Iceland’s Supreme Court leads the courts on a dangerous path in custody cases
This article was written with Sigrún Sif Jóelsdóttir and was originally published in Icelandic in Kjarninn.
In late-May the Supreme Court (Hæstiréttur) took the rare initiative to hear a child custody case. In doing so it presented an opportunity for the court to gain an understanding of the problems that currently exist with these cases, both in Iceland and globally. An opportunity to make a statement about the importance of child safety and welfare, and to send a strong signal to the lower courts that parenthood is about love, kindness, caring, and responsibility, not biology. Unfortunately, the Supreme Court failed to do any of these things. Instead it made a status quo decision that gives mothers and children no greater confidence in a system that is consistently failing them.
This case was notable because it was the first to fully bring a dangerous global trend to Iceland with its initial decision in Reykjavik’s District Court (Héraðsdómstólar). Custody was transferred to a father suspected of sexual offences against the child, on the sole ground that the mother had prevented the child’s contact with him. All too frequently throughout Europe and North America family courts are awarding full custody to fathers after a mother has reported their abusive behaviour towards their child. Mothers are being punished for bringing child abuse to the state’s attention, and the safety of children is being ignored.
While the National Court (Landsréttur) reversed this appalling decision — although like the District Court it ignored the father’s behaviour — the Supreme Court decided it wanted to review this judgement. The hope was that the Supreme Court was significantly concerned with the original decision, and wanted to send a warning to the District Court that it cannot continue to treat women and children with such hostility. But instead of analysing and critiquing the failures within the family law system, the Supreme Court chose to simply submit itself to the same failings.
The Supreme Court should have used its resources to gain a sophisticated understanding of what is occurring in custody cases globally, and how these transnational trends are finding their way into Icelandic courts. In the United States it is estimated that 58,000 children annually are placed in unsafe environments by its family courts. These trends are leading to horrific subsequent outcomes, where dangerous fathers are murdering children after courts have awarded them custody or unsupervised access.
Two proposed laws are currently before the legislatures in Pennsylvania and New York that are seeking to counteract this phenomenon. These bills are respectively named “Kayden’s Law” and “Kyra’s Law” after two children murdered by their fathers due to the failures of these states’ family courts. The Supreme Court should have been aware that the District Court’s decision set Iceland on this horrific path, and sought to set a strong new precedent to make sure that we don’t have to take the same awful step of naming new legislation after murdered children. But it didn’t.
The District Court’s initial decision was influenced by a discredited theory called Parental Alienation Syndrome (PAS) that leads judges to believe that mothers are inherently deceitful and manipulative, and that they prevent normalised child contact with the father out of spite, rather than concern for the child’s safety. There are currently two further cases that have recently gone before the District Court where this theory has also been used against mothers trying to protect their children from abusive men. Disclosed by the court’s initial rulings, temporary legal address has been granted to one abusive father and the blatant discrediting of domestic abuse in evaluation reports is present in both cases.
There is an overwhelming body of research that demonstrates that PAS is not only a scientifically invalid theory, but that it is also undermining both domestic laws and international conventions on children’s rights. Because of this, a new Children’s Law in Spain has made PAS inadmissible in its family courts. This Spanish law specifically highlights the dangerous influence of the concept, and was designed to counteract the stereotypes and prejudices of both the courts and the social services against women that continuously lead to children being placed in dangerous environments.
A week prior to the Supreme Court’s hearing in May the Italian Supreme Court demonstrated how supreme courts should act when they take the unconventional measure of hearing custody cases. The Italian Supreme Court actually acknowledged and engaged itself with the failures of the system, and in particular addressed the problems that arise from the usage of PAS. The court highlighted how PAS is a deeply misogynist concept because it asks the courts to make a judgement based on who the individuals are, not on their positive or negative actions as parents. Men are afforded privileges solely for being men, and women are always to be deemed to be suspicious because they are women.
It is these deeply rooted and unfair conceptions of men and women that also drive the pro-contact culture that has overwhelmed child welfare systems here in Iceland and globally. Biology, not action, is what these systems have come to value. Although ironically it is only male biology that is given this privilege. Despite women doing the vast majority of the biological work — alongside the majority of childcare — their biology doesn’t carry the same weight within the system.
Because the pro-contact culture is so strong, facilitating contact, not creating a safe and happy environment for children, has become the goal of the court. Fixating on this has meant that the creation of a visitation plan, and not the quality of the parent-child relationship, is what now serves as the measure of well-being for children. If a mother insists that the father is a dangerous man she is not seen to be doing the right thing in protecting her child, she is instead deemed to be standing in the way of the court’s objective. Evidence of a father’s behaviour that gets in the way of this objective is continually ignored, downplayed, or excused. Evidence of his behaviour creates the necessity to question the mother’s character. The familiar narrative of a “scorned woman” becomes the court’s perspective.
During this recent custody hearing the Supreme Court judges didn’t ask what the mother was doing to protect her child’s safety and well-being, they asked why she wasn’t facilitating normalised contact with the father. This is what the pro-contact culture does; it realigns the court’s thinking away from the safety and well-being of children towards trying to mend the grievances of men whose behaviour a mother deems to be dangerous. It strips rights away from children and gives rights to abusive men.
In June 2020 the United Kingdom’s Ministry of Justice released “The Harm Report” that detailed how the pro-contact culture of both the family courts and the social services was endangering the lives of children. It highlighted that the system had been captured by a belief that lack of normalised contact with a father is more damaging to a child than any violence a father commits. This belief makes it almost impossible for mothers to protect their children from abusive men.
In regards to one of the more recent custody cases that have gone before Iceland’s justice system, the Reykjavik District Court ruled in 2020 that the father’s house would be the child’s legal domicile, even though there was a reasonable suspicion of his sexual offenses against the child, as well as injury reports showing the father’s physical violence against the mother. The District Court did not consider the child’s will in the case, but the National Court, which then upheld the decision, heard the child, but subsequently ignored their clear wishes to live with their mother, even though the child has reached the age generally considered sufficient for the court to base its decision on.
The mother’s appeal to the Supreme Court stated that this action by the National Court violates the fundamental principle of children’s rights as stated in the United Nations Convention on the Rights of the Child and the child’s right to express himself or herself on matters under Iceland’s Children’s Law. The Supreme Court rejected the request in August and did not see that the outcome of the case was important to the interests of the child, or that there was a significant general value to Iceland’s overall social health.
It highlights the consistent cultural failings of the justice system in custody cases that the Supreme Court would accept the appeal of an alleged abuser, as it did in May, but reject the appeal of a victim of abuse, as it has done in August.
The Supreme Court should be a court that engages in serious critical analysis of the concepts used in custody hearings, as well as conduct important self-analysis of the justice system’s own response to these concepts. This should be the point when it so rarely takes a custody case. The Supreme Court should seek to identify and understand failings of the system as a whole, while developing a wider philosophy on the values of parenthood and childcare, and the importance of these for the health of Icelandic society. Using its weight to send a strong signal to the lower courts on these issues.
There are a series of questions that the Supreme Court judges should have reflected on in the case it did accept, but failed to do so:
Why does the justice system value biology over action for fathers?
Is it beneficial to Icelandic society to lower the standards for fatherhood? Why are we asking less of our men?
Is it fair to children to have the standards for their childhoods lowered? How will this hinder their development?
What is the merit of the pro-contact, pro-normalisation ideology? Is this ideology designed for the benefit of children, or to protect male household authority?
Why does the justice system not take domestic abuse seriously?
Why does the justice system force children to interact with the men who have abused them? The justice system wouldn’t force a rape victim to live with her attacker, so why does it do this to children?
Does the justice system have a sophisticated understanding of abusive behaviour and psychology?
Is the justice system aware of how abusive men use the system as a weapon against their children and former partners?
Why does the justice system have such an ingrained suspicion and hostility towards women?
These are well-documented critiques of the system that the Supreme Court should have at the very least spent some time contemplating. Most importantly, the Supreme Court should have been curious as to why the Reykjavik District Court made its initial illogical and amoral decision, and sought to understand how the system has become so corrupted that such a decision could be made.
Institutional cruelty is rarely built on overt malice, it is instead perpetuated when actors within systems simply refuse to think. When these actors submit themselves to dominant cultures without question, and when they refuse to ask themselves why they are making the decisions that they do. The entire Iceland child protection system is currently suffering from this lack of self-analysis.
The Supreme Court took a deeply consequential case; a case about how Icelandic society treats its most vulnerable people, about the values of parenthood, about the importance of childcare, about how a system designed to protect children is frequently doing the opposite, and it displayed a complete lack of interest in any of these issues.
Instead it made a limp decision that merely defended the failures of the status quo. It begrudgingly upheld the National Court’s decision — awarding the mother full custody in order to not disrupt the child’s known environment — but it ordered greater unsupervised access to the dangerous father. This decision continued to assert that fatherhood is solely tied to biology, and that this buys the father certain rights regardless of his behaviour.
In its decision the Supreme Court failed to set a new precedent that would address the brutal failings that the District Court has demonstrated. It failed to create a more safe and secure society for Iceland’s children, it failed to develop a wider understanding of the merits of this security, and it failed to establish any greater trust in the justice system for women and children who find themselves in insecure domestic environments.
