Child Abuse and Family Law

Understanding the issues facing human service and legal professionals

Thea Brown, Renata Alexander

• Publisher: Routledge
• Year: 2020
• Print ISBN:
  9780367717674
• eBook ISBN:
  9781000256475
• Topic: Social Sciences
• Subtopic: Public Law
• Index: Social Sciences

I have no doubt that this book will become an invaluable tool for family and children's court judges and magistrates, psychiatrists, psychologists, social workers, police and the many other professionals who work in this field.'

The Honourable Alastair Nicholson, former Chief Justice of the Family Court of Australia

A ground-breaking, comprehensive, honest, well researched and courageous book that should be essential reading for all politicians and professionals involved in both the Family Court of Australia and state child protection systems.'

Emeritus Professor Freda Briggs AO

Child abuse in the context of parental separation and divorce is not a malicious allegation, nor a misunderstanding. It is a real and growing problem with very young children as the primary victims.

Child Abuse and Family Law draws on pioneering research to identify the causes, features and impact of child abuse in parental separation and divorce. The authors argue that professionals working with these families need to better understand the specific and often severe nature of this abuse to improve outcomes for both the children and their families.

The authors develop a much-needed practice framework for all socio-legal professionals involved in the family law system. Using case studies, they take a multi-disciplinary approach to outline strategies for family lawyers, child legal representatives, social workers, child protection workers, psychologists, psychiatrists, health workers and teachers.

1 A NEW UNDERSTANDING OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION

Our understanding of child abuse in the context of parental separationand divorce has changed recently. In the past,allegations of child abuse—given as a reason for parental separation,and/or for restricted or no contact with a parent or other relative in family law proceedings after separation—were regarded as mostly false.They were seen as having been manufactured by a malicious parent who wished to exclude the other parent from the child’s life for their own selfish reasons. However, we now have evidence that shows such allegations are no more likely to be false than allegations of child abuse raised in other contexts. Child abuse in this context is real, it is serious and it should not be dismissed.Moreover, there is a distinctive profile of abuse in this context which encompasses the nature of the abuse, the victims, their families and the abusers.

This chapter introduces the current knowledge about child abuse in this newly identified context of parental separation and divorce. It reviews past explanations for such abuse, because misunderstandings from the past persist today and continue to misinform and mislead professionals in their approaches to the problem. It also identifies the distinctive aspects of abuse in this context in terms of the types of abuse which occur, victims, families, and alleged and actual perpetrators.

Detailed consideration of each type of abuse is undertaken in Chapters 4 and 5.

THE RELATIONSHIP BETWEEN CHILD ABUSE, PARENTAL SEPARATION AND DIVORCE

The relationship between child abuse, parental separation and divorce is a complex one, and the picture of the relationship is not yet complete. We know that child abuse is a reason why some parents decide to separate, and for many of these couples child abuse and domestic violence have occurred at the same time (Hume, 1997; Brown et al., 1998, 2001). Indeed, some regard domestic violence as child abuse. When child abuse and domestic violence occur together, many parents state that domestic violence is the cause of the breakdown; however, some in this position regard the child abuse as the real reason for the separation.Separating couples seem to simplify family violence in their presentation of material for divorce.They tend to bring forward only one form of family violence as a cause of separation while simultaneously referring to the existence of other forms (Brown et al., 1998; Hume, 1998; Brown et al., 2001). Perhaps the family law legal system encourages this simplification.

But parental separation and divorce also appear to lead to subsequent child abuse. First, parental separation does not stop abuse from continuing after separation,as a parent who leaves a marriage in order to protect their child from continuing abuse within the family may imagine (Hester and Ratford, 1997). Second, abuse can occur for the first time after separation— and indeed does so slightly more frequently than it does before separation (Brown et al., 2001).

The reasons why such abuse should begin after separation are not clear. It is possible that the loss of one of the two original parents reduces overall parental vigilance over the child (Wilson, 2002a), and that the separation leaves the child in an emotional state that makes them vulnerable to abuse—especially by sexual predators (Wilson,2002a). Possibly the stress of a separation,even a desire for revenge, overwhelms some parents, who then physically, emotionally or sexually abuse their children (Briggs, 2003).

Many of the consequences of parental separation and divorce—such as lower income levels, reduced physical and mental health, and housing problems—are also factors associated with child abuse (Hiller and Goddard, 1989; Cawson, et al., 2001). However, it is not yet known which factor, or combination of factors, is most implicated in causing child abuse in this context.

THE HISTORY OF UNDERSTANDING OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION AND DIVORCE

Since our current knowledge in this area is so recent, theories from the past need some detailed examination,as they are still a powerful influence on the way we think about and construct our actions when working with this problem. Professionals are still intervening on the basis of theories that we now know to be wrong, and that have no evidence to support them.

Looking back over the history of child abuse, we suggest that there have been three eras in our understanding of child abuse. These are the era of concern without understanding, followed by the era of misunderstanding and concluding with the current era, the era of dawning understanding.

Child abuse has been recognised as a social problem for many centuries. We can be said to have been concerned without having much understanding during much of this time. Abuse was seen as a problem associated with ignorance and poverty until the revelations of US child abuse researcher Dr Henry Kempe, who used his research to expose child physical and sexual abuse internationally. Kempe et al. (1962) showed that child abuse was more than a problem of ignorance and poverty, and that it occurred among parents who might have been expected to have known better and who went to great lengths to conceal it. Kempe’s public campaigns increased community recognition of the issue as a family problem during the 1960s and 1970s. Subsequently, the incidence of child abuse notified to child protection authorities rose quickly and sharply in the major English-speaking countries—first in the United Kingdom, then in the United States and Canada,and more recently in Australia and New Zealand. The dramatic rises in reported incidence continued for three decades,plateauing (for the moment) at the end of the twentieth century in the United Kingdom and in the United States, but not yet in Australia (Berliner and Conte, 2003; AIHW, 2004: 5). These trends are discussed further in Chapter 4.

Paralleling the reported incidence of child abuse, the incidence of marital breakdown also increased—first in the United States, then in Australia and New Zealand, and then in the United Kingdom (Wallerstein and Kelly, 1996). Research on marital breakdown was instigated to explain the rise in marital breakdowns, but it was not underpinned by any knowledge of child abuse in families and any awareness of the sharp rise in reported child abuse that was paralleling the increase in the divorce rate. Child abuse was not considered to be a part of marital breakdown, as either a cause or a consequence.

Nevertheless, the early researchers on marital breakdown (Wallerstein and Kelly, 1980) did discover some children who were abused by their parents among the 60 middle-class families they studied.However, they did not categorise this behaviour as child abuse, but rather as the problematic functioning of certain parents that resulted in risks to the safety of the children—a fine semantic subtlety that implied a huge difference in under-standing.Their denial of the existence of child abuse was underscored by a similar approach to domestic violence.They saw it, they noted it, but they interpreted it as part of the end stage of a dying marriage rather than a cause of the death of the marriage or as a threat to a parent and to the children after the marriage had died.They did not see either child abuse or domestic violence as being related in any way to the partnership break-down and subsequent divorce.

The combination of rising divorce rates and rising child abuse notification rates affected the professionals working in family law by the early 1980s. Increasing numbers of allegations of child abuse in the context of residence and contact disputes were presented to family and divorce courts, as well as to family law professionals,legal practitioners, social workers, psychologists, psychiatrists,paediatricians,the judiciary and other court staff. Soon family law professionals began to ask why there was such a marked increase in child abuse allegations in residence and contact disputes in family law proceedings (Thoeness and Pearson, 1988; Schudson, 1992; Toth, 1992). The answers presented at this time led to the era of misunderstanding.

The questions were tackled first in the writings of Gardner, a US psychiatrist with no background in either child abuse or the increase in its reported incidence. He put forward an explanation he called the ‘parental alienation syndrome’ (Gardner, 1986).The syndrome described a supposed family dynamic whereby mothers made false allegations against fathers about the sexual abuse of their children in order to prevent further contact between the fathers and their children, thus removing the fathers permanently from the children’s lives. He suggested that the children were brainwashed by the mother into supporting the allegations,and argued that any allegations the children made should not be believed. His views struck a strong chord with many parents and professionals.Parental alienation syndrome was a plausible explanation:it covered all aspects of the problem; it left nothing unexplained; and it maintained an entrenched community view which lingers today—the desire to deny the existence of child sexual abuse within the family, especially among economically secure families (Australians Against Child Abuse, 2002).

Gardner’s views were attacked because of their perceived bias against women, their dismissal of children’s complaints of abuse and their lack of grounding in or reference to any rigorous research (Faller, 1998; Dallam, 1999). Subsequently, he revised his views and conceded the possibility that fathers were also likely to manufacture such allegations and that child sexual abuse did in fact occur in some families. He produced a risk assessment tool, for professionals to use to determine the truth or otherwise of the allegations (Gardner, 1987).

Parental alienation syndrome (often known by its initials as PAS) and its originator became significant: PAS attracted considerable support, and Gardner wrote along these lines until his death in 2003. His views echoed a theme noted in the child protection literature whereby mother are blamed for the allegations of abuse as well as for the abuse itself, even though the mother was not the perpetrator (Scourfield, 2002). Mothers were—and still are—seen as always responsible for the care and well-being of their children, while fathers are not (Humphreys, 1997).Thus fathers are ignored even when they are the perpetrators of the abuse (Fleming,2002). Gardner’s work supported another theme reported in child protection literature: that of reducing all parents—mothers and fathers—to stereotypes (Scourfield, 2002). Gardner stereotyped mothers as bad parents—as perpetrators of PAS—and fathers as innocent victims of their behaviour. His work reconstructed the reality of each parent’s individual situation to their disadvantage (Brown, 2003).

Another outcome of his theory of PAS has been its metamorphosis into a broader notion of parental alienation, where one parent is believed to have alienated the child from the other not only in relation to child abuse allegations but also for a large number of possible reasons.This idea, again unsupported by research, persists in family law as can be seen in the current policy the Family Court of Australia uses in assessing whether or not to recommend the appointment of a separate representative for a child in a residence and contact dispute. One of the stated priority criter in deciding if a child requires representation is ‘parental alienation’.Thus the false notion of parental alienation in the broad sense maintains a belief in it in the specific sense and the specific sense maintains belief in the broad sense.

Soon after Gardner’s writings were published,the first substantialresearch about child abuse allegations made in the context of parental separationand family law proceedings appeared. The era of dawning understanding had begun.The study was commissioned by the US National Centre of Child Advocacy, which sponsored a large investigation of several hundred residence and contact disputes from twelve states in the United States in which allegations of child sexual abuse had been made. The study followed the cases from the time they first presented in a family or divorce court until the case was concluded (Thoeness and Pearson, 1988).

This work showed that Gardner was wrong.The study found that allegations raised in this context were no more likely to be false than in any other situation.False allegations represented some 12 per cent of the total of all allegations.More significantly, the researchers found that the family and divorce courts did not deal well with the allegations,l...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Foreword
• Acknowledgments
• Introduction: A new problem
• 1. A new understanding of child abuse in the context of parental separation
• 2. Child abuse, family violence and family law legislation
• 3. Family law legislation and the protection of children
• 4. Child sexual abuse
• 5. Other forms of child abuse
• 6. Managing families and their problems
• 7. Managing the family law service system
• 8. Case presentations: The professionals' contributions
• Notes
• References
• Index