16 June 2023
Letter to Ambassador Václav Bálek, President of the UN Human Rights Council, regarding A/HRC/53/36: Report of the Special Rapporteur on violence against women and girls - Custody, violence against women and violence against children
Ambassador Václav Bálek
President of the UN The Human Rights Council
Permanent Mission of the Czech Republic to the United Nations Office and other international organizations in Geneva
Chemin Camille Vidart 17
1211 Geneva 20
Switzerland
Via: mission.geneva@embassy.mzv.cz
16 June 2023
Dear Ambassador Bálek
Re: A/HRC/53/36: Report of the Special Rapporteur on violence against women and girls - Custody, violence against women and violence against children
We respectfully wish to make representations regarding the Report of the Special Rapporteur on violence against women and girls, its causes and consequences, titled Custody, violence against
women and violence against children, which was published on 13 April 2023 and is due to be debated at the fifty-third session of the Human Rights Council, which begins on 19 June 2023.
Summary
In her preamble to the Call for inputs – Custody cases, violence against women and violence against children, the Special Rapporteur on violence against women and girls quite rightly refers to
Article 19 of the Convention on the Rights of the Child, that the right for the child should be protected from all forms of physical or mental violence, injury, abuse, or maltreatment, including
sexual abuse, while in the care of parents.
It is our contention that the report in question significantly fails to address the child’s right to be protected from all forms of physical or mental violence, injury, abuse, or maltreatment,
including sexual abuse, while in the care of parents, by relying only upon representations of a narrow strand of opinion and ignoring wider opinion and evidence.
Whilst it is appropriate that the Special Rapporteur recommend measures, ways and means at the local, national, regional and international levels to eliminate all forms of violence against women
and its causes, and to remedy its consequences [Commission on Human Rights resolution 2003/45], in carrying out the mandate, the Special Rapporteur is expected to carry out consultations with
civil society and NGOs. In order for the Council to have confidence in the testimony presented as a result of such consultations, and any recommendations made as a result of that testimony, we
propose that the consultation process must be transparent. We believe that the consultation process has singularly lacked transparency.
In spite of a commitment to do so, the Special Rapporteur has failed to provide either the submissions in full or even a list of the organisations and individuals who made submissions. Neither
has she provided details about why certain submissions were referred to in her report whilst others were not. Whilst the Special Rapporteur uses these submissions to evidence her report and
inform her recommendations, without the opportunity to scrutinise these texts, they are little more than hearsay.
Many of narratives and public discourses on this subject are driven by parents who have been judged, through due process, to have harmed their children. It is known that organisations referred to
in the report, and whose testimony is relied upon, articulate the subjective experiences of parents who have been judged, through due process, to have harmed their children. Whilst, of course, it
must be accepted that courts will and do make errors, the testimonies of such parents must be calibrated to take account of this and the subjective experiences of parents who have been judged,
through due process, to have harmed or abused their children should not be the main driver of law or policy.
In consideration of any recommendations made under the mandate, and for Member States to have confidence in the report and any recommendations that are adopted by the Council, the Council must be
in a position to evaluate a range of opinion, including that which challenges the opinions and conclusions of the Special Rapporteur. We do not consider that the report prepared by the Special
Rapporteur allows for this.
We respectfully submit that:
- the Report of the Special Rapporteur on violence against women and girls, its causes and consequences, titled Custody, violence against women and violence against children, substantially misrepresents the the issue being reported upon and includes factual errors and misleading statements that render the report unreliable;
- the consultation process was significantly flawed in that it lacked transparency and, therefore, does not allow for an informed debate of the issue and cannot be relied upon by the Council;
- the findings and recommendations of the report had been substantially established in advance of the consultation, and the Special Rapporteur has referred only to submissions that support that prior position.
We ask that the contents of this letter are shared with the most senior representatives from all members of the Human Rights Council for the 17th cycle and, in the light of the concerns we have raised, we respectfully ask that you recommend to the fifty-third session of the Human Rights Council that the Report of the Special Rapporteur on violence against women and girls, its causes and consequences, titled Custody, violence against women and violence against children, be dismissed.
About the Family Separation Clinic
The Family Separation Clinic is a small private partnership that specialises in cases of emotional harm to children in the context of divorce or family separation, which often come to light
through, and are typically connected with, a child rejecting a relationship with one of their parents. Among other clinical delivery, the Clinic provides therapeutic services to severely abused
children, under the instruction of the High Court of England and Wales or relevant local authority child protection departments. The Clinic specialises in working with children suffering with
attachment trauma.
The Clinic accepts referrals to carry out assessment for treatment where complex or fractured attachment dynamics appear to be present and delivers therapeutic interventions that focus on healing
the underlying defences in the child. In cases where emotional harm has been found to have caused the child’s rejection of an attachment figure, combined treatment routes are employed to free the
child from the splitting defence that underpins the rejection dynamic.
The Family Separation Clinic is not a lobby organisation and does not campaign on or promote so-called ‘parental alienation,’ as is gratuitously inferred by the Special Rapporteur at paragraph 60
of her report. The Clinic does not base its work in what has become known as Parental Alienation Theory (including the so-called Five Factor Model) but within standard psychodynamic,
psychotherapeutic, and child development theory and practice.
Misrepresentation and factual errors
We do not intend to respond to the report line by line but, instead, highlight a number of substantial misrepresentations and errors, by way of example. As therapists working predominantly in the
jurisdiction of England and Wales, we will not respond to things outwith our field of knowledge or expertise.
The Special Rapporteur uses the terms ‘parental alienation and related pseudo-concepts’ as well as ‘pseudoscience.’ This is highly misleading (though it is difficult to be quite clear what is
meant by the term ‘pseudo-concept’). In the context of England and Wales, the courts do not regard so-called ‘parental alienation' as a psychiatric syndrome or as a scientific construct. The term
is used only to describe a broad set of dynamics that may be manifest within a family. The most recent case law, established by the President of the Family Division (Re C (‘Parental Alienation’;
Instruction of Expert) Neutral Citation Number: [2023] EWHC 345 (Fam)), is quite clear:
‘Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is
important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on
the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine
whether the label ‘parental alienation’ can be applied.'
In recommending that ‘States legislate to prohibit the use of parental alienation or related pseudo-concepts in family law cases and the use of so-called experts in parental alienation and
related pseudo-concepts’ (para 74 (a)) it would appear that the Special Rapporteur has purposely conflated parental alienation theories derived from Dr Richard Gardner (para 10), with all and any
approaches to protecting children from emotional and relational harm in the context of divorce or family separation, and the use of psychologists, psychiatrists and other mental-health
professionals to assist the court in determining the best interests of the child. This is highly misleading in that it infers all understanding about, and treatment of, children who have been
exposed to harm leading to the rejection of an attachment figure stem from the same theoretical construct when they do not.
The report refers to a submission by the Domestic Abuse Commissioner for England and Wales (among others) regarding ‘cases where children were removed from the primary carer and compelled to
reside with the perpetrator parent, whom they resist’ (para 23). As the submissions have not been made available for scrutiny, it is not possible to know whether this comment refers to a proven
case or simply reflects the subjective experience of the parents from whom the children were removed. Notwithstanding this lack of clarity, whilst one must always accept that courts may make
mistakes, to suggest that this claim is in any way true in the generality is a gross distortion of the truth.
Children in England and Wales are not removed from a parent’s care on the basis of an allegation of ‘parental alienation’ but upon the court’s finding that a child is suffering or is likely to
suffer significant harm; a provision enshrined in the Children Act 1989. By definition, this precludes the removal of a child into the care of a parent who is also likely to cause the child to
suffer significant harm. Case law, established in the High Court of England and Wales (Re L (A Child) Neutral Citation Number: [2019] EWHC 867 (Fam)), is clear:
‘The test is, and must always be, based on a comprehensive analysis of the child's welfare and a determination of where the welfare balance points in terms of outcome. It is important to note
that the welfare provisions in CA 1989, s 1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court's authorisation to remove a
child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and
care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying
the permanent removal of a child from a family into foster care. Use of phrases such as "last resort" or "draconian" cannot and should not indicate a different or enhanced welfare test. What is
required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s 1(3) welfare check list which apply on the
facts of the case and then, taking all those matters into account, determine which of the various options best meets the child's welfare needs.'
and (A and B (Parental Alienation: No.1, No.2, No.3 and No.4) Neutral Citation Number: [2020] EWHC 3366 (Fam)
‘I remind myself that the welfare best interests of Child A and Child B are the court’s paramount consideration (s.1(1) of the Children Act 1989). I have regard to those factors in the
welfare checklist at s.1(3) of the 1989 Act insofar as they are relevant to the circumstances of this case. I have regard to the Art.6 and Art.8 rights of the mother, the father and importantly
the children.
and (Neutral Citation Number: [2023] EWFC 85)
‘I am satisfied that C was suffering and was likely to suffer significant emotional harm as at the date of issue of this application attributable to the unreasonable parenting of her Mother.
I find that the Mother provided psychological and practical encouragement for the development of a wholly false narrative by which C came to believe that she has suffered forms of physical abuse
whilst in the care of her Father.’
The obligations upon the courts in England and Wales are quite clear (Re S (Parental Alienation: Cult: Transfer of Primary Care) Neutral Citation Number: [2020] EWHC 1940 (Fam) ):
‘'...the obligation on the court is to keep the child’s medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent’s right to respect for
family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation.’
and (Re L (A Child) Neutral Citation Number: [2019] EWHC 867 (Fam))
‘...it is important to bear in mind that each element in the welfare checklist is subject to the overarching requirement in CA 1989, s 1(1) that the welfare of the child must be the court's
paramount consideration.'
The report sets up a false binary between so-called ‘parental alienation’ and domestic violence and singularly fails to address the many and varied forms of emotional, psychological, and physical
abuse experienced by children at the hands of both mothers and fathers. It is argued that allegations of parental alienation are a tool used by fathers to deflect attention from domestic abuse
(para 11). Others will argue that domestic abuse is alleged by mothers to deflect attention from parental alienation. It is, perhaps, self-evident that there will be cases in which either of
these propositions is true. The task before the courts is to sift through the conflicting personal and public narratives in order to determine the best interests of the child. There is no
reliable evidence that the courts of England and Wales systemically fail in this duty.
The courts of England and Wales are required to abide by Practice Direction 12J – Child Arrangements And Contact Orders: Domestic Abuse And Harm. Among other requirements, PD 12J places a duty on
the court to:
‘ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and
does not expose either of them to the risk of further harm.’
There is no reliable evidence that the courts are systematically failing in their duty to carry out the requirements of PD12J.
It would be wholly untrue to suggest that the family courts of England and Wales ‘refer to “parental alienation” or similar pseudo-concepts in custody cases, ignoring histories of domestic
violence’ (para 2). Allegations of domestic abuse are examined in the light of the evidence just as claims of ‘parental alienation’ are examined in the light of the evidence.
Cases referred to as ‘parental alienation’ do not pass through the courts of England and Wales quickly, based simply on allegation of domestic violence and counter claim of parental alienation.
Cases typically take a number of years before resolution, often involving significant oversight from local authority child protection services, psychiatrists, psychologists, psychotherapists,
police, medical professionals, teachers, and others. Removal of a child from the care of a parent is only ever ordered after extensive and exhaustive investigation by the courts and the agencies
that support them. Narratives that suggest otherwise are untrue.
The report’s presentation of the issue is entirely one-dimensional; suggesting that only fathers claim ‘parental alienation’ and that children do not reject their mother as a result of the
same dynamics. It is, perhaps, telling that the voices of these mothers are entirely absent from the report.
By failing to incorporate the experiences of mothers who lose a relationship with their children as a result of psychological manipulation by the father, the report effectively erases their
voices. Sex disaggregation of our services consistently suggests that as many mothers lose a relationship with their children as a result of psychological manipulation by the father as fathers do
as a result of psychological manipulation by the mother.
This is supported by the numerous cases that the Clinic has worked in, including several Transnational Marriage Abandonment, (often referred to as stranded spouse) cases, in which children have
been removed from a father who has be found to have harmed the child and removed into the care of the mother. Adoption of the recommendations in this report would, effectively, remove protection
for these children and their mothers.
It is notable that the report states, ‘Concerns have also been raised about evidence provided by unqualified and unregulated experts, some of whom appear to “abuse their position for profits or
political agenda”’ (para 61) and references these concerns to the Victims’ Commissioner of the Greater London Authority and the SHERA Research Group, both of whom are located in England and
Wales. And yet, the example used to justify this claim is from Israel’s civil and Rabbinical courts.
It is difficult to ascertain the meaning of the phrase, ‘abuse their position for profits or political agenda.’ Nevertheless, the matter of court experts has recently been dealt with through a
comprehensive judgement made by the President of the Family Division (Re C (‘Parental Alienation’; Instruction of Expert) Neutral Citation Number: [2023] EWHC 345 (Fam)). The judgement underlines
both the need for all court appointed experts to comply with the mandatory regulations provided for under Family Procedure Rules 2010, Part 25 and Practice Directive 25A-D, and court’s right to
permit expert evidence in children proceedings ‘if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.’
The President noted the principles reiterated by the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 (adopting the approach in Daubert v Merrell Dow Pharmaceuticals Inc
(1993) 509 US 579) that:
‘if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.’
It should be noted that Expert Witnesses working in the family courts of England and Wales are typically appointed, jointly, by the parties and do not work on behalf of one or other of the
parties.
Flawed consultation process
It is our contention that the Special Rapporteur had established her position on this issue in advance of the consultation and that the submissions she has relied upon to evidence her conclusions
in the report have been selected purely on the basis that they support that prior position.
For example, in the preamble to the Call for Inputs, the Special Rapporteur writes:
‘The aim of this report is to examine the ways in which family courts in different world regions refer to parental alienation, or similar concepts, in custody cases and how this may lead to
double victimisation of victims of domestic violence of abuse. It also aims to document the many ways in which family courts ignore the history and existence of domestic and family violence and
abuse in the context of custody cases, as well as their grave consequences on mothers and their children.’
She adds:
‘Given the correlation between the resort to the concept of parental alienation and the persistence of gender-based violence against women, the topic requires urgent attention.’
These same positions underpin her report and it is clear, from these and other extracts, that the Special Rapporteur had already formed her views and drawn her conclusions on this issue before
the consultation took place.
In spite of a published commitment to do so (see Call for Inputs webpage), the Special Rapporteur has failed to provide either the submissions in full or even publish a list of the organisations
and individuals who made submissions. Neither has she provided details about why certain submissions were referred to in her report whilst others were not. Whilst the Special Rapporteur uses
these submissions to evidence her report and inform her recommendations, without the opportunity to scrutinise these texts, they are little more than hearsay.
Any evidence that is untestable is, by its nature, unreliable. Evidence that is unseen is even more so.
Many of narratives and public discourses on this subject are driven by parents who have been judged, through due process, to have harmed their children. It is known that organisations referred to
in the report, and whose testimony is relied upon, articulate the subjective experiences of parents who have been judged, through due process, to have harmed their children. Whilst, of course, it
must be accepted that courts will and do make errors, the testimonies of such parents must be calibrated to take account of this and the subjective experiences of parents who have been judged,
through due process, to have harmed or abused their children should not be the main driver of law or policy.
Whilst the failure of the Special Rapporteur to publish the submissions or provide details of those individuals and bodies that responded to call for inputs prevents us from making a judgement
about whether her report is representative of the weight of submissions she received, it is quite clear that she has only included submissions that support her prior beliefs about the issue and
that the submissions included represent only the views of a narrow body of lobby and campaign groups, ignoring evidence from a wide variety of other sources, including specialists in child and
adolescent mental health.
Whilst the views and experiences of such lobby groups are rightly included in the report, in order for the Council to determine whether or not to accept the report and its recommendations, it
must have the opportunity to evaluate the full range of opinion and experiences. It is our contention that the report is partial and rooted in ideological perspectives.
Communications with the office of the Special Rapporteur
On 30 May 2023, we emailed the OHCHR Info Desk (ohchr-infodesk@un.org) noting that The Call for inputs – Custody cases, violence against women and violence against children, issued by Special
Rapporteur on violence against women and girls, states that ‘all submissions will be published on the mandate webpage on the OHCHR website, unless otherwise indicated in your submission’
(https://www.ohchr.org/en/calls-for-input/2022/call-inputs-custody-cases-violence-against-women-and-violence-against-children) but we had been unable to locate these submissions and would be
grateful if a link to the documents could be provided.
We have had a number of communications with the Special Rapporteur’s office since that date but have not received answers to a number of key questions relating to the processing of submissions. A
redacted copy of all communications is appended.
The Special Rapporteur’s office initially reported that, given the large number of submissions received, and the limited capacity on the VAW team, the submissions had not yet been uploaded, but
any that are would be made available on the mandate’s webpage as soon as possible.
We were subsequently told that, because the Special Rapporteur had received a huge number of submissions, ‘it was taking some time to go through them all, as some were submitted by individuals on
a confidential basis and cannot be published.’ We noted that, given the Special Rapporteur had published her report to the Council on 13 April 2023, we were a little unclear what this meant and
argued that the Special Rapporteur (or her team) would have needed to go through all of the submissions prior to writing her report, in order to determine what evidence to include and exclude,
and that a systematic process of collating and registering all submissions must have taken place before she commenced writing her report.
The Special Rapporteur’s office subsequently revealed that additional submissions had also been sought, reviewed and considered by the Special Rapporteur during ‘a series of online consultations
with stakeholders and experts’ in order to inform the report.
We have asked the Special Rapporteur’s office a number of questions that, despite a number of requests, we have not been provided answers to beyond a confirmation that ‘all inputs and
contributions from Member States, international and regional organizations, non-governmental organizations, academia and victims, along with information provided during a series of online
consultations with stakeholders and experts were reviewed and considered by the Special Rapporteur in order to inform the report, and they will be included on the mandates webpage as soon as
possible.’
In addition to the question of whether the Special Rapporteur has read and considered all submissions received as a result of her call for inputs, we have asked for information to clarify:
- whether and (if so) how submissions were recorded
- the inclusion and exclusion criteria used to determine which submissions would be referred to in the final report (Custody, violence against women and violence against children, published on 13 April 2023)
- the date when all submissions (not excluded on the basis of confidentiality) would be published and available to read
- the date when a list of all the organisations, agencies, individuals and others (not excluded on the basis of confidentiality) who made submissions as a result of the call for inputs, would be published and available to read
- which 'stakeholders and experts' were invited to take part in the series of online consultations you refer to in your email
- the criteria used to determine which 'stakeholders and experts’ would be invited to take part in those online consultations
- whether and when the evidence elicited from those online consultations will be published and available to read
To date, we have not received answers to any of these questions and it is difficult not to feel that we have been, so to speak, ‘fobbed-off’ by the Special Rapporteur’s office.
The Call for inputs – Custody cases, violence against women and violence against children, issued by Special Rapporteur on violence against women and girls, was a public consultation. We believe
that, as a consequence, stakeholders have a right to make representations regarding the completed report. However, we have been unable to properly do so because we have not have the information
we need.
In order for the Council, and the institutions and communities that it serves, to have confidence in the compilation, findings, and recommendations of the report, it seems essential that all
stakeholders should be enabled to understand whether the submissions referred to, therein, are representative of the breadth of submissions that were received. Stakeholders have been prevented
from doing so.
It is also critical that all stakeholders, not least the Council, understand why certain submissions were included whilst others were not; no inclusion and exclusion criteria have been made
available. If it is the case that over a thousand submissions were received (email from OSR dated 31 May 2023 at 15:04:55), it is unclear why only 58 have been referenced in the final report and
why only submissions that support the Special Rapporteur’s prior position (as established in the call for inputs) have been included. It is also noted that approximately 67% of submissions
referenced were made by women's campaign, advocacy and service groups. No submissions from children’s advocates or mental health professionals or professional groups is included, and no
submissions that offer a view counter to that expressed by the Special Rapporteur in her Call for Inputs have been referenced.
Nowhere in the call for inputs was any reference made to 'stakeholders and experts' being invited to take part in the series of online consultations, held after the 15 December 2022 deadline for
submissions. This not only appears to be a breach of process but the Special Rapporteur has not published a list of who was invited to take part in these consultations, why they were invited when
others were not, and what information from these undisclosed meetings was incorporated or informed the preparation of the final report and the recommendations to the Council.
We ask that that the contents of this letter are shared with the most senior representatives from all members of the Human Rights Council for the 17th cycle and, in the light of the concerns we
have raised, we respectfully ask that you recommend to the fifty-third session of the Human Rights Council that the Report of the Special Rapporteur on violence against women and girls, its
causes and consequences, titled Custody, violence against women and violence against children, be dismissed.
Yours sincerely
Nick Woodall, M.A.
On behalf of Family Separation Clinic LLP
50 Liverpool Street | London | EC2M 7PY
Copied to:
Ms. Reem Alsalem
Special Rapporteur on violence against women and girls
Via: hrc-sr-vaw@un.org