]

ISSN 0964-9069 print/1469-9621 online # 2006 Taylor & Francis DOI: 10.1080/09649060601119433

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Munby J’s words are likely to resonate with anyone who struggles with cases of ‘intractable contact’, ‘implacable hostility’ or ‘parental alienation’. The label matters little; the problem is just as hard, whatever it is called. This article aims to set out a framework for recognising, and then managing, these cases at various stages of the court process. We examine some of the underlying psychological processes at work, in order to support the strategies advocated. We go on to support a firm approach to cases at the extreme end of the spectrum, having regard to the risks for children of allowing the rejection to continue. The strategies discussed are available in the New Zealand setting, but they are also likely to be capable of employment in many other jurisdictions with a ‘best interests of the child’ policy. In New Zealand, the recently enacted Care of Children Act 2004 (COCA) promotes the strong involvement of both parents in the lives of their children after separation. It also promotes the participation of children in decision-making, in accordance with the United Nations Convention on the Rights of the Child (UNCROC). It does so with particular reference to Articles 9 and 12 of the Convention. The Court’s handling of this issue is under intense scrutiny in many countries. Fathers’ rights groups across the world have drawn considerable media attention to their view that the role of fathers tends to be undervalued. In reply, other politically active organisations, often women’s groups, strongly advocate for Family Courts to focus on the prevention of child abuse and domestic violence. In a companion paper (Clarkson & Clarkson, submitted to the Journal of Social Welfare and Family Law in 2005), we discuss the sexual politics in more detail. The reality for Family Courts today is consistent with Gardner’s observation (Gardner, 2001b) that a ‘gender shift’ has occurred so that both sexes are now accused of ‘alienation’ and the issue cannot be seen simply in terms of ‘gender politics’. Definitions In this area, a consensus on the most useful terminology has yet to emerge. Warshak (2003) has helpfully summarised the controversy which has arisen since Gardner’s formulation of parental alienation syndrome (PAS) (Gardner, 1985). In this article, we will use the term ‘post-separation parental rejection’ to denote any situation where there is a rift between parent and child which follows the separation of the child’s parents, regardless of the putative cause. This term aims to be purely descriptive and free of any implication of blame. We discuss our reasons for adopting this term in more detail elsewhere (Clarkson & Clarkson, submitted to the Journal of Social Welfare and Family Law in 2005). We mean the term to cover the same phenomenon as Kelly and Johnston’s (2001) alienated child continuum, but we prefer to avoid the word ‘alienation’. This is because the concept of ‘alienation’ has been used in so many different ways by different writers that it has no clear meaning. We have chosen not to attempt any sub-classification of the phenomenon, since this inevitably requires that causal assumptions creep into the definition. It also implies sharply defined boundaries, where research shows us that there are none (Johnston, 2005).

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Benign Forms of Post-separation Parental Rejection? Some commentators (Bruch, 2001) have suggested that post-separation parental rejection is common, benign and usually requires no intervention. There can be a number of reasons for minor difficulties with contact after separation. We suggest that these include:

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Normal separation anxiety in young children. This should only be an issue with an infant or in young children where the child is unfamiliar with one parent who did little parenting, or who was completely absent before separation. Dislike of the tougher rules at one house. Typically, children adapt quickly and without much distress to different parenting styles and different rules in the two households after separation. Such differences are, after all, common enough in homes where the parents are together. If such differences are extreme, or are manifest during adolescence, this might encourage a child to want to live with the more liberal parent. However, in this situation the child would not necessarily want to cut off from the ‘tougher’ parent. Dislike of a new partner and their children. There is no doubt that adjusting to the arrival of a new partner in a parent’s life, particularly if that includes step-siblings, is difficult. Even if the child chooses to avoid contact (and so, technically, this is post-separation parental rejection), the child may actually want more contact with the parent but feel left out. Also, the child may be critical of the rejected parent’s decisions about the new partner, but need not allege abuse or other mistreatment. Provided that the child is not encouraged in their resistance, this should not usually develop into a major problem. Dislike of the upheaval involved in moving houses frequently. Teenagers, in particular, may express a desire to stay with one parent more than another if they find the process of moving house frequently disruptive. However, this is not the result of relationship difficulties and should be easily distinguishable from more serious problems. Normal developmental allegiances. Every parent recognises that children can go through phases of being closer to one parent. Indeed, the tasks of sexual and social development probably require such relationship shifts. However, these shifts do not naturally extend to outright rejection of one parent.

It is not surprising that children do not always find it easy to maintain a good relationship with both parents through the emotional turmoil of separation. Despite that, around 80 percent of children manage to avoid any significant alignment (Johnston, 2003) after separation. (Johnson refers to ‘alignment’ to describe a child who shows a preference for, or is more identified with the views of, one parent and who has some ambivalence towards the other parent). Of the 20 percent of children who do develop some degree of rejection, most will resolve this by adulthood (Bruch, 2001). However, this does not mean that the problem is benign. Several studies have documented the poor mental health of alienated children (Kelly, 2000; Johnston et al., 2005) It is normal for children to seek the best possible relationship with both parents and, in fact, all adults with whom they have contact. Some writers take a strong stance on this: Children do not naturally lose interest in and become distant from their nonresidential parent simply by virtue of the absence of that parent. Also, healthy

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and established parental relationships do not erode naturally of their own accord. They must be attacked. (Bone & Walsh, 1999)

Experts in child abuse remind us that it is the natural tendency of children to relate to adults that makes children so vulnerable to abuse. This is, presumably, at least partly the explanation for Johnston’s finding, in her recent study of alienated children, that abuse was not ‘primarily responsible for the child’s rejection of the parent’ (Johnston, 2005). The court, then, has good reason to be cautious about accepting the assertion that the rejection of a parent is simply the result of the abusiveness or parenting failure of the rejected parent. Nevertheless, occasionally the rejected parent may be so abusive that the child’s attitude needs no further explanation. What Lies Behind Post-separation Parental Rejection? In the much more typical situation where the child’s rejection of the parent is out of proportion to the perceived failings of that parent, the causes and solutions are more complicated. This is a problem because the court’s task is to make decisions and, by their nature, decisions tend to have an all-or-nothing quality. This problem is exacerbated by the degree to which the court is adversarial in its process. Parental rejection occurs against the backdrop of separation, which is a process saturated in painful feelings of guilt and blame. Moreover, it concerns that most fundamental and important of all relationships, that between a parent and a child. Little wonder that it is so hard to escape the conversation endlessly circling back to the question of who is to blame (see L v Q[2003]NZFLR 689). The literature (e.g. Johnston, 2005) and everyday court experience are increasingly in agreement that the attitudes and behaviour of all the parties are relevant and must be taken into account in managing the problem. Even where the rejected parent is very substantially behind the problem, the aligned parent’s response is extremely important. Likewise, even where the aligned parent is very substantially behind the beginnings of the problem, a rejected parent who becomes abusive, critical or even loudly aggrieved may well provide powerful encouragement for his or her child to stay away. Similarly, many factors in the child are highly relevant, including such obvious factors as age and the consequent level of understanding. We suggest that, where the rejected parent has not been abusive and where the relationship was good prior to the separation, we must examine the child’s relationship with the aligned parent. The problems here are likely to be relatively hidden and will usually be disputed by both parent and child, which is why we make no apology for spending more time detailing these. This is not to suggest that the aligned parent is more culpable. We suggest (and others have written similarly: see Clawar & Rivlin, 1991; Waldron & Joanis, 1996) that, where an aligned parent is, intentionally or not, putting pressure on a child to reject the other parent, there will be elements of, or a combination of, the following ingredients:

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The parent wants reconciliation. Post-separation parental rejection may be an unintended consequence of one parent desperately wanting reconciliation with the

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ex-partner. Possibly unconsciously, the aligned parent sets up the child in a hostage situation. The aligned parent is motivated by the hope that the ex-partner may return to the family rather than face the loss of the relationship with the child. The parent wants revenge. This situation is more likely where the separation has been sudden and where one party feels particularly aggrieved. The aligned parent sees the rejection as a just punishment as well as taking the view that the child would be better off without the other parent. The parent wants vindication in the child’s eyes. Here, the aligned parent feels so ashamed about the separation that he or she requires the rejection as concrete evidence of the guilt of the other party and his or her own innocence. The parent is on the brink of emotional collapse. Post-separation parental rejection may occur not through pressure from the aligned parent, but through a decision by the child that that parent is so fragile that the child must sacrifice the relationship with the other parent, at least temporarily, in order to care for the aligned parent. This situation is more likely where the aligned parent is mentally ill. The parent cannot resist exercising his or her power over the other parent. This can occur where the aligned parent feels that he or she has been powerless in the marriage and that he or she must now exercise power over the ex-partner in order to recover from the debilitating effects of the years spent in subjugation. Winning the battle for the children may appear to be the only way to achieve this. Alternatively, it may be a continuation of the exercise of power as it existed in the relationship. The extended family is too partisan. This situation may arise where the extended family is so hostile to one parent that the other parent and child cannot resist getting the approval of the wider family through parental rejection. The court and/or mental health professionals are not helpful. Whilst we do not believe that the courts can cause parental rejection, we also suspect that an excessively adversarial court process, and professionals who have insufficient regard for the importance of the relationship with both parents, may inadvertently set the scene for encouraging rejection.

The Response of the Legal System What can the legal system do to mitigate the process of post-separation parental rejection? In many cases, by the time the court becomes involved, contact will already have been stopped on the basis of a child’s objections and/or allegations that the child is at risk in the other parent’s care. While no contact occurs, if the allegations are untrue or distorted, the child does not have the corrective effect of time with the parent and the distortions may well become entrenched by repetition (Bone & Walsh, 1999). However, there are a number of things that the legal system can do in the right circumstances. Prevention To state the obvious, separation is an extremely difficult time for everyone involved. Emotions run high for parents and few of us would be able to keep our children’s best interests clearly in mind. However, there is every reason to be optimistic that an educative approach may help parents avoid or minimise aligned behaviours. In New

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Zealand, the Family Court has introduced a programme called ‘How to Help Your Kids When You Separate’. This aims to educate separating parents about the dangers of conflict for their children. Prevent Delay Delay is the scourge of the family justice system (Re D [2004]1 FLR 1226). These cases are notorious for lengthy litigation. However, the court does not have the luxury of time because the problem is likely to deteriorate the longer it is not recognised and managed. Whilst it is always easy in retrospect to recognise that a case has been much too drawn out, it is not so easy to prevent delay as it occurs. Nevertheless, preventing delay must be a major focus of case management. A number of strategies can be applied in this context: Early recognition Usually, the most significant source of delay in dealing with post-separation parental rejection is that the court has not recognised it and has therefore not even begun to manage it. In order to do so, the court must come to a conclusion about the allegations against the rejected parent: In an intractable contact dispute, where the residential parent is putting forward an allegedly factual basis for contact not taking place, there is no substitute … for findings by the court as to whether or not there is any substance to the allegations. (Re M [2003]2 FLR 636)

There are a number of reasons why courts hesitate to act decisively. Firstly, the courts have, quite rightly, been highly sensitised to the issue of child abuse over the last several decades. Moreover, they have been given strong messages about accepting what children say and are keen to protect children. Undoubtedly, some abusive parents have used allegations of PAS as a smokescreen to divert attention away from their own criminal behaviour or inept parenting. Secondly, the whole concept of post-separation parental rejection/PAS is controversial. Thirdly, there has been a tendency to defer such determinations until after an opinion is available from a mental health professional. This has a number of effects. Firstly it takes time to obtain the expert opinion. This is acceptable where the court cannot proceed without that opinion. However, where physical abuse has been alleged, the Court may be better able to make a determination than a mental health professional. Also, there is, as yet, insufficient reliable data about post-separation parental rejection to greatly assist the court. Alongside this, mental health professionals may themselves be reluctant to name the problem when it is so contentious and is almost certain to be contested by one of the parties. Good assessment A clear assessment of the nature of the relationship between the child and both parents is essential. What is crucial here, and not always given the attention it should

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be, is the nature of the relationship between the child and the rejected parent before the separation. Understanding this relationship should help considerably in clarifying the nature of the rejection. The nature of the relationship with the aligned parent is also critical, since a superficial understanding of this may not reveal the problems which underlie post-separation parental rejection. It is also important to assess the participation of other major players. What role are new partners, grandparents and therapists adopting? Are they blindly accepting and reinforcing the perceptions of the resistant parent? Are they failing to confront the parent or parents about attitudes which require challenging? How powerful is the child at the heart of the dispute and how much attention is given to their complaints? Avoid ‘duelling experts’ In New Zealand, the usual practice is for the appointment of an expert report-writer, usually a psychologist, by the Court (s.133 COCA). This generally avoids the parties having to engage their own experts and the unhappy spectre of ‘duelling experts’, which can inflame and prolong proceedings. If a party is particularly aggrieved by the opinion of the Court’s expert, they can call another expert. Also, there is a ‘secondopinion protocol’ which ensures contact to the first expert’s base data (Maxwell et al., 1996). This provides an opportunity for the experts to raise and discuss differences of approach and opinion prior to any court hearing. Streamline court processes There need not be long delays if the Court is prepared to have a swift hearing to determine interim contact once concerns have been raised. This will require the early appointment of Counsel to represent the child. In New Zealand, this occurs in all cases likely to proceed to hearing or involving allegations of violence or abuse (ss.7 and 60 COCA). It may also be important to have a preliminary view from an expert available at an early stage. To avoid delay at the first, fact-finding, hearing, this expert evidence might have to be in oral form. This would involve a change of practice and approach by lawyers and psychologists alike. Single judge management Delay is inevitable where there are a series of judges who must each come to grips with the case before feeling able to intervene. Patterns are much easier to see when one judge has a continuous involvement with the file. Also, adjournments are less likely. These cases may require a change of mind, as the court gradually comes to understand the way in which the family is really operating. They also require firm enforcement, which may not be appropriate for a judge coming fresh to the case.

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Avoid a series of failed consent memoranda In New Zealand, for the past 25 years, the Family Court’s approach to dispute resolution has been to encourage parties to resolve their own problems with the assistance of counsellors, with judges acting as mediators. If one of the parents does not approach mediation with a reasonable degree of goodwill, mediation can simply operate as a means of delaying contact. If not sufficiently ‘tied down’, such poorlymotivated agreements are doomed to fail. It may be that some fail because the aligned parent never had any intention of complying. Others may fail because the emotional pressures underlying the process of post-separation parental rejection overwhelm the good intentions present when the agreement is made. Whether or not it is conscious, the aligned parent’s motivation is often to ‘buy time’ and the court must not be passive in the face of this. The solution to this is two-fold. Firstly, consent memoranda should not replace fact-finding about the basis for the contact difficulty. Secondly, the court must recognise a pattern of failed consent memoranda early and intervene. This is easier said than done, because the aligned parent is likely to be very convincing about what went wrong in each situation. It is easy to get drawn into the detail and fail to see the pattern. Be prepared to act decisively The court should grasp the nettle. Such allegations should be speedily investigated and resolved, and not left to fester unresolved and a continuing source of friction and dispute. Court time must be found—and found without delay—for fact finding hearings. (Re D (Intractable Contact Dispute:Publicity) [2004]1 FLR 1226)

One of the central questions lying behind post-separation parental rejection is whether a good relationship with both parents is so important that the court must strive to achieve it no matter what the opposition. Professionals have different views on this (Bruch, 2001; Gardner, 2001a). A lack of commitment by professionals to achieving the restoration of the relationship with the rejected parent will be noted by the alienator and will provide encouragement to him or her. One of the most uncomfortable aspects of this problem is that the consequences of being indecisive about restoring contact with a rejected parent may not be apparent for many years whereas the consequences of insisting on contact are immediate and often dramatic, sometimes with a troubling escalation of the child’s distress. However, this may quickly give way to great relief. It can be impossible to know in advance how the child will react. Maintain or Restore Contact Wherever Possible Given the truism that post-separation parental rejection is difficult to sustain whilst contact with the rejected parent continues, the court must be very cautious about suspending contact. There is a difficult balance to be made here between running the

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risk of hindering the detection of abuse by allowing contact and the risk of maintaining the post-separation parental rejection by suspending contact. What seems difficult to justify is a decision to allow contact to be stopped purely because the changeover has become difficult or because the court has not yet decided on how to proceed. Commentators have yet to reach a consensus about this issue. Gardner (2001b) was firmly of the opinion that contact should continue. Johnston (2005) suggests a case-by-case decision based on a sound risk–benefit assessment. The difficulty for Johnston, though, is that we have insufficient information about the long-term consequences to make a rational risk–benefit analysis. It is too easy for the court to justify inaction as rational when it is actually motivated by an understandable distaste for taking on the task of enforcing contact. Co-ordinate Therapy and Court Enforcement These are cases where all the professionals must work together, not sequentially or individually. Growing experience in this field is showing that counselling or therapy alone is ineffective (see later) and simply leads to delay. On the other hand, enforcement alone is difficult to justify given that most people caught up in postseparation parental rejection are acting without full awareness of what is driving them to act as they do and that full resolution of the problem almost certainly involves some emotional healing. Simply put, without enforcement therapists are likely to be ineffective and without therapists the court is likely to be perceived as bullying or merely punitive. While there may well be a need for debate amongst professionals about who is contributing what to a case of post-separation parental rejection, once the court has made findings of fact then successful implementation of management strategies requires that the professionals involved put aside differences and work together. The high emotions and the relatively adversarial nature of court proceedings make it all too easy for professionals to contribute to the problem by joining the conflict rather than containing it. This may be particularly difficult for Counsel for the Child, who may feel torn between their obligation to listen to, and represent, their client’s views and their commitment to a team approach based on the court’s findings. There is little consensus as yet about the best therapeutic approach to this problem. Gardner’s recommendations are detailed but controversial. Other commentators (such as Freeman et al., 2004) remain enthusiastic about a therapeutic approach, with varying levels of enthusiasm for changing custody as a last resort. Issues of confidentiality in relation to therapy are a problem for the collaborative approach which we favour. If therapists cannot report to the court with a reasonable level of openness then the court may not get an accurate picture of what is happening and then cannot contribute useful enforcement strategies to back up therapeutic gains. However, many mental health professionals are uncomfortable with this and the legislation precludes it. Some countries (particularly the United States) have begun to use ‘special masters’, or parenting co-ordinators, in key co-ordinating roles (Coates et al., 2004). These are

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lawyers or mental health professionals who are empowered to oversee, educate and arbitrate the ‘minor glitches’ which can arise and, if necessary, report back to counsel about contraventions. The involvement of such a person avoids the delays which can arise if every problem needs to be referred back to the court. Also, they are not bound by the same degree of confidentiality that applies to counsellors and therapists. There are real doubts as to the jurisdiction for appointing such a person in New Zealand and there are concerns that this may well be an unjustified delegation of judicial authority. What can be done, if the statutory child protection agency is already involved (e.g. if the child is under the guardianship of the court), is that a social worker can fulfil this monitoring and management role. This has been done in New Zealand (T v H and H, 23.3.05, Kaikohe Family Court, 027/16.97). This is analogous to the proposal that Bracewell J made, where she contemplated a broadening of the role of the UK CAFCASS officer (V v V [2004] 2 FLR 851). Ensure Detailed Court Orders When considering the structure of court orders defining contact, attention to detail is essential. In particular, we would urge that the following checklist (modified from Sullivan & Kelly, 2001) be considered as a minimum:

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Anticipate resistance at least, and outright sabotage at worst. Therefore, detail such matters as every start and finish time and date, handover arrangements and transport responsibility. Leave nothing to chance. Above all, ensure that no discretion or room for negotiation is left in the hands of the child or aligned parent. Eliminate the possibility of any conflict at handover, by arranging an intermediary or handover at a supervised contact centre. Not only will conflict increase the child’s distress, it will likely strengthen the rejection process by setting the aligned parent up as victim and the rejected parent as perpetrator. Build in a pattern of steady progress by automatically increasing contact time. By doing this, there is a demonstrated expectation of success. If the parties return to court at the end of each progressive stage, there is an opportunity for arguments to be repeatedly advanced and, perhaps worse, for significant delay. It is often at this point that the rejected parent gives up in frustration Prevent intrusions into the time that the rejected parent spends with the child (no ‘checking up’ to see if the child is alright). This may mean banning telephone calls from the aligned parent to a child while in the care of the rejected parent for a period. Build in clear consequences for a breach of, or departure from, orders and, if possible, have these operate automatically. The Care of Children Act 2004 constrains the use of automatic consequences (this is discussed further later).

Reinforce Guardianship Rights Since the court is often dealing with an aligned parent who would happily see the other parent ‘slide off the planet’, it is common to have schooling decisions, name changes and medical interventions decided unilaterally. This needs to be kept in

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check. The converse of this is that rejected parents also need to be encouraged to honour their guardianship responsibilities. A parent who is falling down in the area of financial support is unlikely to be readily redeemed in the eyes of his or her child. Fast and Firm Enforcement Both lawyers and courts can ensure that if orders are breached they are enforced firmly and without delay. Lack of enforcement sends a message of support to the aligned parent that is likely to embolden him or her. Enforcement without delay, however, can only be a useful practice if the judge explains clearly, and well in advance, the contents of orders and the consequences for their breach If firm enforcement is to be applied later, everyone must be clear about the expectations from the outset. In New Zealand, it is encouraging to see the new powers given to the Court in the Care of Children Act 2004 that enable it to enforce its orders with some vigour. It remains to be seen whether consequences such as the ordering of a bond or contribution towards ‘costs of contravention’ will deter a parent determined to undermine contact, or whether such consequences will serve to reinforce the child’s image of themselves and the alienator as victims. The real concern is that these provisions will impose yet further delays. While the overall tenor of the Act is supportive of the continuing involvement of both parents, s64 places a large hurdle in the way of early intervention. This hurdle is in the form of subs(2)(b): The Court must, unless the circumstances are exceptional, make orders or issue warrants under any of sections 70 to 77 only as a matter of last resort. (emphasis added).

The orders so restricted are warrants, bonds and costs of contravention. This provision is somewhat ameliorated by s 68(2), which allows such enforcement if ‘the contravention’ (of a parenting order) is ‘of a serious nature’, or there has been a previous contravention. It is possible that lawyers may advise clients to apply for enforcement pursuant to this part of the Act, if only to record a ‘first contravention’. More helpful is s 68(1) (b), which allows a judge to vary an order which has been contravened in order that ‘make-up’ time can be provided. This may prove to be the best disincentive to breaching a contact arrangement. The other remedies which existed under the previous legislation are still available. These include:

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Referral to child protection services for their intervention (s19 Children Young Persons and Their Families Act 1989). Making the child a Ward of the Court (but this still requires an application to be made by an authorised person). See C v C[NZFLR]689. Prosecution under s78 COCA for contravening a parenting order. This section introduces the penalty, on conviction, of imprisonment for up to three months. The difficulty remains that a prosecution opens up the opportunity of relitigating the whole dispute by raising a defence of ‘reasonable excuse’. How willing judges will be to

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impose such a sentence remains to be seen. However, there are useful precedents in the United Kingdom and in Australia, both of which have had this power for some time. Referral to counselling which can be enforced by summons. Again, the usefulness of this is untested. Admonishment by the judge for a breach. Change in custody (discussed later).

Listening to Children Internationally, there is a strong move towards the recognition of children as individuals with rights to greater involvement in decision-making which concerns them. This is a major new emphasis in COCA (e.g. ss6, 7). However, the Act also attempts to strengthen the role of both parents, promoting full participation in their children’s lives after separation. These two principles may collide where postseparation parental rejection is operating. Indeed, it can be argued that postseparation parental rejection is an indirect and unintended consequence of this important social change. When children were ‘seen and not heard’ there was little to be gained from efforts to persuade children to any particular view. This perhaps explains the emergence of the post-separation parental rejection, at least in its current form, over the last 30 years. We have discussed elsewhere (Clarkson & Clarkson, 2005) the complexities involved in hearing and assessing the real meaning of children’s view in the context of post-separation parental rejection. Should a Change of Custody be Forced on an Unwilling Child? If all else has failed, the court must decide whether to accept the loss of relationship between the child and the rejected parent or force the issue of contact up to and including changing custody to the rejected parent. There are two opposite views in the literature on this key matter. One view is that forcing contact may be both necessary and desirable and it is failure to do so that creates the real damage: … since the child is unable to acknowledge the loss [of the rejected parent], much less mourn it, it becomes a major tragedy of monumental proportions in the life of the child, the seriousness of which cannot be overestimated. (Cartwright, 1993)

This view holds that severe parental rejection tends to persist without strong and decisive intervention and that the longer it goes on the more likely it is that the relationship with the rejected parent can never be restored. The long-term view for children who are allowed to continue with a distorted view of a parent is not positive. Behind a fac¸ade of maturity and confidence, there may be an internalisation of the aligned parent’s rage, as well as guilt and self-loathing associated with the rejection of a parent. Enmeshment with the aligned parent is a risk which carries with it difficulties in maturing, in having realistic relationships and in leaving the family of origin later in life (Waldron & Joanis, 1996).

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The opposing view is that it is unnecessary, harmful and contrary to a child’s rights to force contact with the rejected parent: There is great advantage in allowing natural maturation to take its course and to avoid overzealous intervention to break these alliances, which are usually strengthened by efforts to separate the allies. In this, the alliance may be akin to a moderate case of flu that mobilises the immune system and generates antibodies. It is not a fulminant cancer requiring radical surgery or an amputation, especially by poorly trained surgeons. (Wallerstein et al., 2000)

There are only a handful of studies on the matter and, as is usual in the early stage of researching a new area, they have significant methodological flaws. Clawar and Rivlin (1991) have published by far the largest study on the matter. They studied 700 alienated children. Four hundred of those 700 children were ordered to increase contact with the rejected parent. In half of those, it was over the objections of the children. The authors report that in 90 percent of these cases a positive change in the relationships between the children and the target parent was observed. They conclude: It is our opinion that one of the most powerful tools the courts have is the threat and implementation of environmental modification.

Lampel (1986) described seven alienated children and compared the outcome for those forcibly separated from the aligned parent to those who were not. The only child whose views significantly changed was the one who was placed with the rejected parent. Also, Dunne and Hedrick (1994) described 16 cases of moderate to severe PAS. The court ordered custodial change and/or limitation of contact with the aligned parent in three of these cases. In all three cases, the PAS was eliminated. In the other 13 cases, the court ordered neither custodial change nor restriction of contact to the children by the aligned parent. Traditional psychotherapy was, however, provided. None of the children in the latter group altered their views. Finally, Gardner (2001b) reported on 99 cases in which he recommended a change in custody. He reports that all 22 cases in which the court did so resulted in a reduction in ‘PAS symptoms’, against only seven of 77 where the court did not do so. Taking the available information about those cases with well established contact difficulties, the evidence suggests that time alone, even with traditional psychotherapy, is not effective. This is in contrast to those community studies which show that most post-separation parental rejection does resolve by adulthood (Bruch, 2001), though sometimes by the child switching allegiance. Some writers are reassured by these findings and use them to advise against forcing contact or changing custody. Others do not agree that the data is as reassuring as these authors suggest: The view that irrational alienation requires no intervention because it resolves itself by age eighteen also is difficult to defend … The study reported no measure of the quality of the child’s relationship with each parent after the alienation abated, nor of the mental anguish suffered by the rejected parents during the period of estrangement, and the regret, guilt, and remorse suffered by the children when they confronted the irreplaceable lost years of childhood spent with one parent instead of two (and often one extended family instead of two). (Warshak, 2003)

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Of course, a definitive study, where children are randomly assigned to custody change or not, cannot be conducted. There can be no substitute for careful assessment of each case. However, our reading of the current state of the evidence is that increasing or forcing contact is not necessarily traumatic. Changing custody has not been reported to have produced disastrous results for any child and, indeed, seems to have been successful in the few reported cases. The literature cannot yet be said to support those who warn of the dire consequences of doing so. Long-term follow up studies should help considerably in determining this issue. In the meantime, and given the current controversy, it is little wonder that the main commentators are hedging their bets. Johnston (2005), for example, recommends that a change of custody ‘should be seriously considered’ in a number of situations including ‘… when the aligned parent continues to be emotionally abusive e.g. makes repeated malicious, unsubstantiated allegations of abuse about the rejected parent, and attempts to inculcate negative beliefs in the child …’. She also says that: What hurts is to do nothing, long delays where the child has no contact with the rejected parent, draconian punishments and threats, ‘parentectomies’ (severing the child’s relationship with the aligned parent abruptly), ongoing litigation in the adversarial legal system, and total disregard for the child’s ongoing distress or the teenager’s need to have some choice in those more difficult cases that are resistant to resolution.

If no empirically supported general recommendations can be made—and they cannot—the court is left making a call as best it is able with the information before it. Patently, any consideration of custody change must be subject to the usual scrutiny of the proposed primary caregiver (V v V [2004] 2 FLR 851). In the meantime, we would like to see an end to descriptions in the literature of custody change being ‘punitive’ or ‘draconian’. It is clear that whenever the court is faced with an intractable contact problem someone is going to feel unfairly treated and punished, whether the outcome results in custody change or continued rejection. Conclusion There is very little that can be safely concluded about this subject. In the background discussion of the legal processes and responses, we have summarised much wider and broader social debates about the rights of children and the roles of parents in the context of a dramatic increase in the frequency of separation over recent decades. What we are recommending here is that we do not step back and leave children to struggle alone with the pressures behind post-separation parental rejection. We would make a plea that those involved in decision-making should exercise decisiveness and strength of purpose with a sense of compassion for those caught up in the emotional maelstrom of separation. To do nothing in the face of these forces is certainly an abandonment of children by the system which is charged with their protection. All of the management strategies we advocate are possible within the legislative framework in New Zealand. However, they require considerable commitment to the goal of children’s entitlement to two parents on the part of all

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professionals involved, a commitment to providing the necessary energy to overcome the multiple obstacles which may be erected. One important mechanism for achieving the kind of consistent approach we advocate is for education (including judicial) and debate in a multi-disciplinary setting. Promoting our ideas in this article is, therefore, an excellent place to start. References Bone, J. & Walsh, M. (1999) ‘Parental Alienation syndrome: How to detect it and what to do about it’, Florida Bar Journal, vol. 73, pp. 44–48. Bruch, C. (2001) ‘Parental Alienation syndrome and parental alienation: Getting it wrong in child custody cases’, Family Law Quarterly, vol. 35, pp. 527–552. Cartwright, G. (1993) ‘Expanding the parameters of Parental Alienation syndrome’, The American Journal of Family Therapy, vol. 21, pp. 205–215. Clarkson, D. & Clarkson, H. (2004) ‘The rights of children under the Care of Children Act 2004, with particular reference to cases of parental alienation or intractable contact disputes’, New Zealand Family Law Journal, vol. 5, part 4. Clarkson, H. & Clarkson, D. (submitted 2005) ‘Confusion and controversy in parental alienation’, Journal of Social Welfare and Family Law. Clawar, S. & Rivlin, B. (1991) Children Held Hostage: Dealing with Programmed and Brainwashed Children, American Bar Association, Chicago, IL. Coates, C., Deutsch, R., Starnes, H., Sullivan, M. & Sydlik, B. (2004) ‘Parenting co-ordination for high conflict families’, Family Court Review, vol. 42, pp. 246–262. Dunne, J. & Hedrick, M. (1994) ‘The Parental Alienation syndrome: An analysis of sixteen selected cases’, Journal of Divorce and Remarriage, vol. 21, pp. 21–38. Freeman, R., Abel, D., Cowper-Smith, M. & Stein, L. (2004) ‘Reconnecting children with absent parents: A model for intervention’, Family Court Review, vol. 42, pp. 439–459. Gardner, R. (1985) ‘Recent trends in divorce and custody litigation’, The Academy Forum, vol. 29, pp. 3–7. Gardner, R. (2001a) ‘Should courts order PAS children to visit/reside with the rejected parent? A follow-up study’, American Journal of Forensic Psychology, vol. 19, pp. 61–106. Gardner, R. (2001b) ‘Parental Alienation syndrome (PAS): Sixteen years later’, Academy Forum, vol. 45, pp. 10–12. Johnston, J. (2003) ‘Parental alignments and rejection: An empirical study of alienation in children of divorce’, The Journal of the American Academy of Psychiatry and the Law, vol. 31, pp. 158–170, at 159. Johnston, J. (2005) ‘Children of divorce who reject a parent and refuse visitation: Recent research and social policy implications for the alienated child’, Family Law Quarterly, vol. 38, pp. 757–775. Johnston, J., Walters, M. & Olesen, N. (2005) ‘The psychological functioning of alienated children in custody disputing families’, American Journal of Forensic Psychology, vol. 23, pp. 39–64. Kelly, J. (2000) ‘Children’s adjustment in conflicted marriage and divorce: A decade review of research’, Journal of the American Academy of Child & Adolescent Psychiatry, vol. 39, pp. 963–973. Kelly, J. & Johnston, J. (2001) ‘The alienated child: A reformulation of Parental Alienation syndrome’, Family Court Review, vol. 39, no. 3, pp. 249–266. Lampel, A. (1986) ‘Post-divorce therapy with high conflict families’, The Independent Practitioner, vol. 6, pp. 22–26. Maxwell, Seymour & Vincent (1996) ‘The practice of psychology and the law—A handbook’ (section C), pp. 2–6. Sullivan, M. & Kelly, J. (2001) ‘Legal and psychological management of cases with an alienated child’, Family Court Review, vol. 39, pp. 299–315. Waldron, K. & Joanis, D. (1996) ‘Understanding and collaboratively treating Parental Alienation syndrome’, American Journal of Family Law, vol. 10, pp. 121–133.

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Wallerstein, J., Lewis, J. & Blakeslee, S. (2000) The Unexpected Legacy of Divorce—A 25 Year Landmark Study, Hyperion, New York. Warshak, R. (2003) ‘Bringing sense to parental alienation: A look at the disputes and the evidence’, Family Law Quarterly, vol. 37, pp. 273–301. The authors would like to express their gratitude to Wolfson College, Cambridge, for a wonderful Spring Term 2005, as Visiting Fellows, during which this medico-legal endeavour was undertaken. In particular they wish to thank Professor Hugh Bevan for his welcome, encouragement and helpful comments.