It can be put no better than the oft-reported quote of Dr. Sol Goldstein, who talked about the “scourge” of parental alienation in Canada.
Some commentators call it the “20/80” of the court, referring to the 20 per cent of the cases that take up 80 per cent of the time. There seems to be no effective solution.
Dr. Richard Gardner, a New York psychiatrist, proposed a theory in the early 1980s that some alienation was irrational in that the accepted parent had brainwashed the children to the extent that the cure was to deprogram them of their rejection of the other parent.
Enter Richard Warshak into the Ontario court system. He’s a psychologist from Texas who claims to have developed a four-day workshop at a cost of up to $20,000 to cure the irrational brainwashing type of alienation.
Only a handful of psychologists have training in the techniques. In some cases, the courts will order children into the custody of the rejected parent, who will then have them take the program. Sometimes, the court suspends contact with the accepted parent for a period of time.
One criticism of this theory is that it gives a tremendous amount of power to the health professional in that a misdiagnosis takes away the children’s right to object to certain parental behaviour and subjects them to an intimidating experience. The risk of that scenario increases when one parent is wealthy and the other is unable to retain an expert.
But how successful is the workshop? While it’s been around for 17 years, there hasn’t been an independent study to decide the criteria for evaluating success, monitor the cases, and compile the data.
The courts have developed rules of evidence on expert opinions because judges are intelligent amateurs who don’t want to pass judgment on the validity of scientific theories. Thus, they are gatekeepers. For the first test of admissibility, they rely on the scientific community to determine whether the theory or technique is generally acceptable. There is no such evidence for the Warshak workshop.
Additionally, because there is a recognition that a novel theory or technique may not have been in existence long enough, the courts have developed four criteria to admit such evidence. The Warshak workshop doesn’t meet the criteria for novelty because it has been around for more than 17 years.
However, even if it were novel, the reliability of the evidence on its validity wouldn’t meet the four-part test. That’s because the first element is that it’s capable of being and in fact has been tested. Here, while the data is available for an independent test, none has taken place according to generally accepted scientific principles.
Warshak has recently published a study he did himself claiming the workshop is highly effective. But this work doesn’t meet generally accepted principles for a valid scientific study.
The guarantee of validity is independent confirmation or repeatability by other scientists. The history of science is replete with examples of very intelligent and respected scientists who have made claims that, after review by other experts, have proven unreliable.
There is enough data for short- and long-term evaluation of the Warshak workshop. One of the concerns is whether, even if the data confirms the claims, the workshop works for the right reasons.
The procedure may be so intimidating that it may frighten the children into submission. Some of them are now old enough to give feedback on such concerns.
I know of the results of just two orders from Ontario judges sending children to the Warshak workshop. One is
J.K.L. v. N.C.S. The other is a case widely reported in the media in which an older brother sought to intervene to get custody of his brothers after an associate of Warshak sent them to a hospital psychiatric department alleging they had mental health issues.
The report in The Globe and Mail on the case noted that the psychiatrist at the hospital said there was nothing wrong with the boys.
Judges appear to be ignoring the Mohan general acceptance test out of desperation for a solution to this seemingly unsolvable problem. But will this prove justified?
Given that judges are making these orders and there is now local data, a study could keep track of these cases. It’s an important issue for which a research grant would likely be available.
Warshak may also reach into his altruism to make his techniques known to the health profession at large. Although it would entail a significant financial sacrifice, doing so would bring the benefit of these methods to people of more modest means and permit evaluation of them according to the usual cautionary measures of science.
The idea isn’t to deny that the workshop is effective. Warshak’s claims may in fact be correct. What’s missing is the proper scientific basis to support them and hence their admissibility in court.
There is no doubt in my mind that Warshak believes in his theory and techniques. However, as Ontario’s recent experience has shown, belief in a beneficial theory can be harmful. The only safe control on such good intentions is an independent review by the scientific community.
Jan Weir is a Toronto lawyer who was involved in S.G.B. v. S.J.L.,
a case in which a judge overturned an arbitrator’s award ordering participation in Warshak’s program. That matter is to go back to court for a new trial.
