-Adv. Juhi Damodar
Parental Alienation is an internationally recognized form of parental psychological abuse. Richard A Gardner, an American child psychiatrist, after making several observations found a childhood disorder seen exclusively in child-custody cases. He coined this childhood disorder by the term Parental Alienation Syndrome (PAS) in 1985. He stated that he had observed in case of PAS, the primary manifestation is visible in the child’s campaign of unjustified denigration. He said that though previously the child has had a strong bond with the alienated or the targeted parent later the same bond is shifts towards the alienator and there is an unjustified behaviour pattern towards this targeted parent. The existence of PA is seen from a co-existing behaviours i.e., avoidance and preference i.e. while the child avoids one parent (targeted parent), he, or she, at the same time, will exhibit strong preference for the other (alienator).Parental alienation syndrome is not included in the Diagnostic and Statistical Manual of Mental Disorders (DSM), a highly regarded publication that classifies mental disorders, but the DSM-5 does have a code for “child affected by parental relationship distress,” under which PAS would be included.
Infact, PAS undermines the Universal Declaration related to Human Rights as well as the UN Convention recognizing the rights of the child. Countries like Mexico and Brazil have classed it as a criminal offence, while Israel has recognized it as ‘Nikor horim’. Ireland did not have legislation on parental alienation, but in 2020, for the first time, in a child custody case a judge described the action of the parent as “parental alienation”. India has not signed the Hague Convention on the Civil Aspects of International Child Abduction, so in the present scenario when there is an international child abduction case it will be difficult to associate it with parental alienation. In cases where the alienating mother or father lives abroad, there are possibilities of child abduction because the situation becomes murkier when international law has to be brought in. There has been an increase in the number of children or adolescents being brought or retained, unilaterally, in another country. This is another way of creating PA, where a distance between the child and the other parent from whom the child has to be alienated is created. The ease of reaching the child gets reduced and the attempt to alienate becomes a grand success for the alienator.
Although Parental Alienation Syndrome (PAS) is internationally recognised, and the existence of PA is evident, India has not yet legally recognised it despite the need. In 2017, the Apex court recognised the concept of parental alienation syndrome for the first time in Vivek Singh v Romani Singh1and thereafter we have a few relevant judgements on the same. Despite all this there is a need to bring in special provisions, if not, enact provisions in the existing Acts or enact a separate Parental Alienation Prevention Act, to assist the Advocates to deal with this concept as an offence on its own, or in child custody battles in a court setting. This will also be helpful for the Judges in the Courts to arrive at a more understanding conclusion while deciding such cases.
Right now, we have no proper mechanism to bring in uniformity, nor any guidelines for treating this matter or to address this issue of PAS in the courts, be it during the custody battles or as an independent issue in itself. When we talk about the admissibility of scientific evidence to prove PAS, under the Indian laws, it is not possible because under Section 45 of the Indian Evidence Act 1872, the court can only seek expert opinion. We see this in Malay Kumar v Sukumar Mukherjee2 where the Supreme Court had heldthat expert opinion is advisory only. Hence, it is left to the court’s discretion to decide whether to consider such scientific evidence or not.
So the question arises as to why is Parental Alienation being used all over the world? Well, it is being used by the alienating parent or person, maybe to gain an edge in the case or to settle a score against the other spouse or win the child’s custody and make a financial gain i.e., the child maintenance that comes with custody. So yes, PA is all about the parent and the child be it a minor or an adult child living and growing up being affected by PAS. It is mostly done by a parent or grandparents, or someone who has control or authority over that child. There is a need to understand the existence of more profiles in this parental alienation. Whoever the alienator is , it is likely that the alienator has a narcissistic personality trait.
Now what happens during this PAS, is that the targeted parent may be vilified like being disparaged before others, or the targeted parent may be scorned for everything, especially in the presence of the child. The alienating parent or person may tell the child that the targeted parent is insane, dangerous, and unworthy of being loved. The alienator is basically spinning a web of lies often reconstructing memories of the childhood or past events in such a way that the child’s perception of that parent gets altered negatively. The child then believes in the damaging lies things told to by the alienator.
The alienator may tell the child about inappropriate acts done by the targeted parent or repeatedly feed defamatory stories into the child’s mind to tarnish the image of the targeted parent so that it fuels the child’s mind with hate each day. One of the key strategies, adopted by the alienator is to teach the child to keep secrets between the alienating person and the child. Often the child ends up revealing all this by using the alienator’s language or key phrase verbatim while spewing the hate in anger on the targeted parent. Instances may be numerous and will have to be watched out for on a daily basis.
There will be interference by the alienating parent, during visitations, especially in case of child custody matters. The time being spent together with the other parent is often not looked upon amicably. The child will be bribed to make the child refuse to go with the targeted parent. The child may not be allowed to call or take calls of the targeted parent, or may not be allowed to go with the targeted parent and if there is no way out then the alienator may ensure that the child is delivered late to the targeted parent and picked up as early as possible to reduce the time they spend together. Even during the time, spent together by them, the alienating parent will start excessively calling the child so that they are not able to enjoy their time together and the child is filled with some fear. Once the child returns to the alienated parent, the child will be drilled for details of the visit and then made to feel guilty for loving the targeted parent. Most people overlook all these behavioural changes or are unable to identify the changes due to PAS.
PA also gets overlooked when people think of it as an issue of family estrangement because there is a lot of resemblance. In the case of PA, the child will reject the parent without any valid justification. The targeted parent thinks that he or she is probably at fault somewhere even though they are unable to pinpoint on the exact cause or reason for the changes seen in the child. This hurts the targeted parent and there are many cases of severe depression in the targeted parent. In the case of family estrangement, the rejection of the targeted parent is mainly because of the abusive or violent behaviour of that rejected parent. It may be because of addiction to alcohol or drug, violence etc. So, the rejection in family estrangement has a valid reason and the person involved in family estrangement is pained at the estrangement. The child in a PA situation on the other hand is very callous about his or her behaviour towards the targeted parent. When the child is questioned about the callousness and hate towards the targeted parent, and the extreme love and loyalty towards the alienator, the child will insist that whatever was expressed by him or her towards the targeted parent was entirely his or her own opinion and say that, “I don’t want to go out anywhere and this has nothing to do with anyone else’s instructions, It’s my own decision and no one influenced me to say so.” All such changes will prevent the child being placed into a responsible hand in child custody cases because the child may end up choosing the wrong parent. At the same time there is also a necessity to demarcate the difference of this hostility when true parental abuse and/or neglect is present, because then the child’s animosity may be justified, and PAS would not be applicable.
The PAS may not seem to be very dangerous because the targeted parent may think that this change is due to the present situation or changes in the relationships etc. But it’s when the child at some point of time will be forced to make a choice between the targeted parent or alienating the parent that the whole situation becomes visible and out of hand. The alienator is very shrewd because if he or she, senses any risk of the child choosing the targeted parent instead of the alienator, the alienator then puts it very bluntly to the child that he or she will be deprived of the good things that the alienator was providing to the child. This creates the desired consequence in the child’s reaction towards the targeted parent.
The role of the targeted parent in the child’s life, will be undermined greatly. It is a very traumatic experience for the targeted parent at this stage. After undergoing all the hostility, the targeted parent will have difficulty managing emotions or may even come across as emotionally detached.To have their relationship with their child damaged to such an extent that it will obviously lead to emotions of sadness, depression, irritability, frustration, fear, loss, anger, stress, powerlessness, and helplessness and none of these are good for the mental health of the targeted parent.
Now, if the targeted parent wishes to battle it out in the courts, the cost of this can be both a financial and emotional drain mainly because of the uncertainty of the court’s verdict. The present situation is biased towards the mother, the father has less or no chance even if he is the targeted parent. The child who mostly lives with the alienating parent will start behaving according to the alienator’s wishes. Initially, the child will try to resist the alienator but as they remain dependent on the alienator will ultimately succumb to it.
In Sheila B. Das v P.R. Sugasree3, while acknowledging PAS, the Supreme Court did not discuss it and instead decided solely based on the “best interests of the child” doctrine. Section 17 of the Guardians and Wards Act 1890, underlines the parameters that the court ought to consider while deciding the guardianship of a child. Its provisions state that if a minor can make an intelligent choice, the court may consider it. This provision, therefore, directs the court to ascertain what the child wants. The child’s best interests and overall well-being lies in providing for as well as protecting the child.
The protection of health, maintenance, education, etc. are important factors considered by the court but more important is that when talking about health, it should mean and include mental well-being not just immediate but also in terms of its long-term impacts. In some cases, litigations, civil or criminal, may arise out of offences due to hatred brewing within the alienated child for years. In the long run, when the targeted parent gets older, sick, and needy, he or she will be neglected by the child and that in turn would again make them liable under the Maintenance and Welfare of Parents and Senior Citizen Act 20074, popularly known as the Senior Citizen Act. Yes, that’s why that makes the offence is continuous and becoming even more serious.
The overall effects of PA are severe on both the alienated child as well as the targeted parent and after the breakdown of such a relationship, the effects may be slow but sure to deteriorate the relationship as the time passes. This deterioration is harmful. The Supreme Court has held that the child needs the love and care of both parents. It is also seen that family surroundings consisting of the parents have a great role to play in the creation of a juvenile delinquent. Robin Gayle’s research in 2006, has shown the impact of good parenting strategies and those parenting ways that turned the child into juvenile delinquents. Surely, such impacts do not indicate the overall well-being of the child, nor characterize the qualities of an ideal citizen who will be a future asset of a progressive nation.
There is a need to include special provisions under the family laws to deal with PA or create a special Act called Parental Alienation Protection Act because only then it will be possible to file PA as an independent case apart from child custody case too. The law should be such that it is able to protect the minor child and also the adult who had been affected by parental alienation when he or she was a child and the PAS still is evident in the behaviour towards the targeted parent. A separate Act will help to provide for a step-by-step procedure on the evidence that needs to be collected, how to deal with expert opinion or to include scientific evidence not allowed under the Indian Penal Code and addresses other loopholes. Every effort should be towards providing the removal of the child from the alienator who is the accused in this case, just like in other cases of crime against children. We can also study the various existing laws on parental alienation provided by other countries, for better understanding and create a law that the world takes up as an example. Last but not the least, the laws on PA should allow wider scope to provide solutions even in case of new situations that may have not have been covered and lack of provisions will not be an excuse to deny justice to anyone.
References:
- Vivek Singh v Romani Singh (2017) ALL SCR 588=(2017) 3 SCC 231
- Malay Kumar Ganguly v Sukumar Mukherjee AIR 2010 SC 1162
- Sheila B. Das v P.R. Sugasree (2006)3 SCC 62
- The Maintenance And Welfare Of Parents And Senior Citizens Act, 2007, s 4
Footnotes:
The content of this article is intended solely for information and awareness purposes only and to provide a general guide. It is advisable to seek professional advice for specific circumstances.
apexadvocates