May 2023

reem alsalemReem Alsalem, Special Rapporteur on violence against women and girls, its causes and consequences, presented a report on guardianship in the context of violence against women and children. The Autonomous Women's Center submitted a report on the situation in Serbia. The Report highlights all the consequences of using the quasi-scientific concept of "parental alienation" and its iterations.

The Report defines the quasi-scientific term "parental alienation" and numerous related terms, the history of its origin, the connection with domestic violence, and cases of sexual abuse of children. It also refers to the presentation of the numerous judicial practice studies results that point out that mothers are disproportionately affected by the abuse of this concept, especially women from marginalized groups. The Special Rapporteur lists the tactics and pitfalls of "alienation" through the broad application of that concept in the judicial system, the social protection system, and expert opinions, describing the concept's negative impact on the child's best interests. The Report also contains a list of relevant international documents and practices, the involvement of international bodies in protecting human rights, their decisions, recommendations, judgments of the European Court of Human Rights, and implications for the Hague Convention on Child Abduction. The Special Rapporteur also describes the systemic reasons for the popularization of this quasi-scientific concept, from gender inequality in laws and legal systems, through the role of court experts and other experts in family proceedings, insufficient knowledge of the domestic violence dynamics, the high cost of litigation and else.

In the recommendations of the Special Rapporteur on violence against women and girls, its causes and consequences, she points out that this quasi-scientific concept is used by perpetrators of violence as a means of continuing abuse and coercion in order to discredit the allegations of mothers about domestic violence and efforts to protect their children. He points out that the child's best interests standard is violated by imposing contact between the child and the parents and prioritizing communication even when there is evidence of violence. That leads to opportunities for children to be entrusted to an abusive father, despite evidence of a history of domestic violence and/or sexual abuse of children, pointing to systemic obstacles to justice in these proceedings, to the need for courts to focus on the facts and context of each case, rather than to scientifically unconfirmed concepts.

Based on the results of the rich findings, the Special Rapporteur recommends that states pass laws that will ban the use of this quasi-scientific concept, ban the use of reports by so-called experts on "parental alienation" and related concepts, monitor the effectiveness of the family justice system in domestic violence proceedings, provide training for representatives of the judiciary and related disciplines (on gender bias, dynamics of domestic violence, the relationship between allegations of violence and "parental alienation" and related concepts). It recommends creating and issuing special guidelines for the judiciary on the need to examine each case based on the facts and to judge fairly, to establish publicly funded systems of experts to provide information to the courts in the best interest of the child, as well as rules on when to use experts outside of the publicly funded system, to ensure that they are qualified and professionally regulated and regularly trained, and to establish lists of approved family law experts, to introduce formal complaints mechanisms and enforceable codes of practice that deal with conflicts of interest and the recognition of expertise in this areas.

It suggests that in family law proceedings, no assessments should be made without considering the criminal code and/or child protection procedures, as well as all allegations of domestic violence and sexual abuse by adults against children that must be explained in assessments and expert reports, as and why contact is granted or why children are entrusted to a parent who is alleged to have been violent in the family or abused children. It also suggests revising the Hague Convention on Civil Proceedings in Child Abduction better to protect the abuse of women and their children and that the courts competent under the Convention must consider domestic violence when interpreting and applying its provisions.

The Report proposes to prohibit the use of "reunification camps" for children as part of any outcome in legal proceedings, to ensure separate legal representation of children in all disputed family proceedings, to ensure that children's views are sufficiently and independently represented (in accordance with the age, maturity, and understanding), to ensure wider availability of legal aid in family law proceedings, to establish independent investigations into the use of the quasi-scientific concept of "parental alienation" and its iterations, to collect segregated data, and to introduce a monitoring mechanism to assess the specific impacts of policies and procedures related to justice in family proceedings for marginalized groups of women. Izveštaj Specijalne izveštačice je temeljen na brojnim relevantnim istraživanjima i analizama sudske prakse, ali i na hiljadama podnesaka pristiglih iz svih krajeva sveta, između ostalih, i onog koji ukazuje na praksu iz Hrvatske, koji su podnele Autonomna ženska kuća iz Zagreba i SOS Rijeka, što je važno imajući u vidu uticaj koji preko edukacija dolazi i širi se kod stručnjaka u Srbiji. Autonomni ženski centar je takođe podneo prilog opisujući negativne prakse.

In light of the circumstances in Serbia, it is vital to point out that the quasi-scientific concept of "parental alienation" is based on the paradigm of equal parenting, which is inapplicable when there is domestic violence, as Nataša Škrbić, a Croatian expert on these issues, points out in her statement on the occasion of this Report. She particularly points to good practice examples coming from Australia, which announces the abolition of the presumption of "equal shared parental responsibility" from the Family Law (which passed the third reading in the Australian Parliament), because the analysis that preceded the reform of the law has shown that it can lead to unfair outcomes and compromise security. Misinterpreting  shared or equal time with both parents is a way of perpetuating the concept of "alienation." A recent survey in Spain confirms the coexistence of the concept of "alienation" and the insistence on equal parenting. Recently, the Supreme Court of Italy stated that independent custody of a minor child could not be based only on the "diagnosis of parental alienation syndrome" or "malicious mother syndrome" and that judges must check the scientific basis of any expert opinion that deviates from the official science.

The proposed new Australian family law emphasizes the child's best interests, but prior violence, exposure to violence, the effects of that violence on children and women, and the need to weigh safety against the benefit of contact in decisions about entrusting children. The old "test" for evaluating the best proposal is replaced by a new one, which consists of six factors: promoting the safety of the child and parent-guardian; attitudes of the child; the needs of the child; the benefit of maintaining relationships with each parent and significant other, where it is safe to do so; the capacity of each proposed custodial parent to meet the needs of the child; and any other relevant factors.

You can view the Report of the Special Rapporteur on violence against women and girls, its causes and consequences HERE.

You can see the contribution of the Autonomous Women's Center submitted to the Special Rapporteur HERE.

Contributions submitted by the Autonomous Women's House from Zagreb and SOS Rijeka can be viewed HERE and HERE .

Read the text on the RECI.HR portal, in which Nataša Škrbić and Jelena Jindra (H-alter) speak HERE.