Submitted, on 15 December 2022, by
- Verein Feministische Alleinerzieherinnen – FEM.A (The Feminist Single Mothers Association);
- Klaudia Frieben, Chair, Österreichischer Frauenring (The Austrian Women’s Ring, ÖFR);
- Maria Rösslhumer, Managing Director, Verein Autonome Österreichische Frauenhäuser
- (Association of Autonomous Austrian Women’s Shelters, AÖF);
- Ingeborg Geyer, Coordinator, Alliance of NGOs on Crime Prevention and Criminal Justice Working Group of Gender-Based Violence as Torture Inflicted by Non-State Actors; and
- Rosa Logar, National and International Expert on Violence against Women and Domestic Violence.
1. The different manifestations or specific types of domestic and intimate partner violence experienced by women and children, including the use of “parental alienation” and related concepts in child custody and access cases. Please also include a description of the different forms of violence that may be experienced by the mother and child as well as fundamental human rights violations, where relevant.
Women and their children, exposed to violence by the (ex)husbands/partners/fathers, often experience multiple forms of violence, ranging from physical, psychological, sexual and economic violence, rape, neglect, coercive control as well as trafficking in children, child pornography in the internet, torture, femicide and infanticide.
Unless it results in the fathers’ conviction, violence by fathers is often ignored, trivialized or negated in the context of custody and contact proceedings (hereafter referred to as “proceedings”) in Austria, exposing mothers and children also to institutional violence and multiple victimization.
Consequently, their following fundamental human rights, among others, are violated, in addition to the child’s best interest:
- Right to life and security; non-discrimination and equality; a fair trial; enjoyment of the highest attainable standard of physical and mental health;
- Right not to be subjected to torture, cruel, inhuman, degrading treatment, punishment, arbitrary interference with one‘s privacy;
- Right of motherhood and childhood to special care and assistance; and
- Right of the child to be protected from all forms of physical and mental violence, injury, abuse or maltreatment, including sexual abuse, while in the care of parents.
While, in proceedings, accusations by fathers against mothers are frequently accepted as facts, without verification, mothers and children are rarely given credibility, even when there is documented evidence. There is a tendency to consider such allegations as deliberate efforts of vengeful mothers to hurt their ex-partners by manipulating their children, so that the children refuse to have contact with their fathers.
Not only is the history of violence ignored, but also all other acts of abuse as reported by mothers, constituting a coercive control pattern. There is no understanding of power and control dynamics as well as a reluctance to believe that fathers, who seem to be nice men, committed atrocities.
Part of the coercive control pattern is the fathers’ strategy to accuse mothers of parental alienation (PA) and/or attachment intolerance (Bindungsuntoleranz). This accusation makes it almost impossible for mothers to counter the alienation allegation. The more they try to prove that there is abuse, the more they are accused of PA. It is a State’s obligation to protect its people from all forms of violence and to investigate and provide proof. However, the practice is often that violence is not properly considered.
It is actually the abusive father who often engages in alienating behaviour, such as demeaning the mother or exerting violence against her in the presence of the children. When the mother raises the issue, she is often again accused of PA, resulting in victim-blaming.
Mothers are pressured to agree to custody of both parents after separation or divorce and to the father’s contacts with their children under all circumstances, under the threat of losing otherwise their custody and/or contact rights. In this context, accepting not supervised contacts by abusive fathers or shared custody may be still a better option for mothers. Some of them therefore agree to withdraw their allegations or do not report them at all. Others lose custody and even contact rights.
Sexualized violence and rape against children are the most hidden forms of violence. Children are too small to verbally express what happened to them or they are not believed. Often judges do not trust their testimonies and do not even listen and take them properly into consideration. Instead, they ask experts to examine the child (which means that a child, who has already testified at other authorities, is questioned again, bearing the danger of secondary traumatization) and to provide a statement on the “credibility” of the child’s testimony. However, the child’s credibility is easily impeached when, for example, any professional dealing with the case states that the child said differing things in different investigations or does not remember all the details. Then this is even used against mothers, who are accused of having manipulated the child to lie, in an attempt to alienate the child from the father and to prevent contacts.
Another consequence is that cases are often dropped. Impunity is a serious problem regarding all forms of violence against mothers and their children, but especially in cases of child sexual abuse. Perpetrators then use the dismissal of complaint to “prove” that the abuse has not happened. This then usually leads to the ignoring of violence in proceedings. Children suffering violence, including sexual violence, are forced to continue contact with the abuser, to live in an unsafe situation and to experience multiple victimization. Sometimes mothers are threatened by authorities to lose custody if they try to protect their children and avoid procedures harming them, such as demands by abusive fathers to place children in psychiatric clinics to “reprogramme” them before the child’s relocation to the abusive father.
2. The factors behind the increased number of allegations of parental alienation cases in custody battles and/or disputes involving allegations of domestic violence and abuse against women, and its differentiated impact on specific groups of women and children.
Some professionals do not seem to have the necessary knowledge about violence against women and domestic violence and tend to overlook, deny or minimalize it. They rarely recognize signs of psychological violence, coercive control patterns and abusive fathers and therefore tend to believe the stories abusive fathers tell them. There is also a problematic tendency to interpret violence as a “relationship problem” for which both parents are equally responsible and to focus on keeping up the relationship which can be very dangerous in cases of violence.
Accusing mothers of PA is not only an easy explanation for mothers’ allegation of violence, but, as already stated, also diverts attention away from the abuse which in many cases is the reason for children refusing contacts with their fathers.
The tendency to dismiss mothers’ claims of abuse is also the result of the priority given by courts to promote the child’s relationship with the father and, in particular, the father’s contact rights. This is justified with reference to the child’s right to both parents and the child’s best interest. If the child does not want to see the father, her/his will is completely ignored in many cases. This worrying practice turns the child’s right to contact with both parents into a child’s obligation to have contact even with an abusive father the child is afraid of.
Moreover, ultra-conservative and right-wing networks have increasingly been promoting a backlash to women’s rights and gender equality for the past few years. As also the German sociologist Wolfgang Hammer found in his recent study “Familienrecht in Deutschland – Eine Bestandsaufnahme” (“Family Law in Germany – A Stocktaking“), some professionals as well as the jurisdiction at all levels are influenced by anti-human rights lobbying organizations and fathers groups. In Austria, for example, there is an increasing discrepancy between the law protecting the best interests of the child and the jurisdiction favouring fathers‘ rights and discriminating against mothers.
The Hammer study also concludes that the narratives of those lobbying organizations have resulted in a doctrine dominating the training materials of professionals involved in family law institutions. A small group of people who have links to father rights’ organizations influence the training, therefore impacting its objectivity negatively and resulting in the continued use of PA concepts. Also in Austria, a small group of people linked to an organization called “Arbeitskreis Psychoanalytische Pädagogik” (APP), with alleged links to father rights’ movements, seems to have a monopoly on certain training courses for family court-affiliated experts. This has resulted in the fact that court-affiliated institutions are not objective any longer.
Another crucial factor is the shortcoming in the legal framework and the implementation of laws regarding the obligation of the State to protect and prevent further violence. In Austria there is no explicit reference in the law that violence must be taken into account when decisions on custody and visitation rights are made, as required by the Istanbul Convention’s Article 31.
There was some progress made in 2013 when the obligation of “reducing the risk of a child to suffer violence or to witness violence inflicted upon people close to them” was inserted into the law (paragraph 138 of the Austrian Civil Code). However, this provision is hardly applied by judges in all instances. Unless an abusive father is convicted, experiencing and witnessing violence by a child is usually not taken into consideration in decisions on custody and visitation rights. Conviction is rare because criminal complaints frequently result in impunity.
3. The way in which different groups of women and children experience this phenomenon differently based on any intersecting elements such as age, sex, gender, race, ethnicity, legal residence, religious or political belief or other considerations and the factors that contribute to these situations.
Mothers of the middle or higher income groups, who are economically able to fight for their children’s protection rights, are often, in custody cases, considered suspicious of „manipulating“ their children.
Abusive fathers know that by accusing mothers of PA they will be able to enforce their demands regarding custody and contact rights in court. Often the proceedings take years and several court instances, resulting in enormous costs mothers have to cover for lawyers and expert opinions. As Family Law leaves a lot of space for parents to act – there is even no limitation of the number of requests parents can submit to family courts – abusive fathers, empowered by the concept of PA, often submit countless requests until the children’s 18th birthday, accusing, among others, mothers of attachment intolerance. The impact of fathers’ never-ending requests to the court on the children’s and mothers’ lives, especially on their emotional, financial, energy and time resources, is severe. This may even result in the victims’ death by disease or suicide or, if the conflict escalates, in femicide or infanticide.
Mothers of lower income groups, especially migrant or refugee females, experience multiple and intersecting discrimination. Having low incomes, they can hardly afford good lawyers and are often coerced into signing agreements at the court to the abusive fathers‘ benefits. Once the agreement is signed, no appeal is possible. Those mothers are therefore forced to abide by those agreements, giving up victims‘ rights, until the children are 18 years old or to pay fines.
Because of the gender pay gap, fathers can generally afford legal representation by specialist lawyers rather than mothers, which causes a severe economic imbalance in proceedings and drives mothers into poverty. Legal aid is not a right in custody cases. Therefore children and their mothers are often not properly represented.
4. The role that professionals play, including welfare workers, child protection services, guardian ad-litem, psychologists, psychiatrists, and how they are regulated in any way as expert witnesses.
Their role is, among others, to ensure that the child’s will is heard and the child’s best interest is given utmost priority.
However, this is increasingly not the case any longer, due to insufficient human, financial and time resources, a lack of continued training and the influence of lobbying groups on the training materials.
Especially when accusations of PA are raised against mothers, not only the mothers’ violence allegations but also the children’s will is often ignored by professionals, resulting sometimes in the children’s relocations from their mother’s home and consequently in a loss of their security and stability, having a big impact on their future.
Furthermore, when children are heard by those professionals, there is rarely a witness or a record of the conversation. Not only interviews with children, but also with parents, are often non-transparent. There are no control bodies or binding quality criteria for those professionals’ opinions. All this makes it easy for professionals to manipulate their opinions — which are most of the time entirely taken over by the judges in their court decisions — in such a way as to accommodate the judges’ wishes.
Another concern is that so many institutions have been set up in this area (Kinder- und Jugendhilfe Kinderbeistand, Kinder-und Jugendanwaltschaft, Sachverständige, etc.). This has become a huge burden on the children and their mothers who are interviewed and have to testify repeatedly. This can result in re-traumatization. Also the process is often not coordinated and not transparent to the victims.
Nine years after the establishment of the Familiengerichtshilfe (FGH), a court-affiliated institution, many experts agree that instead of mediating and saving costs, its involvement often leads to conflict escalations and a prolongation of litigation. Its professionals are often insufficiently trained in the field of violence against women and domestic violence. Their opinions, which are usually taken over by courts entirely, are mainly based on the way parents present themselves in conversations or in interaction analysis with the children. This, however, may be misleading. There is no obligation for professionals to document their interviews. There is a strong emphasis on mothers to cooperate with the abusive father as well as pressure on them to agree to a settlement regarding custody and/or visitation rights. Violence is rarely addressed, except in serious cases.
Furthermore, the courts do not hear and include the statements of specialist support services for victims of violence. Another shortcoming is that there is no coordination of family courts with criminal courts when complaints have been filed.
5. The consequences of the disregard for the history of domestic violence and abuse and intimate partner violence or the penalizing of such allegations in custody cases on the human rights of both the mother and the child, and the interrelationship between these rights.
A bond with at least one reliable caretaker, usually the mother, is vital for the physical and mental health of a child. This should be taken into consideration by all those involved in child protection. Austrian courts tend not to see a connection between the mothers’ and the children’s wellbeing and rights. However, when fathers’ rights are prioritized, at the detriment of mothers’ rights, it does not only affect mothers negatively but also their children.
As already described, the safety of mothers and children is not guaranteed in procedures, and the danger of multiple victimization is high. The described practice leads to the very problematic situation that even abusive fathers, except if there is a conviction, keep custody rights after divorce. Therefore almost all mothers, even those ending up in women’s shelters with their children, keep shared custody after divorce, giving fathers a chance to continue abusing mothers and children. If mothers decide to apply for sole custody, their chances of getting it are very low, despite often lengthy procedures of investigation by professionals of the FGH, court-commissioned experts and judges. Those procedures can lead to secondary traumatization.
Although there is no automatic shared custody yet for unmarried mothers who separate from their partners, it is already considered a rule, according to the jurisdiction, when ex-partners demand it. This means that abusive fathers also after separations have access to the children any time which enormously increases the danger of secondary victimization. Mothers and children are regularly attacked and injured even after divorce or separation. In 2022 a girl was killed in Austria by the father who then committed suicide.
Another very problematic practice is that children are often denied the right to protection because of the tendency of not taking signs and incidents of violence seriously. By favouring father’s rights over the safety of the children, judges are reluctant to grant protection orders to children. Applications are not made by child protection authorities or are rejected when brought forward by the victims.
Screening to detect any signs or a history of violence must be mandatory and carried out by courts. In case of violence, parental rights of abusive fathers must be ex officio removed or restricted. In its evaluation report GREVIO strongly encouraged the Austrian authorities to step up measures to ensure that the safety and needs of children witnessing domestic violence are guaranteed in custody decisions.
6. The challenges in collecting disaggregated data on courts’ practices concerning custody cases, the areas/sectors for which data is particularly lacking and the reasons for such challenges.
There is a lack of data and empirical research on courts’ practices concerning custody cases and of the number of mothers and children affected by violence, as well as the way violence is taken into consideration in custody cases. Data is also missing on the question in how many cases custody or vitiation rights are removed or restricted ex officio by the courts because of violence. Such data is necessary for experts to be able to evaluate if the obligation to protect children is met in custody cases.
Another field in which data is missing are protection orders for women and their children. It is not known how many of such applications are made annually to protect women and to protect children, and how many are granted. GREVIO thus encouraged the Austrian authorities to ensure the collection of data from the civil law sector on the number of civil law protection orders, the type of violence they cover as well as the sex, age and relationship of all parties involved.
Moreover, there is no data available on how many cases of sexualized violence against children were actually prosecuted. The crime statistics from 2021 lists about 680 cases of sexualized violence against children, which is a rather low number and indicates that sexualized violence is severely underreported. It is not known how many of the 680 complaints actually led to a conviction of the perpetrator. We estimate less than 50%.
7. The good practices, strategies adopted by different organs of the State or other non-State actors, at local, national, regional, or international level to improve the due consideration of domestic and family violence, including intimate partner violence against women and abuse of children in determining child custody, as well as in providing remedies and redress for victims/survivors.
A good practice example in Austria is the right of all victims of violent crime to psycho-social and legal support in criminal law and, to some degree, also in civil proceedings (Prozessbegleitung). This involves cost-free legal representation of victims in criminal proceedings. However, in civil proceedings this support is only available if a criminal complaint exists. Moreover, it only covers psycho-social support but not legal representation. Therefore children in custody and visitation cases do not have the right to legal representation. If their mothers cannot afford it, they are often not represented.
8. Recommendations for preventing the inadequate consideration of a history of domestic violence and abuse and gender stereotyping in custody cases to restore the human rights of mothers and their children, as well as ensure that survivors/victims are effectively protected and assisted.
We support all measures recommended in the WAVE Child Custody and Visitation Rights Paper 2022 (pp. 29-36: https://wave-network.org/wave-child-custody-and-visitation-rights-paper-2022/), the Hammer study (pp. 93-97)  as well as the Vienna Violence Protection Declaration and Action Plan submitted by us to the Austrian Government on 10 December 2021 and its attached European Parliament resolution on the impact of intimate partner violence and custody rights on women and children of 6 October 2021.
In particular, we demand
- The prohibition of the use of PAS/PA and similar concepts in court proceedings ;
- The due consideration of the history of domestic violence and abuse when custody and visitation rights are determined;
- The prioritization of victims’ protection rights over parental rights;
- A law explicitly mentioning that violence must be taken into account when deciding custody and visitation rights and strengthening the law’s implementation;
- A mandatory screening to be carried out by courts in order to detect any sign of a history of violence. In case of violence, parental rights of abusive fathers must be ex officio removed or restricted by courts;
- Screening for violence and risk assessments to be followed by protective measures for victims, before custody and visitation rights are determined; annual evaluation of all screenings and of the results thereof;
- Cooperation between civil and criminal courts to strengthen the linkage between criminal and civil cases affecting families;
- A mandatory specialized training for all professionals dealing with violence against women and domestic violence ;
- No compulsory mediation to be prescribed by courts for victims of violence;
- Priority to be given to protection orders for victims before contact rights;
- Free legal aid and representation of mothers and children by specialist lawyers of their choice in custody and visitation proceedings in the context of violence;
- Collection of annual data on the numbers of criminal cases, protection orders for women and children, applications and protections granted;
- A centre of excellence/observatory for the coordination of data collection and research on cases of gender-based violence, especially of psychological violence, power and control behaviours, and femicide;
- A permanent and inter-departmental Violence Protection Board for the development of holistic strategies and measures against gender-based and intimate partner violence and an inter-ministerial working group for the coordination and implementation of measures regarding the prevention and combating of gender-based violence;
- A child monitoring body to observe children’s rights in all legislation and law enforcement; and
- A resolution by the Human Rights Council and consequently by the United Nations General Assembly urging United Nations Member States to adopt or strengthen laws to consider domestic violence and abuse in the determination of custody and visitation rights and to prohibit the use of PA and similar concepts in courts proceedings.
 As also Neil Datta revealed in his report „The Tip of the Iceberg” (June 2021: https://www.epfweb.org/, pp. 3 and 14) 54 organizations spent at least US$707,2 million on anti-gender activities in Europe from 2009 to 2018. The actual funding might be even much higher. Those organizations originate in the US, the Russian Federation and Europe. A big anti-gender funder is, for example, the US-based Alliance Defending Freedom (ADF). Its European branch, ADF International, has several offices in Europe’s hubs for international human rights institutions: Brussels (European Union), Geneva (United Nations), Strasbourg (Council of Europe, European Court for Human Rights, European Parliament) and Vienna (United Nations, OSCE). It specializes, among others, in legal advocacy, attempting to achieve its anti-human rights aim via litigation/the court. Among others, it was involved in legal cases put before the European Court of Human Rights in Strasbourg between 2009 and 2018.
 www.familienrecht-in-deutschland.de/studie/?utm_source=newsletter&utm_medium=email&utm_campaign=Newsletter+Mai+2022. The study evaluated more than 1000 cases, mainly from Germany and Switzerland but also 19 from Austria, on custodial interventions by the youth authorities, covering, according to the author’s estimates, between 6,000 and 18,000 children. As the study found (in its part 2), in so-called problematic custody cases, i. e. removals that separated healthy and socially well-integrated children from their single mothers on an ad hoc basis: In 90 % of the 692 cases evaluated, children were taken into custody for a “lack of parenting ability”, based on attributions that the bond between mother and child was too close (Fact sheet of study in English, p. 2: jimdo-storage.global.ssl.fastly.net/file/fb951676-6b48-4669-92e4-b8cb17086337/Fact%20Sheet%20Family%20Law%20in%20Germany.pdf)
 Femicide, Special Issue, May 2022, pp. 122-128: https://coalitionfbo.org/2022/05/16/10-years-of-combatting-femicide/
 www.europarl.europa.eu/doceo/document/TA-9-2021-0406_EN.html and in Femicide, Special Issue, May 2022, pp. 1 pp. 129-155: https://coalitionfbo.org/2022/05/16/10-years-of-combatting-femicide/
 In its baseline evaluation reports GREVIO has consistently referred to the statement of December 2017 by the European Association for Psychotherapy (EAP), which draws attention to the fact, that the concepts of parental alienation syndrome (PAS) and parental alienation (PA) are unsuitable for use in any psychotherapeutic practice. This statement by the EAP, which is made up of 128 psychotherapy organizations from 41 European countries, acts as a guiding principle for European psychotherapists (p 99, footnote 517).
 Paragraph 41 of the European Parliament resolution, p. 150 of Femicide, Special Issue, May 2022
 Paragraph 29 of the European Parliament resolution, Ibid, p. 147
 See also the Femicide Watch Initiative: https://previous.ohchr.org/EN/Issues/Women/SRWomen/Pages/CFI-femicide-watch-initiative-2021.aspx