A case note on Pisică v the Republic of Moldova (European Court of Human Rights decision of 29 October 2019)

Brendan Guildea LL.B, LL.M, B.L.

Introduction

After a couple of false starts in recent years,[1] the parental alienation movement is experiencing a renaissance in the Western World.[2] The recent decision of the European Court of Human Rights in Pisică[3] has addressed procedural delay, an issue that unfortunately features in almost every alienation or high conflict case, which compounds destruction in already fraught circumstances. The applicant (“NG”), a non-custodial mother, was awarded €12,000[4] in non-pecuniary damages because the “domestic authorities did not act with the exceptional diligence required of them.”[5]

This case note has been split in two. Part 1 sets out and analyses the chronology of events, identifying significant moments and periods of time from both a legal and clinical point of view. With the facts fully explored, Part 2 dissects the legal reasoning of the Strasburg Court and discusses the immediate and long-term impact of the case on national practice and procedure.

I am grateful to Brian O’Sullivan for his comments and observations on the clinical issues in this case. I would also like to thank Paul McCarthy SC for his assistance with Part 2. All errors and omissions remain my own.

Part 1 – Factual analysis

An executive summary of this case might read something like: “Two of three children are abducted by their father. With the assistance of social workers, the parents enter an access agreement, to which the father never adheres. The father deploys alienating tactics to systematically remove all three children from their mother’s life. The father exercises full custody and control of the children. Legal custody is eventually restored to mother, but this order is never implemented.”

51 of the 90 paragraphs in the judgement set out the facts and procedural history of the case. For ease of analysis, we have tweaked these paragraphs into both a table format and an interactive timeline, which emphasise the relative gaps in the legal progression and highlight the deterioration of the relationship between NG and her children. These are appended to this article.[6]

Clinically significant events

There is limited degree to which the clinical significance of any specific date or event can be assessed without having sight of the expert reports. However, the following seven dates appear most significant on their face.

• 31^st July 2013. Failure to investigate. Mother makes first allegation of alienation behaviour by her ex-partner. The severity of this accusation does not seem to have registered with any clinical professional or judge. A failure to acknowledge and investigate this allegation in a timely manner seems to have enabled the alienation of the three children from their mother. Early intervention is crucial to prevent alienating dynamics progressing to the severe stage.
• 19^th November 2014. Failure to intervene. The DSAFP expert report finally acknowledges that the children’s psychological state was being seriously affected and recommends a further investigative report in this regard. Their recommendation that the children be separated from both parents for a period of one month and placed in a placement centre, in order to receive psychological assistance in the absence of influence by either parent, was ignored at this crucial stage. Had such an intervention been carried out, the children may have been reintroduced t both of their parents in a controlled and even-handed manner. While such measures seem heavy handed, children have shown an ability to navigate back to both parents after de-triangulating from their parents’ conflict as well as developing critical thinking skills and emotional independence.
• 3^rd December 2014. Formal diagnosis of alienation changes nothing. A specialised psychological report vindicates the mother’s initial allegation from 16 months earlier that the children had been alienated from her by their father. An unequivocal expert opinion that any meeting with their mother would constitute a traumatising event for the children while they continued to live with their father.
• 6^th February 2015. Rewarding alienating behaviour. Astonishingly, two months after the formal finding of alienation, the father is awarded custody of the children, which effectively rewards his deviant and manipulative behaviour. Also, the court refuses to transfer children to neutral placement for rehabilitation and reunification. A failure to intervene here subjects all three children to sustained and enduring emotional, physical and psychological harms across their lifetimes. This highlights the need for training events for all professionals working with families, so they can make informed choices and decisions regarding child welfare.
• 19^th December 2016. Children effectively weaponised. The children assert their own will in the context of enforcing an order returning them to their mother by refusing to leave the alienating parent. They have become overpowered in the dynamic.
• 6^th February 2017. Children resist seeing formerly loved parent. The children adamantly resist seeing or living with their mother. This is a classic presentation of a child subjected to coercive control and undue influence.
• 7^th June 2017. Children fully estranged or psychologically split from their mother. At the final attempted intervention, the children flatly refuse to go with their mother which she effectively accepts.

Legally significant events

While trying to identify the key events in any lengthy chronology, one must avoid highlighting everything. (By highlighting everything we highlight nothing.) The following seven moments are significant in the sense that they either trigger or extinguish a right to certain legal remedies:

• 29^th July 2013. The first abduction of the twins by P ought to have resulted in an immediate and meaningful sanction. (We will consider the general utility of imprisoning parents in an article later this year. Even a fine or a penal warning might have caused P to adhere to the law thereafter, instead of continuing to ignore it.)
• 31^st Jul 2013. The mother’s legal application to have the case disposed of ‘urgently’ put the Moldovan judicial system on notice that something was awry regarding P’s manipulation of the children. A period of almost six years elapsed between this application and the judgement of the European Court of Human Rights, which vindicated the Moldovan state’s failure to promptly investigate her complaint.
• 4^th September 2013. A consent agreement is reached between the parents. Consent agreements are often taken as a broadcast to a court that everything was well on date ‘x’. As a result, there may be a tendency to avoid drastic remedial measures (such as reverse custody orders) for a breach of such an agreement, as this would undermine the degree of perceived harmony between the parties. Also, the lawyers of alienated parents may advise against seeking a cessation of access to the alienating parent within close proximity of a consent order for fear of being met with the reply: “mother had no issue with father seeing the children x days ago, so why has she suddenly changed her mind?” Such an argument is often accepted by courts who then effectively ignore the alienating parent’s tactics. Consequently, the wronged party, taking the brave step of agreeing consent terms, is prejudiced by making concessions aimed to bring stability and consistency to their children’s lives. (These issues raise the more fundamental question of whether consent agreements are in the best interests of children.)
• 10^th September 2013. The mother is granted protection order, which ought to be enforced by the local police authorities if she asks. No such enforcement occurs until nine decisions refusing prosecution are annulled on the 29th February 2016 (over 2.5 years later). This is an astounding gap between the granting of a domestic violence and its enforcement.
• September 2013 to November 2014. This seems to be the period in which the father conducted the bulk of his alienating work. Breaches of existing court orders, including abductions, become normal with no meaningful legal intervention. The father takes and asserts custody of all children. Again, it is truly astonishing that no judge intervened during this 14-month campaign.
• 6^th February 2015. With the damage done, the father is rewarded by being awarded legal custody of the children. The courts refuse to endorse the clinical recommendation that the children be transferred to a neutral placement, with gradual and controlled reintroduction to both parents in an even-handed way.
• 24^th June 2015. The courts return legal custody of the children to their mother. (This decision is never adequately enforced, partly due to the father’s appeal to the Supreme Court which gives its final decision in November 2015.)

Before concluding our analysis of the facts, it is important to analyse the failed enforcement of the court’s order granting full custody to the mother. We have identified the following four flaws in the implementation strategies used:

1. 13 months elapsed between the Supreme Court’s final determination of custody (in November 2015) to the first real attempt at implementation (in December 2016). This delay flies in the face of the fundamental legal principle that remedies must be meaningful. The mechanics of justice require prompt execution of a court order, to avoid further irreparable damage.
2. Partisan intervention is meaningless. The decision in December 2016 to place the children with their paternal grandparents was a significant blunder at a crucial period. Even with the best intentions, grand parents will not be able to create a truly neutral atmosphere for the grandchildren, so further alienation was inevitable once this approach was taken.
3. Choice and voice. The intervention on 7^th June 2017 seems to have placed great deference on the children’s desires. The twins were 10 years old and the older child was 13 years old. In a normal access case, a court would have regard to the express wishes of the children. Given the circumstances of this case and the 4-year delay between the mother’s first complaint of alienation and this attempt at implementation, it is understandable that the children would resist living with their mother. However, in pursuit of their long-term psychological health, a forced removal from their father for a period ought to have been considered on this date. Tough medicine indeed, but arguably proportionate to prevent further harm.
4. Unduly complex procedures. Two legal anomalies seem to have delayed the bailiff’s implementation of the court order. Firstly, he sought clarification on whether he possessed the power to enter a private dwelling to effect a family law order (as opposed to entering to seize certain property or assets). Second, there seems to have been an element of second guessing the court, by seeking clarification of the meaning of or reasoning behind its order. The relevant court refused to elaborate further, as it was entitled to do. While these two issues might be of academic interest, they serve to highlight the folly of law which often gets side-tracked on matters so far removed from the core issues I a case (being the urgent need to reunite a mother with her children).

With Part 1 of our analysis concluded, we will now analyse the legal reasoning of the European Court of Human Rights that the mother’s Article X rights where breached.

[1] Re L (a child) (contact: domestic violence) and other appeals [2000] 4 All ER 609 at 625 per Dame Butler-Sloss P:

There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in the family courts, is a long way from a recognised syndrome requiring mental health professionals to play an expert role. I am aware of the difficulties experienced in some areas in getting the appropriate medical or allied mental health expert to provide a report within a reasonable time. It was, however, unfortunate that the parents’ lawyers not only did not get the medical expert ordered by the judge, that is to say, a child psychiatrist (although in many cases a psychologist would be appropriate), but, more serious, were unable to find an expert in the main stream of mental health expertise.

[2] In Ireland, alienation is defined in C.G. v B.G. [2019] IEHC 15 per Binchy J as: “deliberately undermining any relationship that [the child] might have with the [target parent], which could only be to the detriment of [the child’s] welfare.” On 27 January 2020 Galway County Council passed a motion recognising Parental Alienation as a form of child abuse and called on the Irish government to take action to protect the children of Ireland. At EU level the author was delighted to have been invited to speak at a Parental Alienation Conference organised by the office of MdEP Prof. Dr. Klaus Buchner (ÖDP) in conjunction with FSI – Forum Soziale Inklusion e. V. in Brussels on 6th February 2020. One stted goal of the conference was to inform MEPs of PA dynamics with a view to develop an EU strategy to combat the difficulties in this area. For conference details, see: http://www.eu-pa-conference.eu/. For a summary of the U.S. position, see D Lorandos, ‘Parental Alienation Syndrome in American Law’ (2006). Available: https://www.researchgate.net/publication/325533194_Parental_Alienation_Syndrome_in_American_Law.

[3] Available: http://hudoc.echr.coe.int/eng?i=001-197214.

[4] Equating to €4,000 for the loss of each child.

[5] Para 80.

[6] The timeline can be viewed here: https://parentalalienation.eu/case-note-on-pisica-v-the-republic-of-moldova/.