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Paper given at the British Association for the Study and Prevention of Child Abuse and Neglect BASPCAN, Fifth National Congress 20 – 23 July 2003

Fifty years of ‘Maternal Deprivation’ reassessed – How effectively does research influence policy and enhance practice in family court proceedings with reference to the Tender Years Theory and Parental Alienation Syndrome?

Abstract – Although it is over 50 years since the phrase ‘Maternal Deprivation,’ was coined the research of John Bowlby still exerts a considerable influence on the upbringing of children in family court proceedings. This paper considers whether there is a need for a mechanism, similar to the Frye Test used in the USA, through which relatively recent scientific developments, such as Parental Alienation Syndrome (PAS), are subjected to professional scrutiny before they are accepted as a legal entity

The maltreatment of children can take many forms. No case hardened child care professional can fail to be shocked by the gratuitous cruelty inflicted on Victoria Climbie. But there is another form of maltreatment, which is so insipid it is taken for granted in UK family court proceedings.

It is now over 30 years since Professor Sir Michael Rutter’s seminal work ‘Maternal Deprivation; Reassessed’ (1972) in which he challenged the accepted principle upon which family court proceedings in the UK are based. Although the Children Act 1989 sought to give such research the force of law, by redressing the balance between mothers and fathers in the interests of the welfare of their children, judicial practice still has not changed.

Judges in the UK do not have formal training in children’s welfare. Instead in theory they follow the advice given by Family Court Welfare Officers now part of CAFCASS. In reality ‘court authorities’ or case laws form the benchmark for any decision regarding the welfare of children. For example a cornerstone of family court proceedings is the case law set by the former Master of the Rolls Lord Donaldson. “At the risk of being told by academics hereafter that my views are contrary to well-established authority, I think that there is a rebuttable presumption of fact that the best interests of a baby are best served by being with its mother and I stress the word ‘baby’. When we are moving on to whatever age it may be appropriate to describe the baby as having become a child, different considerations may well apply. But as far as babies are concerned, the starting point is, I think, that it should be with its mother.” (Lord Donaldson MR, Re D (A Minor) (Residence Order, 1992) 2 FLR 332, 336. CA). This precedent followed the example given by Sir Roualeyn Cumming-Bruce, “It has also been said that it is not a principle but a matter of observation of human nature in the case of upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up the children.” (Per Sir Roualeyn Cumming-Bruce in Re H (a minor) 1 FLR 51, CA.1990).

In the same way criminal law has ‘precedents’ the Family Division has ‘court authorities’, made by judges hearing cases in the Court of Appeal or High Court. Because of the doctrine of staire decisis formal justice requires ‘consistency’ therefore the lower courts must follow the ratio decidendi laid down by the higher court, and judges must respect and follow decisions or court authorities of other judges in the same level court. It is through this judicial process that Bowlby’s theory of ‘Maternal Deprivation’ still exerts a considerable influence in disputes over access or custody notwithstanding the age of the child.

According to the theory of ‘Maternal Deprivation’ or as it is more commonly referred to in the courts and in the USA the ‘Tender Years’ doctrine, infants form a special relationship with their mother, which is qualitatively different from the relationship they form with any other kind of person. By a mechanism that Bowlby (1951) saw as very similar to imprinting, he considered that the young infant developed a firm attachment to his or her mother within the first six months of life, and that if this attachment or bond was then broken, the infant would suffer serious consequences.

Hayes (2000) describes how Bowlby’s work rapidly assumed a political dimension, as his research was seized by the post-war pressure groups, which argued that women should stay at home and look after children full-time. This had become a sensitive political issue because there were a large number of returning servicemen, and it was considered necessary that jobs should be freed for them. Since women had worked during the war and carried on working afterwards, some people argued that they should return to full-time child care in the home, and free their jobs for the returning servicemen.

The political nature of this debate meant that Bowlby’s research received a large amount of publicity, which was inevitably sensationalised. However, Bowlby himself had included in his book ‘Child Care and the Growth of Love’ (1953) a table of the kinds of circumstances which were likely to damage children. These were mostly extreme circumstances, like ‘war’, ‘famine’, ‘death’, but he did include, ‘mother working full-time’, and it was this phrase which fuelled the debate, until the term ‘Maternal Deprivation’ became a catch-phrase in society. Some of the returning servicemen included solicitors who were later to become judges. For example Lord Donaldson served with the Guards Armoured Divisional Signals in north-west Europe from 1942-45 and with the Military Government in Schleswig-Holstein before called to Bar, Middle Temple, 1946. He later went on to become Master of the Rolls who is the highest judge with civil responsibilities.

Early evidence cited by Bowlby did indeed seem to suggest that children could be harmed as a result of ‘Maternal Deprivation’, and moreover that it could last until adult life. Bowlby cited a study by Spitz (1945), who described how the depression a child felt at losing a parent could last until childhood; and a study by Goldfarb (1943), showing how children who had lived in institutions for their first three years of life were less rule-abiding, less sociable and less intelligent (as measured by IQ tests) than a comparable group who had been fostered. Bowlby himself reported how, of forty-four juvenile delinquents attending a child guidance clinic, seventeen had been separated from their mothers for a significant period before the age of 5, which was not the case for a control group of forty-four disturbed adolescents who had not broken the law.

Other evidence for ‘Maternal Deprivation’ accrued rapidly. Patton and Gardner (1963) introduced the concept of deprivation dwarfism, showing that deprived and neglected children were often under-sized by comparison with others. And a further study by Bowlby (1956), of sixty children who had spent a period in a sanatorium before the age of 4, showed lower school achievement in later childhood and a tendency to over-excitability and daydreaming.

That serious psychological disturbance could result from early experience seemed clear. In particular, such disturbances seemed to interfere with the capacity to form meaningful relationships with others, even at times resulting in ‘affectionless psychopathy’. The way in which attachments are formed in human infants rapidly became the subject of extensive psychological research. In 1964, a paper by Schaffer and Emerson produced new evidence for the attachment process. Rather than using clinical interviews and retrospective data from hospital and school records, as Bowlby had done, Schaffer and Emerson performed ethological observations of how mothers and infants interacted in their own homes.

Schaffer and Emerson (1964) found that attachments did not automatically result from the mother simply being with the baby, as Bowlby had thought. Instead, they seemed to develop as a result of the quality of the interaction which the baby and mother. This meant that in some circumstances, an infant might form a relationship with someone who was not their primary caretaker (the person who looked after them most of the time) In some cases too the infants formed multiple attachments, developing relationships with more than one person. These findings seriously challenged Bowlby’s idea of ‘monotropy’, since an important feature was that there could be only one special relationship for any one child.

Perhaps because of the political nature of the ‘Maternal Deprivation’ debate, the findings by Schaffer and Emerson did not receive much attention in the popular media. They were, however, very influential in opening up a wide range of research. What Schaffer and Emerson had shown was that babies are sociable. They respond best to those people who interact with them, not just to the people who take care of their physical needs.

Newson (1974) also argued that mothering skills are not in any way innate or instinctive. Instead, they are skills, which are acquired as you become more able to detect and understand that baby's responses. Babies, on their part, learn very fast, and respond more to those people who are sensitive to their actions. They are also, as Schaffer and Emerson showed, more likely to form attachments with people who respond sensitively to them. The implication here is that interacting with babies is a learned skill; and fathers can acquire these skills just as mothers do, given motivation and opportunity.

The early study by Schaffer and Emerson showed that infants could develop multiple attachments - several of the infants in their study were as attached to their fathers as to their mothers. Some, too, had developed an attachment to the father but not to the mother, even though it was the mother who was looking after them most of the time. In such cases, always, it was the father who responded most sensitively to the child.

Parke and O’Leary (1976) observed mothers and fathers in a maternity ward. What they found was that, contrary to the popular stereotypes, fathers tended to be very keen on interacting with their infants, and were neither inept nor uninterested in what their new born children were like. Instead, they were often as sensitive in interacting with their infants as the mothers were.
Parke and Swain (1980) observed mothers and fathers each feeding their 3-month-old infants. They also found that the fathers responded just as sensitively to infant cues as the mothers did, responding in terms of both social interaction - conversational or gestural - and by adjusting the pace of feeding according to the signals being put out by the child. However, they did find that fathers tended to hand the responsibility for caretaking to their wives rather than adopting that responsibility themselves. The skills that fathers had in parenting became apparent only when they were asked to demonstrate how they would go about interacting with their children for the investigators: much of the time they did not seem to exercise these skills at home.

In his work, ‘Maternal Deprivation: Reassessed’ Rutter (1991, p217) states,
i. Investigations have demonstrated the importance of a child's relationship with people other than his mother.
ii. Most important of all there has been the repeated findings that many children are not damaged by deprivation.
iii. The old issue of critical periods of development and the crucial importance of early years has been reopened and re-examined. The evidence is unequivocal that experiences at all ages have an impact.
iv. The first few years may have a special importance for bond formation and social development.
Bowlby’s theory of ‘Maternal Deprivation’ was that children were damaged by separation from their mother or mother figure. Rutter pointed out that children were not invariably so damaged and that, in any event, other people, including their fathers, are also very important to children. Yet, as the ‘court authorities’ indicate, it is the work of Bowlby not Rutter, which defines the approach adopted by judges in family court proceedings.

In exceptional circumstances the office of the Official Solicitor may ask for an expert opinion to clarify such issues. For example, Dr. Sturge in consultation with Dr. Glaser were asked to prepare a report (Sturge & Glaser, 2000) for the cases Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FLR 334).

A particular aspect of research they were asked to comment upon is the phenomenon of Parental Alienation Syndrome (PAS). They state that PAS does not exist because it is:
not recognised in either the American classification of mental disorders (DSMIV) or the international classification of disorders (ICD10);
not generally recognised in our or allied child mental health specialties.
PAS is the process by which one parent, usually the mother, turns the child against the other parent in a dispute over access or custody. Sturge & Glaser argue that PAS assumes a cause (seen as misguided or malign on the part of the resident parent) which leads to a prescribed intervention whereas the concept (which no one claims to be a ‘syndrome’) is simply a statement aimed at the understanding of particular situations but for which a range of explanations is possible and for which there is no single and prescribed solution, this depending on the nature and individuality of each case. They believe the basic concept in the PAS is a uni-directional one as if such situations are a linear process when they are, in fact, dynamic and interactional with aspects of each parent’s relationship to the other interacting to produce the difficult and stuck situation. PAS only increases the complexity and difficulty of solution finding.

Sturge & Glaser consider PAS not to be a helpful concept and that the sort of problems the title of this disorder is trying to address is better thought of as ‘implacable hostility’. They cite a rebuttal of PAS from the USA by Faller, ‘The Parental Alienation Syndrome: What Is It and What Data Support It?’ (1998) But this work is itself subject of a critique by Dr. Gardener (1998) one of the researchers who first highlighted the problem in the United States. Gardener describes how typically children who suffer with PAS will exhibit most of the following moderate or severe symptoms.
1. A campaign of denigration 2. Weak, absurd, or frivolous rationalisations for the deprecation 3. Lack of ambivalence 4. The “independent-thinker” phenomenon 5. Reflexive support of the alienating parent in the parental conflict 6. Absence of guilt over cruelty to and/or exploitation of the alienated parent 7. The presence of borrowed scenarios 8. Spread of the animosity to the friends and/or extended family of the alienated parent
Gardener (2000) berates Sturge & Glaser for ignoring the growing amount of research on the subject and compares PAS to other medical conditions from the past that were not immediately identified. For example Gille de la Tourette first described his syndrome in 1885. It was not until 1980, that the disorder found its way into the DSM. It is important to note that at that point, Tourette’s Syndrome became Tourette’s Disorder. Similarly, Asperger first described his syndrome in 1957. It was not until 1994 that it was accepted into DSM-IV and Asperger’s Syndrome became Asperger’s Disorder.

He goes on to claim that the symptoms of PAS can be recognised in much the same way as any other medical condition. For example, a person suffering with pneumococcal pneumonia may have chest pain, cough, purulent sputum, and fever. However, the individual may still have the disease without all these symptoms manifesting themselves. The syndrome is more often “pure” because most of the symptoms in the cluster predictably manifest themselves. Another example would be Down’s Syndrome, which includes a host of seemingly disparate symptoms that do not appear to have a common link.

In an interview (Dyer, 2002) the High Court Judge, Mr. Justice Wall, Chairman of the Children Act Sub-Committee, seemed to lend weight to Gardener’s interpretation. He describes how he has dealt with disputes over access or custody by letting children move home from the mother to the father.
I have done it in one or two cases but that requires a very delicate process. What is very interesting, I've found in the cases where I've done it, is how rapidly the alienation seems to disappear. A child who a few weeks before had been saying, 'My father is a rapist and a kidnapper and I am frightened of him out of my wits, I don't ever want to see him I'm so frightened of him', in a month or so that child is happily living with his father - with very skilled therapeutic intervention, I have to say. It doesn't happen just like that”.
These cases were not heard in the High Court or Court of Appeal therefore do not form ‘court authorities’ but perhaps they can shine a light on Gardener’s frustration with UK courts. Instead of perceiving the problem in terms of refusing to recognise that PAS exists perhaps he should see it in terms of misdiagnosis.

In ‘The Battered Child Syndrome’ Smith (1975) outlines how this condition was first medically recognised. According to his account it went through a considerable period of misdiagnosis. One of the earliest recorded cases in 1898 was described as, “early rickets on account of the absence of any other assignable cause.”

During the forties early radiological reports considered a number of other possible explanations. For example that children injured themselves during convulsions, that skeletal disease had so weakened the bones that they were vulnerable to trauma or that they were suffering from scurvy. Smith makes the point that at this time it was recognised “injuries may be denied by the mothers or nurses because injury of an infant implies negligence on the part of its caretaker.”

It was not until Kempe in the early sixties, a paediatrician at the University of Colorado School of Medicine, that the medical condition was officially recognised. He was concerned by the large number of children admitted under his care who were suffering from non accidental injury. In order to obtain a more accurate picture he undertook a nation-wide survey of hospitals. To direct attention to the seriousness of the problem he proposed the term ‘battered child syndrome.’

Research should inform policy. As Kempe has shown without identifying the cause of the problem it is impossible to treat the symptoms effectively. But the same influences that prevented the effective treatment of this condition could also apply to PAS. Rutter (1991, p131) describes how the term ‘Maternal Deprivation’ covers a most heterogeneous range of experiences and of outcomes due to quite disparate mechanisms. He considers these main areas or as Rutter labels them ‘syndromes’ thought to result from ‘Maternal Deprivation’ and the mechanisms proposed for their causation. These include Acute Distress Syndrome, Conduct Disorders, Intellectual Retardation, and Affectionless Psychopathy. “While it has been recognised that the experiences subsumed under ‘Maternal Deprivation’ are complex, there is still a tendency to regard both the experiences and the outcomes as a syndrome which can be discussed as a whole” (Rutter 1991, p16). This tendency extends to the judiciary who would rather add the symptoms described by Gardener than recognise PAS and undermine the basic principle to which decisions in the Family Division are wedded; that the best interests of a child lie with his or her mother.

According to Dame Butler-Sloss, the shared-parenting philosophy proposed by the Children Act 1989 is, “thought out, but not sorted out” (Driscoll, 2002). The President of the Family Division states that every child must have a base: “A child should know which is his bedroom in his home and, confident of that, spend as much time as is practical with the other parent.” Although Bowlby (1951) maintained that children thrive better in bad homes than in good institutions his more recent writings (1988) acknowledge the complexities of the situation and of the dangers of comparisons of this sort. Whilst accepting, on the whole, it appears that separations may be less stressful if the infant remains in a familiar environment, Rutter (1991) states that the effects of a strange environment are less consistent and it seems that it is the nature of the strangeness as well as the presence of a novel stimulus which is important. “Indeed, some novel stimuli may be pleasurable to the child” (p39).

It is one of the hardest things in the World to try and change the status quo. Sturge & Glaser state in the preface to their report, “We approach this task with humility as much of what we say is self-evident, is clearly already part of the judiciary’s thinking as is illustrated in so many judgments, and as we cite a literature that is well known to many in the legal profession involved with child care.” As a result of challenging this thinking Gardener has suffered professional recrimination (Bruch, 2002). It would be logical to assume that if the problem lies within the courts it must be possible to change these decisions through the court process. But the author has raised these issues, as a litigant in person, on several occasions in the Court of Appeal only to be told by Lady Justice Hale (19thNovember, 2002) that he would not be allowed a full hearing because, “It does not subject psychological theories to that sort of close examination,”[2002] EWCA Civ 1759.

Maybe what is required to facilitate the transition from research to practice in this country is something like the Frye Test in the USA, which is the accepted mechanism through which relatively recent scientific developments are subjected to professional scrutiny before acceptance as a legal entity. It seems manifestly unfair that a theory such as ‘Maternal Deprivation’ is accepted without condition whilst PAS is ignored.

Sturge & Glaser consider PAS not to be a helpful concept. This begs the question, helpful to whom? Do they mean other psychologists and sociologists? Or do they mean the judges and lawyers?

Perhaps the last word should go to Baroness Hayman, 15thApril 1999, speaking for the Department of Health, who replied to a Member of Parliament’s enquiry on behalf of a concerned father,
Most practitioners would consider denigration of one parent by the other to be emotionally abusive but if the child was otherwise well cared for the court may feel that it is in the child's best interests to remain with the denigrating parent, leaving the denigrated parent understandably aggrieved.”
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