Pas recognition/ an extract from Stan Hayward

[Marius Janse van Rensburg]

 

*44 Parental Alienation Syndrome: How to Detect It and What to Do About It 73-MAR FLBJ 44 (March, 1999) Florida Bar JournalJ. Michael Bone [FNa1] Michael R. Walsh [FNaa1] Copyright © 1999 by the Florida Bar; J. Michael Bone, Michael R. Walsh                                                                                         Although parental alienation syndrome (PAS) is a familiar term, there is still a great deal of confusion and unclarity about its nature, dimensions, and, therefore, its detection. [FN1] Its presence, however, is unmistakable. In a longitudinal study of 700 "high conflict" divorce cases followed over 12 years, it was concluded that elements of PAS are present in the vast majority of the samples. [FN2] Diagnosis of PAS is reserved for mental health professionals who come to the court in the form of expert witnesses. Diagnostic hallmarks usually are couched in clinical terms that remain vague and open to interpretation and, therefore, susceptible to argument pro and con by opposing experts. The phenomenon of one parent turning the child against the other parent is not a complicated concept, but historically it has been difficult to identify clearly. Consequently, cases involving PAS are heavily litigated, filled with accusations and counter accusations, and thus leave the court with an endless search for details that eventually evaporate into nothing other than rank hearsay. It is our experience that the PAS phenomenon leaves a trail that can be identified more effectively by removing the accusation hysteria, and looking ahead in another positive direction. For the purpose of this article the authors are assuming a fair degree of familiarity with parental alienation syndrome on the part of the reader. [FN3] There are many good writings on PAS which the reader may wish to consult now or in the future for general information. Our focus here is much more narrow. Specifically, the goal is twofold. First, we will describe four very specific criteria that can be used to identify potential PAS. In most instances, these criteria can be identified through the facts of the case, but also can be revealed by deposition or court testimony. Secondly, we wish to introduce the concept of "attempted" PAS; that is, when the criteria of PAS are present, but the child is not successfully alienated from the absent parent. This phenomenon is still quite harmful and the fact of children not being alienated should not be viewed as neutral by the court. The criteria described below are fairly easy to identify separate and apart from the court file. When there is uncertainty about any of them, these criteria can be used to guide the attorney in the deposing of witnesses as well as in their examination in court. Criteria I: Access and Contact Blocking Criteria I involves the active blocking of access or contact between the child and the absent parent. The rationale used to justify it may well take many different forms. One of the most common is that of protection. It may be argued that the absent parent's parental judgment is inferior and, therefore, the child is much worse off from the visit. In extreme cases, this will take the form of allegations of child abuse, quite often sexual abuse. This will be addressed in more detail in Criteria II, but suffice it to say that often this is heard as a reason for visitation to be suspended or even terminated. On a more subtle and common level, an argument heard for the blocking of visitation is that seeing the absent parent is "unsettling" to the child, and that they need time "to adjust." The message here is that the absent parent is treated less like a key family member and more like an annoying acquaintance that the child must see at times. Over time, this pattern can have a seriously erosive effect on the child's relationship with the absent parent. An even more subtle expression of this is that the visitation is "inconvenient," thereby relegating it to the status of an errand or chore. Again the result is the erosion of the relationship *45 between the child and the absent or "target" parent. One phenomenon often seen in this context is that any deviation from the schedule is used as a reason to cancel visitation entirely. The common thread to all of these tactics is that one parent is superior and the other is not and, therefore, should be peripheral to the child's life. The alienating parent in these circumstances is acting inappropriately as a gatekeeper for the child to see the absent parent. When this occurs for periods of substantial time, the child is given the unspoken but clear message that one parent is senior to the other. Younger children are more vulnerable to this message and tend to take it uncritically; however, one can always detect elements of it echoed even into the teenage years. The important concept here is that each parent is given the responsibility to promote a positive relationship with the other parent. When this principle is violated in the context of blocking access on a consistent basis, one can assume that Criteria I has been unmistakably identified. Criteria II: Unfounded Abuse Allegations The second criteria is related to false or unfounded accusations of abuse against the absent parent. The most strident expression of this is the false accusation of sexual abuse. [FN4] It has been well studied that the incident of false allegations of sexual abuse account for over half of those reported, when the parents are divorcing or are in conflict over some post dissolution issue. [FN5] This is especially the situation with small children who are more vulnerable to the manipulations implied by such false allegations. When the record shows that even one report of such abuse is ruled as unfounded, the interviewer is well advised to look for other expressions of false accusations. Other examples of this might be found in allegations of physical abuse that investigators later rule as being unfounded. Interestingly, our experience has been that there are fewer false allegations of physical abuse than of other forms of abuse, presumably because physical abuse leaves visible evidence. It is, of course, much easier to falsely accuse someone of something that leaves no physical sign and has no third party witnesses. A much more common expression of this pattern would be that of what would be termed emotional abuse. When false allegations of emotional abuse are leveled, one often finds that what is present is actually differing parental judgment that is being framed as "abusive" by the absent parent. For example, one parent may let a child stay up later at night than the other parent would, and this scheduling might be termed as being "abusive" or "detrimental" to the child. Or one parent might introduce a new "significant other" to the child before the other parent believes that they should and this might also be called "abusive" to the child. Alternatively, one parent might enroll a child in an activity with which the other parent disagrees and this activity is, in actuality, a difference of parental opinion that is now described as being abusive in nature. These examples, as trivial as they seem individually, may be suggestive of a theme of treating parental difference in inappropriately subjective judgmental terms. If this theme is present, all manner of things can be described in ways that convey the message of abuse, either directly or indirectly. When this phenomenon occurs in literally thousands of different ways and times, each of which seems insignificant on its own, the emotional atmosphere that it creates carries a clearly alienating effect on the child. Obviously, this type of acrimony is very common in dissolution actions but such conflict should not necessarily be mistaken or be taken as illustrative of the PAS syndrome; however, the criteria is clearly present and identifiable when the parent is eager to hurl abuse allegations, rather than being cautious, *46 careful, and even reluctant to do so. This latter stance is more in keeping with the parent's responsibility to encourage and affirmatively support a relationship with the other parent. The responsible parent will only allege abuse after he or she has tried and failed to rationalize why the issue at hand is not abusive. Simply put, the responsible parent will give the other parent the benefit of the doubt when such allegations arise. He or she will, if anything, err on the side of denial, whereas the alienating parent will not miss an opportunity to accuse the other parent. When this theme is present in a clear and consistent way, this criteria for PAS is met. Criteria III: Deterioration in Relationship Since Separation The third of the criteria necessary for the detection of PAS is probably the least described or identified, but critically is one of the most important. It has to do with the existence of a positive relationship between the minor children and the now absent or nonresidential parent, prior to the marital separation; and a substantial deterioration of it since then. Such a recognized decline does not occur on its own. It is, therefore, one of the most important indicators of the presence of alienation as well as a full measure of its relative "success." By way of example, if a father had a good and involved relationship with the children prior to the separation, and a very distant one since, then one can only assume without explicit proof to the contrary that something caused it to change. If this father is clearly trying to maintain a positive relationship with the children through observance of visitation and other activities and the children do not want to see him or have him involved in their lives, then one can only speculate that an alienation process may have been in operation. Children do not naturally lose interest in and become distant from their nonresidential parent simply by virtue of the absence of that parent. Also, healthy and established parental relationships do not erode naturally of their own accord. They must be attacked. Therefore, any dramatic change in this area is virtually always an indicator of an alienation process that has had some success in the past. Most notably, if a careful evaluation of the pre-separation parental relationship is not made, its omission creates an impression that the troubled or even alienated status that exists since is more or less an accurate summary of what existed previously. Note that nothing could be further from the truth! An alienated or even partially or intermittently alienated relationship with the nonresidential parent and the children after the separation is more accurately a distortion of the real parental relationship in question. Its follow-through is often overlooked in the hysterical atmosphere that is often present in these cases. A careful practitioner well knows that a close examination is warranted and that it must be conducted with the utmost detail and scrutiny. If this piece of the puzzle is left out, the consequences can be quite devastating for the survival of this relationship. Also, without this component, the court can be easily swayed into premature closure or fooled into thinking that the turmoil of the separation environment is representative of the true parent-child relationship. Once this ruling is made by the court, it is an exacting challenge to correct its perception. In a separate but related issue, a word should be said about the use of experts. First, it must be understood that all mental health professionals are not aware of nor know how to treat the PAS phenomenon. In fact, when a mental health professional unfamiliar with PAS is called upon to make a recommendation about custody, access, or related issues, he or she potentially can do more harm than good. For example, if the psychologist fails to *47 investigate the pre-separation relationship of the nonresidential parent and the children, he or she may very easily mistake the current acrimony in that relationship to be representative of it, and recommend that the children should have less visitation with that parent, obviously supporting the undiagnosed PAS that is still in progress. If that expert also fails to evaluate critically the abuse claims or the agenda of the claimant, they may be taken at face value and again potentially support the undiagnosed PAS. If that professional is not also sensitive to the subtleties of access and contact blocking as its motivator, he or she may potentially support it, thereby contributing to the PAS process. When these things occur, the mental health professional expert has actually become part of the PAS, albeit unwittingly. Alarmingly, this happens often. Suffice it to say, if PAS is suspected, the attorney should closely and carefully evaluate the mental health professional's investigation and conclusions. Failure to do so can cause irreparable harm to the case, and, ultimately, to the children. Criteria IV: Intense Fear Reaction by Children The fourth criteria necessary for the detection of PAS is admittedly more psychological than the first three. It refers to an obvious fear reaction on the part of the children, of displeasing or disagreeing with the potentially alienating parent in regard to the absent or potential target parent. Simply put, an alienating parent operates by the adage, "My way or the highway." If the children disobey this directive, especially in expressing positive approval of the absent parent, the consequences can be very serious. It is not uncommon for an alienating parent to reject the child(ren), often telling him or her that they should go live with the target parent. When this does occur, one often sees that this threat is not carried out, yet it operates more as a message of constant warning. The child, in effect, is put into a position of being the alienating parent's "agent" and is continually being put through various loyalty tests. The important issue here is that the alienating parent thus forces the child to choose parents. This, of course, is in direct opposition to a child's emotional well being. In order to fully appreciate this scenario, one must realize that the PAS process operates in a "fear based" environment. It is the installation of fear by the alienating parent to the minor children that is the fuel by which this pattern is driven; this fear taps into what psycho-analysis tell us is the most basic emotion inherent in human nature-the fear of abandonment. Children under these conditions live in a state of chronic upset and threat of reprisal. When the child does dare to defy the alienating parent, they quickly learn that there is a serious price to pay. Consequently, children who live such lives develop an acute sense of vigilance over displeasing the alienating parent. The sensitized observer can see this in visitation plans that suddenly change for no apparent reason. For example, when the appointed time approaches, the child suddenly changes his or her tune and begins to loudly protest a visit that was not previously complained about. It is in these instances that a court, once suspecting PAS, must enforce in strict terms the visitation schedule which otherwise would not have occurred or would have been ignored. The alienating parent can most often be found posturing bewilderment regarding the sudden change in their child's feelings about the visit. In fact, the alienating parent often will appear to be the one supporting visitation. This scenario is a very common one in PAS families. It is standard because it encapsulates and exposes, if only for an instant, the fear- based core of the alienation process. Another way to express this concept would be that *48 whenever the child is given any significant choice in the visitation, he or she is put in the position to act out a loyalty to the alienating parent's wishes by refusing to have the visitation at all with the absent parent. Failure todo so opens the door for that child's being abandoned by the parent with whom the child lives the vast majority of the time. Children, under these circumstances, will simply not opt on their own for a free choice. The court must thus act expeditiously to protect them and employ a host of specific and available remedies. [FN6] As a consequence of the foregoing, these children learn to manipulate. Children often play one parent against the other in an effort to gain some advantage. In the case of PAS, the same dynamic operates at a more desperate level. No longer manipulating to gain advantage, these children learn to manipulate just to survive. They become expert beyond their years at reading the emotional environment, telling partial truths, and then telling out-and-out lies. One must, however, remember that these are survival strategies that they were forced to learn in order to keep peace at home and avoid emotional attack by the residential parent. Given this understanding, it is perhaps easier to see why children, in an effort to cope with this situation, often find it easier if they begin to internalize the alienating parent's perceptions of the absent parent and begin to echo these feelings. This is one of the most compelling and dramatic effects of PAS, that is, hearing a child vilifying the absent parent and joining the alienating parent in such attacks. If one is not sensitive to the "fear-based" core at the heart of this, it is difficult not to take the child's protests at face value. This, of course, is compounded when the expert is also not sensitive to this powerful fear component, and believes that the child is voicing his or her own inner feelings in endorsing the "no visitation" plan. Conclusion All the criteria listed above can be found independent of each other in highly contested dissolutions, but remember that the appearance of some of them does not always constitute PAS. When all four are clearly present, however, and the possibility of real abuse has been reasonably ruled out, the parental alienation process is operative. This does not necessarily mean, however, that it is succeeding in that the children are being successfully alienated from the target parent. The best predictor of successful alienation is directly related to the success of the alienating parent at keeping the children from the target parent. When there are substantial periods in which they do not see the other parent, the children are more likely to be poisoned by the process. Another variable that predicts success is the child's age. Younger children generally are more vulnerable than older ones. Also, another variable is the depth and degree of involvement of the pre-separation parent-child relationship. The longer and more involved that relationship, the less vulnerable will be the children to successful alienation. The final predictor is the parental tenacity of the target parent. A targeted parent often gives up and walks away, thus greatly increasing the chances of successful alienation. The question remains: What if all four criteria are present, but the children are not successfully alienated? Should this failure at alienation be seen as nullifying the attempt at alienation? The answer to that should be a resounding "No!" It should be, but often it is not. It is very common to read a psychological evaluation or a GAL's report that identified PAS but then notes that since it was not successful, it should not be taken very seriously. Nothing could be further from the truth. Any attempt at alienating the children from the other parent should be seen as a direct and willful violation of one of the prime duties of parenthood, which is to promote and encourage a positive and loving relationship with the other parent, and the concept of shared parental responsibility. It is our feeling that when attempted PAS has been identified, successful or not, it must be dealt with swiftly by the court. If it is not, it will contaminate and quietly control all other parenting issues and then lead only to unhappiness, frustration, and, lastly, parental estrangement.   PARENT ALIENATION SYNDROME ( an extract from the complete article] BY STAN HAYWARD Case extracts, and a brief comment at the end CASE 13. My wife and I have been separated for 6 years. My son has been livingwith me for the past three years. Over the last 5 months my wife has been making remarks as "M. Doesn't want to visit Birmingham". M., my daughter is nine and lives with her mother in Nottingham. I think she is content to do so but when Iam on my own with M. She does ask if she can stay with me in Birmingham. I learnt from my son that my wife spends a lot of time running me down in front of M. And suggesting to her that once monthly access should be reduced to once every two months and no holidays. CASE 14. (from a grandmother) I am writing in response to your request for information from anyone who has suffered from 'Parental Alienation'. We certainly have. Parental Alienation exactly describes our position as regard our eldest grandchild. After our son and ex-daughter-in-law's divorce our son fought for custody of his little daughter, which we fully supported. The mother was not a very stable person and an unsatisfactory mother. However after framing our son for alleged sexual abuse against his barely 3 year old daughter and taking the matter to court with the aid of Social Services she was awarded custody. (Our local Social Services were completely biassed on the mother's side from the outset and failed to make a thorough investigation into the case despite our having proved the mother to be an utter liar). Our son and ourselves were granted access rights by order of the court, and limited supervised access did take place for a few years but this eventually broke down, mainly because of the unnaturalness of it, and insensitive approach of the Social workers. Our son did remarry and has 2 other children - a boy of 5 and a girl of 4. All three children used to play so happily together during access periods, but that was 3 whole sad years ago. Our little grandson was heartbroken for quite sometime after the access breakdown. In fact we adults still are - fortunately children eventually forget. Basically blaming the Social Services we put out a Complaints procedure against them, which reached stage 3. The investigating panel were very sympathetic towards us and told the Local Authority they must resolve the matter back in court. Unfortunately the Local authority left it far too late and permission for another court hearing was refused them. Only ourselves or our son would be allowed to do so. Since our granddaughter who is now 10 years of age, refuses to see any of us, or even accept letters or presents, obviously by the cruel instigation and alienation of the mother, we have refrained from doing so - acting upon the advice from our solicitors, who state it would be a 'hopeless' situation and a complete waste of money. CASE 15. (from a grandmother) I have read 'Alienation within the family' in this months newsletter. You might like to get in touch either with us, the grandparents or our son. Since the divorce about 8 years ago his ex-wife has totally alienated the children from the whole family and we have had no contact with them for years, in spite of numerous court orders and conciliation efforts. The children are now 11 and 13 and have been completely cut off from half their family. Please write if you would like to know more.   CASE 16. I left my ex-wife and four children in 1987 to commence a new relationship with my present girlfriend. My ex-wife immediately sued for divorce. Despite my having a wonderfully open and loving relationship with each of my children during my marriage, my relationship with my daughters started to deteriorate significantly after I left home, and I believe that theirminds were poisoned against me. Indeed for the first year my ex-wife categorically refused to allow the children to have staying access with me and wouldn't permit them to meet my new girlfriend. The Family court welfare service were instrumental in bringing about a reconciliation and for two years I enjoyed regular access with all my children included two wonderful holidays with them and my girl friend. My ex-wife never appeared to be comfortable with this and eventually one by one the girls stopped seeing me until by 1991 they refused to have any contact with me at all. They wouldn't speak to me on the phone, they never answered my letters and the ran away from me when I visited their house. During that time my son remained in contact and I continued to have regular staying access visits on alternate weekends and holidays. In October 1992 I was hit with the bombshell that my ex-wife intended to emigrate with the children to New Zealand (she was by this time living with a New Zealander) I initially contested her application through the court on the grounds that the children were being denied a loving relationship with their father through the mothers efforts to alienate them from me. The court welfare service was again involved and interviewed the children independently but this time they had become so badly alienated that they expressed quite openly a desire to go and live in New Zealand and in the face of this I withdrew my opposition providing certain safeguards could be agreed upon. These measures were agreed to and formed the basis of an Undertaking which my ex-wife entered into with the court in March of this year. Despite these safeguards my worst fears were realised when my ex-wife failed to comply with these terms which resulted in my going out to New Zealand in September of this year and tracking down the family and spending two very happy weeks with my son. I have recently learned that the family have moved house again and I have effectively lost touch with them. It is quite evident to me that my ex-wife has no intention of complying with the terms f the Undertaking to the courtand her game plan seems to be to exclude me completely from her own and their lives and to act as if I had never existed in the first place . I am effectively back to square one. I am about to make contact with the lawyers in NZ with a view to getting the UK Order registered with the NZ courts in an attempt to persuade my ex-wife the game for the benefit of the children. In summary I consider that my ex-wife has been active in alienating my children away from me and that from her point of view is was probably a necessary precursor to her plans to emigrate with them to New Zealand. What disappoints and Infuriates me is that in spite of my agreement to her plans and of my openly expressed desire for continuing contact as demonstrated by my journey to New Zealand, she is continuing the alienation from a distance of 12,000 miles. CASE 17. In 1988 I separated from the then wife of 10 years. We had three children. P. the eldest boy from her first marriage was 20 years old. J. from her second marriage was 11 years old, and D. was my natural son and was 8 years old. I treated all the children as my own and J. knew me as her natural father because she had been a baby when we met, so she only knew me because her natural father did not keep in touch with her. The reason I left in 1988 was because I had strong suspicions that my then wife was seeing the best friend of her son who was only 19 years old. She was 40. My suspicions were proved correct that Christmas when he moved in with them and the following year they were married. From the time that I left in 1988 up to October 1990 I had regular contact with J. and D. and once I had my own flat in the 1990 they would stay with me every weekend from Saturday a.m to Sunday night. I was then living with my girlfriend (now wife) and the four of us got on very well and had a fine time together. When it was time for them to go they always say that they wanted to go later or could they stay longer. I also took them to Pontins for a week in 1989 and my girlfriend and I had them for a week in Autumn in 1990. As you can see things were going really well until one weekend in October 1990 there a mix up over arrangements for the children, and when my girl friend and I went to the house to collect them my ex-wife argued with us and subsequently told us to clear off and we couldn't have the children. We went back two weeks later when it was my turn to have them again and we were met at the front door by my ex-wife, her husband and my two children lined up in front of them. The children were told in turn to say their piece which they did parrot fashion, and what they said was that they have never been happy visiting me, I don't listen to them and they never want to see me again. This has been the case to date, whatever lies my ex-wife used to poison their minds must have put the fear of God in them because I have glimpsed both J. and D. only once on separate occasions. D. was on his bike and when he saw me he went indoors, and J. was with a boy and when she saw me she ran off screaming at the boy to come with her shouting "we told you what he was like". My ex-wife's vast experience of the divorce courts means that she knows how to successfully play the system. I believe that she always had the intention of pushing me out of my children's lives once she would be unable to give her new husband children, thus leaving my kids free to him for love and understanding and to fill my role. She knows that the way to convince the courts that I shouldn't be around is though the children, and being a very devious and manipulative person, has managed to guide them through their welfare report convincingly to the extent that the welfare officer even states in his report that he felt the children were greatly influence by their mother. Her constant references to the children's wishes being 'not to see me' in the affidavits and in the court have led to my efforts to regain contact through the court to be fruitless. My last effort at County Court ended up in the Judges chambers initially where I was told by a female judge that because of the evidence against me including letter of rejection from the children, a formal hearing would requirethe circuit Judge, which would be hideously experience to me, and in her vast experience of these type of cases, my chance of any sort of result were virtuallynon-existent. The only thing I came out of court with that day was the promise from my ex-wife that she would write and keep me informed of the children's well being. That was over 7 months ago and I have received nothing yet. I have questioned her in writing of this but the reply I got was the children did not want me written to, it disturbs them. I think what hurts the most is that, the way that something that was so good can turn bad so quickly, and the confusion this must be causing in my children's minds. I know they have got happy memories of me with them when married to their mother and afterwards for two years when I left, so want must be artificially implanted in the to make the hostile towards me or if the day come or may have come when they do want see me again, how do they approach the mother who's feelings toward me are so bitter and strong to seem contact once more. I feel gravely let down by the system. CASE 18. My girls are aged 8 and 10. I had a normal happy relationship with them before I left home 18 months ago. Initially contact was made difficult by the mother (she would only permit contact if she was present). For the last 9 months I have been denied access altogether. Initially she argued that our child had eczema exacerbated by my visits (the child did have eczema up to the age of 3 but this is now virtually non-existent). In the July hearing she claimed that children did not wish to see me. The Judge ordered a Psychiatrist report. A rehearing in 6 months and contact in the interim if both parties agree (she hasn't). Psychiatrist report based on interviews with me, the mother, and each child in essence states: Mother is clinically neurotic, children undoubtedly been influenced against me by the mother. I'm sane, balanced and cooperative, the children would derive considerable benefit from seeing me. Nevertheless less he advises contact with both children on the grounds that upset to the mother might cause adverse reaction to eczematous child. CWO believes that for children to now me will cause them a great deal of upset. I agree that some upset will be caused but this is outweighed in my view of the benefits of seeing me, not least of which will be from helping them cope with living with a neurotic mother. CASE 19. I separated from my wife in 1990 following 5 years of gradually worsening marital disharmony. The first year of separation passed reasonably smoothly. I found a flat about a mile from the family home, made generous and regular voluntary maintenance payments fro the outset (far in excess of CSA levels) and had regular contact with the children. " daughters then aged 5 and 7. seeing them every weekend and one day during the week. The children were obviously upset by the break-up, but I felt that towards the end of the year much of the emotional damage had been repaired and my relations with them was regaining stability. I felt that I had a very close relationship with both of them. About June 1991 my wife's attitude changed abruptly and she stated hat I could no longer see the children. The change was prompted by a marriage guidance session which the counsellor gently suggested that the marital difficulties may have been triggered in part by her own actions. She could not accept this and refused to return for the further sessions, lodging a complaint against the counsellor. She seem to have decided at this point that the marriage was definitely over and from that time worked to undermine and eventually destroy my relation with the children. About a month after the upset with the counsellor and following the first difficulties experience over contact, my younger daughter together with the other members of her class was reported molested in the classroom by a teacher. Immediately after the incident with the teacher my wife began writing letters to me suggesting or alleging that my behaviour towards the children was 'inappropriate'. I initially ignored these, but was obviously concerned about the purpose and the continuing difficulties with contact which although reinstated was now uncertain and vulnerable to sudden changes of plan by my wife. I managed to persuade her to attend meetings with another counsellor in an effort to resolve this and to negotiate regular contact including weekends. These meetings occurred from September 1991 but were fruitless and merely offered her an opportunity to express her suggestions about inappropriate behaviour, giving justification for exerting control over access arrangements. No concerns had been voiced by the children. they still responded positively towards me, although they were evidently confused about the purpose of all the meetings which they were attending. Following the incident with the teacher, my wife had my daughter referred her doctor to a psychiatrist for therapy. I subsequently learned about 6 months later when I was no longer able to see my daughters that in making the referral my wife had at the time expressed concerns regarding myself. These therapy sessions began in Autumn 1991, although I was not involved in these and wasn't informed about their nature despite repeated requests to my wife. The girls never spoke about the sessions when I met them and I did not ask. In 1992, after I had taken the girls to stay with my parents during the Christmas break (after extensive negotiations and disappointments) my wife stopped contact altogether and had taken the children out when I called at the usual times to collect them. I can see in retrospect that she had already do much by this time to undermine my relationship with them. At about this time my younger daughter began to echo in therapy sessions the fears expressed by her mother beginning 6 months previously from June 1991, and made mainly vague but nevertheless less untruthful allegations a relatively minor nature) against me. The allegations involved for example 'touching her bottom in the swimming pool' etc. When contact was finally stopped in 1992, I immediately applied to the court for contact. Although no allegations were repeated by my daughter in 'disclosure interview' which was set up, the statements made in therapy were deemed sufficient justification to deny contact thereby causing a significant and traumatic break of a duration never previously experienced by the children. As soon as April 1992 both children were saying that they no longer wanted to see me and that they reportedly now 'hate' me. Following this, one supervised access was arranged, but this was stilted and difficult. I have had no contact since then in spite of many meetings with various agencies involved, and in April 1993 I finally withdrew my contact application on the advice of my solicitor. Any letters which I have sent to the children are now returned unopened. I fear that the relationship has been successfully destroyed by my wife, and feel that the only hope lies in waiting until the children mature. In the meantime both the children and myself are deprived of the possibility of a normal parental relationship during their formative years. CASE 20. When I had left home in 1993 and used to go and visit them (the children) on a Sunday my then wife would say to me "They don't want to see you". She refused to let them leave the house with me, and if I tried to talk to them about the situation and to reassure them and tell them that I still loved them, the following week when I went to the house she would say to me, "How dare you upset them", this continued for some time, to the point where I would go to the house and the children would run away from me upstairs. I would follow them and after twenty minutes of the children would start relating to me again as if I had just popped out to the shops. I started to find this situation artificial and unreal so I decided to apply for a Contact order and released a fresh can of worms. The statement submitted to the court by my former wife was untrue in parts and made complaints that my sons were taken to their grandparents against their wishes and that because of this were reluctant to go out with me and had by months later come to actively dislike me. She was not prepared to force them to embark on outings with me as I had remarried on of their friends mothers. These and other allegations ran to some ten pages of reasons why I should not have contact. An interim report by a Family CWO was prepared and the children were invited to give their views to her. Undoubtedly they had been coached in the language of the replies by my former wife and the sad fact is that under the new Children Act the wishes of the children are taken into account, without benefit of counselling given to them to explore their feelings. On the basis of the CWO's report the Judge intimated to me that I would not get a Contact order to see the children . I withdrew the application for the order and now have not seen the children for some four weeks. When I call at the former house I am not allowed in, and letters are passed through the window to me. I had thought that my former wife was unique in her reaction to me over the matter of seeing the children, and I could not put into words what had happened to me, thinking that other parents would think "Oh yes, there's no smoke without fire". I shall now vocally point out to other parents that I know the reason why my former wife has stopped me seeing the children and try to explains the Parental Alienation Syndrome to them. CASE 21. Although I have not completely lost contact with my children, PAS has certainly been used and my daughters, aged 14 and 12 years are being alienated from me. My wife and I have been legally separated since 1983 after a four and a half year marriage. During the earlier years after separate I saw the children approximately one a fortnight, but it was already becoming more difficult to arrange and consequently I consulted a solicitor in 1985. It was agreed that I should have the girls for half their nineteen week holiday, but the Agreement was never singed and in fact the children spent 5 weeks in 1988, 6 weeks in 1989 and only 4 week with me in 1990. The dates and travel arrangements were constantly disrupted. My wife and I then had four meetings with a member of the Family Mediators Association during 1990, but by January 1991 the mediator could help no further because my wife reneged on the points which had previously been agreed. It was the firsts instance of my daughter being used, as my wife produced a letter written by my eldest daughter saying that she did not want to spend more than 3 weeks of the 9 week summer holiday with me. My solicitor advised me to apply for a Defined Access Order from the court. The preparation of affidavits dragged on throughout 1991 and my wife's solicitor persuaded a judge to appoint a welfare officer to interview the girls (on the grounds that they did not receive proper care and attention whilst they were with me and my partner).In spite of daily telephone calls from their mother whilst the welfare officer was visiting the children in Spain, the children told him that they were quite happy to spend 8 weeks a year with me. As the day of the court hearing approached, my wife started actively use and influence the girls to be on her side. My daughter blamed me fore the way their mother behaved at home - because I was taking mummy to court. They told me that I would "win~ in court and I heard the eldest girl secretly telling my wife where we were staying so that a subpoena could be served on me that following day. The case was heard in November 1991 and I was awarded 8 weeks defined access per annum. It cost me 25,000 and my wife 15,000 in legal fees. My wife's reaction was to have here phone calls intercepted so I could not even speak to the girls, put them in boarding school and fly off to her sister abroad. I had no idea where the children were and the headmistress of the school refused to allow me to speak to my daughters when I eventually found their whereabouts. The girls were confused and becoming more alienated from me as though all the troubles and problems were caused by having such an obstinate father. The disruption over dates and travel continued and the children have become less neutral with every visit. They are under terrible pressure as they live with their mother, naturally they don't want to upset her. the younger girl is often sick on the plane home, but never on the way out. If they enjoy themselves too much with me the are being disloyal to their mother. My elder daughter explained the terrible dilemma with which she id faced and said she her children will never had to suffer as she has. The most recent examples of PAS are Christmas and Easter 1984. My wife is taking the girls to visit their cousin abroad for Christmas and I suggested that I postpone my time with the girls this holiday and make it up at Easter or Summer as two holidays abroad in four weeks seemed excessive. The children declined my suggestion for no logical reason - they can't explain why. My younger daughter refused to come to join me on our boat in the Caribbean at Easter 1994. She gave her reason as having been there once last winter and the eight hour flight. My elder daughter refused to come alone to the West Indies and burst into uncontrolled sobbing when I pressed her for a reason. She realise the pressure under which she would have to live between October and next Easter. So I agreed to forego Christmas and Easter with my daughter, hopefully I shall see them in the summer holiday. Prior to the court case it probably satisfied my wife's ill-will by not letting se see the children as mush as I wished, but once the court case started she involved the children against me whenever possible. Although I contribute 40,000 a year toward the upkeep and education of my two daughters, the children have been persuaded that they mother is badly off and I am to blame. The girls and I have enjoyed a good relationship until recently (as observed and reported by the chief Welfare officer), but I am unwilling to fight their mother over access any more if they can no longer remain neutral and I cannot stand seeing the emotional strain and anxiety this causes them. Winning the case has in effect lost me my daughters. Back to top SUMMARY (HOPE). 1. Fathers who can stay in contact with their children somehow or other will almost certainly gain regular access to them again. 2. Fathers who can retain some form of communication with the mother will probably regain access. 3. Fathers who have some form of network, family, neighbours, friends, etc., who can keep in contact with the child or mother will probably regain access. 4. Fathers who rely on the court system to help them will certainly be disappointed. This may seem an extreme action, but look at who is actually involved in your case. 1. Your Solicitor. He will certainly have your best interests at heart, but it is still work for him whether he wins or loses. 2. The Court Welfare Officer. She will doing at least one case a week. At most she will only have about three hours to discuss your case, and probably two days to write it up. It is likely that her decision will be made on her personal reaction to those involved rather than on the evidence. Court reports are notorious for being full of mistakes, misinterpretations, and omissions. Also, even though CWO may be well-intended, sympathetic, and knowledgeable, in the end they carry no weight in court. The report may be completely ignored by the court. This hardly motivates the CWO to produce much more than an outline of the case. Apart from this, most CWO's take on the job as a second career. Many have very little experience or training in the area of child welfare. If they are women, then it is likely they have more experience at being mothers than being court officers. This is often reflected in their assessments. It is a very common experience for fathers to have the CWO tell him how well he can cope with his children, only to find the court report stating the very opposite. A good CWO is probably your best friend. If they like you, and believe you have a good case they will give you better unbiased advice than anyone else. It is a pity that they have little power to help in a more practical way. 3. The Magistrate. Family law magistrates are predominantly women, and likely to be mothers. Though well intended, they may well feel that what is good for the mother is good for the child. This is not malice on the part of the magistrates. A typical magistrate may well have been a legal secretary for thirty years prior to becoming a magistrate. They have a background in legal technicalities, but not years of training that allow the broad interpretations of the law to be applied. Many apply the law, in the sense that a traffic warden applies the Highway code. In all, you are better off if you can avoid having your case tried in a Magistrates court. 4. The Judge. At County Court level you will get a mixture of Judges. The worst are those who feel it is beneath them to deal with the 'litigant in person'. It is well known that some Judges will always turn down a father who presents his own case. Others are simply out of touch with what is going on, or use the court for their own performance. Because the court is what it is, one cannot act and say as one would in other circumstances, but a just look through a book of aphorisms relating to Law and Judges will show that they haven't changed all that much over the ages. Of course, a good Judge is one who can help. But as the above letters show, the Judges insistence that a mother obeys the court order is no guarantee that she will. 5. The Mother's solicitor. He/she is your worst enemy. It is to his benefit if he can 'win' - by which we mean take your children away from you, or at least keep the matter going for years. The mothers solicitor represents the mother, not the child. 6. The Child Psychiatrist. These generally agree the problem is between the parents and not the father and child. Most will advise mediation. Most mothers refuse. Most Judges will not insist on counselling between the parents, though in the USA this is now a common approach and a successful one. Most child Psychiatrists and Psychologists agree that the courts are a waste of time in resolving family problems. IS THERE HOPE? 'Parental Alienation' is emotional child abuse. The Health department has no clear definition of what 'emotional abuse' is. This means that a 'emotional child abuse' is rarely - if ever - acted upon. It is only acted upon as an extension of Neglect, Physical, or Sexual Abuse when investigated by Social Services. For the courts to accept 'emotional abuse' as evidence would require calling in Social Services. That is expensive and time consuming, so courts avoid it if possible, in spite of the evidence. Also, the standard answer from the Lord Chancellor's department is that 'It would not be in the child's best interests if the mother was sent to jail for disobeying a court order'. This of course, implies that it is in the child's best interest to lose it's father forever. In spite of that, the Criminal court will, and have sent several single-parent mothers to jail for leaving their children at home alone. They do so on the basis of the child being 'emotionally abused', but in terms of neglect. IF YOU CANNOT GO TO THE COURTS, WHAT DO YOU DO? In practice you cannot avoid the courts totally, but they should be used as a last resort. If you consider your situation in terms of war then there are three possible outcomes: 1. One side wins. 2. Neither side wins or can win, but they stay in a state of hostility and fight a war of attrition. 3. Peace is negotiated. The problem here is that if the mother has been given custody she has no reason to negotiate. But there are two cases where she might. a. If she wants something from you. It is obvious if she wants money, property, etc. This is common enough, but she may want something that is not obvious, and she is not prepared to tell you. It could be a change in attitude towards her. The above list of 'Why mothers want to get rid of the father' will offer some clues on this. b. If it becomes too much of a problem. This is where the courts can be useful. The nature of the system means that everything takes longer than it should. It will generally be inefficient - losing papers, adjourning hearings, sending the wrong forms, etc. This overall bumbling can be put to good use. If you have already lost your children, and effectively have nothing more to lose, then you can continually make new applications, query everything that comes along, send letters to her solicitor, demand ongoing information, etc. By keeping the issue going the mother will realise that you are not going to abandon your children. She may well feel that it is not worth the trouble, and eventually ease up on restrictions. Also remember that her life is not plain sailing. She will have problems. She or the children might be ill, and you are the only person around who can help. If you make it clear in all you correspondence that you are open to putting the past in the past, then chance may well favour you. THE LAST WORD Tens of thousands of fathers lose their children every year. Those (most) that want to keep up meaningful relationships with their children fight an uphill battle due to inbuilt bias in the legal system, lethargy by Family support systems, confusion and ill-defined policies by government authorities. This is offset by the fact that the media is increasingly highlighting the problems of broken families. The social problems that spin-off from broken families results in cost to the government, and indirectly, concern to solve those problems. Fatherless families are now a political problem as well. Most of all, the increasing use of communications among FNF members, and allying ourselves with similar groups of both fathers and mothers separated from their children is now paying off. The recognition of PAS officially would in itself effectively block a major loophole in the law, with the subsequent benefits for children. This is the aim of FNF.   Republic of South Africa REPORTABLE  IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION)                                                  CASE No:  6850/2003 In the matter of  DIANNE ROSEN        Plaintiff  And  JOHANNES  EUGENE  HAVENGA      First Defendant JULIA S ANDERSSEN N O                                                            Second Defendant       _______________________________________________________________________  JUDGMENT  DELIVERED  :  29  JULY  2005       _______________________________________________________________________  MOOSA, J:  Introduction I agonised to reach a decision that is fair, equitable and in the best interests of Joshua in respect of access, sole custody and sole guardianship. The issues revolved essentially around the relationship between the father and his minor son, Joshua. Joshua was born of the marriage between plaintiff and first defendant (“the parties”). The mother is of the Jewish faith and the father is of the Christian faith. While the parties were living together, Joshua was exposed to the doctrines and practices of both the Jewish and Christian faiths. During those formative years of Joshua’s upbringing, a very close bond was forged between father and son. By force of circumstances, after the birth of Joshua, the father became the prime care-giver of Joshua and the mother became the prime breadwinner of the family. This does not mean that there was less love between mother and son. They were still very close, but because of her work commitment, she was able to spend less time with Joshua than the father. On the one hand, first defendant conceded that plaintiff was a good mother. On the other hand, plaintiff acknowledged that first defendant was a good father. A clinical psychologist, Bernard Altman, described the initial relationship of Joshua towards his father as follows: “Joshua loves his father to bits”.  The question arises what then went wrong?   In December 1997, plaintiff took her son and left the common home in Gauteng to stay with her family in Cape Town. Joshua was 3½ years old at the time. From the time plaintiff left the common home to the time of the divorce, first defendant was afforded supervised access to Joshua in Cape Town. Such access was supervised by Mr Rosen, plaintiff’s brother. At times Mr Rosen had a security guard of Moroccan origin, present at such access. Plaintiff alleged that first defendant had threatened to abduct Joshua to Johannesburg. First defendant alleged that plaintiff used the Moroccan Mafia to prevent him from exercising his right of access to Joshua effectively. The parties were divorced on 26 March 1998 pursuant to an order of the High Court of the Witwatersrand Local Division. The terms of an Agreement of Settlement between the parties were incorporated as part of the Court Order. In pursuance to such order, custody of the minor child, Joshua, born 3 February 1994, was awarded to plaintiff subject to the right of reasonable access granted to first defendant. The order also provided for Joshua to be brought up in the Jewish faith.   After the divorce, first defendant was given unsupervised access to Joshua over certain week-ends and holidays. This arrangement continued until Joshua was admitted to school. In March 2002, a school counsellor found that Joshua was manifesting signs of behavioural and emotional problems. She alerted Ms Donneson, a social worker attached to the Jewish Community Services. On 8 April 2002, Ms Donneson mediated an agreement between the parties in terms of which structured access to Joshua was introduced.  This included personal and telephonic access and communication in writing. At the time Joshua was in therapy with Mr Altman, a child psychologist. Such therapy was ostensibly terminated by plaintiff because Mr Altman tried to resolve issues of access which was causing Joshua considerable confusion and distress.  In August 2002, Dr Carew, a child psychiatrist, assessed Joshua. She found that both parents experienced psychological problems. She also concluded that Joshua struggled to deal with the conflict relationship between the parents and experienced separation anxiety and behavioural problems. She recommended group therapy for the family. First defendant was not to be found for such therapy and blamed plaintiff for Joshua’s problems.   In October 2002, plaintiff launched an Application in this court in an attempt to secure the co-operation of first defendant for the involvement of mental health professionals to assess and regulate access in the best interests of Joshua. The relief sought was refused but the court, on 17 October 2002, ordered: “That the Respondent is bound by the Agreement dated 8 April 2002 and the rulings given by Ms Renee Donneson”.  Ms Anne Cawood, a social worker in private practice, was appointed to supervise access. On 4 March 2003, because certain problems were encountered, Ms Donneson set guidelines in respect of telephonic contact and  imposed certain restrictions on first defendant’s telephonic and physical access. First defendant allegedly breached such guidelines by raising religious topics, denigrating the Rosen family, discussing court proceedings and prompting Joshua to talk on these matters. On 1 April 2003, telephonic access was terminated following a report of Dr Yodaiken, a clinical psychologist, concerning inappropriate telephonic dialogue between first defendant and Joshua. Certain concerns were also raised by Ms Cawood in connection with physical access. Mr Altman, who was re-appointed by plaintiff to continue therapy sessions with Joshua, also raised concerns regarding Joshua’s anxiety and responses in therapy following contact with his father. This prompted Ms Donneson to suspend physical access between first defendant and Joshua on 14 August 2003.   The present action On 18 August 2003, plaintiff instituted the present action against first defendant in terms of which she claimed an order suspending his access to Joshua pending first defendant undergoing psychological and/or psychiatric treatment and for an order granting plaintiff sole guardianship and sole custody of Joshua. First defendant, who conducted his defence in person, opposed the relief sought. The thrust of his defence is that plaintiff conspired with various people, including those that testified for her in this case, to systematically alienate him from his son and remove him from his son’s life completely. This conspiracy, he alleged, is furthermore advanced on the fraudulent claims that he suffered from mental illness and personality disorder. First defendant stated that he had no faith and confidence in psychiatry or psychology and had serious misgivings about their efficacy in the judicial process.  He averred further that Joshua was being abused by plaintiff.   After reading and considering the pleadings filed in this matter, I, mero motu, raised with the parties and the family advocate, the desirability of appointing a legal representative for Joshua. In terms of Section 28(1)(h) of the Constitution of the Republic of South Africa, No 108 of 1996 (“the Constitution”) every child has a right “to have a legal practitioner assigned to the child by the state, and at  state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result”.   In terms of article 12 of the United Nations Convention on the Rights of the Child (“the Convention”) the court is required to afford a child who is capable of forming a view on a matter affecting him or her, the right to express those views. Such views to be given due weight according to the age and maturity of the child. The parties and the family advocate had no principle objection to such appointment. There were a number of factors which moved me to give consideration to such appointment. Firstly, plaintiff was seeking drastic relief in the existing access arrangement, which could have serious implications for both Joshua and first defendant. Secondly, the interests of Joshua may not be compatible with those of the custodian parent. Thirdly, there may be the need to articulate the views of Joshua in these proceedings in the interest of justice. Fourthly, separate legal representation may be in the best interests of Joshua.   In Soller NO v G and Another 2003 (5) SA 430 (W), the court discussing the respective roles and functions of the Family Advocate and the legal representative envisaged in Section 28 of the Constitution, at 438D-G, concluded as follows: “… it would seem that the Family Advocate and the Section 28 legal practitioner occupy dissimilar positions.  The Family Advocate provides a professional and neutral channel of communication between the conflicting parents (and perhaps the child) and the judicial officer.  The legal practitioner stands squarely in the corner of the child and has the task of presenting and arguing the wishes and desires of the child.”  After consultation with the parties, the  family advocate and the legal aid board, I, in terms of Section 28(1)(h) of the Constitution, appointed Adv Julia Anderssen to articulate the views of Joshua and to represent his interests in these proceedings. She agreed to act pro amico in this matter. During the course of the proceedings Adv Anderssen brought an application to be joined as second defendant. While supporting the relief sought by plaintiff for sole guardianship and sole custody, she also sought an order restraining first defendant from instituting any legal proceedings concerning Joshua without the leave of the High Court. First defendant opposed the relief sought by both plaintiff and Adv Anderssen. In giving consideration to the application for joinder, I am satisfied that Adv Anderssen N O not only has a direct and substantial interest in the subject-matter of the present litigation, but is also seeking additional relief in the best interests of Joshua. In the circumstances I find that convenience, equity and the avoidance of multiplicity of actions and costs, dictate that Adv Julia S Anderssen N O be joined as second defendant in these proceedings. The application for joinder should accordingly be granted.    The best interests of a child In considering what is in the best interests of Joshua, a convenient point of departure is the Constitution. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child. The Convention which was ratified by South Africa on 16 June 1995 provides as follows: “(a) Article 3(1) – in all actions concerning children, whether undertaken by public or private social institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration; Article 9(3) – state parties shall respect the right of the child who is separated  from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”      Similar provisions are found in the African Charter on the Rights and Welfare of the Child (“the Charter”), which was ratified by South Africa on 7 January 2000.  Article 4: Bests Interests of the Child, in subsection (1), provides: “In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.” Article 19:  Parent Care and Protection, in subsection (2), provides: “Every child who is separated from one or both parents shall have the right to maintain personal relations and direct contact with both parents on a regular basis.”   Implicit in the best interests of the child is his or her well-being, education, physical and mental health, spiritual, moral and social development. The primary responsibility for the protection and promotion of the interests of the child vests in the parents. In the case of divorce or separation, the responsibility can be regulated by agreement between the parents in the best interests of the child, but subject to the overriding control of the court as the upper guardian. In the absence of an agreement, the responsibility is primarily that of the custodian parent. Although both parents have certain interests in and obligations towards the child, such interests and obligations yield to the best interests of the child. (V v V 1998 (4) SA 169 (C) at 189B-E.)   In Kok v Clifton 1955(2) SA 326 (W) at 330, Roper, J said: ‘Ït is common-place that it is in the interests of the child of divorced parents that it should not be estranged from either parent, the child should not be placed in such a position as to lose affection of either of its parent nor that either of the parent should lose affection for and interests in the child.”‘             See also Marais v Marais 1960 (1) SA 844 (C) at 847C-F. It is the duty of the court as the upper guardian of a child, to balance the competing interests of the custodian parent and that of the non-custodian parent in the best interests of the child. The court will only deny the non-custodian parent access to the child in very exceptional circumstances and on good cause shown and only where this is in the best interests of the child. (Boberg’s: Law of Persons and the Family, 2nd Edition, at page 504.)  Evaluation                                     With the aforesaid factual and legal backdrop, I will proceed to evaluate the evidence to determine whether plaintiff and second defendant are entitled to the relief claimed by them. It is appropriate to mention at the outset that Ms Donneson, in consultation with certain experts, unilaterally suspended the access enjoyed by first defendant in terms of the court order issued on 17 October 2002. Whether she was entitled to do so, without the sanction of the court,  has perhaps become a moot point. It is common cause that since the suspension of access, there has been no contact between father and son for more than a year. That a degree of estrangement has occurred between them cannot be excluded. Apportioning blame to anyone does not help the situation. What the court has to decide, in addition to the other remedies sought: Is it in the best interests of Joshua that access to his father be suspended until the father undergoes psychotherapy?    The grounds upon which plaintiff relies for seeking suspension of access to Joshua by first defendant are: firstly, that first defendant is suffering from paranoid personality disorder; secondly, that he has abused  his right of access to Joshua; thirdly, that he has failed to develop an insight into the negative effects which his behaviour, during access periods, has on Joshua and fourthly, the emotional trauma Joshua has suffered because of first defendant’s inappropriate behaviour during access periods. Plaintiff relies substantially on the same grounds to seek relief in respect of sole guardianship and sole custody. I will deal with each of these grounds to determine whether plaintiff is entitled to the relief sought.   Whether first defendant suffers from paranoid personality disorder Plaintiff tendered the evidence of a number of experts in an attempt to establish that first defendant suffered from a personality disorder: Dr Lesley Carew, a child psychiatrist, who had assessed Joshua, consulted first defendant on 3 October 2002. She described him as well-groomed, a polite man with a warm responsive relationship with his son and who is clearly motivated by a deep-seated and genuine concern for his son’s welfare. She was concerned at the degree and complexity of what she described as a complex delusion which dominates first defendant’s world view and action.  She suspected that he may be suffering from a chronic major psychiatric disorder and suggested that he be seen by an independent psychiatrist; Mr Martin Yodaiken, a clinical psychologist, was asked to assess and evaluate Joshua and his parents towards the end of 2002. Mr Yodaiken indicated that during his interview with first defendant he detected elements of paranoia and believed that paranoia may be symptomatic of personality disorder. Mr Yodaiken referred first defendant to Dr Wayne Sanders, a psychiatrist, for a psychiatric evaluation; Dr Sanders testified that he had seen first defendant for approximately one hour for purpose of assessment.  He found symptoms of a persecutory nature which indicated traits of a paranoid personality. On the basis of further information obtained, he believed there to be symptoms of delusional disorder, which could fall within the category of mental illness. Dr Sanders stressed that in the event of a suspected delusional disorder of a non-bizarre nature, it is difficult to reach a conclusion in the absence of collateral information and verification of such information. Dr Sanders stated that should first defendant be found to be suffering from a paranoid personality disorder, there may be encouraging results if he undergoes psychotherapy and took prescribed medication.  If he was found to be suffering from a delusional mental disorder which is chemically based, he could be treated with prescribed medication which could result in a remission ; Mr Altman, a child psychologist, who has been acting as Joshua’s therapist and who interviewed first defendant, was not prepared to express an opinion on his mental state. He indicated that such an assessment would have to be undertaken over a relatively lengthy period of time.    First defendant tendered a written report from Dr Ashraf Jedaar, a psychiatrist, who had assessed him.  Dr Jedaar concluded that, in accordance with his clinical diagnosis, first defendant was not mentally ill. He observed that he was not thought disordered as he could provide a detailed sequential account of his self and the scope of the enquiry. He did not observe any abnormalities of behaviour.   His insight and judgment were similarly intact. Dr Jedaar, however, did qualify his findings by stating that should there be no rational and plausible basis to his allegations then it could be concluded that he was deluded and hence mentally ill. Dr Jedaar was not called to testify and his opinion could therefore not be tested.   First defendant has indicated that he is not suffering from a personality disorder or a mental illness.  He therefore sees no need for psychological or psychiatric intervention.  Moreover, he claims he has no faith in either psychology or psychiatry.  He claims that there is a conspiracy on the part of plaintiff and some of the professionals who testified for her to have him wrongfully declared to be suffering from a personality disorder or a mental disorder so as to remove him completely from the life of Joshua. I should, however, in fairness to all parties concerned, mention that I found no evidence of such conspiracy.   The evidence of the psychological and psychiatric assessments and evaluations placed before the court by the Plaintiff’s experts are firstly, inadequate and incomplete; secondly, they have been done without the full co-operation of first defendant and in deference to the requests of experts in whom he had very little confidence; thirdly, they were done in a very short space of time and the reliability of the assessments and evaluations have been questioned. I am of the view that there is no conclusive proof that first defendant is suffering from a personality disorder and/or mental illness.   Whether first defendant abused his right of access The experts were ad idem that first defendant loved Joshua, but they were concerned at the way in which expression to such love was given.  They regarded his behaviour towards and the manner in which he related to Joshua, as inappropriate. Mr Yodaiken testified that first defendant does not appear able to discern what appropriate behaviour is and what appropriate thoughts are in respect of his relationship with Joshua. According to Mr Yodaiken, he is supported in this conclusion by empirical data contained in extracts from the transcript of the telephonic conversations between first defendant and Joshua and certain contents of letters sent by first defendant to Joshua. He described them as “bizarre” and not contextually relevant and appropriate.  He said that such extracts and contents were calculated to alienate Joshua from his family, encouraged Joshua to believe in omnipotent fantasies and in the process distort his thinking, create confusion in his religious upbringing and induce in him a feeling of guilt. He was of the opinion that the manner in which first defendant conversed with Joshua displayed a lack of maturity and intellectual judgment.   I have examined and evaluated the relevant extracts from the transcripts and contents of the letters and find them very incisive.  They are as follows: It clearly emerges from these telephonic extracts that he discusses the court proceedings instituted by him and plaintiff and prompts Joshua to talk about these proceedings, with the view of influencing Joshua to take a position on these proceedings in his favour and against the mother. The inevitable consequence of such discussion is that it creates a feeling of  ambivalence in Joshua towards his mother and her family;   According to the telephonic extracts first defendant introduces Joshua to the “coming of rapture” with superhuman qualities and equates it to the coming of the “Messiah”.  He exposes Joshua to the doctrines of Christianity and in the process undermines the teachings of Judaism.  The unfortunate consequence of such dialogue for Joshua is that it creates confusion in his religious upbringing. In a letter addressed by first defendant to Joshua he describes plaintiff in uncomplimentary terms and belittles her in the eyes of Joshua by drawing a caricature of her which is headed by the words: “Extremely Dangerous – Crime Stop – Wanted”. Certain disparaging remarks are made of the mother and he is warned to be careful of her. In the same letter he denigrates the grandmother and uses the physical characteristic of his maternal uncle to poke fun at him. The inescapable conclusion is that he undermines the image of these family members in the eyes of Joshua with the view of alienating him from them.    These are but a few of the many inappropriate interactions between father and son. Similar interactions during physical access were reported by plaintiff, Mr Altman and Ms Cawood.   First defendant’s explanation of these digressions was not very convincing. His explanation that they were harmless and good-hearted bantering between father and son is unconvincing and unacceptable. I am of the view that the contents of the extracts of the transcripts and letters complained of amount to a vilification and denigration of the mother and her family and the value system they profess to subscribe and are calculated to undermine the image and esteem of the mother and the family and their value system in the eyes of Joshua. Such conduct towards a child of tender and impressionable age is unbecoming of a father who has the best interests of his child at heart. I am satisfied that first defendant abused his right of access as alleged by plaintiff.   Whether father realised the negative impact his behaviour had on his son Plaintiff and some of her experts justified supervised access on the ground that the conduct of first   defendant during access periods had negative affects on Joshua. According to Ms Donneson, supervised access was imposed to develop the insight of first defendant to the physical, emotional and psychological needs of Joshua. First defendant, on the other hand, regarded the restrictions on his access to his son as an impediment to his right to access. I am mindful of the fact that any restriction placed on access has its attendant difficulties. A court will only impose restrictions where circumstances justify such limitations and such limitations are in the best interests of a child. Generally speaking, restrictions on access are inimical to the development of good and lasting relationship between the child and the non-custodian parent and are not in the best interests of the child. It is unfortunate that animosity between the parents has negatively impacted on the life of Joshua. I am of the opinion that neither party is free from blame.     According to Dr Carew, both parents experienced psychological problems. The mother suffered from major depressive disorder and psychotherapy was recommended. The father was suspected of suffering from major chronic psychiatric disorder. Both clinical psychologists suggested that first defendant would benefit from psychotherapy which would be a means to address his problem and which, according to them, would be a prerequisite to any future access. Mr Altman testified that Joshua was receiving psychotherapy and suggested that first defendant participates in such psychotherapy. A request to that effect was previously declined by first defendant.   When Joshua started displaying behavioural problems at school, structured access was introduced which included controlled personal and telephonic access and written communication. As further problems were encountered later, certain guidelines and restrictions were placed on access. First defendant breached such guidelines by having inappropriate telephonic dialogue with Joshua, prompting Ms Donneson to terminate telephonic access. Mr Altman who had continued therapy sessions with Joshua reported certain concerns regarding Joshua’s anxiety and responses in therapy following contact with his father. These concerns were reinforced by Ms Cawood who had supervised physical access. In view of the concerns raised by these professionals, Ms Donneson terminated the physical access as well. Despite professional intervention and assistance, it appears that first defendant had failed to develop insight into the negative affects which his behaviour had on Joshua, during access periods.        Whether Joshua suffered emotional trauma The professional and expert witnesses expressed concern in regard to first defendant’s ability and capacity to provide Joshua with appropriate guidance as would be expected from a responsible parent. Dr Carew indicated that Joshua was presenting with separation anxiety from his mother and first defendant’s comments about his mother and her family fuelled this anxiety.  Mr Altman testified that Joshua exhibited anxiety and confusion in respect of contact with his father and that his resistance should not be ignored. There appears to be consensus amongst the professional and expert witnesses that gave evidence, that first defendant had an underlying problem that impacted on his relationship with his son. They were basically of the view that Joshua no longer derived any benefit from having access to his father, which access had a detrimental affect on his emotional and mental well-being.     Plaintiff testified that certain information conveyed to Joshua by first defendant during access periods caused him considerable confusion and distress. Mr Altman testified that during psychotherapy with Joshua he was required to deal with such confusion and distress which emanated from Joshua’s contact with his father. Ms Cawood testified that Joshua changes completely when he sees his father and returns to his own when he leaves his father. She regards their relationship as age-inappropriate, has no boundaries and appears to be defined by first defendant’s deep-seated emotional need for his son’s affection. She was of the view that the access was not beneficial to Joshua and suggested that first defendant should obtain psychiatric help.   It is common cause that both parents were involved in litigation involving Joshua. The parents were not on speaking terms. Joshua found himself in the centre of a conflict situation and suffered understandably from anxiety and distress as he struggled to deal with the conflict relationship between the parents. This was further aggravated by the inappropriateness of the dialogue between father and son. I am, therefore, satisfied that Joshua suffered emotional trauma as a result of first defendant’s inappropriate behaviour during access periods.   Evaluation of the family                     I now proceed to evaluate the family. I observed first defendant in court presenting his case.  He appeared to be very intelligent and self confident.  He presented his case calmly, logically and rationally.  I did not detect that he was suffering from a personality disorder or for that matter mental illness. I gained the impression that he was aggrieved, rightly or wrongly, by the systematic denial of access to his son with whom he had developed a very close bond.  He felt strongly that all the professionals had conspired with the plaintiff to remove him completely from his son’s life.  At first glance there might be some substance in his assertion, but on closer scrutiny of his conduct and behaviour, particularly in his interaction with Joshua, a different picture emerges.  The existence of an underlying psychological or psychiatric problem which first defendant could be suffering from, cannot be excluded. During the course of the trial, he appealed to the court that he at least be allowed to send Joshua letters and cards especially on special occasions in order to maintain contact with his son.   I also observed plaintiff giving evidence in court. She appeared to be sensitive and emotional. Mr Altman described her as impulsive. She suffered from a major depressive disorder and received psychotherapy for her condition. First defendant conceded that plaintiff was a good mother. However, he alleged that Joshua suffered abuse at the hands of the mother. There was no evidence to substantiate such abuse. The professionals and experts who testified refuted such allegation. They acknowledged the fact that she disciplined Joshua when he manifested behavioural problems. There was also no acceptable evidence placed before the court to substantiate first defendant’s claim that plaintiff and her family had deliberately alienated him from Joshua. There was, however, evidence that normal access by first defendant to Joshua was made difficult by plaintiff and her family and when Mr Altman tried to facilitate such access in the best interests of Joshua, his services were terminated.   It has generally been recognised that children of intellectual and emotional maturity need to be heard with regard to their wishes, desires and preferences in connection with their physical, moral, emotional and spiritual welfare. In McCall v McCall 1994 (3) SA 201 (C) at 207H King, J (as he then was) said: “…if the Court is satisfied that the child has the necessary intellectual and emotional maturity to give, in his expression of a preference, a genuine and accurate reflection of his feelings towards and relationship with each of his parents, in other words, to make an informed and intelligent judgment, weight should be given to his expressed preference.”   I had the benefit of interviewing Joshua in chambers. This was done with the concurrence of all parties concerned. Prior to that, first defendant suggested that Joshua be called to testify in court. I was not to be found for such request. I was of the view that it would have placed tremendous strain on Joshua and caused him untold distress. It would not have been in the best interests of Joshua as he, in all likelihood, would have had to take a stand against one or other of his parents.  Joshua is a bright, impressive and sensitive young lad. He is acutely aware and anxious of the conflict between his parents. He is conscious of the central role he plays in such conflict. He does not want to disturb the status quo pertaining to access. He indicated that he is not yet ready to have access to first defendant at this point in time. He left open the question of future access. He was, however, prepared to accept the occasional letters and cards from his father.   From the interview, it appeared that he had settled down and had accepted the fact that he would not have access to his father within the immediate future. I am of the view that to disturb the status quo, without professional intervention, would not be in the best interests of Joshua. I agree with Mr Altman that Joshua was above average intellectually, but is emotionally immature for his age. I cannot help but conclude that Joshua has been left with emotional scars as a result of the conflict to which he was exposed in the dealings between his parents. In the light of all the circumstances I conclude that it would be in the best interests of Joshua that first defendant undergoes professional assessment and evaluation and if necessary suitable treatment and/or therapy and/or counselling before access to Joshua is restored.   Sole guardianship and sole custody I now turn to the question of sole guardianship and sole custody. Plaintiff is seeking such relief on the same grounds that she advanced in respect of her claim for the suspension of first defendant’s access to Joshua. In addition thereto, plaintiff has also advanced the following grounds: firstly, that first defendant is not capable of making decisions which are in the best interests of Joshua; secondly, he frustrated joint decisions as co-guardian in the past; and thirdly, that he has failed to provide financial support for Joshua. First defendant’s capacity to make decisions in the best interests of Joshua has been overshadowed by evidence indicating that he may be suffering from personality disorder or mental illness. The court earlier found that there was no conclusive proof that first defendant suffered from personality disorder or mental illness. The question of whether he is capable of making decisions in the best interests of Joshua will depend whether he undergoes professional assessment, evaluation, treatment and counselling, if necessary, to which the court alluded earlier.   The problem relating to joint decisions, concerned an application for a passport for Joshua to travel with plaintiff to Mauritius on holiday. First defendant was not co-operative and plaintiff was compelled to bring an urgent application to court for the necessary relief. First defendant gave consent at the very last moment, but at that stage the court had apparently given permission. In my view this was firstly, an isolated incident and secondly, first defendant did give permission, however, belatedly.  A further issue which created a conflict between the parties and which was not in the interests of Joshua was the Jewish faith in which Joshua was being raised. First defendant, at the time of the divorce, agreed that Joshua could be raised in the Jewish faith. This was made part of the divorce order. In any case, in the absence of an agreement, the custodian parent, that is plaintiff, could decide in which faith Joshua should be raised. In terms of the common law, the custodian parent has the right and duty to determine what religious upbringing, if any, the child should have. Religious upbringing is one of the common law incidents of parental authority over children. However, there is no obligation on parents to raise a child in any particular religion. The parents are entitled to raise the child as an atheist, agnostic or in any religion of their choice. Likewise, a child who has reached a level of intellectual, emotional and spiritual maturity is entitled to make an informed decision with regard to his beliefs consistent with the constitutional right to freedom of religion and thought.    It appears that first defendant also wanted Joshua to be exposed to the Christian faith. In this regard he found support for his contention in the Constitution which provided for freedom of religion. Article 15(1) of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion. Article 14(1) of the Convention provides that state parties shall respect the right of the child to freedom of thought, conscience and religion and Article 5 thereof provides that state parties shall respect the rights and duties of the parents and where applicable legal guardians to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.   The question which needs to be answered is whether it is in the best interests of Joshua that he, at this stage of his spiritual development, should be exposed to different religions. In the view of the court it would depend on the purpose of such exposure. If the exposure is meant to be educational and extend his knowledge to other world religions, the court cannot see any objection thereto. If the objective is to proselytize Joshua, it is highly undesirable as it could only create confusion in Joshua’s spiritual upbringing and would, in my opinion, not be in his best interests. I cannot exclude the possibility that first defendant was subtly trying to proselytize Joshua to the Christian faith. I am reinforced in this conclusion by the fact that first defendant in his communication with Joshua, tried to belittle Judaism and promote Christianity.   In Dunscombe v Willies 1982 (3) SA 311 (E and CLD) the father was a member of the Jehovah’s Witnesses and the mother was a member of the Catholic Church and the minor children were attending a Catholic school, Milne, DJP granted the mother sole guardianship and sole custody of the minor children, pending the mother instituting action for such relief. At page 317E-F, Milne, DJP said: “Furthermore, it seems to me undesirable and against the interests of the children that they should from their father on the one hand receive positive proselytising education in one faith, whereas, on the other hand, the whole religious basis of the schools which they attend is on a completely different and inconsistent basis. That would be to put them in a conflict situation which I do not consider to be in their best interests.”  The Court will only in exceptional circumstances deprive a parent of guardianship or custody of his or her minor child and only if the best interests of such child dictate such a move. On the basis of the evidence presented before me, I am not convinced that first defendant is not capable of making decisions which are in Joshua’s best interests. The fact that first defendant has failed to support Joshua, in my view, is not sufficient ground to deprive him of guardianship and custody. However, the best interests of Joshua, dictates that first defendant undergo an assessment and evaluation of his psychological and mental state and, if necessary, treatment and/or counselling, to enable the court to determine whether he should be deprived of joint guardianship and joint custody of Joshua. Such assessment and valuation are to be undertaken within a reasonable period, failing which plaintiff will be entitled to approach this court, on application, for the granting of the relief sought in respect of sole custody and sole guardianship.   Vexatious litigant I now turn to discuss the relief sought by second defendant for an order that first defendant be declared a vexatious and litigious litigant and be interdicted from instituting any action concerning Joshua without the special leave of the High Court. I have mentioned earlier that both parents were involved in civil litigations in the Magistrate’s Court and in some of these Joshua featured prominently. They took the form of interdicts. First defendant also laid numerous criminal charges against plaintiff for refusing him reasonable access as ordered by the High Court. The different actions were instituted at the time the parties felt aggrieved at the conduct of each other. It appears that these actions came to an end when the present proceedings were instituted in the High Court. It also appears that most of the civil proceedings in the Magistrate’s Court ended inconclusively whereas the criminal charges laid by first defendant against plaintiff were not prosecuted.   First defendant denied the charge that he was vexatious and litigious. He contended that he was justified in taking legal proceeding against plaintiff for denying him access to Joshua. During the course of these proceedings, first defendant gave an assurance that he does not intend litigating further in the Magistrate’s Court as most of the issues that he had raised at the lower court are being addressed in the present proceedings. The criminal proceedings, on the other hand, will depend on the outcome of the present proceedings. I am prepared to give first defendant the benefit of the doubt and accept his assurance to this court about further litigation. In the circumstances the court, in the best interests of Joshua, is prepared to postpone the relief sought by second defendant depending on the future conduct of first defendant.   In the circumstances, the court concludes that it will be in the best interests of Joshua: that the application of Joshua’s legal representative to be joined  as second defendant, is granted; that first defendant’s access to Joshua and the relief sought by plaintiff for sole custody and sole guardianship and by second defendant for an interdict against first defendant, be suspended pending first defendant undergoing psychological and/or psychiatric assessment and evaluation with a registered psychologist and/or psychiatrist; that should first defendant be diagnosed to be suffering from any psychological and/or psychiatric problem, he undergoes treatment and/or therapy to address the particular problem or problems; that should first defendant not be diagnosed to be suffering from any psychological and/or psychiatric  problem or should he be diagnosed as such and after successfully undergoing suitable treatment and/or therapy, he shall co-operate with and participate in the therapy and/or counselling Joshua is receiving from Mr Altman with the view of phasing in access by first defendant to Joshua;      that first defendant in the interim shall be entitled to send letters and cards to Joshua via Mr Altman who shall vet and approve such letters and cards in the best interests of Joshua and Joshua shall likewise be entitled to reply and/or respond to such letters and cards to first defendant via Mr Altman; that first defendant shall, within a reasonable period of time, make available to the court, plaintiff, first defendant, Mr Altman and Adv Brits (the Family Advocate), or her duly authorised representative, the assessment and evaluation reports of the professionals and if applicable the  professional reports of the treatment and/or therapy and/or counselling undergone by first defendant; that Mr Altman and Adv Brits,  or her duly authorised representative shall, after receiving and considering the reports referred to in clause (f) above, make recommendations to this court with regard to the lifting of the suspension of access and if so, the terms and conditions under which the suspension should be lifted and they shall also make recommendations with regard to the sole custody and sole guardianship of Joshua claimed by plaintiff and the interdict claimed by second defendant; that plaintiff, first defendant, second defendant, Adv Brits or her duly authorised representative shall be entitled to approach this court, at any stage on application, for any suitable relief suspended by this judgment, provided it is in the bests interests of Joshua; that the question of costs stands over for later determination..       ……………………….          E  MOOSA D Rosen v E Havenga                                                                                                           Cont/… D Rosen v E Havenga                                                                                                                     Contd/…   DR ASIF SULEMAN [MbChB-NATAL] REGIONAL CO-ORDINATOR FATHERS-4-JUSTICE[KZN] 453 WINDERMERE RD,  MORNINGSIDE DURBAN   082 777 55 77 031-312 34 88 /032 944 3769 0865 165 915     INTENDED RECIPIENTS ONLY.F4J IS A REGISTERED NGO/NPO ACTIVELY PROMOTING A CHILDS BEST INTERESTS AFTER PARENTAL SEPERATION.PARENTAL ALIENATION IS CHILD ABUSE.LET OUR KIDS BE THE WINNERS AND NOT THE PRIZE DR ASIF SULEMAN [MbChB-NATAL] REGIONAL CO-ORDINATOR FATHERS-4-JUSTICE[KZN] 453 WINDERMERE RD,  MORNINGSIDE DURBAN   082 777 55 77 031-312 34 88 /032 944 3769 0865 165 915     INTENDED RECIPIENTS ONLY.F4J IS A REGISTERED NGO/NPO ACTIVELY PROMOTING A CHILDS BEST INTERESTS AFTER PARENTAL SEPERATION.PARENTAL ALIENATION IS CHILD ABUSE.LET OUR KIDS BE THE WINNERS AND NOT THE PRIZE

 

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