Imagine this. After your separation with your spouse, your child who has been your sweetie pie since birth suddenly turned his back on you. He won’t listen or talk to you anymore as a parent, and completely ignores you or starts talking back whenever a conversation is initiated. Later on, you figured that your child’s behaviour was very much influenced by your now estranged spouse.
If this scenario sounds too familiar for comfort to you, then you might be a victim of Parental Alienation.
Introduction
Parental Alienation is an act of process of manipulating a child by one of the parents to hate or reject the other parent. Parental Alienation Syndrome is a term introduced to describe a distinctive suite of behaviors in children that includes showing extreme but unwarranted fear, disrespect or hostility towards a parent.
The term alienation applies to a cluster of psychological responses in a child towards a parent with whom he once had a loving relationship. Alienation may not result from any deliberate campaign of denigration by one parent in respect of the other. Research data supports multi-factorial causes for alienation following parental separation, involving contributions from both parents and vulnerabilities within the child.
In certain parts of the world, Parental Alienation is a crime. For example, in Italy, parents who have brainwashed their child(ren) to hate the other parent may be fined while those in Mexico can be jailed up to 15 years.
Current position in Malaysia
Unfortunately, there are no specific laws that deal specifically with Parental Alienation in Malaysia currently. In simpler terms, Parental Alienation is not illegal here, and the parent responsible for brainwashing the child to go against the other parent, is not deemed to have commit an offence.
In the recent High Court case of Hoong Wai Kit v Teh Toong Joo [2019] MLJU 1538, Hayatul Akmal J had provided as below:
“At this juncture, that it is to be noted that currently, there are no laws on parental alienation, and neither is it illegal. Only education of feuding divorce couples on this subject can be of help as to how it will impact the children of the marriage in order to mitigate the issue from becoming severe.”
Even so, the Malaysian courts are now starting to acknowledge the existence of Parental Alienation. The courts in Malaysia have held that refusal to see the non-resident parent could be symptoms that the children are suffering from Parental Alienation Syndrome.
In Malaysia, Yeoh Wee Siam JC (as she then was) in Low Swee Siong v Tan Siew Siew [2011] 2 MLJ 501 and as JCA in the recent Court of Appeal case of Melissa Marie Albert v Malcolm Fernandez [2019] 2 MLJ 290 discussed Parental Alienation Syndrome. In Low Swee Siong, her Ladyship stated that:
“[32] The petitioner wife contended that the child’s mind had been poisoned against her by the petitioner husband. I also bore in mind the real possibility that this child may be suffering from the parental alienation syndrome (‘PAS’) which some children develop if they are living away from the other parent and are badly influenced by the persons who take care of them on a daily basis.”
And in Melissa Marie Albert v Malcolm Fernandez [2019] 2 MLJ 290, her Ladyship held that:
“[25] ………… the interview was conducted at a time when the mother had been prevented by the father from having access to the child for three weeks. Thus, in our view, it is highly probable that the child would be feeling estranged from the mother and would naturally be more attached to the father, not discounting the real likelihood of parental alienation caused to the child by the father against the mother.”
Regardless, Parental Alienation does not establish a valid cause of action nor is it an offence in Malaysia.
The recourse
Now that we have come to understand that Parental Alienation is not a valid cause of action in Malaysia, what is the alternative to the victims who are suffering from Parental Alienation?
The other recourse is the alienated parent may initiate a civil suit against the other parent for intentional infliction of emotional distress.
There are four elements needed in order for this tort of intentional infliction of emotional distress to be established:
- The act done must be intentional.
- The act must be extreme and/or outrageous.
- The act must be the cause of emotional distress.
- Emotional distress.
In a legal article entitled Spousal Emotional Abuse as a Tort; Maryland Law Review, Volume 55 / Issue 4, Article 9, it was stated that:
‘Of course, tort principles do not recognize all harmful conduct as actionable. Indeed, as noted already, tort claims for intentional infliction of emotional distress generally require wrongdoing that is grave enough to be termed “outrageous”.’
Further, it must be noted that the law as it stands appears to say that tort cases and divorce cases must be litigated separately. This means that a party who has been alienated may not claim for damages on emotional or mental distress in a petition for annulment or divorce. He or she must initiate a separate civil suit for the same. In Shobana a/p Perumal v Ganesh a/l Guna [2016] MLJU 1108, Hayatul Akmal JC had provided as below:
“At this juncture, this court is not making a ruling that spouses do not have a right to make a claim for a purported tortious action against the other since the law has progressed to allow spouses to sue each other in respect of the same. What this court is saying is that a petition for annulment of marriage and or divorce under the LRA is not the proper forum for it. It should be proceeded with under an appropriate and a separate civil claim amongst the disputing parties.”
Conclusion
Even though, Parental Alienation is not an offence in Malaysia nor is it a valid cause of action, it does not mean that the victim does not have any other recourse to claim for damages done.
The victim may initiate a separate civil suit on tort of intentional infliction of emotional distress. However, it must be proven that the act of the alienator is extreme and/or outrageous.
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