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Parental Alienation Syndrome: A Paradigm for Child Abuse in Australian Family Law

NCJ Number
Elspeth McInnes
Date Published
May 2003
8 pages
This paper argues that the absence of a publicly funded investigative capacity in the Family Court of Australia creates the conditions for the de facto operating presumption of the Parental Alienation Syndrome (PAS) paradigm in the courts when there are allegations of child abuse by a parent; this paradigm insists that claims of serious child abuse are invented and that children's statements and manifestations of fear are due to parental coaching.
Without a publicly funded professional child protection investigative service to investigate such allegations by a parent, the private adversarial system of family law commonly fails to substantiate allegations of child abuse, thereby enhancing the perpetuation of the presumption of PAS when child abuse allegations are brought before the Family Court in child custody cases. Currently, in cases that involve allegations of child abuse, a Children's Representative is assigned the case. The Children's Representative is responsible for commissioning a Family Report with recommendations to the court for final orders. These reports are commonly based on an interview with each parent and the child by either a Family Court counselor or a private firm employed by the Children's Representative. These reports vary in quality, often containing factual errors, unfounded speculations, and false assumptions. Evidence from police, doctors, child protection services, schools, childcare workers, and social workers is not sought or considered by report writers, and when it is available and offered, it is routinely excluded. The presumption of PAS is so strong in the Family Court in cases of alleged child abuse, that when a child complains of harm by a parent, the court immediately assumes that the other parent is guilty of PAS. The system's failure to protect children from parental violence has created conditions that have caused mothers to increasingly flee with their children into hiding in preference to handing their children over for court-mandated contact with the abusing parent. When the child is recovered, the court emphasizes the punishment of the mother who has unlawfully taken the child; this customarily takes the form of giving custody of the child to the abusing parent and restricting the mother's contact with the child. By failing to sponsor quality, independent investigations of allegations of child abuse in child custody cases, the Family Court has not only failed to act in the best interests of the child but has created the conditions that can perpetuate and even escalate abuse of a child. Legislative reform to the Family Law Act to give priority to children's safety in addition to the establishment of a national child protection service are two necessary steps in improving outcomes for children from separated families with histories of domestic violence and child abuse. 23 references