Considering parental alienation under the aegis of the criminal law

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Citation: (2016) 29 SACJ 140
• 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 children exposed to parental alienation. The harms caused by

parental alienation conduct are investigated. The manner 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 is identied as a form of

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

The lacunae evident in the approaches adopted by the family courts are

examined and highlighted. Legislation regulating and proscribing parental

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

order to establish solutions to the gaps that are evident in the family law.

A cross-dimensional approach between family law and criminal law is also

suggested.

1 Introduction

Parental alienation is a phenomenon that profoundly affects many

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 the other parent, but

also to the child. At the outset a distinction must be drawn between

parental alienation on one hand and parental alienation syndrome

on the other.1 Parental alienation is a broad term thatencompasses,

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

the conduct of the parent2. In contrast, parental alienation syndrome

is a term coined by a psychiatrist, Gardner, in 1985 that involves

consciously programming a child against the other parent by using

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

Procedural Law, Universit y of South Africa.

1 HB Sadie, L Corrie & EJ 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 parent.3 Parental alienation

syndrome is clearly distinguishable from parental alienation conduct

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

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

controversy due to its axiomatic nature. A number of family courts

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

in decisions relating to the custody of children.5 Notwithstanding,

there are also contrary views which consider Gardner’s coined term

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

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

in psychological theory, as neither meeting the scientic standards,

nor means, for reliability and that it ‘obscures legitimate 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 Family Evaluation in Child Custody Mediations. Arbitration and

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

Mental Health and Legal Professionals (1998) 73–74; I Turkat ‘Parental Alienation

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 intervention approach to provide relief’ (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 parental alienation should be recognised as a syndrome as it

has a cluster of eight identiable symptoms witnessed in the child. These include:

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

children see themselves as ‘perfect little photocopies of the alienating parent’;

(3)exploitation and a lack of guilt over cruelty to the alienated parent; (4) a lack

of ambivalence; (5) support for the alienating parent; (6) unfounded and absurd

rationalisations for the denigration; (7) a spread of animosity to the friends and

family of the alienated parent; and, (8) the presence of independent thinking. See

Gardner (1998) op cit (n3) 76–109; LC McGlynn ‘Parent and child-custody and

control of child: Parental alienation: Trash talking the non-custodial parent 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 Syndrome (PAS) Diagnosis?’ (2002), available at http://www.fact.on.ca/

Info/pas/gard02e.htm, accessed on 1 March 2016; R Warshak ‘Bringing sense to

parental alienation: A look at the disputes and 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 custody arrangements’ (2001) 3 Eur J L Reform 383 at 400, 550-551; MK

Dore ‘The “friendly 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 Association’s ‘Guidelines for child custody evaluations in divorce

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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