ALLEGATIONS OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION: A DISCUSSION PAPER
The tension, hostility and challenges that arise when parents separate are inevitably heightened if there are allegations of child abuse. If the allegations are true, the child and a supportive parent will suffer; if those allegations are improperly dismissed by the courts as unfounded, the consequences for a child and a supporting parent can be devastating. An unfounded allegation can also have very damaging consequences for a child and the wrongly accused parent. This paper reviews what is known about these very difficult cases, and how our legal and social service systems try to achieve a balance between the various rights and interests that arise. Unfortunately, there is only a limited amount of sound research dealing with allegations of abuse in the context of parental separation, and much of the literature in this area is from countries other than Canada. This report must be viewed as only a preliminary step in trying to understand the nature of the problems that arise and in formulating appropriate responses.
This paper addresses four questions:
- What are the current responses to allegations of child abuse by child protection agencies and the civil and criminal legal systems?
- What are the nature and extent of allegations of child abuse in the context of parental separation?
- What are the key issues associated with false allegations of abuse in this context?
- What strategies could be developed to deal appropriately with this problem?
To address the above questions, a three-part exploratory study was designed and conducted. The first component consisted of a broad literature review of the issues in Canada as well as in other jurisdictions. The second component consisted of a review of the current Canadian legislation and the case law regarding allegations of child abuse in the context of parental separation, as well as a study of reported judicial decisions on Quicklaw databases in Canada from 1990 to 1998. The third component involved interviews with a limited number (14) of selected key informants in Canada and elsewhere regarding their experiences with cases involving false allegations of child abuse in custody and access disputes.
Question 1: What are the current responses to allegations of child abuse by child protection agencies and the civil and criminal legal systems?
All Canadian jurisdictions have laws that encourage or require the reporting of suspected child abuse to a child protection agency (or the police), so that the authorities can investigate and take steps to protect the child if the child is actually at risk. In all jurisdictions, except the Yukon, a person who has reasonable grounds to believe that a child is at risk of abuse is obliged to report it to a child protection agency (or the police). These reporting laws require only "reasonable suspicions." If a parent discloses suspicions of abuse to a doctor, social worker, or therapist, that professional is required by law to report this. In some provinces, like Ontario, only a professional who fails to report can be punished under provincial reporting laws. A person who in good faith and on reasonable grounds makes a report of child abuse has immunity from civil suits.
Chapter 2.0 describes the investigation of and legal response to a report of child abuse. A critical initial question when abuse is alleged is to determine whether contact between the alleged abuser and the child should be restricted. From the reported case law, it appears that when there is an allegation of abuse, especially sexual abuse, most judges will tend to "err on the side of caution" pending a full hearing. Interim hearings are generally decided on the basis of affidavits from parents and any investigators or others who have been involved in the case. At this stage, there is little opportunity for the accused parent to challenge the allegation, though there are a few reported cases in which judges have decided even at the interim stage that the evidence to support the allegation is so weak that unsupervised access may continue.
While an investigation into allegations of child abuse is ongoing, there are several options available regarding access to the child by an accused parent. Depending on the assessment of risk to the child, if the accused parent has custody of the child, then the child may be apprehended by child protection authorities. If the accused parent does not have custody of the child, a court acting under child welfare legislation, family law legislation, or even the Criminal Code, may deny access or require supervised access.
Canadian judges are not consistent in dealing with the problem of uncertainty in family law trials involving abuse allegations. Most judgements require that the person making the allegation prove to the court that it is more likely than not that the abuse occurred-the civil standard of proof on the balance of probabilities. However, some cases take account of situations where there are "serious concerns" about abuse, but the judge is unable to make a clear finding that abuse has occurred. In all cases where a judge is deciding on custody or access, the best interests of the child are a primary focus.
In theory, a person who knowingly makes a false allegation of sexual abuse may be committing a number of offences under the Criminal Code. A person who knowingly makes a false statement to a police officer accusing another person of committing a crime (including child abuse) commits the offence of mischief, contrary to section 140 of the Code. If the false allegation resulted in a civil or criminal proceeding in which the person who made the allegation testified, other offences might be committed, including perjury (giving false evidence under oath, section 131), or making a false affidavit (section 138). If the reporter persuaded or misled the child or another person to make a false statement, this would be obstruction of justice (section 139). However, given the criminal standard of proof and the difficulty of proving that the person who made the statement knew it was false, there are very few charges laid under any of these sections in any context.
There have been a number of highly publicized cases in Canada in which individuals have claimed that they have been wrongfully accused of sexual abuse by "overzealous" investigators, and have sought redress in the courts. In most cases, these individuals have been satisfied with an acquittal in criminal court, or a finding in a civil proceeding that refutes the abuse allegation. However, in a few cases individuals have sued investigators for monetary damages to compensate for the expense and emotional anguish caused by the negligent investigation which resulted in their being wrongfully alleged to have abused their children.
Question 2: What are the nature and extent of allegations of child abuse in the context of parental separation?
Strong concerns were raised during the public hearings of the Special Joint Committee on Child Custody and Access about deliberate false allegations being a substantial and growing problem. Some witnesses suggested that false allegations were being used as a tactical weapon by a large number of family law litigants and warned that it was becoming a practice condoned and sometimes even encouraged by some women's shelters, child welfare workers and lawyers. The issue of false allegations of abuse in the context of parental separation was examined by reviewing the research literature in this area, reviewing relevant findings from the Ontario Incidence Study (OIS) of Reported Child Abuse and Neglect, reviewing Canadian case law, and through key informant interviews.
The lack of research studies, particularly Canadian studies, means we do not know the actual incidence of abuse allegations in cases in which parents have separated, or the proportion of cases in which the allegations are intentionally false. However, it appears from Canadian and American studies, as well as information obtained from the key informants, that allegations of physical or sexual abuse occur in a relatively small portion of cases in which parents have separated. Some research suggests that abuse may be an issue in less than two percent of separations, though other research suggests that in some locales abuse allegations might occur in five to ten percent of contested custody and access cases. We also do not know if the rate of false allegations of abuse is higher in the context of parental separation than in other situations. Both the research literature and the key informants were mixed on this issue.
A critical issue in any discussion of allegations of child abuse is the difference between a false allegation that is deliberately made to gain a tactical advantage in a custody or access dispute, and an unfounded allegation that is made due to an honest mistake. An intentionally false allegation (or fabricated allegation) is an allegation of child abuse that is known by the accuser to be false but is deliberately made, whether or not maliciously, to gain a tactical advantage in a custody or access dispute, or to seek revenge on or punish a former spouse. A false allegation that is made due to an honest mistake can occur for a number of reasons, such as children's statements being misinterpreted, poor communication between the parents, or poor interviewing techniques. A false allegation may also be a result of mental disturbance or mental illness of the accusing parent. An investigation into an allegation of child abuse may yield no conclusive evidence, and thus no determination can be made of the allegation's validity; we have termed this situation undetermined or unsubstantiated. It is apparent from the research reviewed that a majority of cases of unfounded allegations arose not because of deliberate fabrication by an accusing parent, but because of poor communication, misunderstanding or honest mistakes.
Question 3: What are the key issues associated with false allegations of abuse?
The information in this report was obtained from a variety of sources: a literature review of available research information in Canada and other jurisdictions; a review of the current Canadian legislation and case law regarding allegations of child abuse in the context of parental separation; and key informant interviews with a limited number of practitioners regarding their experiences with cases involving allegations of child abuse in situations where parents have separated or divorced. Based on this information, a number of significant issues can be identified:
Question 4: What strategies could be developed to deal appropriately with this problem?
There are a number of issues related to allegations of child abuse in the context of parental separation. In developing strategies to deal with these issues, it is important to recognize that some problems are inherent in this type of case (e.g., cases will continue to be time consuming to investigate due to their complexity and cases will continue to be expensive to process). The only way to address these issues is to reduce the incidence of false allegations.
Some issues, primarily those dealing with education or training needs, can be addressed now. All professionals working with cases involving allegations of abuse, including child welfare workers, police, psychologists, lawyers and judges, need educational materials or training in dealing with high conflict separations, particularly with the special challenges that arise when allegations of abuse are made. This education should be ongoing, and updated as new research information is available. Further, parents should be provided with information about the dynamics of parental separation and its effects on children. General information about abuse should be provided as part of "parenting after separation" education programs, with more detailed information given to individual parents as appropriate.
There are some issues that we do not yet have enough information about (particularly Canadian information) to make informed policy decisions. These issues require research and study before appropriate responses can be formulated. Issues such as whether stronger legal remedies for dealing with false allegations are required cannot be properly addressed without undertaking further research.
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