ALLEGATIONS OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION: A DISCUSSION PAPER
This chapter focuses on the first question for discussion: What are the current responses to allegations of child abuse by child protection agencies and in the civil and criminal legal systems? The investigation and legal response to a report of child abuse are briefly described below.
All Canadian jurisdictions have laws that encourage or require the reporting of suspected child abuse to a child protection agency (or the police who will then contact the agency) so the agency can investigate and take steps to protect the child if the child actually is at risk. In all jurisdictions in Canada, except the Yukon, a person who has reasonable grounds to believe that a child is at risk of abuse is obliged to report. 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 to a child protection agency has immunity from civil suit, even if it turns out that the report was unfounded, and as a result might, in other circumstances, be considered to be an act of defamation (slander).
When a parent believes that his or her child has been abused, a child protection agency is likely to become involved in the case. Sometimes the accusing parent contacts the agency; in other situations the parent may first contact a doctor or mental health professional, who will then be obliged under child abuse reporting laws to report a suspected case of abuse. When a child protection agency begins an investigation of suspected abuse, it is likely to want to take steps to ensure the immediate safety of the child.
If, for example, the allegation is against an access parent, the agency may go to court under child protection legislation to suspend visitation by the parent suspected of child abuse. Commonly, though, the agency will "request" a voluntary suspension or supervision of access, with the threat of court if there is no agreement. The suspected abuser will generally want to appear co-operative, and may be informed by a lawyer that a court is also likely to "err on the side of caution" at this initial stage and may agree to restrictions on contact with the child.
Investigations of suspected abuse by access parents are often complex cases, requiring careful assessment, and the investigation may take months to complete. If the agency concludes that abuse perpetrated by a parent has occurred, the agency generally has legal authority to seek some kind of court order to protect the child.
Although practices vary between agencies, if the parents have already commenced family law proceedings (i.e., seeking a custody or access order), the agency often decides not to bring a child protection application to court. Instead, it will rely on the accusing parent to seek a judicial determination and order which will protect the child. In some cases, the agency may encourage the accusing parent to bring a family law application. It may even threaten that if the accusing parent fails to take adequate measures to protect the child, the agency will bring a protection application that may result in the child being placed in agency care or under its supervision. Even if the agency has not made a court application, the agency workers may still testify in the family law case, or may be asked to supervise access visits by the alleged abuser. However, there are cases in which the accusing parent may decide not to pursue family law proceedings, usually for financial reasons, or the agency may have special concerns and decide to commence child protection proceedings.
If the evidence of abuse is weak and the case considered unfounded by the agency, or the allegations of abuse are less serious, the agency may decide that no further action on its part is warranted. The accusing parent may still proceed with the family law case, and protection workers may be called to testify, perhaps by the accused parent.
If a child protection worker believes there is strong evidence of serious abuse, the worker, in addition to taking protection steps, is likely to contact the police to allow them to investigate and decide whether criminal charges should be laid. In many communities there is a "protocol" to direct how a joint investigation is to be conducted. Occasionally a parent who is alleging abuse in the context of parental separation will directly contact the police. Frequently in cases arising out of parental separation, the police are only informed and investigate a considerable time after the child has made the initial alleged "disclosure," complicating the police investigation. Given the nature of the criminal process, it is only when there is very strong evidence of abuse that criminal charges will be laid, and it is relatively uncommon for there to be simultaneous criminal and civil proceedings, though this does occur.
It is much more difficult to prove abuse in a criminal proceeding than in a civil proceeding. For a criminal conviction, there must be proof beyond a reasonable doubt, while a civil case only requires proof on the balance of probabilities. Further, the criminal rules of evidence and the Canadian Charter of Rights and Freedoms may exclude some evidence in this type of proceeding that would be admissible in a civil trial, like child protection or family law proceedings. There is, for example, much more scope in a civil case for the admission of hearsay evidence about a child's out-of-court disclosures of abuse.
Judges in criminal cases are generally aware of the dynamics of parental separation, and are likely to be sensitive to the possibility of allegations being fabricated or exaggerated. It is not uncommon for a judge in the criminal trial to acquit the accused, but emphasize that this is being done because of the high criminal standard of proof, and to express concerns that the child may well have been abused by the parent.
If criminal charges are laid, they will tend to dominate the resolution of any family law proceeding, at least until the criminal charges are resolved. A usual condition of the judicial release of the accused in the community pending a criminal trial will be denial of contact with the alleged victim, or at least close monitoring of access. In some cases, the criminal court judge will release the accused with a condition that there be no contact with the child unless permitted by the order of a family law proceeding judge. The Canadian Charter of Rights and Freedoms guarantees that a criminal trial be held within a reasonable time, and a criminal trial will usually be held before civil proceedings are fully resolved.
If there are simultaneous criminal and family law proceedings, the person accused of abuse will often have separate lawyers for each proceeding, though it is highly desirable for these two lawyers to communicate and co-ordinate their efforts. Defence counsel in the criminal case will generally be reluctant to allow a person charged with a criminal offence to testify in a civil case that deals with the same issues, and will want any civil proceedings adjourned until the criminal case is resolved. If the accused files an affidavit or testifies in the civil case (for example, in an interim access application), the Crown prosecutor may use any inconsistencies between that affidavit and testimony in a later criminal trial to attempt to impeach the credibility of the accused. Similarly, if the accusing parent testifies in the criminal trial, any inconsistencies between that testimony and evidence in a later family law trial may be used to impeach the credibility of that person.
If the accused is convicted of abuse in the criminal trial, a judge in a family law trial held after the criminal trial is likely to take the criminal conviction as very strong or even conclusive evidence that the abuse occurred. In theory, the fact that a person abused a child does not determine whether it is in the "best interests" of the child to lose contact with the perpetrator. However, in practice, if the accused is convicted of child abuse in a criminal trial, there is little likelihood that there will be any family law hearing on the issue of whether abuse occurred, and the convicted abuser is unlikely, at least immediately, to seek visitation rights to the child.
The fact that an alleged abuser is not charged, or is tried and acquitted in criminal court, is not binding on a judge in a civil proceeding. It is common for an alleged abuser to be acquitted in criminal court and then have the allegations of abuse litigated again in a family law trial, where the rules of evidence and the standard of proof make it easier to prove that abuse occurred. Sometimes the criminal charges against the alleged abuser are dismissed due to a violation of his rights by the police or Crown under the Charter; this type of dismissal does not prevent a judge in family law proceedings from considering the abuse allegation. Further, even if there is no positive finding, in either the criminal or the family law proceeding, that the alleged perpetrator abused the child, there may be other concerns about the parenting capacity of a person acquitted in criminal court that lead to a denial of custody.
While a criminal conviction for child abuse will often result in the termination of access, a judge in a family law case must consider whether it is in the "best interests" of a child to continue or resume contact. Children who have been sexually or physically abused by a parent will often feel an attachment to that parent, despite the abuse. A family law court may allow access by a convicted abuser if it is satisfied that this is in the child's best interests. The judge should be satisfied that the children will not be at risk, which may require supervision, especially at first, and evidence of rehabilitation. The judge should be satisfied that the visits will actually promote the welfare of the child, and not simply allow access based on some notion of parental rights.
If the alleged abuser is not found guilty in the criminal process, there may be a tendency for some accusing parents or others involved in the case to accept this finding for civil purposes as well, and the alleged abuser will often feel a psychological boost from the criminal acquittal or the Crown's decision not to proceed with charges. Indeed, in some family law cases the judge has granted interim access to an alleged abuser, taking into account the fact that the police decided not to lay charges. However, in light of the differences in these proceedings, it seems inappropriate for a family law judge to place much weight on the decision of the police not to lay charges or on a criminal court acquittal.
All federal and provincial family law legislation in Canada requires that custody and access disputes between parents be resolved on the basis of a judicial assessment of the "best interests" of the child. Only in Newfoundland does legislation specifically refer to violence as a factor in custody or access cases. While abuse is not explicitly mentioned in most custody and access statutes, if an abuse allegation is made, this will generally become the central focus of the parents and the court. Testimony from various mental health professionals, social workers and assessors is often very important for these cases, though by no means determinative, and in the cases that are most likely to be litigated, professionals and experts may disagree about whether abuse occurred.
2.3.1 Interim Access
One of the most pressing issues arising with any type of allegation of abuse is the need to decide whether contact between the alleged abuser and the child should be restricted. From the reported case law, it is apparent 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. Judges are generally prepared to suspend unsupervised access at this stage if there are "real concerns" about abuse, without an actual finding on the civil standard of proof that abuse has occurred. If a child protection agency is involved, the agency will often recommend the immediate suspension of access.
In these cases, a court will generally only allow supervised access or, if this is not possible, will terminate access pending a trial. Frequently, the alleged abuser will be advised by a lawyer to consent to supervision of access on an interim basis, even if the allegation is unfounded. This will minimize the possibilities for further allegations being made, demonstrate appropriate concern for the child and avoid giving evidence that may be used to cross-examine him or her if charged criminally and he or she testifies. While alleged abusers find access restrictions frustrating, especially in cases where the allegation is ultimately not proven, it is understandable that judges will not want to take a risk with the safety of a child. Counsel representing a person against whom an allegation is made will want to try to ensure that the most generous access is maintained pending trial, with whatever supervision can be arranged that is satisfactory to the court.
2.3.2 The Standard of Proof: Balance of Probabilities or Is a Real Risk Enough?
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 focus on the issue of the "best interests" of the child and 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. Judges taking this approach may decide not to terminate all contact with an alleged abuser and may allow supervised access, or may decide to terminate access if the child appears to fear the alleged abuser, even if abuse is not proven. In some cases, the judge concludes that even at this lower standard of proof there is insufficient evidence to conclude that there is a "real risk" to the child of abuse by the accused parent and allows unrestricted access.
2.3.3 Founded Allegations
Generally, if a family law judge determines that the abuse allegation is founded, access by the abuser will be terminated, or at least closely supervised. However, in some cases a judge may allow unsupervised access even after making a finding that abuse occurred, if satisfied that the child will not be at risk in the future. Judges recognize that even children who have been abused may want to have some contact with the parent with a history of abusive conduct towards the child. Unsupervised access is most likely to occur if the parent has recognized that he has been abusive and sought treatment, and if the child is older and is likely to report any inappropriate behaviour. In some cases, the abuser is a person who resided with or visits a parent, like a mother's boyfriend or an older stepchild, and the court may allow the parent to have access if satisfied that the perpetrator will not be in the house while the child visits.
In some cases, the court will conclude that not all of the allegations of abuse were proven, but sufficient abuse was proven to terminate or curtail parental contact. In E.H. v. T.G. there was some expert testimony to support the mother's claim that the two children were subjected to physical and sexual abuse during access visits with the father. One of the children, then aged eight, testified that the father had not sexually abused the children and the trial judge allowed unsupervised access. The Nova Scotia Court of Appeal ruled that there was sufficient evidence of physical and emotional abuse during the visits that access should be terminated, even though the sexual abuse was not proven.
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 protection authorities may apprehend the child. 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, though in some cases there may be no restrictions placed on access (A detailed discussion of how to assess the validity of allegations of child abuse made in the context of parental separation is beyond the scope of this report. However, there is considerable literature on the topic, and interested readers are directed to the selected bibliography contained in Appendix B).
It is generally recognized that when parents separate, children seem to fare better if they have contact with both parents in an atmosphere of co-operation (Wallerstein & Kelly, 1980; Maccoby & Mnookin, 1992). But when an abuse allegation is made, the safety of the child is usually a paramount concern. Supervised access is one strategy for maintaining contact between an accused parent and a child while ensuring protection of the child from physical or sexual abuse.
A person such as a child welfare worker, a volunteer or a relative can provide supervision, or it can be provided through a program operated by a social service agency or visitation centre. A variety of services can be offered by a centre or program, including:
- supervised exchange (pick up and drop off services);
- on-site supervised visitation (individual or group monitoring);
- supervised visitation off-site (e.g., at the home of relative or foster parent);
- monitoring through mirrors or cameras;
- court assessments that range from factual reports on whether visitation occurred and any problems encountered, to recommendations regarding visitation; and
- therapeutic interventions.
2.4.1 Supervised Visitation Programs
Visitation centres and programs protect children from violence and abduction, while providing abusive parents access to their children in an environment that encourages positive parenting. Supervised visitation programs can also have an important role in allowing continued contact between a parent and child while an abuse investigation is underway. The programs can also serve an important function in cases where there is high parental conflict but no issue of child abuse.
Other countries have recognized that supervised visitation centres are an important and necessary resource for protecting children from violence. These centres are typically involved in cases where parents are litigating against one another, and in some jurisdictions may also be involved in child protection cases where the agency has removed the child from parental care. Information from the United States and Canada, Australia, and England and Wales is presented below.
United States and Canada
A large study of supervised visitation services by Pearson and Thoennes (1998) provides a picture of the current supervised visitation services available in North America, the perceived need for the services, and the issues facing service providers. Information was collected from 94 programs in the United States and Canada, 51 family court administrators and judges, 40 administrators of child protective service agencies, as well as from in-depth interviews with program professionals in five selected communities in the United States.
The researchers concluded that supervised visitation programs fill an important need. Child protection professionals recognize the benefits of parent-child contact, and judges often feel that supervised visitation is the only responsible response. However, available resources do not match this need. The child protection administrators surveyed stated that most visitation supervision is provided by its agency caseworkers (69 percent), 85 percent of whom said they lack the time to supervise visits as ordered by the courts. The agency administrators also expressed a need for supervised visitation in non-office settings and during non-working hours, such as evenings and weekends.
The judges surveyed said there is a need for more supervised visitation resources. While almost one-third (30 percent) said they use family and friends as supervisors, three-quarters of them expressed scepticism about doing so. The judges estimated that they ordered supervised visitation in less than five percent of the divorce filings in their jurisdiction, but 60 percent felt that the services were required in at least twice as many cases.
According to Pearson and Thoennes (1998), 67 percent of the visitation program administrators surveyed cited lack of funding as a major problem, particularly for programs that handle family law parental custody and access cases. While user fees comprise the single largest source of funding, they only account for 31 percent of the program budget. Approximately one-half (51 percent) of the programs surveyed provide supervision for both child protective services cases and divorcing families with visitation disputes; one-third (33 percent) serve only divorcing and separating families and 16 percent serve only child protection cases.
An average case will receive supervised visitation services for approximately nine to ten months, with an average of 4.3 visits per month of approximately two hours duration. Visits typically occur in a one-on-one setting at the visitation facility. Most programs use volunteers to help supervise visits, and cases are received almost exclusively through referrals by the courts. Program administrators voiced concerns about lack of funding and space.
Pearson and Thoennes (1998) found disagreement among their survey respondents regarding the role that visitation supervisors should play in assessment and treatment. Most judges and court administrators (86 percent) indicated that it
"very important" or
"somewhat important" that the supervisor advise the court on the validity of the allegations that led to the referral in order to assist the court in determining suitable custody and visitation
arrangements. Visitation supervisors also said they would like to play a more active role by providing feedback about the families to the court (80 percent) and modelling positive parenting behaviour (60 percent). Program
directors expressed the following concerns about visitation supervisors taking a role in advising the court about the validity of abuse allegations, or custody and access in general:
- whether supervisors are qualified to make recommendations about custody or visitation to the courts;
- fear that they would lose their perceived neutrality and thereby reduce their ability to deal effectively with both parents; and
- issues regarding liability.
The authors concluded that:
Supervised visitation programs assist the family court and child protective service agencies with a small but extremely needy population. In the absence of such programs, parent-child contact would either not occur or would occur in more questionable settings...Supervised visitation programs, however, work best when they complement other therapeutic interventions. Many of the families served have serious dysfunctions that are not addressed by simply visiting in a safe environment. They want and need sophisticated assessments and treatments by trained personnel that address the allegations that brought the family to the program. Typically, they lack the financial resources to purchase costly assessments and treatments (Pearson & Thoennes, 1998: 21).
There is no literature assessing Canadian facilities (other than the Pearson and Thoennes  study), and that study does not distinguish between Canadian and American facilities. However, it would seem that in Canada, supervised access programs are less likely to deal with child protection cases and more likely to deal exclusively with family law cases.
In Australia, children's "contact services" are operated by non-profit or community-based organizations that provide changeover transport, changeover supervision on or off site, and/or supervision of a contact visit on or off site. The Attorney General's Department of Australia established ten contact services throughout the country in 1996/1997, and a two-year comprehensive research and evaluation project is currently being conducted on the contact services in Australia (Strategic Partners Pty Ltd., 1998). Findings from the Year One Report are very positive. They indicate that there was considerable consistency in the provision of service, as well as the underlying philosophy. Legal Aid and Family Services provided most of the funding for the services (ninety five percent); client fees and other non-government contributions provided the remainder. The majority of workers are in casual positions (seventy four percent), and half of the co-ordinators work part-time. Staff qualifications and experience varied considerably. From January to June 1997, the services supervised 1,567 visits and 3,241 changeovers. Seventy percent of referrals were from the legal system (forty percent from solicitors, twenty-two percent from Family Court, and eight percent from community legal centres). The main reasons for referral were:
- fear of domestic violence between parents;
- fear of abuse of the children or fear of abduction;
- lack of parenting skills; and
- lack of contact between parent and child.
A survey of clients found that
"parents were basically satisfied with the quality of the service, although...many parents would prefer not to use the service and there was resentment of the Family Court in this regard" (Strategic
Partners Pty Ltd., 1998). Parents requested more information and support and suggested that the service could provide more support in assisting them as parents and/or in communicating with the other parent. Many parents expressed
concern about the lack of flexibility in hours and the inadequacy of the physical environment and resources.
The Honourable Justice Nahum Mushin of the Family Court of Australia, speaking at an International Conference on Child Access Services in October 1998, stated:
"The setting up of contact centres in Australia has been a very positive
event. The Court is delighted with the announcement of the Australian Government that it has decided to apply a further $16 million to setting up a further 25 supervised contact centres throughout urban and regional Australia"
Non-government funded contact services also exist in Australia, although without government support they have great difficulty in continuing to operate. A survey of non-government funded contact services in Australia found that the basic requirements for viability of the centres are:
…strong community involvement, support from a legal centre or social service, free use of accommodation, a fee for service for supervised access and a nominal charge per parent for changeover, good marketing of the product, certain size of population (around 75,000 minimum), ability to offer transport, and very importantly, a tertiary trained coordinator with a high visibility in the community (Renouf, 1998: 3).
England and Wales
According to Furniss (1998), there is a presumption by the judiciary in England and Wales that children should have contact with non-residential parents unless there are cogent reasons to deny "contact" (as access is called). In 1996, over 35,000 contact orders were made by the courts. To help families deal with problems over contact, two types of services have been established:
- family mediation services, to assist parents to reach mutually acceptable decisions regarding the upbringing of their children; and
- family contact centres, to provide a safe, neutral place for contact between children and non-residential parents.
Family contact centres were first established in the United Kingdom in the 1980s, but 40 percent of the over 250 centres now existing have been established since 1995 (Furniss, 1998). Centres are established through co-ordinated efforts between professionals who work with children and families (such as court welfare officers, magistrates and judges, solicitors, and social workers) and the voluntary sector. Professionals recognize the need for the service, encourage the establishment of the service, and then refer families to it once it is open. The majority of centres are open only on the weekends, and contact takes place in a common room with other families. Most centres also provide handover or supervised exchange services. There is usually one staff member (or a volunteer) for every two to three families. There are also centres in the UK that are run exclusively by paid professionals. These centres offer a range of services to families-such as intensive supervision; court assessments; therapy and counselling; parenting skills education; mediation-and are more expensive to run.
Each centre supervises approximately 50 families per year (or 80 children), which means that over 20,000 children attend a contact centre each year in the United Kingdom (Furniss, 1998). Debates have now begun over the need for centre evaluations, increased formalization, and better training and qualifications for staff versus increased supervision for voluntary organizations. Concerns are that imposed criteria would stifle voluntary organizations and innovative projects, localized needs would be ignored, and the neutral nature of the service would be affected. Furniss (1998: 3) concludes that:
...clear communication and understanding about what each centre can (and cannot) provide is essential. Relationships between centres, the courts and others working with families need to be thought out and policies developed and adhered to. These should range from risk assessment (which is more properly the responsibility of professionals working with the families than untrained volunteers), through review and also covering reporting and confidentiality. If everyone has a clear idea of the services on offer, then the diversity of the services provided by different contact centres in England and Wales can be put to best use, for the benefit of the many families who use those centres.
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