Considering parental alienation under the aegis of the criminal law

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Author: Charnelle van der Bijl
• Pages: 140-157
• Date: 24 May 2019

Considering parental alienation

under the

aegis

of the criminal law

CHARNELLE VAN DER BIJL*

ABSTRACT

Parental alienation conduct for ms the focus of this article. It is dis tinguished

from the parental al ienation syndrome which identies specic behav ioural

symptoms in child ren exposed to parental al ienation. The harm s caused by

parental alienation conduc t are investigated. The man ner in which family

courts deal wit h parental alienation is examined a s well by the best interests

of a child standard . Parental alienation conduct i s identied as a form of

emotional and psychological abuse and a s a form of domestic violence.

The lacunae evident in t he approaches adopted by the family cour ts are

examined and high lighted. Legislation regu lating and proscribing pa rental

alienation abroad are considered . The eld of crimina l law is examined in

order to establish solutions to the gaps t hat are evident in the fami ly law.

A cross-dime nsional approach between fami ly law and criminal l aw is also

suggested.

1 Introduction

Parental alienation is a phenomenon that profoundly affects ma ny

persons who are engaging in a divorce process, or who have been

divorced, where one parent intentionally seeks to alienate a child

from the other parent, causing harm not only to t he other parent, but

also to the child. At the outset a di stinction must be drawn bet ween

parental alienation on one hand and parental a lienation syndrome

on the other.1 Parental alienation is a broad term that encompa sses,

inter alia, emotional a nd physical abuse and focuses specically on

the conduct of the parent2. In contrast, parent al alienation syndrome

is a term coined by a psychiatrist, Ga rdner, in 1985 that involves

consciously programming a chi ld against the other parent by using

* BLC LLB LLD (Un iversity of Pretoria), Professor in t he Department of Crimina l and

Procedural Law, Universit y of South Africa.

1 HB Sadie, L Corrie & E J Swanepoel A Practical Ap proach to the Children’s Act 2ed

(2013) 64.

2 R Berg ‘Parental al ienation analysis, domest ic violence, and gender bias in Min nesota

courts’ (2011) 29 Law & Ineq 5 at 8.

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(2016) 29 SACJ 140

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the child as a weapon against the other pa rent.3 Parental alie nation

syndrome is clearly disting uishable from parental alienation conduct

as it is specically concerned with a set of b ehavioural symptoms

relating to the child.4 It is the latter which has formed t he focus of

controversy due to its axiomatic nature. A number of fami ly courts

have, however, found parental alienation ‘syndrome’ to be admissible

in decisions relating to the custody of chi ldren.5 Notwithstandi ng,

there are also contrary v iews which consider Gardner’s coined term

‘parental alienation syndrome’ as a form of ‘pseudo-’ or ‘jun k-science’.

According to these views it shows that it is lacking a solid foundation

in psychological theory, as neither meeting the scientic standa rds,

nor means, for reliability and that it ‘obscures legitim ate sources of

estrangement between parents and chi ldren, such as abuse, neglect, or

even a child’s sense of abandonment caused by divorce itself ’.6

3 RA Gardner Fami ly Evaluation in Child Cust ody Mediations. Arbitratio n and

Litigation (1989) 233; RA Gardner The Pare ntal Alienation Syndrome: A Guide for

Mental Health and Legal Pr ofessionals (1998) 73–74; I Turkat ‘Parental Alien ation

Syndrome: A review of cr itical issues’ (2002) 18 J Am Acad Matrim L 131 at 133-134;

AM Nichols ‘Towards a child -centered approach to evaluating clai ms of alienation in

high-con ict custody disputes’ (2014) 112 Mich LR 663 at 664-665; K S chwartz ‘The

kids are not all r ight: Using the best interest stand ard to prevent parental alienation

and a therapeutic inte rvention approach to provide rel ief’ (2015) 56 Boston Coll LR

803 at 806 –814; G v G 2003 (5) SA 396 (ZH) at 403A; BL Beverly ‘A remedy to t the

crime: A call for t he recognition of the unreasonable re jection of a parent by a child

as tortious conduct ’ (2013) 15 J Law & Fam Studs 153 at 155.

4 Gardner avers that pa rental alienatio n should be recognised a s a syndrome as it

has a cluster of eight ident iable symptoms wit nessed in the chi ld. These include:

(1) ‘a campaign of denigration’; (2) the existence of borrowed scen arios where such

children see t hemselves as ‘perfect li ttle photocopies of the al ienating parent’;

(3)exploitation and a lack of g uilt over cruelty to t he alienated parent; (4) a lack

of ambivalence; (5) support for t he alienating pare nt; (6) unfounded and absurd

rationalisatio ns for the denigration; (7) a spre ad of animosity to t he friends and

family of the al ienated parent; and, (8) the presence o f independent thi nking. See

Gardner (1998) op cit (n3) 76–109; LC McGlynn ‘Parent a nd child-cus tody and

control of child: Pare ntal alienation: Trash t alking the non- custodial pa rent is not

okay: Hendrickson v. Hendrickson, 2000 ND 1, 603 N.W.2D 896’ (2001) 77 North

Dakota LR 525 at 533.

5 Turkat op cit (n3) 133; RA Gardner ‘Does D SM-IV have Equivalents for the Parental

Alienation Synd rome (PAS) Diagnosis?’ (2002), available at htt p://www.fact.on.ca /

Info/pas/gard02e.htm, accessed on 1 Ma rch 2016; R Warshak ‘Bringing sen se to

parental alien ation: A look at the disputes a nd the evidence’ (2003) 37 Fam LQ 273

at 286.

6 Nichols op cit (n3) 667, 671ff; CS Bruch ‘Parental alienation s yndrome: Junk science

in child custo dy arrangements’ (20 01) 3 Eur J L Reform 383 at 400, 550-551; MK

Dore ‘The “frie ndly parent” concept: A  awed factor for child custody ’ (2004) 6

Loyola J Pub Intere st L 41 at 52; Berg op cit (n2) 5. Of importance is that despite t he

criticism, it is note worthy that this phenomenon has been i ncluded in the American

Psychological Associ ation’s ‘Guidelines for child cu stody evaluations in d ivorce

proceedings’ (1994) 49 Amer Psychol 677; Warshak (2003) op cit (n5) 285 at 290.

Considering parental alienation under the

aegis of the criminal law 141

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