A year later, Margus had a new partner, with whom Nelli got on well at first. After a while, Margus noticed a strange change in the child's behavior. The child spent less and less weekends with her father and their relationship deteriorated. Nelli often fell ill on Fridays after school, just before she was supposed to spend a weekend with her father. By Monday morning, the child was well again and went to school. When Margus wanted to see his daughter during the week, the mother did not agree because the child had a routine and needed to study. For the weekends, the mother organised events with the child, including visits to the spa, or drove out of town with the child so that the child and father could not spend time together.
Margus tried to talk to the child on the phone, but Nelli stopped answering calls and messages and did not call back. Finally, Margus asked the child's mother for help to support the communication, but the mother stated that she cannot coerce the child into communicating with her father. The whole situation remained incomprehensible to Margus, as there had not been any conflicts between him, his daughter and his new partner. Still, his daughter's attitude towards him had become hostile.
Laura claimed that she did not obstruct the communication between the child and the father in any way, but the child simply did not want to visit the father anymore and was afraid of him. Laura suggested to Margus not to contact Nelli again. Nelli is a happy child and does great at school, so Margus should not worry about her well-being.
This case illustrates parental alienation.
Parental alienation is defined as the behavior of a parent living with a child, which aims to damage the relationship between the child and the separated parent in such a way that the child no longer wishes to communicate with the other parent. Parental alienation is mental violence against the child, which is detrimental to the child's well-being and development. The effect of parental alienation on the child is considered to be equivalent to sexual abuse.
What are the possibilities for the parent/court to re-establish the relationship between the child and the parent, in a situation where the child does not wish to communicate with his or her separated parent without objective justification?
Article 8 of the European Convention on Human Rights requires the state to ensure the protection of the relationship between the child and the parent. Section 143 (1) of the Estonian Family Law Act (perekonnaseadus) provides that a child has the right to maintain personal contact with both parents and both parents have the right and obligation to maintain personal contact with their child. The Estonian Supreme Court has repeatedly emphasized that the purpose of the access procedure (visiting and communication schedule) is to ensure that the child has the opportunity to know a parent living separately and to maintain a close relationship with him or her. It is the duty of the state to take all effective measures to ensure the realization of the right of access of the child and the parent.
In the judgment 41736/18, Suur v. Estonia of the European Court of Human Rights, the court emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life even when the relationship between the parents has broken down. As to the state’s obligation to take positive measures, the court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures.
Pursuant to § 143 (2) of the Estonian Family Law Act, a parent must refrain from activities that damage the child's relationship with the other parent or which hinders raising of the child. In the event of parental separation, the parents shall agree on access of the separated parent to the child. In the event of a dispute between parents, the court shall determine the procedure for access between the parent and the child at the request of the parent (PKS § 143 lg 2¹)
Thus, if a parent is unable to spend enough time with his or her child or the relationship between the parent and the child has ceased, the parent has the right to apply to the court to establish a procedure for access to the child. Moreover, the parent has the right to request that the child be handed over to him or her without delay as part of the initial legal protection and that the procedure for access to the child be determined for the time of the court proceedings. The obligation to comply with the procedure of access rests with the parent living with the child.
In a situation where the parent living with the child does not support the relationship between the child and the separated parent or does not follow the procedure for access to the child determined by the court, both child protection and the court must intervene and react as soon as possible having the best interests of the child in mind! If a parent says that the child does not want to meet with the other parent, it is necessary to find out the reasons why. In the cases described, the time factor is extremely important. When a child is already alienated from the other parent, this often has irreversible consequences. A parent who obstructs or does not support communication between a child and a separated parent significantly violates the child's rights and interests and damages the child's mental health, development and well-being.
In all actions concerning children, the best interests of the child shall be a primary consideration for the court, while taking into account all the circumstances and the legitimate interests of the persons concerned. It is in the child's best interest to know and to have a personal and close relationship with both parents. It is the duty of the state to ensure that the child's right to communicate with and have access to both parents is realised in practice.
The law in force provides for effective measures to ensure the right of access, which must be enforced more vigorously by the courts. In order to prevent the child from being alienated from his or her other parent, bolder steps must be taken more quickly and the necessary measures provided by law must be implemented.
Pursuant to § 134 (1) of the Estonian Family Law Act, if the physical, mental or emotional well-being or the property of a child is endangered by abuse of the parent's right of custody, neglecting the child, inability of the parents to perform their obligations or conduct of a third person and the parents do not wish or are unable to prevent danger, a court shall apply necessary measures, including the measures listed in subsection (3) of § 134 and §§ 135 and 136 of the Family Law Act, for the prevention of danger.
Pursuant to § 134 (3) of the Estonian Family Law Act, a court may, in the event of endangering the welfare of a child, make decisions arising from the right of custody of the child, issue warnings and precepts and impose prohibitions, as well as oblige parents to follow the instructions of the court. The court may restrict the right of custody of a person or property by prohibiting the performance of certain acts or certain types of acts.
In cases of parental alienation, the decisive factor is the fact that the child lives on a daily basis under the influence of the parent whose conscious behavior damages the relationship between the child and the separated parent. The child is inevitably more strongly connected to the opinion and attitudes of the parent with whom he or she lives on a daily basis. The longer the situation in which the relationship between the child and the separated parent is hindered, the greater the damage to the child and his or her relationship with the other parent.
In order to ensure the right of access between the child and the separated parent and to prevent the parental alienation, the court can take various measures. First, the court may appoint a special guardian to organise the access to the child and to restrict the decision-making power of the parent living with the child in those matters of organizing the communication. Secondly, the court can decide that the child's future residence will be with the parent with whom the child has not been able to be with. Thirdly, the court may restrict or change the custody of the parent living with the child so that custody of the child is transferred in full to the other parent. It is settled in case-law that, although the transfer of custody of a child is likely to cause negative emotions in the short term, the long-term effects of re-establishing a relationship with the other parent outweigh them.
Whatever action the court chooses in each individual case, action must be taken quickly. The longer a child stays with a parent who violates his or her rights, including the right of access, the greater the risk to the child. The state must not remain a mere spectator in such situations - the court must actively intervene and take all necessary measures, including extreme measures, to end the violation of the rights of the child, protect the child's mental health and restore the relationship between the child and the separated parent.This article was originally published on November 16, 2021 in https://ajakiri.lastekaitseliit.ee/2021/11/16/millised-on-lapsest-lahuselava-vanema-voimalused-olukorras-kus-lapsega-kooselav-vanem-on-otsustanud-lapse-temast-voorandada/