Parental alienation, even though it has external characteristics similar to refusal of contact, refers to a situation in which the refusal of contact is rooted in the inciting behavior of one parent towards the other. The phenomenon was first conceptualized by author Gardner in his 1987 book: [Gardner, R.A. "The parental alienation syndrome and the differentiation between fabricated and genuine child sexual abuse (New Jersey, USA: Creative Therapeutics)."]. This term describes a pathological alliance between an estranged parent and the child, which is based on the child's opposition to the other parent, which is not rooted in a real and justified reason, but rather on the intense processes of incitement by the estranged parent, which encourages the child's identification with his thoughts/feelings towards the estranged parent. For further in-depth discussion on this matter, see Dr. Inbal Bar-On and Dr. Yoav Mazeh, "Parental Alienation, a Literature Review" (Jerusalem, December 2019).
- In Israeli case law, the phenomenon of parental alienation and parental alienation syndrome has been recognized. See, for example, Civil Appeal Authority 3009/02 Anonymous v. Anonymous, IsrSC 56 (4) 872. The criticism of Gardner's teachings in the professional literature is also mentioned in court rulings [see, for example, Request for Administrative Leave to Appeal 5579/07 Anonymous v. Anonymous, [published in Nevo], August 7, 2007)]. The court noted the necessary caution in determining findings and drawing conclusions regarding the existence or absence of "parental alienation syndrome", and the need to seek the assistance of professionals for this purpose. Thus, for example, in the application for administrative leave to appeal 6327/08 Anonymous v. Anonymous [published in Nevo] (September 10, 2008), it was determined that:
"In order to determine the situation in its entirety, it is necessary to be assisted by the examination of the professional bodies in charge of it, while critically examining the conclusions submitted to it by the court."
- In summary, refusal of contact and "parental alienation" can have similar characteristics, but these are not overlapping concepts. The very existence of contact refusal does not determine that in a particular case there is parental alienation syndrome. The background to the refusal to contact should be examined, as well as whether there are other characteristics (first and foremost – deliberate activity by the custodial parent, the purpose of which is to "erase" the image of the other parent from the children's world). The existence of a justifiable reason for refusal of contact is not necessarily "parental alienation." Examining the characteristics and sources of refusal of contact should be done through professional tools and through professional diagnosis.
Conviction for a violent offense – without the testimony of the victim of the offense:
- As is well known, where a party refrains from testifying witnesses who can corroborate his main claim, then without a satisfactory explanation for this abstention, this will constitute independent evidence of his duty [see, for example, Criminal Appeal 6101/16 'Awad v. State of Israel [published in Nevo] (June 28, 2017)]. The assumption is that if the witness had been heard, it would have supported the opposing party's version, and that the reason for not bringing it was the party's fear of the witness's testimony and his exposure to cross-examination. In this context, it was held that, as a rule, a witness will be considered relevant to the version of a litigant, where there is a reasonable and obvious expectation in the circumstances of the case, that the litigant will call the particular witness for the purpose of discovering the truth and investigating the facts as claimed by that party [Criminal Appeal 8994/08 Anonymous v. State of Israel [published in Nevo] (September 1, 2009)]. Moreover, in certain circumstances, failure to summon a witness, who is an essential witness to an incident of violence, may amount to an 'investigation failure' that will even lead to the acquittal of a defendant. See, for example, Criminal Appeal 5019/09 Haliwa v. State of Israel [published in Nevo] (August 20, 2013).
- This is even more true when the witness who does not appear in court to give his testimony is none other than the victim of the offense. It seems that it is difficult to overstate the importance of giving testimony and cross-examination of the victim of the offense. To the extent that the victim of the offense refrains from testifying about the injury caused to him, the court is deprived of an essential tool for evaluating the version described in the indictment.
- There may of course be cases in which it is possible to convict, even for the commission of a violent offense, without hearing the testimony of the victim of the offense, and without the court being directly impressed by the reliability of the version underlying the indictment. And to the extent that the accuser brought other sufficient evidence (other than the testimony of the victim of the offense), in some cases the prosecution will not even be credited with the fact that she refrained from bringing the victim of the offense to testify (again, where there is a convincing explanation for his refusal to testify). Thus, for example, it was held in criminal appeal 8994/08 Anonymous v. State of Israel [published in Nevo] (September 1, 2009):
"The failure to testify as a witness whose testimony is important to both parties does not necessarily undermine the version of the litigant on whom the burden of persuasion rests in the case, and who refrained from bringing him to testify, when the litigant on whom the burden of persuasion was able to bring other sufficient evidence in order to transfer the burden of bringing evidence to the other party. In this situation, the failure of the witness to testify may act to the detriment of the other party who has the burden of presenting the evidence now, even though he does not bear the burden of persuasion. The same is true in the case before us. Since the prosecution met the initial burden of presenting the evidence, which is required in a criminal trial in order to transfer the burden of bringing the evidence to the defense, the appellant's refusal to testify to his parents and David, whose testimony was sufficient to shed light on at least some of the events described in the indictment, works against him in this case."