Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective
V. Concurrent Child Protection & Criminal Proceedings
While a concurrent child protection and criminal proceeding may be based on the same incidents of alleged abuse or neglect, the child protection proceeding differs from criminal proceedings in very significant ways. The following discussion compares the criminal and child protection responses, and considers the complex challenges that arise if there are concurrent investigations and proceedings.
A. COMPARING CHILD PROTECTION AND CRIMINAL RESPONSES
Focus on protection of children vs. penal consequences
Finding a child in need of protection requires a finding that the child has been in some way abused or neglected, but if such a finding is made, the focus shifts to the child’s best interests. This requires consideration of the child’s needs on a forward-looking basis, in contrast to the retrospective focus of criminal proceedings. The focus in a child protection case is not punitive and, at least in theory, it is not primarily on the parent. Rather, if the child is found in need of protection, the goal is to find the placement, treatment and conditions that will promote a healthy, productive future for the child. Placement may with a parent, with supervisory conditions, or with a relative, foster home or group home, or eventually in an adoptive family.
Duty to report
The duty to report cases where there are reasonable grounds to believe that a child is at risk of abuse or neglect is found in all provincial and territorial child protection statutes. Some statutes provide for penalties only for failure to report by certain professionals; others provide for penalties for any individual who fails to report, and in a few jurisdictions there is no penalty for failing to report abuse or neglect.Footnote 58
This duty to report results in child protection agencies having numerous sources of information about families where family violence is or may be an issue: teachers, medical professionals, neighbours, social services staff, and of course police, among others. Police in particular have become much more aware of their duty to report and it is now common in many places in Canada for police to contact the CPA concerning any intimate partner violence case where children are present in the home. This is reflected in the substantial increase over time in reports to CPA’s in Canada where intimate partner violence is the primary reporting concern: now, over one third of all reports to CPAs are based on intimate partner violence concerns.Footnote 59
There is no corresponding duty to report possible violations of the Criminal Code to the police or other authorities, and many victims of intimate partner violence do not report their victimization to the police or disclose to other professionals. Professionals like emergency room physicians and nurses who believe that an adult seeking treatment for injuries suffered as a result of intimate partner violence may encourage the victim to report to the police or go to a shelter, but it is for her to decide what to do. However, if medical staff has reasonable grounds to believe that a child whom they are treating has been a victim of abuse or neglect, including emotional abuse from being exposed to family violence, they have a duty to report to the local CPA so that an investigation can be carried out. The investigative responses that will be adopted by a CPA are discussed below.
No right to silence
The constitutional right to silence only applies to criminal investigations and proceedings. In theory, a parent can refuse to speak to agency workers and decide not to testify in response to the CPA’s case. However, the child protection court is likely to make an adverse inference in such a case, and the parent could, in theory, be called as a witness for the CPA.
In most provinces and territories, a parent involved in a child protection proceeding is required to file an answer and plan of care for the child with the court, failing which the court may prevent the parent from participating further in the proceedings. Further, the agency’s case may be based in large part on statements made by the parent to child protection agency social workers or others. The agency worker does not have to warn the parent that statements made by them may be used in the child protection proceedings, and there is no right to have counsel present during conversations with agency workers.Footnote 60 As will be discussed below in more detail, a parent’s statement to a CPA worker may not be directly admissible in a criminal proceeding if the parent does not testify, but any statement made to a child protection worker may be used to cross-examine the parent and undermine the parent’s credibility in the criminal process.
Standard of proof
Like the Crown in criminal cases, the state agency in child protection proceedings bears the burden of proof. However, as noted above, the standard of proof in a child protection case is the civil test of balance of probabilities, while the criminal standard is the higher test of “proof beyond a reasonable doubt.”Footnote 61 Further, the agency can obtain a finding that the child is in need of protection due to a risk of harm to the child, including emotional harm. While in theory a factual finding that any particular incident has occurred is not required, in practice the agencies do have to prove that specific past events, such as incidents of intimate partner violence, occurred. However, the focus is on the risk of emotional or physical harm to the child, rather than a specific event, and the existence of parental high conflict short of criminal conduct may be sufficient to ground a finding in need of protection.
Relaxed evidentiary rules
There are significant differences in the applicable rules of the law of evidence between child protection and criminal proceedings. Most of the Canadian jurisprudence accepts that the stringent application of evidentiary rules applied to criminal cases is inappropriate in cases involving the welfare of children,Footnote 62 even if both proceedings require proof of the same incidents of abuse or neglect. There are also statutory provisions permitting the use of evidence that would be inadmissible in criminal proceedings. For example, hearsay information is expressly permitted at the interim stages of a child protection proceeding, including the hearing as to interim placement of the child.Footnote 63
Justice Sheilagh O’Connell of the Ontario Court of Justice recently made the following comments about the approach to evidence rules in child protection cases:
Although civil in nature, a child protection proceeding is quasi-criminal in certain respects. However, unlike a criminal case, the application of the rules of evidence in a child protection case poses distinct challenges. The primary focus of a child protection case is the protection and well-being of the children involved. The best interests of the children are considered paramount. Child protection judges have struggled with ensuring that the best evidence and information is available to appropriately decide a case in a way that is least harmful to the children involved, but in accordance with the principles of fundamental justice.Footnote 64
In this case, the judge ruled that the transcripts of testimony of three children given at the preliminary inquiry for criminal charges for alleged parental abuse were only to be admissible in the child protection hearing if counsel for the parents could cross-examine the children in the child protection proceeding based on the same allegations. While noting that this might be a “difficult experience for the children,” she noted that there was no evidence that they would be emotionally harmed by the cross-examination, which was to occur out of the presence of the parents.
At child protection trials, some judges take a deliberately “relaxed” approach to the admission of hearsay statements of children, in particular disclosures of abuse. Other judges purport to apply the Supreme Court test of R v Khan, requiring hearsay to be admitted only if it is found to be “necessary” and “reliable,” as in criminal proceedings, but taking a less stringent view of what constitutes “necessity,” in terms of limiting emotional harm from testifying in a proceeding against a parent.Footnote 65 As a consequence, it is rare for children to testify in child protection cases, but relatively common in criminal cases involving abuse allegations. Evidence of past parenting – which would likely run afoul of the rule against character or bad disposition evidence in a criminal context - is also expressly permitted in child protection hearings, and it has been held that courts can consider post-application events when determining whether the child is in need of protection.Footnote 66
Effect of Charter violations
When police or Crown officials breach the Charter-protected rights of accused persons, the remedies can include stays of proceedings or exclusion of evidence (often leading to acquittal).
Child protection proceedings engage section 7 of the Charter, and must comply with the principles of fundamental justice, such as disclosure, hearings before impartial judicial officers, and the right of indigent parents to state provided counsel Footnote 67 Searches by CPA workers may also be held to breach section 8 of the Charter. Charter violations in the child protection context will not result in a stay of proceedings or in the exclusion of evidence where the exclusion of the evidence would place the child at risk, due to the focus on the child’s welfare.Footnote 68 This is not to suggest that Charter breaches in the child protection context are taken less seriously than they are in the criminal context, but rather that the analysis of their effect is complicated by the fact that the interests of the child are to be taken into account. As stated by Justice Murray of the Ontario Court of Justice: “it is imperative that we not lose sight of the potential for abuse that exists with any agent of the State, including children’s aid societies nor should we forget that parents have compelling rights that deserve to be respectfully considered when balancing all of the competing interests” in an analysis of the appropriate remedy for a Charter breach.Footnote 69
Options of voluntary involvement
Many families who become involved with child protection services do so without court proceedings being commenced, through temporary care agreements (in which children are placed in short-term foster care with the written agreement of the parents), voluntary agreements (in which the parents agree that while the child will remain in their care they will meet certain conditions, such as substance abuse treatment or parenting courses, without court order) or kinship placements (where children are placed with family members, again without a court order). These options are less costly, often more positive for family members (who avoid the stigma of a finding that their child is in need of protection as well as the cost and intrusiveness of court proceedings), and can in some cases allow child protection involvement even where the agency might not be able to meet the legal standard for intervention. There is, of course, no “voluntary” equivalent in criminal proceedings, although in “problem-solving” courts, such as some domestic violence courts, the Crown may agree to a stay of proceedings in exchange for voluntary participation in treatment.
Negotiated resolution and plea bargaining
There is a range of situations in which the Crown will engage in “plea bargaining” (or plea negotiations or agreements to make joint submissions). Often the Crown will agree to drop some charges or seek a lesser sanction if the accused agrees to plead guilty to some charges. In some cases, the Crown may agree to drop charges against one accused in exchange for testimony against another, more serious co-perpetrator.
Negotiation in the child protection context usually focuses on the order being sought – so an agency might agree to a greater amount of access to a ward than it would seek in court, or a parent may agree to more stringent conditions in a supervision order than they might argue is reasonable at trial. In some cases, the agency may withdraw its protection application where it appears that the child is no longer in need of protection.
Unlike the Crown Prosecutor in a criminal case, who does not take instructions from the police but rather decides whether to proceed with charges based on an assessment of whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest, the child protection lawyer has a regular solicitor-client relationship with the child protection agency. The agency lawyer does not have the professional authority to withdraw cases based on concern about Charter breaches, inadmissible evidence, or the need to prioritize other cases., However, there is certainly pressure on child protection agencies to reduce the number of cases that they bring to court and to trial, and pressure on judges to encourage the settlement of cases prior to trial, as well as recognition of the value for children and parents of having a consensual resolution.
It is becoming increasingly common in child protection cases to have mediation between the agency and parents, as well as more creative approaches such as family group conferencing, in which parents, extended family members, clergy, neighbours and others who might be able to assist in creating and/or implementing a plan to address the child protection concerns engage in a facilitated, frank discussion, often with very positive outcomes.Footnote 70 The specific grounds for the finding that a child is in need of protection may also be the subject of negotiation. However, the agency is unlikely to withdraw its application or agree to an order proposed by the parents where there are serious concerns about the child’s well-being and a plan acceptable to the agency cannot be negotiated.
Sentencing circles and other restorative justice measures in adult criminal court have somewhat similar structures and goals, and can also have positive results, but are typically only available to Aboriginal perpetrators. There is also considerable disagreement as to whether, and in what circumstances, restorative justice measures should be used in cases involving intimate partner violence.Footnote 71
Case conferencing and case management
Increasingly in Canada (though not everywhere) child protection cases are dealt with by “case management,” meaning that the case is dealt with by one judge at all appearances (as opposed to coming back before a different judge at each appearance). Many child protection judges involved in case management will make considerable efforts to move the parties toward settlement, far more so than criminal court judges typically can. Some child protection judges utilize problem-solving approaches to come to a resolution, especially on an interim basis, that meets the child’s needs while also encouraging parents to change their behaviour.Footnote 72
Criminal cases involving intimate partner violence are increasingly being dealt with in special domestic violence courts, where prosecutors, victim support workers, abuse counsellors and judges place some emphasis on encouraging abusers to accept responsibility for their actions and undertake counselling or other interventions to reduce the likelihood of recurrence of violence. There is invariably some incentive for accused persons to take responsibility and complete these interventions, such as an offer for a plea bargain or a stay of proceedings.
Effect of conviction and acquittal
A conviction for a criminal offence related to child abuse or neglect is prima facie proof of the offence for the purposes of child protection proceedings. This means that if there are concurrent criminal and child protection proceedings and the criminal process is resolved by a conviction or guilty plea, the agency generally does not have to prove the offence.Footnote 73 However, the opposite is not the case: an acquittal on a criminal charge does not have any legal effect on the child protection proceedings, except insofar as it may result in an immediate need to take measures to protect a child from a parent who has been in custody or subject to restrictions on contact due to criminal charges. Because the standard of proof in the child protection case is the balance of probabilities, the agency can still prove abuse took place despite an acquittal.Footnote 74 While this is a legal reality, parents may be surprised or frustrated to learn that child protection proceedings are continuing despite an acquittal.
Further, because of the lower standard of proof and differences in the rules of evidence, the fact that there has been a finding that a child is in need of protection will have no effect on any criminal proceedings.
Role of Child and Child’s Counsel
In both theory and practice, children have a very different role in child protection and criminal proceedings. In child protection proceedings, the child’s views and wishes are a factor in assessing a child’s best interest. Although not universal, in a number of provinces (Alberta, Ontario and Quebec) lawyers are commonly appointed to represent the interests of children in child protection case, and at least in some cases may advocate for the outcome desired by the child.Footnote 75 While child protection courts discount wishes of children if they want to return to abusive or neglectful parents, their views must always be considered.
In criminal cases, the child may be called as a witness, and the child who has been victimized may be permitted to make a statement before sentencing. However, the child’s wishes will usually have very little impact on the court at the sentencing stage. Further, there are concerns that in some cases children’s views may not be considered when the Crown is deciding whether to make an application to use closed circuit television or make use of other accommodations.
Comparing Child Protection and Criminal Proceedings: Summary
In summary, child protection agencies have a lower standard of proof to meet, with more relaxed rules of evidence, limited likelihood for cases being dismissed due to Charter breaches or other concerns, a broader range of options in terms of placement and services potentially ordered by the court, a wide range of professionals with a duty to report concerns to their local agencies, and the option of voluntary service. Therefore, in theory at least, child protection agencies should be much better placed to reduce the risk of future violence for both the targeted parents and their children than the criminal or family systems.Footnote 76 However, there are limitations and constraints which may hinder effective responses.
B. Limitations of the Child Protection Response
Concerns about ‘Abuse of power’
Many of the factors which give child protection agencies more options and information also create the risk of abuse of power. For example:
- parents may agree to voluntary services or even a voluntary placement in the care of relatives without legal advice and without clear legal grounds, out of fear that a refusal to agree will lead to apprehension or commencement of court proceedings;
- the lack of prohibition on acting on anonymous reports can lead to false reports against a parent, sometimes made by the other parent in a high-conflict separation; and
- the lack of stringent rules of evidence may lead agencies to base their determinations about a family on questionable hearsay or expert evidence.Footnote 77
Child protection work is stressful. As a result there is a high turnover in staff, reluctance on the part of experienced workers to work on the front-lines, and a tendency to be overly interventionist. Child protection cases involving child fatalities lead, understandably, to inquests, internal agency reviews, newspaper headlines, and in rare cases, criminal negligence charges against the child protection workers.Footnote 78 As a result of pressures to take protective steps, the jurisprudence is replete with examples of agencies being criticized for acting with apparent tunnel vision, failing to adequately assist parents, structuring access in a way that undermines the parents’ relationship with the child, focusing on the negative and in other ways failing to act appropriately and assist parents pursuant to their legislated duties.Footnote 79
Lack of resources
The lack of resources for child protection agencies is a significant concern. For example, the 2012 Ontario Association of Children’s Aid Societies annual report suggested that child protection funding in Ontario was not sufficient, given recent budget cuts, to deal adequately with child protection cases and keep children safe.Footnote 80 Similarly the Saskatchewan Child Welfare Review Panel concluded that the child welfare system in that province is “pushed to the limit… As a result, not all children and youth are safe.”Footnote 81 In Newfoundland and Labrador, heavy worker caseloads were identified as a key issue requiring attentionFootnote 82 A 2010 review of Alberta’s child welfare sector noted that “regional staff are stretched in their ability to deliver services and conduct casework as envisioned and required.”Footnote 83 It seems that almost inevitably the first programs to be cut are those which are preventative and intended to intervene and support parents before children are taken into care.
Lack of adequate funding for child protection services is a serious issue for children on reserve. In addition to inequities in the amount of funding provided to agencies providing direct child welfare services, concerns have been raised about the lack of additional services, such as shelters, violence against women (VAW) services and intimate partner violence interventions.Footnote 84
Representation of Parents
Under s. 7 of the Charter, everyone has the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In its 1999 decision in New Brunswick (Minister of Health) v. G. (J.),Footnote 85 the Supreme Court of Canada held that a parent’s “security of the person” – the parent’s relationship to the child – is threatened by state action in a child welfare proceeding and accordingly the “principles of fundamental justice” may be invoked to give the court jurisdiction to order that the state fund representation if a parent is “indigent.” Generally, the biggest hurdle faced by parents seeking a Charter-basedappointment of counsel is establishing “indigence.”
Some child protection courts have taken a narrow approach to the concept of indigence, meaning that people who are “working poor” but above the low legal aid eligibility criteria will be unrepresented and effectively unable to challenge agency decisions in court.Footnote 86 Some commentators question how realistic it is for lower income parents without much discretionary income to retain counsel for a contested child protection application.Footnote 87 There is a strong argument that for the purpose of providing counsel for parents in child protection cases, the concept of “indigence” should be assessed in the context of the particular proceedings. This more contextual approach recognizes that child protection proceedings are often highly complex and generally much broader in scope than criminal proceedings. It also considers the importance of counsel for parents not only in presenting their case in court, but in developing an appropriate plan of care and providing advice about how to undertake efforts to improve their parenting.Footnote 88
Even if parents in a child protection case are eligible for legal aid for legal representation, there are significant concerns about whether there will be adequate support to mount a proper defence. Not only are the hourly rates paid by legal aid low, but legal aid limits the amount of time that it is prepared to fund for child protection representation work; while there are provisions for seeking additional funding for complex or lengthy cases, they are cumbersome and often counsel will find themselves doing work for which they are not remunerated. This makes many lawyers unwilling to undertake this type of work and makes it difficult for parents to get adequate representation.
Limited Education and Support for Child Protection Lawyers
There is only a limited amount of education available for law students and young lawyers in the area of child protection. There are currently few law schools in Canada that have courses focused on child protection.Footnote 89 Similarly, there is only limited education in law school regarding the dynamics of intimate partner violence, although the Law Commission of Ontario has developed a number of modules on family violence that are being considered for integration into law school curricula in Ontario.Footnote 90 There have been some laudable efforts to recruit and train lawyers interested in child protection,Footnote 91 but the availability of qualified, well-trained legal counsel for parents in child protection proceedings remains a serious issue.
It is also notable that in many parts of Canada, lawyers who represent child protection agencies are significantly more poorly paid than Crown prosecutors who present criminal cases in the same jurisdiction. Some agency lawyers also get relatively little in-house education and because the work is difficult and relatively poorly paid, they tend to leave prior to developing significant experience.Footnote 92
Approaches to Family Violence and High-conflict Separation in Child Protection Agencies
It has only been relatively recently that child protection agencies and the courts have recognized that exposure to intimate partner violence causes serious harm to children, even if they are not physically harmed, and that violence by one partner towards another partner can also predict violence and maltreatment toward a child.Footnote 93 Similarly, police, Crowns and judges have changed their attitudes towards the seriousness of family violence as well as the unique dynamics of these cases.
In many jurisdictions, child protection agencies tend to effectively place the responsibility for stopping the violence (or leaving the relationship) on the mother. Mothers who have been victims of intimate partner violence may experience child protection agency involvement as a negative “blaming” experience, and a threat to their continued relationship to their children, rather than as supportive.Footnote 94
Although child protection agencies can have a positive role in high-conflict separation cases, at present too few child protection workers have the necessary education, training and experience to deal with them effectively. As a result, there continue to be cases where the courts have been critical of insensitive and inappropriate involvement by agency workers.
In high-conflict separation cases the CPA may have an especially challenging role in balancing concerns about protection of children with the rights of their parents. In some cases the agency may be criticized for taking insufficient steps to recognize the seriousness of the intimate partner violence and its effect on the children, but in others the agency may be criticized for being too ready to “blindly accept” the (unfounded) allegations of abuse from an alienating parent and erroneously conclude that the child’s rejection of a parent is justified.Footnote 95
C. Challenges & Opportunities of Concurrent Proceedings
Criminal Process Assisting Child Protection Process
In a significant portion of child protection proceedings where intimate partner violence or child abuse is a factor, there will also be concurrent criminal investigations and charges. Charges may include assault of a parent or child, threatening, or failure to provide the necessities of life (where one or both parents may have injured a child or failed to seek adequate medical treatment). Once criminal proceedings are commenced, there may be additional charges if parents breach the terms of orders that have been made in either process that prohibit contact or otherwise restrict parental behaviour. None of these charges automatically engages the child protection system, but police or Crown counsel will usually alert the agencies pursuant to the duty to report.
The fact that there are concurrent proceedings can assist the child protection agency and support the victim parent in family violence cases in a number of ways, including:
- The police investigation may result in information being obtained that can assist the agency in proving its case; some of this information may not be relevant or admissible in the criminal process, but may be significant for the child protection process. However, as will be discussed, there needs to be appropriate sharing of information obtained by the police with the CPA.
- If the abusive parent is detained in custody pending resolution of the criminal process, or sentenced to custody following conviction, the targeted parent may be better able to find adequate housing, obtain counselling, and improve their parenting, without having to deal with threats or pressure from the abusive parent.
- Restrictions on contact and/or orders for intimate partner violence intervention imposed through bail or probation conditions can also relieve the agency of having to seek a supervision order. Restrictions imposed by the criminal justice system, backed up with the threat of additional charges and imprisonment, may carry more weight with police and an abuser than conditions imposed in child protection proceedings, where there is unlikely to be a penalty for failure to comply (other than increased restrictions on access).Footnote 96
- A conviction in the criminal process is prima facie proof of the essential elements of the offence, which can relieve the child protection agency from having to prove a history of violence.
The transcripts of evidence in the criminal proceedings may be used in the child protection proceedings, particularly where there has been a conviction in the criminal proceedings. This can relieve the children and other witnesses of the need to testify in two proceedings.Footnote 97 Note, however, that in some circumstances the children may have to be available for cross-examination on this evidence, particularly where there has not been a conviction.
Differences in Professional Orientation
While the fact that there are concurrent proceedings can create opportunities for collaboration, concurrent criminal proceedings can also create obstacles for a child-focussed resolution of child protection proceedings. These obstacles may both result in and contribute to a tension between professionals and agencies in the two systems.
In many places there is poor communication and even distrust between professional in each system (criminal and child protection) by the other. Crowns, police and possibly judges in criminal proceedings may hold the view that child protection staff and courts do not take intimate partner violence seriously enough and are not able or willing to effectively respond to keep children and targeted parents safe. This belief is reflected in the statement made by a Toronto Crown counsel that she is cautious about relying on family court orders when crafting bail conditions because of the different goals of the child protection and criminal process; in her view child protection proceedings are “often aimed at reunification of the family while criminal proceedings focus on safety issues and ensuring an effective prosecution.”Footnote 98 Deaths of children known to the agencies undoubtedly reinforce this view.
Child protection staff might respond to this type of comment by observing that the primary focus of the child protection process is on best interests of the child, and reunification with parents is only recommended where the agency or child protection court considers this to be consistent with the safety of the child. Those who work in the child protection system often have a similarly negative view of the criminal system, believing it to be slow to charge perpetrators of violence and child abuse and quick to allow plea bargains and acquittals based on “technicalities.” Child protection workers may also believe that it is inappropriate for police, Crown prosecutors and criminal court judges, who are not necessarily trained in child development, to make decisions that can effectively terminate the parent-child relationship, at least for a period of time.
There may well be some merit to both views; much of the distrust, however, is based on misunderstandings regarding the objectives and legal contexts of the two systems. With better cross-training and improved communication and cooperation, those working in each system should come to see the two types of proceedings as complementing each other.
Scheduling and Delay
There is a tendency for criminal proceedings to take priority in terms of scheduling, whether due to constitutional concerns (the Charter right to trial within a reasonable time) or due to requests by counsel for a parent to postpone the child protection proceeding until the criminal matter is resolved, so that nothing that is said in the child protection process can affect the criminal process.
Where the parents have separated and only one parent is charged, the parents may have different views about delaying the child protection process as the parent who is not charged may want timely resolution of the child protection process to allow reunification with the child. Not infrequently, however, even if only the perpetrator is facing criminal charges, both parents will want the child protection process delayed, with a victim of intimate partner abuse wanting time to address such issues as substance abuse while the perpetrator will want the criminal charges resolved.
In some cases, one or both of the parents or the agency may want the child protection proceeding delayed until resolution of the criminal case, because a finding of guilt and incarceration of a parent may affect the type of dispositions that can be made in the child protection case.
The notion that child protection proceedings are less important than criminal proceedings and should be delayed pending their resolution was challenged by Justice Keast of the Ontario Court of Justice in a case in which the Attorney General argued that societal rights in protecting a criminal investigation overrode the child protection agency’s interest in obtaining the records of the police investigation for use in the child protection investigation:
How do we rank the child protection value? From the perspective of the Attorney General, although the value is important, it is not as important as the value of an effectively functioning criminal justice system.… The Attorney General sees the criminal justice system at the top of the ranking scale.
But why? Does the public interest in the criminal justice system have a higher value than the public interest in the child protection system?
The primary purpose of the criminal justice system is the protection of society. Of the various components of the system, police services are the first line of defence. They strive to ensure compliance with criminal and quasi-criminal laws. Although part of police work is preventive, most police work is reactive, dealing with crime that has already been committed. Part of the protection of society is the protection of children. The police role in child protection is limited to crimes wherein children are the direct victims.
The concept of the protection of society encompasses more than a police investigative and prosecutorial function. The serious criminal, who has been charged and prosecuted, evolved into that state, usually over a period of many years. A 25-year-old hardened biker and gang criminal was once a five-year-old boy - innocent, but very vulnerable. How did he get that way? There are those who say genetics are a factor, but there is a consensus among criminologists and others that a wide range of environmental influences shape the evolving criminal mind.
It is the child protection system that is primarily involved in that environment or milieu that spawns serious criminal behaviour. The root causes of serious crime in society are well known. There are common themes seen daily in pre-sentence reports (for teenagers and adults, in particular, as such) relate to serious crime and violent crime. These include low income and poverty, addictions, limited parenting skills, fractious and chaotic home environments, a parent or parents who have abandoned their children; multiple broken family relationships, often leading to attachment and bonding problems; crime in the family unit such as intimate partner violence between spouses or crime directly to children, such as sexual assault and physical assault.
It is well known that serious crime is often cyclical. How often do we see an adult, convicted of a sexual assault, was once a child victim of sexual assault? How often do we see an adult, convicted of physical assault, was once a child victim of physical assault? Spouse abusers were often exposed to intimate partner violence when they were children.
Children's aid societies are involved with future criminals well before the police are involved. The ability of the child protection system to protect children and to mitigate the factors that influence criminal behaviour is directly related to the protection of society - which is exactly the same function of the criminal justice system.
The criminal justice system and the child protection system are approaching the same goal, but from different roads. Each road is as vital as the other for the overall protection of society. There is a tendency in thinking to segregate the criminal justice system from the child protection system. This is illogical. They are both absolutely necessary to achieving the ultimate goal of the protection of society. There is no basis for ranking the investigative-prosecutorial value ahead of the child protection value.Footnote 99
Justice Keast made similar comments in a 2008 case involving a request by a child protection agency for access to police records about intimate partner violence for use in the child protection process:
The Attorney General argues that the public interest in intimate partner violence criminal proceedings is a higher value [than the public interest in child protection cases] in that the ultimate goal is the protection of this particular female complainant and, in the broader sense, the protection of women in intimate partner violence cases. Thus, women who are the victims of alleged intimate partner violence and are also respondents in child protection proceedings ought not to be entitled to the disclosure of the records of the criminal proceeding against the fathers.
The answer starts with an appreciation of the purposes of the criminal justice and child protection proceedings. The primary purpose of the criminal proceeding is the protection of the complainant mother. There is a secondary interest that, by protecting the mother, the children are by logical extension also protected. The primary purpose of the child protection proceeding is the children. However, risk factors associated with the mother in a intimate partner violence context must be eliminated or sufficiently minimized in order truly to protect the children.
In reality, the collective criminal justice system and child protection system are integrated and have separate and overlapping features to protect the mother and the children. Neither system by itself offers the optimal protection of the mother or the children. Only a blend of the two systems and proceedings can optimize the protection of the mother and children.
Recognizing this, to achieve the end goals of protecting the mother and children, you cannot have the one system paramount to the other system. These two systems are parallel tracks going in the same direction. The children will be compromised by giving the one system priority over the other.Footnote 100
When there are concurrent proceedings, there are complex issues that need to be addressed in the context of the specific issues raised, but given the critically important interests at stake in both proceedings, it is not appropriate to automatically presume that one type of proceeding should take precedence. As noted above, section 7 Charter interests are implicated in both types of proceedings. As the Supreme Court has stated: “The interests at stake in the [child protection] custody hearing are unquestionably of the highest order. Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well.”Footnote 101
D. IMPROVING CO-ORDINATION OF CONCURRENT PROCEEDINGS
There are a number of issues that should be considered to improve co-ordination between the child protection process and the criminal process when there are concurrent proceedings, or even the potential for concurrent proceedings.
Investigation and Initiating Proceedings
Although the criminal and child protection processes have different purposes and constraints, there is a need for better co-ordination between the agencies and professionals responsible for the different proceedings.
One area where this has been recognized is through the development and implementation of police-CPA joint protocols for investigations where there are child victims or witnesses. While there is variation in the extent to which they are being adopted and implemented in Canada, these protocols are operational in many places and are encouraging co-operation, helping to improve the quality of evidence obtained and reducing the number of times that children need to be interviewed.
There is, however, a need for greater co-operation and improved information sharing in investigations concerning intimate partner violence where the children are exposed to the violence but are not potential witnesses in the criminal case.
Further, there is a need for greater co-ordination at the next, critical stage of the process, the decision whether to commence proceedings. While the ultimate decision about whether to lay charges must be made by the police and Crown, in some cases, such as an isolated incident of an assault of a child, it would be desirable for these criminal agencies to consult with any CPA that is involved with the family before a decision is made. In some cases, the interests of the children should be one factor that is taken into account in deciding whether it is in the “public interest” to lay charges.
Advice to remain silent
A parent facing criminal charge will typically be advised by his or her criminal defence lawyer not to speak to the police or child protection workers about the allegations. If the CPA worker and other service providers take the position, as they often do, that the parent needs to acknowledge the violence or abuse in order to participate in counselling or other interventions, it will be difficult for the parent who refuses to discuss the allegations to demonstrate to the CPA or the child protection court that the risk of violence has been reduced.
The recent paper by criminal defence lawyers Joseph DeLuca, Erin Dann and Breese Davies offers some suggestions about facilitating discussion between parents and CPA staff prior to the resolution of the criminal process.Footnote 102 It is important for defence counsel and child protection agencies to have a dialogue about how communication between parents and the agency can be facilitated. We note that the suggestion by Di Luca et al that counsel for parents should be present whenever the CPA attempts to speak to a parent may not be realistic, as workers often speak to parents informally and in a range of locations, such as supervised access visits, where it would be impractical and even undesirable for their defence lawyers to be present.
The child protection trial itself may also present difficulties for a parent facing criminal charges. The 2012 Supreme Court of Canada decision in R. v. NedelcuFootnote 103 suggests that while the testimony of a parent in the child protection trial cannot be used to directly implicate the same parent in criminal proceedings, it can be used to impeach the parent’s credibility if the parent testifies in the criminal trial. Even prior to the decision in Nedelcu, parents’ counsel often sought to have the child protection proceedings stayed or adjourned until the criminal proceeding was resolved in order to avoid prejudice to the parent. Such delay, however, assumes that criminal proceedings should take scheduling priority, and poses a direct challenge to the oft-cited need to avoid delay in child protection proceedings as well as the statutory provisions governing timelines for the resolution of child protection applications in order to have decisions about the child’s future made in a timely way that best meets the needs of the child. There are child protection cases in which judges have raised concerns about undue delay of the child protection process in order to allow completion of the criminal process, as this would be contrary to the interests of the child.Footnote 104
Conditions of Release Affecting Attendance in Child Protection Court
A parent charged with criminal offences relating to intimate partner violence or child abuse may be detained or may be subject to bail conditions prohibiting contact with the other parent and child. The prohibition on contact with the other parent or child may mean that the parent facing charges may not legally be able to attend the child protection proceeding; further difficulties in communication and obtaining representation mean that a charged parent will rarely have documents for the child protection proceeding ready for filing in the time limits prescribed for these proceedings.
It is, however, quite common for a parent subject to such conditions to attend the child protection proceedings, even where the bail condition does not expressly allow this exception to the conditions of release. The lawyers or agency worker on the case may attempt to keep the parents and/or child separated, both in and out of the courtroom, in order to comply with the conditions of bail release, but in many cases these restrictions are forgotten or ignored at the courthouse where protection proceedings (or family cases) are being addressed.
Conditions of bail release or probation should specifically address how a parent involved in the criminal process may also be involved in concurrent child protection or family proceedings, including provision for court preparation and attendance. In general, it is preferable for restrictions on contact in the criminal process to be “subject to such contact with the other parent as may be necessary for participation in child protection or family proceedings.”
Conditions of Release Affecting Parent-child Contact
A parent charged with a family violence offence may be subject to conditions of release which prohibit any contact with the child or otherwise affect contact (for example, prohibiting contact with the other parent, who would normally be present at access exchanges). These conditions can present challenges to parents and child protection workers:
- These conditions are not easily varied in the criminal process as variations require the consent of the Crown, and bail reviews must be done on application to a higher court.
- Under the constitutional doctrine of paramountcy, conditions imposed on the accused in a criminal proceeding restricting contact will override any conditions allowing for contact made before or subsequently by a child protection court where there is a direct conflict between orders.
- Criminal court conditions on release can, in some cases, be broader than necessary to protect the child, such as absolute prohibitions on contact between primary caregivers and children. Such conditions can also undermine efforts by the agency to work with the family, such as through joint counselling or monitored visits with the children.
Di Luca et al suggest that child protection authorities and family courts may not always appreciate the need for no-contact orders because they do not understand the emotional pressure that a child may experience at the prospect of testifying against a parent in the criminal process.Footnote 105 There are certainly cases in which protection of the emotional well-being of a child will require complete suspension of all contact with a parent facing criminal charges. However, in our view, a decision about parental contact with a child should be made by a child protection or family court taking into account all of the circumstances of the particular child, and with a focus on the best interests of the child, which includes safety concerns but other factors as well. Further, there needs to be flexibility to change the terms of contact as the circumstances and condition of the child change, especially if there is a lengthy delay until conclusion of the criminal process.
In many cases, feelings of guilt and pressure for a child to recant will not only come from an accused parent, but from other non-accused family members. In many cases a child who will be expected to testify against a parent will not receive any emotional benefit from a no-contact order; indeed a child may experience even more guilt – and trauma – where there is a no-contact order than where the parent is permitted to see the child. Attempts to coerce the child into recanting, or more subtle guilt-inducing comments from an accused parent, can be generally prevented through supervised contact.
The prospect of child witnesses recanting is, we argue, much better dealt with through obtaining proper videotaped “K.G.B. statements” by children at the time of the incident,Footnote 106 rather than by prohibiting all contact between all child and accused parents – particularly given the low numbers of children who actually end up testifying in criminal proceedings.
Parents often erroneously assume that court orders made in child protection or family proceedings after conditions of release are imposed in the criminal process will override those conditions of release. Parents may also be confused as to which conditions stem from which proceeding (leading to assumptions, for example, that the withdrawal of criminal charges will remove all conditions, including family or child protection court orders). The parents’ confusion over which conditions were in effect, and which conditions took precedence, was a recurring theme of the B.C. Representative for Children and Youth’s report on the deaths of the Schoenborn children.Footnote 107 Child protection workers may share the confusion and may have difficulty ascertaining whether conditions of release imposed in the criminal process have been varied or withdrawn. Police and Crowns may not realize that child protection officials have been relying on criminal conditions, and may not alert child protection authorities when those conditions change.Footnote 108
We agree with the recommendations of Di Luca et al regarding the need for a court granting bail and deciding terms of release to be aware of: Footnote 109
- any child protection or family proceedings, and court orders in those proceedings;
- the accused’s contact with children of his own or of an adult complainant;
- any risk assessments or safety checklists prepared by police;
- restrictions on contact imposed by a child protection agency; and
- the accused’s history, or lack of history, of violence.
We would also recommend that the bail court have access to a history of any prior findings and orders make by a child protection court, the results of any risk assessment conducted by the CPA, and current or past mental health issues (keeping in mind that bail hearings can only be adjourned for more than three days with the consent of the accused).
It is also important for all professionals involved with families where there is a history of family violence to be aware of the dangers of relying on the mother to keep the accused from the children if detention is not ordered. In practice, imposing bail conditions restricting a parent’s access to his children puts the onus on the children’s primary caregiver – usually the mother – to enforce them. This may be unrealistic and can be seen to be unfair. Women face many challenges in keeping abusers from themselves, let alone their children.Footnote 110 In some cases, a detention order may be the only means for addressing the risk to other family members. This is particularly so in cases immediately following separation, and/or involving apparent sudden changes in the accused’s mental health, which have been repeatedly identified as factors raising the risk of lethality toward complainant mothers and children.Footnote 111 Children may well be at risk even where the accused has only directed violence at the mother.Footnote 112
Conditions of bail release or probation should take account of the fact that there may be concurrent (or subsequently commenced) child protection or family proceedings, and that the family or child protection court will usually be better placed to make orders that appropriately balance concerns about protection of alleged victims and children with concerns about allowing a child whose parent is involved in the criminal process to maintain an appropriate, safe relationship with that parent. In general, it is preferable for restrictions on contact in the criminal process to be “subject to such contact with the child and other parent as may be permitted by the child protection or family court judge, provided that judge has awareness of this criminal court order.”
Duty to Report
As noted above, child protection legislation requires a report to child protection authorities by any person with reasonable grounds to believe that a child may be in need of protection.Footnote 113 However, judges, lawyers and court staff in family and criminal proceedings in which a risk to a child may become apparent may not always appreciate that they have a duty to report, or may assume that others, such as police, have already reported. There is a need for education of all professionals, including those who work in the justice system, to be aware of their reporting duties.
Lack of Information Sharing
Child protection agencies have limited investigatory capacity and resources. Behaviour by the parent that suggests a risk to the children will often come to the attention of police, but not to the child protection agency. Better information sharing on an ongoing basis between police and child protection authorities may reduce the risk of harm to children and their parents. This is particularly the case where there is the potential for lethality. Signs of substance abuse and deterioration in an alleged offender’s mental health should be – but often aren’t – immediately communicated to child protection agencies.Footnote 114
Disclosure of Police Records for CPA Investigations
Where there are or have been criminal charges related to family violence, a child protection agency may seek access to the police and Crown records. In some cases, the Crown may refuse to provide those records, or request a lengthy adjournment to redact the records, for reasons including the following:
- The Crown may take the position that information relating to third parties contained in the records cannot be released due to privacy concerns. This argument has been upheld by the Ontario Divisional Court, insofar as applications for records are made by private litigants.Footnote 115 However, courts in Ontario and other jurisdictions have held that in child protection case the privacy rights of third parties are secondary to the public interest promoted by child protection proceedings, and have ordered release of such information to the agency.Footnote 116
- The Crown may also object on the grounds that the release of records may compromise an ongoing police investigation. The prevailing judicial approach requires the court to balance the competing public interests in the police investigation and the child protection investigation or trial prior to ordering disclosure.Footnote 117
- The Crown may agree to provide the records but request a lengthy adjournment to compile, review and redact the records. Although the work involved in preparing such records can be significant, delay in production should be minimized wherever possible, depending on the nature of the child protection investigation. As noted by the Manitoba Queen’s Bench Family Division:
- “It has been observed before, on many occasions, that such delays [in producing records] may result in tragic results. Where the threshold matter of relevance is conceded by consent disclosure, disclosure ought generally to be full and immediate. These comments [in the context of an impending child protection trial] leave aside, entirely, a most interesting additional consideration, one which is related to one of an Agency's fundamental purposes, investigation. Investigation of children in potential danger by an Agency also ought not normally to be impeded or slowed by non-disclosure or incomplete disclosure.”Footnote 118
Impact on Child of Criminal Proceedings: Preparing the Child for Court
It is important for Crown counsel and police to communicate with child protection agencies where a child in their care or under agency supervision is expected to testify at the criminal trial. The child protection agency will be able to provide information relevant to the impact of testifying on the child, including reports by mental health practitioners as to whether testifying would be damaging to the child such as to require a KGB application. The agency can also make suggestions regarding accommodations such as screens, closed circuit television, the adoption of videotaped evidence, and the presence of support people if the child does testify. Finally, the child protection agency can provide information regarding any special needs – such as cognitive or communications challenges – the child may have.
A criminal conviction is prima facie proof of the underlying facts for the purpose of child protection proceedings. It can only be rebutted with evidence that was not available at the criminal trial.Footnote 119 Child protection authorities often hope for a conviction where there are charges involving family violence, which can then promote settlement in the child protection case, avoid the need for trial in the child protection case where the central issue is whether the underlying acts took place, and depending on the sentence, may remove the offender (in serious cases) or impose a threat of imprisonment if the offender fails to meet the conditions of sentence, including treatment and restrictions on contact.
Withdrawal of a charge or an agreement to a plea to a lesser charge in the criminal proceeding may lead the offender and often a targeted parent, to believe the child protection case may also be withdrawn in response. As well, a pattern of abuse may be much more difficult to prove where previous charges resulted in withdrawals or convictions for lesser charges, particularly where charges for sexual assault – which are relatively common in intimate partner violence cases – are reduced to simple assault.Footnote 120 Finally, resolution of the charges will often result in the removal of bail or other conditions restricting the parent’s access to the child.
Plea bargains are a normal part of the criminal justice system, and there are many considerations at play – including, in many cases, the impact on the child of having to testify against a parent –in such situations.Footnote 121 In some cases, where the plea negotiations provide the Crown with the opportunity to do so, it may be helpful for the Crown to consult with the CPA as to the status of the child protection proceedings and any relevant conditions or interventions. Where the Crown would normally advise the victim of a plea of imminent release, advising the CPA at the same time would also allow the CPA to make necessary arrangements to protect the child and targeted parent where there are concerns about risk. Of course, many plea negotiations take place the morning of trial and consultation and information-sharing may not be possible.
Accused Seeking Disclosure of Child Protection Records
Prior to trial, the accused may seek disclosure of child protection and counselling records related to the child or the other parent in order to allow a full defence to be prepared. If the accused is charged with a sexual offence, these applications are made as part of the criminal trial process under s. 278.2 of the Criminal Code, which provides a two-stage application process. Generally, such applications require the court to balance the accused’s right to a fair trial with confidentiality concerns. From the perspective of the child and victim parent, such applications often seem highly intrusive. In some jurisdictions, state-funded counsel is provided to a child or other third parties who may have privacy interests in the records, which greatly assists the CPA in determining and presenting an appropriate response to the application.
Applications for third party records in other cases require the court to engage in the approach set out by the Supreme Court of Canada in R. v. O’Connor, first requiring the accused to satisfy the court of the relevance, and then considering the salutary and deleterious effects of an order for production.Footnote 122 In cases involving family violence with O’Connor applications for access to records of child protection agencies, consideration should be given to the provision of state-funded counsel to a child or other vulnerable parties who may have privacy interests in the records.
Increased Use of Court Resources and Costs to Parents
One significant consequence of having multiple proceedings to deal with one family is increased use of court resources. This in turn contributes to delays in obtaining court dates. Delay is a significant and seemingly inevitable problem in all parts of the legal system that respond to family violence cases. Delay can lead to stays of proceedings in the criminal system, continued conflict between the litigants pending the resolution of the proceeding, increased costs to all parties, and of course significant stress to the litigants and children. Because child protection statutes contain limits on the length of time a child may be in temporary foster care, before a permanent placement must be ordered, parents who are unavailable to care for their children for lengthy periods due to detention or restrictive bail conditions may face the possibility of losing their children to a permanent wardship and the possibility of adoption. Delay in child protection cases has been repeatedly identified as contributing to poor outcomes for children.Footnote 123
It should also be appreciated that concurrent proceedings impose emotional and financial costs on families with very limited resources.
While the cost of having concurrent proceedings to the justice system and families can never be determinative of the decision to discontinue one proceeding, those responsible for commencing proceedings and making decisions in those systems should be aware of these costs and take all reasonable steps to reduce them.
Complications if There are Youth Criminal Justice Act (YCJA) Proceedings
There may be additional challenges if either an abusive parent is a minor or a victimized child is charged with an offence, as the provisions of the YCJA must also be taken into account.
If a parent who is charged with child abuse or neglect or intimate partner violence is under the age of 18 at the time of the alleged offence, the parent is charged under the YCJA and dealt with in youth court. This may add to challenges in information sharing and co-ordinating proceedings, as another set of agencies and professionals may need to be involved in the case.
It is not uncommon for adolescents who have been victimized by parental abuse or neglect or exposure to intimate partner violence to engage in offending behaviour, and be charged under the YCJA. If this occurs, the youth may be placed by the youth court under section 31 of the YCJA with a “responsible adult” pending resolution of the charges, or placed under the supervision of an adult as part of a term of probation. It is important for the youth court to be aware of any criminal, family or child protection orders that prohibit contact by the “responsible person” with the youth in question, and more generally whether that person has a history of family violence. This too may raise issues of information sharing and co-ordinating proceedings.
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