Background

Globally, 1 in 3 women has experienced violence in their lives – most of it taking place within the home or family. The COVID-19 pandemic considerably increased domestic violence in many countries, which implemented lockdown and confinement measures that also reduced women’s ability to report or seek assistance and protection. While many measures are adopted to tackle this silent pandemic, both at the national and the international levels, not enough attention is given to the interconnections between domestic violence and abuse and issues of child custody and parental relations.

In 2019, the Platform of independent expert mechanisms on the elimination of discrimination and violence against women (EDVAW platform), of which the Special Rapporteur is a member, voiced its concern over patterns across various jurisdictions of the world that ignore intimate partner violence against women in determining child custody cases. Since then, the Special Rapporteur on violence against women and girls has received reports and cases from different countries all over the world, in which such violence has been ignored and mothers have been penalized for making allegations by law enforcement and/or the judiciary responsible for determining custody cases.

The tendency to dismiss the history of domestic violence and abuse in custody cases extends to cases where mothers or children have brought forward credible allegations of child physical or sexual abuse. In several countries, family courts tend to judge such allegations as deliberate efforts by the mothers to manipulate their child and pull them away from their father. This supposed effort by a parent alleging abuse is often termed “parental alienation.” The term generally refers to the presumption that a child’s fear or rejection of one parent, typically the noncustodial parent, stems from the malevolent influence of the preferred, typically the custodial parent.

Although these concepts lack a universal clinical or scientific definition, emerging patterns across various jurisdictions of the world indicate courts worldwide are using the concept of “parental alienation” or similar concepts explicitly or are allowing for its instrumentalization. The vast majority of those accused of ‘alienating’ their child while alleging abuse are women. Consequently, many women victims of violence and abuse face double victimization as they are punished for alleging abuse, including by losing custody or at times being imprisoned. Children who are victims of violence and abuse by a parent (in many cases the father) often continue to be subjected to such violence and abuse, against themselves and/or the other parent (in most cases the mother) post-separation, through imposed contact with the abusive parent. These dynamics often allow parents to be intimidated, coerced or forced by their abusive ex-partners and pressured by the courts to withdraw their allegations of abuse or to agree to a specific custody arrangement. In many instances, when given the risk of losing contact with their children and the high impunity the violence committed by their partner, women end up withdrawing their allegations or not reporting at all. According to experts, in many cases, the perpetrators of violence have deliberately inflicted violence on their children as a continuation of the violence inflicted on their partner who is the parent of their children and therefore a continuation of the attempt and process of controlling the target (i.e. the mother).

Several reasons account for the regular and widespread dismissal of intimate partner violence history and incidents by family courts when examining custody cases. These include harmful gender stereotypes and discriminatory gender bias among family law judges. Often, gender stereotypes are aided and abetted by discriminatory status laws in some countries, many of which are motivated by cultural, religious and social grounds. A very powerful bias, shared by many welfare and judicial systems, is that the right of a father to maintain contact with his children should override any other consideration. This is often justified with reference to the “the best interest of the child”, so that it is argued that the child’s best interest is to maintain contact with their father under all circumstances, even if the father has been abusive towards the mother or the child.

In its General Recommendation No. 33 of 2015 on women’s access to justice, the Committee on the Elimination of Discrimination Against Women recognized that stereotypes and gender prejudices in the judicial system impede access to justice and may particularly affect women, victims and survivors of violence. The Committee further recognized that such stereotyping could cause judges to misrepresent or misapply the law and can result in perpetrators of violence not being held legally accountable for violations of women’s rights, thereby upholding a culture of impunity.

Under international law, States have a responsibility to take all measures necessary to prevent violence against women and children. According to article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women, States have an obligation to ensure that gender stereotyping is addressed and dealt with adequately. Furthermore, article 19 of the Convention on the Rights of the Child provides 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. Where it occurs, the failure to address intimate partner violence and violence against children in custody rights and visitation decisions is a form of violence against women and their children and a violation of the human rights to life and security that could amount to torture. It also violates the best interest of the child legal standard.

In 2014, the CEDAW Committee recommended that any history of domestic violence and abuse must be considered when determining visitation schedules to ensure that these do not endanger women or children. In the case Gonzalez Carreño versus Spain (2014), where an abusive father murdered his daughter and then took his own life during an unsupervised visit, the Committee found that, by ordering unsupervised visits without giving sufficient consideration to the background of domestic violence, Spanish authorities had failed to fulfil their due diligence obligations under the Convention (para. 9.7). Since then, the CEDAW Committee has issued a number of Concluding Observations in which it directed States Parties to abolish the use of the concept of parental alienation in court cases, and conduct compulsory judicial training on domestic violence, including on the effect that exposure to domestic violence has on children. Regional monitoring bodies such as GREVIO, which monitors the Istanbul Convention, and MESECVI, which follows up on the implementation of the Belem do Paro Convention, have also made similar requests.

Despite a strong indication that the parental alienation concept has become a tool for denial of domestic and child abuse, leading to further discrimination and harm to women and children, data on the treatment of the history of intimate partner violence and other forms of domestic violence and abuse when family courts assess custody cases continues to be limited. Data is also limited regarding the degree to which family courts use a gender analysis in their decisions.

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. A holistic and coordinated approach based on the existing international and regional standards is required in such cases at the national level, not only to uphold the principle of the best interest of the child but also the principle of non-discrimination against women and equality between women and men. This approach is confirmed by jurisprudence of various international courts, UN treaty bodies and other relevant mechanisms.

Objectives

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. It hopes to draw attention to the scale and manifestation in many countries, spanning all regions of the World. The report will also offer recommendations for States and other stakeholders to address the situation.

The Special Rapporteur kindly seeks the support of States, National Human Rights Institutions, civil society actors, international organizations, academics, and other stakeholders to provide updated information on:

1. The different manifestations or specific types of domestic and intimate partner violence experienced by women and children, including the use of “parental alienation” and related concepts in child custody and access cases. Please also include a description of the different forms of violence that may be experienced by the mother and child as well as fundamental human rights violations, where relevant.
2. The factors behind the increased number of allegations of parental alienation cases in custody battles and/or disputes involving allegations of domestic violence and abuse against women, and its differentiated impact on specific groups of women and children.
3. The way in which different groups of women and children experience this phenomenon differently based on any intersecting elements such as age, sex, gender, race, ethnicity, legal residence, religious or political belief or other considerations and the factors that contribute to these situations.
4. The role that professionals play, including welfare workers, child protection services, guardian ad-litem, psychologists, psychiatrists, and how they are regulated in any way as expert witnesses.
5. The consequences of the disregard for the history of domestic violence and abuse and intimate partner violence or the penalising of such allegations in custody cases on the human rights of both the mother and the child, and the interrelationship between these rights.
6. The challenges in collecting disaggregated data on courts’ practices concerning custody cases, the areas/sectors for which data is particularly lacking and the reasons for such challenges.
7. The good practices, strategies adopted by different organs of the State or other non-State actors, at local, national, regional, or international level to improve the due consideration of domestic and family violence, including intimate partner violence against women and abuse of children in determining child custody, as well as in providing remedies and redress for victims/survivors.
8. Recommendations for preventing the inadequate consideration of a history of domestic violence and abuse and gender stereotyping in custody cases to restore the human rights of mothers and their children, as well as ensure that survivors/victims are effectively protected and assisted.
9. Any other issue of relevance that are vital for consideration but that may not have been mentioned in this call for inputs.

Whenever possible and available, inputs should provide updated quantitative and disaggregated data on the issues presented.

All submissions will be published on the mandate webpage on the OHCHR website, unless otherwise indicated in your submission.