Response to the UN’s “Call for inputs - custody cases, violence against women and children”
The following contribution is made [in December 2022] by the Icelandic organisation Líf án ofbeldis (e. Life without violence). The organisation came about in 2019, with a petition being set off to protest the systematic dismissal of abuse in custody and visitation cases. Líf án ofbeldis is part of the equal rights movement, its niche being the protection of children in domestic violence and custody cases - challenging the influence that “parental alienation” has had on the Icelandic child protective and legal system, as well as the Icelandic society as a whole.
Although Iceland has repeatedly been ranked one of the best countries in the world to be a woman, rankings fail to account for how women and children are treated as victims of domestic violence. As is the case worldwide, domestic violence is a gendered issue that is prominent and increasing in Iceland. What has been referred to as the Nordic Paradox, where a country has reached a high level of gender equality while simultaneously seeing a high prevalence of domestic violence, is indeed highly applicable to Iceland. Domestic abuse and child abuse are often the central features of custody battles in Iceland. Like elsewhere in the world, this is leading to the prevalence of the counterclaim of “parental alienation”, or similar concepts, when a mother or a child discloses being victims of domestic abuse at the hands of the father.
Up until the past few years, the fathers’ rights movement has been highly influential. Disguised as being concerned with equal parental rights, they were (and are) enthusiastic proponents of parental alienation. As a state-funded organisation, they long held two seats in the former “equality council“ (i. jafnréttisráðið), where politicians looked to them for advice on bills regarding parental rights. As such, their voice has contributed to a prevailing pro-contact culture; the dominant belief that lack of normalised contact with a father is more damaging to a child than any violence a father could commit towards the child or the mother.
In Iceland, the term parental alienation (i. foreldraútilokun) has moved away from its original clinical (although pseudoscientific and professional contested) meaning – as first invented by Richard Gardner – and has become deeply embedded in the legally-derived term of “withholding contact” (i. tálmun á umgengni). Even when contact is not withheld by the mother, parental alienation is often indicated by referring to accusations of abuse as “unsubstantiated accusations'' (i. tilhæfulausar ásakanir móður), “disrespectful/disobedient conduct of the mother” (i. vanvirðandi háttsemi móður), or the mother is said to cause a “detachment“ (i. tengslarof) between the father and child. In order to demonstrate that a mother has engaged in parental alienation, evidence submitted by mothers (e.g. police reports, witness statements, psychologist reports) is deemed subjective (i. einhliða gagnaöflun) and therefore inadmissible.
The Independence Party (i. Sjálfstæðisflokkurinn, traditionally the country's dominant political party), has been greatly influenced by this discourse, and its members have been proponents of the Danish legislation regarding imprisonment as a punishment for withholding contact. The party has in 2017, 2019, and 2020, with no success, submitted bills for the criminalisation of withholding contact (i. tálmunarfrumvarpið), suggesting that it be punishable by imprisonment for up to five years. The influence of developments in the United States are less direct but cannot be discounted due to the bulk of thought around parental alienation, and the economic interests that drive the concept, originating from there.
To our knowledge, there has been no systematic review or empirical research of neither the prevalence of domestic violence in custody and visitation proceedings, nor the counterclaim of parental alienation. There is a great challenge to be met here regarding laws of integrity, as rulings made by the District Commissioner regarding visitation, daily fines, or enforcement are not made public. Similarly, District Court verdicts are only published along with verdicts of appealed cases, as previous rulings in the case. It is one of the central goals of our organisation to call for a report similar to that which was recently conducted by the U.K.’s Ministry of Justice - The Harm Report. An international study on domestic violence, claims of parental alienation, and custody and visitation outcomes, is however currently being conducted, in which our organisation is partaking.
Recent research has demonstrated that the presence of court ordered assessors, like clinical psychologists, appears to function in the favour of abusive fathers. In the many reports that our organisation has read, the signs and impact of abuse are systematically being minimised or rejected. Courts are therefore frequently provided with reports said to objectively assess parental fitness, but that are highly favourable to the abuser maintaining contact. Líf án ofbeldis has openly criticised the assessors inadequate knowledge of domestic violence, the flawed and scientifically unsound methods and tools used, as well as the lack of transparency, supervision and accountability.
On a similar note, concerns have been raised about other factors that appear to play into the custody and visitation decision making process and accusations of parental alienation being made against the mother, such as ethnicity, socio-economic status, and mental health issues. As no data is available, however, this is simply observational. In our opinion (again, the data is lacking) the key predictive factor of accusations of parental alienation is the occurrence and disclosure of domestic violence.
In cases where a protective mother does withhold contact in order to ensure safety of the child, there are two measures within the Icelandic system to enforce contact: daily fines and police-enforced contact. A recent high-profile case involved the latter; a chronically ill boy who, together with his siblings, had disclosed of the father’s long term abusive behaviour, was forcibly removed from the hospital while receiving vital care, by the child protective services, District Commissioner, and the police, and put in the father’s custody against his will. Following an MP’s request for accountability, the Minister of Health and the Minister of Justice replied in opposition to such actions being carried out by authorities in health care settings.
An MP’s request on the number of enforcements carried out resulted in the District Commissioner failing to provide numbers before the year of 2015, thus listing two cases - both in which enforced contact went against the wishes, and safety, of the child. In 2018, an investigative article reviewed the District Commissioner’s treatment of disclosure of abuse and how it affected visitation rights. With cases spanning the first decade of this century, it reported that evidence of abuse was systematically rejected and fathers given increased visitation. The report also included cases where the father held a conviction for abuse. In February of 2022, a group of 12 MP’s made a request to the Minister of Justice on a more thorough report on the District Commissioner's statistics on domestic violence in custody and visitation cases, and decision making around these, which has yet to be provided.
Below are a few short descriptions of high profile cases seen in Iceland in recent years:
Case I.
A father, suspected of sexual abuse against his young child, as well as two family members when they were children, is awarded full custody by the District Court in 2020. Disclosure and signs of abuse were not taken into account, and the ruling was based purely on the mother withholding contact. The father went on to call for police enforcement for contact, which was heavily protested within the Icelandic community. The Appeal Court later overturned the decision and the Supreme Court confirmed. It is noteworthy that the reasoning of the Supreme Court for accepting the father’s appeal was to reexamine the parental fitness of the mother for withholding contact. In the Supreme Court’s verdict, no consideration was given to the suspicion of abuse against the child and the father was granted full unsupervised visitation rights. An analytical article on the Supreme Court ruling can be read here.
Case II.
A father won custody proceedings against his ex-wife in January of 2022, where the District Court ruled joint custody and the legal domicile to remain with the father. The father held a previous conviction of physical violence against his stepson and the mother. The conviction for violence against the mother was overturned in the Appeal Court, but the custody ruling remained. With both parents being non-Icelandic, they were deemed equally fit to parent. However, the father was considered to have better Icelandic language abilities, as well as a higher level of financial stability, which is what weighed the outcome in his favour.
Case III.
The case of the chronically ill boy who was forcibly taken from the hospital while receiving vital care. The beginning of the case can be traced to the intervention of the Children’s Psychiatric Hospital and Child Protective Services, when an older sibling attempted suicide due to the alleged abuse of the (step)father. The District Court initially awarded the mother full custody of the boy and his sister, which was later overturned in the Appeal Court, ordering joint custody. This ruling goes against the Child Protection Act No 76/2003 stating that joint custody can only be awarded if parents are thought to cooperate well - a criteria that logically cannot be fulfilled in cases of domestic violence. Legal domicile of the boy was granted to the father with very limited supervised visitation with the mother.
The list could be made long, with examples of siblings being separated by custody and legal domicile being granted to each parent separately; the District Commissioner ordering visitation to take place, overriding restraining orders set in place to protect the mother; a father who had been convicted of sexual abuse towards one child, was subsequently awarded full custody of a sibling; instances of mothers serving jail sentences for going against custodial rights of abusive fathers, and Icelandic authorities then forcibly bringing the children to the fathers.
The seriousness of the current situation in custody and visitation cases involving domestic violence in Iceland was highlighted by the Council of Europe Expert Group on Action against Violence against Women and Domestic Violence (GREVIO), in the very recent baseline evaluation report of the implementation of the Istanbul Convention. Overall, the committee reported grave concerns regarding whether the best interest of the child, as proposed by the Child Protection Act No 76/2003, is actually and systematically ensured in practice, when deciding on custody, domicile, and visitation. The report acknowledges several factors that have been mentioned above. Specifically, GREVIO reports a striking absence of specialist knowledge of gender-based violence against women, and the effect that domestic abuse has on children, as well as raises concerns of this not being a requirement for expert witnesses, assessors, or child-protective agents. The committee especially notes that “it is with grave concern that GREVIO heard from the child-protection agency that they did not even consider proven counts of sexual abuse of a child as a strong argument against visitation rights of a perpetrator.”
The committee mentions with great suspicion that “parental alienation” is being evoked by courts and other professionals in custody and visitation cases, which further underscores the lack of knowledge on the complex dynamics of domestic and post-separation abuse. Indeed, in these cases, rather than acknowledging the abuse, parents are often said to be in a dispute. Women who fail to attend meetings due to abuse trauma are seen as uncooperative; women who are unwilling to settle for joint custody and unsupervised visitation - something an abusive father can easily agree to and thus appear cooperative and fair minded - are seen as vengeful. Subsequently, these women - and the children - are punished by awarding the father custody and visitation rights.
Conclusively, GREVIO stresses grave concerns that Article 31 of the Istanbul Convention is not respected in the authorities and courts in Iceland, and that urgent action is needed in order to fully implement it. The report concludes with the following:
“the Icelandic authorities [are] to take the necessary legislative and other measures, including the development of appropriate guidelines and the provision of specialised training, to ensure:
● that all relevant professionals, including social workers, child-protection officers, members of the judiciary, court experts and child psychologists, when deciding on custody and visitation, are duly aware of and take into account incidents of violence by one parent against the other, in line with Article 31 of the Istanbul Convention;
● that screening processes are introduced for domestic violence and risk assessment in order to ensure wider use is made of the right under the Children’s Act to convene separate initial meetings with the District Commissioner, required to agree on custody and residence rights, for parents with a history of abuse.”
Our organisation agrees with the critique put forward by the GREVIO committee, as well as the suggestions for amendment.
On behalf of the board of Líf án ofbeldis
Eija Jansdotter
