27.06.2024

Who and how to save the alienated child? Solutions and remedies

Parental alienation has been recognized in the jurisprudence of the Romanian courts as a form of psychological abuse of a minor since 2012, in which the alienating parent was ordered to be sanctioned with the loss of parental authority and the loss of the minor's residence.

As a consequence, the regulation of parental alienation by Law no. 123/2024 as a form of psychological abuse leading to the loss of parental authority and of the minor's home represents the legislative enshrinement of case-law solutions, which have been consistently pronounced for about 11 years, when parental alienation is found to exist.

However, in the absence of a legal provision, there were also opinions expressed in case law and even among some psychologists to the effect that parental alienation does not actually exist as a form of abuse and that it was merely an artificial concept imported from the United States for commercial purposes.

The amendment of Law no. 272/2004 by Law no. 123/2024, which entered into force on 10 May 2024, is extremely important because, for the first time in Romanian law, parental alienation is recognized and sanctioned as a form of child abuse. Currently, there is a legal definition of parental alienation and its express qualification as a form of psychological violence against the child. The new rules also expressly lay down the sanctions that can be imposed on the alienating parent.

As in the past, the psychologists, who must establish the existence of parental alienation, will play a key role. They have outlined in their specialized works the risks that parental alienation can lead to and why it is a very serious form of abuse - the child's attitude of rejection of the parent can go as far as denying filiation. Today's abusers will be tomorrow's abusers. In practice, there have been some truly shocking cases of children being severely abused and traumatized, with parental alienation compounded by abusive behavior or ill-treatment of the minor.

According to art. 18 para. 4 of Law no. 123/2024, at the request of the alienated parent or ex officio, in order to restore and maintain the child's personal relations, the public social assistance service and, where appropriate, the general directorates for social assistance and child protection of each sector of the Bucharest municipality are obliged to order counseling, provided by specialists from the public social assistance services or authorized bodies, both for the child and his/her parents. When there is a suspicion of parental alienation or any other form of violence against the child and the court has been notified, the DGASPC is required to ask the court to carry out an expert report.

Par. 5 of the same article stipulates that if one of the parents hinders or adversely affects the child's personal ties with the other parent, by failing to comply with the schedule set by the court or agreed with the other parent, or refuses or resists compliance with the measures concerning counseling, the public social welfare service and, where appropriate the general directorates for social assistance and child protection of each sector of Bucharest, at the request of either parent, will order the monitoring of the child's personal relationships for a period of up to 6 months, at the same time as the request to the guardianship court to supplement the consent of the parent who opposes or, where appropriate, modify the measures concerning the child.

At the end of the monitoring period, a report is drawn up and the DGASPC may propose the extension of the monitoring period by a maximum of 6 months, psychological counseling or expertise, including forensic psychiatric expertise of the parents and/or the child, as well as a series of measures to improve the personal relationship between the child and the non-resident parent or, where appropriate, the introduction of child protection measures.

The court can establish the existence of parental alienation at the request of one of the parents, at the request of the public prosecutor or at the request of the General Directorate for Social Assistance and Child Protection, in the main proceedings or in any pending litigation, where measures are to be ordered in respect of the minor child.

In such cases, the court listens to the minor with the participation of a psychologist from the general directorate for social assistance and child protection, who will draw up a report.

The new rules provide that the court may order a forensic psychiatric report. Normally, a psychological evaluation report should also be required, since it is psychologists who analyze and identify parental alienation.

These legislative amendments introduced by Law 123/2024 are an important step towards normalizing relations between separated parents and their minor children. As the courts constantly emphasize in their judgments "the child has the right to have two parents whom he or she must be allowed to love without fear or guilt towards the other parent".

"Children must be brought up for themselves and not for their parents", said Nicolae Iorga.

When the child resumes contact with the alienated parent, he or she will gradually realize that he or she is not a "monster", as the alienator has painted him or her.

Closer cooperation between all the professions, authorities and institutions involved in the protection of minors, which are interlinked, is absolutely essential in order to find the most appropriate solutions. The courts cannot be left alone in the fight against this scourge - once the court has handed down a judgment finding parental alienation and sanctioning the alienating parent, all the other authorities must act - police, public prosecutors, DGASPCs, psychologists, etc. Otherwise, even if the alienating parent is sanctioned by the court by losing parental authority and the minor's home, there will be a new judgment which will not be enforced because of the alienated minor's refusal. This leads to absurd situations in which the enforcement of a final judgment, handed down after years of litigation, after a complex evidentiary process, depends on the will of a three, four, five or six-year-old child who was not even heard in the trial because he was not of the age required by law for this purpose - 10 years old.

Because of this, there are extremely few alienated children in Romania who could actually be taken away from the alienating parent.

Many problems are still awaiting solutions. Parental alienation produces deep traumas, so the support of a psychologist specializing in trauma is needed to help the child heal from the effects of alienation. The "Trauma Institute" is swamped with requests and can no longer cope. What happens to the personal ties of the abusing parent, who has already been sanctioned by the court with the loss of parental authority and the loss of the minor's home? If the minor has therapy to remove the trauma, but the alienating parent has a personal bonding program with an overnight stay or the possibility of being left alone with the child, resuming the alienation, what is the effect of the therapy? And the examples could go on.

It is extremely important to amend Law No 272/2004 by Law No 123/2024, but not enough. The time for half-measures is over, it is time for much more vigorous solutions. In other European countries or in the USA, they intervene quickly, right from the start of parental alienation, with social assistance effectively taking the child away from the abusive parent.

In this context, the amendment of Article 913 of the Code of Civil Procedure, which refers to the situation of a minor's refusal, should be discussed and analyzed, at least in the sense that, when there is a final judgment establishing parental alienation and ordering the loss of parental authority, a change of residence for the minor or the forfeiture of parental rights, the DGASPC representatives, together with a psychologist, should have the prerogative to take the child.

Extremely important steps have been taken, but there is still a long way to go. In reality, at this point in time, we are still not really ready to save the alienated child.

An article by Cătălina Dicu (cdicu@stoica-asociatii.ro), Senior Partner - STOICA & ASOCIAȚII.