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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