In
Moral
Distress and High Conflict 1, Ms Sheila Jennings Linehan
has
produced an account of the custodial parent who having grave
reservations about the safety of her child while sharing access with
the ex-partner, has no choice but to follow the dictates of the court,
and is therefore suffering ‘moral distress’. Ms Linehan
chooses an ethical framework for her article titling her subheadings
with
Access Ethics, Nomenclature and
Ethics, Separation Ethics and so forth.
Unfortunately, her version of events is contrary to what is now known
in the literature.
Perpetuating Uber
Feminist Mythology
Ms Linehan refers in her article to divorce as primarily the result of
a woman escaping an abusive or traumatic relationship. Even
where she concedes that the divorce could be a matter of growing apart,
there is a sense of reluctance about the concession, considering that
the sentence begins with…
“Clients flee to escape the pattern
of abuse they grew up with, and then married into,.”
The literature says otherwise. Two-thirds or more of divorces are
initiated by women and only a fraction (6%) are because of abuse and/or
trauma. Quoting the landmark study by Dr Sandford Braver
Divorced Dads – Shattering the
Myths, Cathy Young writes:
“At least two-thirds of the
time, the mother is not only the one who files for divorce but the one
who wants out of the marriage. And it's usually not, as many assume,
because the father beats her, drinks or cheats; most commonly, mothers
cite such reasons as "growing apart" or "not feeling loved or
appreciated." 2
Then there is the thorny issue of access. Ms Linehan states:
“There is an under recognized problem in Canada with non-custodial
fathers failing to exercise their access”.
Again, according to the literature, what is under recognised is
that fathers are not absent and morally reprehensible parents, but
‘driven away’ dads. Figures like 40% interference with paternal
visitation rights are significant. 3 That not so little
problem is recognised world-wide and little has been done to remedy the
situation because courts have been reluctant to deliver punitory
measures to the interfering parent, in most cases, the
mother. Occasionally one reads about transference of
custody from the interfering parent but it is rare.
The following unreferenced statement in Ms Linehan’s paper is not
supported by any of the literature that I could find. In fact,
the complete opposite appears to be the case.
“Studies show that the much less
common [than absentee fathers] (but much more talked about) withholding
of access by mothers is generally due to maternal concerns about child
safety and well being.”
40% visitation interference is not a small figure by anyone’s
standards. If this is ‘less common’ than absentee fathers, then
what about the 70% of fathers who pay their child support and a larger
number (Braver cites 90%) who clearly indicate a willingness to
participate fully in their children’s lives? 4 The
notion that absentee fathers are more common than visitation
interference is not supported by the literature.
Ms Linehan’s mise en scène in
Moral
Distress and
High Conflict
does not match the reality and that is a poor starting position to
something as delicate as mediation.
“The proportions and relations of
things are just as much facts as the things themselves; and if you get
those wrong, you falsify the picture really seriously.” -
Dorothy L Sayers 5
Asperger’s
Syndrome and Weighing up the Evidence
Thematic throughout Ms Linehan’s many articles is the portrayal of
parents with Asperger’s Syndrome (AS) as a danger to their
children. To underscore the dangers these parents present to
their children, Ms Linehan has aligned them variously with people with
early onset dementia, delusional states or in the case of this article,
a known child molester, a drug using prostitute, inter-religious
conflict and an allusion to Japanese mother-child suicide.
The evidence for the AS parent as unfit parent is entirely
anecdotal. Such evidence is generally considered unreliable
unless it can be seen to come from an unbiased source and/or is
independently verifiable. I cannot recall a single instance of
the half dozen or so anecdotes that Ms Linehan has proffered, which is
adequately sourced or independently verified. The reader is in no
position to judge the reliability or otherwise of these accounts, all
of which may be viewed on her webpage at
www.familyassociates.com.
One vignette is certainly internally inconsistent and this has been
discussed elsewhere .6
In several of her articles, Ms Linehan cites Henderson and Hackett’s
Asperger’s Syndrome in Child Contact Cases.
7
What is not emphasized and should be is that Henderson and Hackett are
lawyers acting for the non-autistic spouse in divorce cases.
Evidence from such a context with or without AS in the picture can
usually be treated with a certain amount of healthy skepticism.
Of note, Henderson and Hackett have not indicated the number of cases they are describing. Dr Venetia Young, author of
Encounters with Asperger’s Syndrome in the Solicitors Office 8, also cited as a reference in several of Ms Linehan's articles, describes three cases, only one of which refers to domestic violence (happily resolved). In fact, in all of Ms Linehan’s oeuvre
there is not one statistic.
The Daubert Rulings
In order to ascertain the admissibility of expert testimony in matter
relating to scientific issues, which a reasonably informed public could
not be expected to judge, many courts have relied on the Daubert v.
Merrell Dow Pharmaceuticals, Inc. 1993 rulings as a guide.
Increasingly the rulings have been adapted to the soft sciences,
particularly in the area of mental health. One version is given
below 9. I thought it would be an interesting exercise to see if
Ms Linehan’s perennial assertion, that by virtue of the syndrome AS are
not capable of responsible parenting, would stand up under this
standard.
(1) the extent to which the theory has been or can be tested;
Linehan’s assertion has not been tested anywhere and there are no
statistics in evidence that AS make poorer parents than the
unfortunately large numbers of poorly performing but neurologically
typical parents. Nevertheless, Ms Linehan would like, in advance
of that evidence to, for example, create a special category of ‘organic
conflict’, which would include AS.10 A consequence of joining
this select group, as Ms Linehan has stated elsewhere, is that the
parent would be denied access to the children. 11
(2) the extent to which the technique relies upon the subjective
interpretation of the expert;
To date, Linehan’s assertion is supported only by anecdotal evidence
from the author and parties of the warring factions in the divorce
court.
(3) whether the theory has been subjected to peer review and/or
publication;
Significantly, Linehan’s assertion is not emanating from anybody with
expertise in the presentation of AS in adults. There are no
reputable articles in the relevant scientific journals available for
peer review.
(4) the technique’s potential rate of error;
In the absence of any statistics, and given the known cases of AS who
are good parents it is obvious there would be an unacceptably high
potential rate of error, a possibility that Henderson and Hackett
apparently do not find alarming. They state:
“ there will be some cases where an
implacably hostile mother will jump
on to the AS 'bandwagon''12
(5) whether the underlying theory or technique has been generally
accepted as valid by the relevant scientific community; and
The relevant scientific community is unaware of Linehan’s
assertion, though they have expressed some reservations about similar
assertions. 13
(6) the non-judicial uses that have been made of the theory or
technique.
There have been no non-judicial uses made of this assertion, since it
is unknown to the scientific community.
Ms Linehan’s oft stated assertion that those with AS do not make
responsible parents clearly fares quite badly under a standard designed
to test the rigour of expert testimony and safeguard courts from less
than expert advice. As a parent of a child with AS, I would
insist that any assertion, such as put by Linehan, pass a Daubert
standard with flying colours and be thoroughly supported by statistical
evidence before I would accept that my child’s future could
legitimately be so negatively affected.
The Ethics of
Moral Distress
The central argument of Ms Linehan’s article
Moral Distress and High
Conflict is that parental concerns about child safety at access
are
valid; that custodial parents have a sixth sense and should trust their
intuition concerning the possible negative impact of the spouse on the
children during access visits. Ms Linehan refers to parental
alienation. The milder manifestations of it, namely concerns
about the health and well-being of the children when with the
non-custodial parent are extremely common in the period immediately
following divorce. 13 The fact that these
forebodings, in almost all but serious cases of alienation, abate
within a reasonable time suggests that this sixth sense cum intuition
wavers in the face of reality and is fallible.
Attempts to give credibility to intuition and other vague forebodings
are misguided. The literature refers extensively to the rampant
misuse of restraining orders as a tool in the divorce courts to get the
house and the kids without the inconvenience of the ex-spouse hanging
about. 15 All that is required is a ‘fear’ of the spouse
and a nice story, that is, unsubstantiated anecdotal evidence.
Now, Ms Linehan proposes that family courts move even further down the
evidentiary food chain and support the validity of vague and impossible
to substantiate ‘intuition’ or 6th sense.
If such a course were ever adopted, abuse of the due process of law
would apply to a very large number of people as has been effectively
demonstrated by the problems created by the many bogus restraining
orders. If AS is also in the picture, the situation
becomes bleak indeed, given that the presence of the label appears
tantamount to conferring instant objective truthfulness to the other
party.
Is this proposal ethical?
© Alyric 2004
References
1. http://www.mediate.com/articles/linehanS2.cfm
2. 1.
http://www.fact.on.ca/revbrave.htm
2.
http://www.strike-the-root.com/columns/Miller/miller1.html
3.
http://www.4famlaw.com/Genbpapr.htm
3. 1."40% of mothers reported that they
had interfered with the
non-custodial father's visitation on at least one occasion, to punish
the ex-spouse." (Source: p.
449, col. II, lines 3-6, (citing Fulton)
Frequency of visitation by Divorced Fathers; Differences in Reports
by Fathers and Mothers. Sanford Braver et al, Am. J. of Orthopsychiatry,
1991.)
2.
http://www.education.mcgill.ca/profs/cartwright/papers/pasbrf02.htm
4. http://www.tnom.com/html/deadbeat.html
5. p 23, Gaudy Night, Dorothy L Sayers, New English Library, London,
1981
6. End note 5 of Smoke and Mirrors – The Making of a Stereotype:
http://www.geocities.com/autistry/smokemirrors.html
7. Asperger’s Syndrome in Child Contact Cases, by Lynn Henderson and
Nicole Hackett - Solicitors Family Law (UK) February 2002
8. Dr. Venetia Young Asperger’s Syndrome in the Solicitor’s Office Fam
Law 2002.
9.
http://www.aaml.org/Articles/2002-3/Nichols-%20Inquiries%20&%20Caveat.htm
10. "High Conflict & Asperger's Syndrome" 2004 Sheila Jennings
Linehan. http://www.mediate.com/articles/Linehan_S1.cfm
11. Ibid.
12. Asperger’s Syndrome in Child Contact Cases, by Lynn Henderson and
Nicole Hackett - Solicitors Family Law (UK) February 2002
13. Maxine Aston’s article Living with Asperger’s Syndrome
proposed a definitive link between domestic violence (as physical
violence) and Asperger’s Syndrome. The controversy surrounding
that article is described in the 100+ comments section of
http://www.mediate.com/articles/Linehan_S1.cfm. Notably Ms Aston
(a resident of Coventry, UK) failed to contact Professor Simon Baron
Cohen, of Cambridge University whose unpublished data showed that
violence in AS is present in a ‘small minority’. This study, even
with the degree of selection bias expected from a clinical sample is
the only study in existence with statistical data.
14. http://www.breakthroughparenting.com/PAS.htm
I have reservations concerning the authenticity of ‘syndromes’ such as
Parental Alienation Syndrome. Just because a small subsection of
the population are unusually good and persistent haters does not imply
a genuine mental disorder. For further information read P.
Chodoff Medicalisation of the Human Condition at
http://ps.psychiatryonline.org/cgi/content/full/53/5/627
15. False Restraining Orders
1.Ontario Bill
117 — Presentation by Federal Senator Anne C.
Cools http://www.fathersforlife.org/doc/cools_on_117.html
2. http://www.fatherhoodcoalition.org/cpf/inthenews/MassNews990802dv_industry.htm