Parental Alienation Syndrome or Parental Alienation (“PA”) is a very tricky problem in modern day families and has become a rising issue in divorce matters. It is a grave concern for many Courts around the world in custody or contact disputes. Although there is no legal specificity on it, it was coined by psychiatrist in the 1980’s known as Richard Gardner. There are various definitions of both terms but both scenarios involve the same thing: estrangement of children from parents. It is not a legal term but rather a psychological or psychiatric term that has become recognised in the South African Courts over the years.

Parental Alienation Syndrome and Parental Alienation (used interchangeably by the Courts) has received a lot of attention by our Judges in recent years, more so after the inception of the Children’s Act, 38 of 2005 which was enacted in 2008. The first case in which Parental Alienation Syndrome peaked its head was in Soller NO v G (2004) JOL 12124 (W) where Katherine Satchwell J quoted one psychologist who defined Parental Alienation Syndrome as:

a distinctive family response to divorce in which the child becomes aligned with one parent and preoccupied with unjustified and/or exaggerated denigration of the other target parent. In severe cases the child’s once loved, bonded relationship with the rejected target parent is destroyed. Parental alienation has thus been defined as any constellation of behaviours, whether conscious or unconscious that could evoke a disturbance in the relationship between the child and the other parent.

It was observed further by Satchwell J that this issue arises “primarily from the combination of parental influence and the child’s active contributions to the campaign of denigration. The alienating parent is viewed as a responsible adult who elicits or transmits a negative set of beliefs about the target parent.” The behaviours to keep out for include where the “child does not want to visit or spend time with the targeted parent, that many of the child’s beliefs are enmeshed with the beliefs of the alienator, the child is not intimidated by the court being so caught up in the alienating parent’s web and feels so empowered by the alienating parent that no authority can intimidate them…” resulting in a situation where the child acts like this without a feeling of guilt and the parent reinforces the behaviour as being correct.

The recognition of Parental Alienation Syndrome came about after some Courts understood the necessity of children having a meaningful relationship with both of his or her parents, as was explained in Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2017] 3 All ER 1; [2016] UKSC 59. The Supreme Court of Nothern Ireland also recognised that the right belongs to child’s to have a relationship with his or her parents. It is therefore important to elaborate on some examples of where parental alienation has manifested.

There have been other matters which have reported more severe cases such as violent behaviour by children against the alienated parent, an example of which was AC v ADT [2015] JOL 33077 (GJ), This case termed it “malicious mother syndrome” but it is likely that this was case-specific.

But, there are also cases where the perceived alienating parent is misdirected from the parent whose conduct is giving rise to such estrangement. In Kleynhans v Kleynhans & Another [2009] JOL 24013 (ECP), the Court recognised that this parental “manipulation was at first scientifically seen as perhaps the only explanation for incidents of parental alienation [however] later investigation showed that it is not the only inference that can be drawn in such circumstances. In many cases it is the alienated parent who is the cause of the alienation and not the other party.”

The first option to aid rehabilitation in these types of cases is to commence with bonding therapy and therapy for the child. The British Courts which have recognised this system have instilled the belief that the earlier the child, the more likely it is to recover from the effects of parental alienation.

Proving parental alienation requires more than just oral evidence and affidavits. It requires a thorough investigation into the circumstances of the child. This means it is not enough for one parent to raise the allegation against the other without there having been a proper investigation into whether or not there has indeed there been parental alienation.

Experts have mentioned in the more peculiar matters that parental alienation effected by a parent (the one facilitating the estrangement, usually through deliberate means) will need to participate in the process of undoing the harm caused. Whilst this may seem counterproductive, in the eyes of the child, this parent is the one whose trust remains intact. This is different to parental alienation which takes place through deliberate conduct of a parent who later claims that his or her counterpart was key to the estrangement. In Van Niekerk v Van Niekerk [2006] JOL 17166 (T), it was stated that regardless of the type, mere say-sos of both parents will not suffice to determine the presence of parental alienation syndrome. Whilst the Courts are more sympathetic to instances of the former nature, because the right of contact belongs to the child and not to the parent, the Courts are likely to assist in rehabilitative remedies. Some experts have even gone as far as saying that parental alienation is a form of child abuse.

If you believe that your contact rights are being jeapardised by a form of parental alienation syndrome, even at its inception, it is best to pick it up early and address it before it becomes toxic for the both family systems. It can be address through court intervention which focuses less on the blame and more on fixing the damage done, where possible. Clients who provide full and raw descriptions of the history to their attorneys have been more successful in these applications than those seeking purely to frustrate the other parent’s rights and responsibilities.

Aleisha Oliver

16 September 2018

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