Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce

4. Critical points of intervention during separation

4.1 Separation and disclosure of child maltreatment and domestic violence

Separation may be a critical point in the discovery of child abuse and domestic violence and access to community resources for a number of well- documented reasons:

  1. The protective parent may separate for her safety and/or that of the child and make disclosures to professionals in the court system or various helping agencies.
  2. These disclosures at the point of separation may lead to assessments and interventions within the court system that screen for child abuse and domestic violence.
  3. In the absence of proper assessments and interventions, the child risks may continue or escalate. Some protective parents may hope a separation leads to safety only to find the abusive parent continues their pattern of behaviour or escalates without proper supervision or accountability. Access to resources is essential to ensure risk management and protection (Saunders, Tolman, & Faller, 2013). For example, supervised access by trained professional staff may be required (as opposed to community volunteers) and this resource may not be available or affordable in every jurisdiction across the country.

Disclosures of abuse usually lead to investigations by child protection agencies and police services that typically require initial assessments of the validity and level of risk present to assist in making emergency or interim parenting arrangement decisions. Each agency has their own mandate with which to view allegations. There may be a number of potential court proceedings related to criminal and family court depending on who receives a disclosure of child risk and the advice of lawyers and advocates.  An interim plan may be developed pending a more thorough assessment and review by the court. In the context of separation, the court and court-related professionals may operate with some skepticism about abuse allegations out of a concern for balancing child safety and protecting the accused parent from potential alienation and ensuring an ongoing relationship with the child(ren). There may be a drawn out legal process over months or years to make a final decision about parenting arrangements. Some authors have described the assessment and interventions by different systems (criminal, child protection, child custody) as existing on three different planets because of the difference in the history, culture and understanding of abuse in these systems (Hester, 2011).

4.2 Three points of intervention

Different professionals and agencies may become involved in the assessment of child abuse and domestic violence.

  1. The criminal justice system involvement begins with a police intervention and, in most jurisdictions, both a mandated risk assessment in cases of domestic violence and referral to child protection when children are present. On the basis of reasonable and probable grounds, a decision will be made about charges by the police and/or Crown Attorney. In the event of charges being laid, a decision will have to be made on the release of the accused and any restrictions in regards contact with the adult victim and/or child victim/witness. Practice varies widely with restrictions regarding contact with children pending further hearings within the criminal justice system. In some cases, there are no limitations in regards to access to children and any restrictions are dependent on a review of the matter by the family court.
  2. The child protection system (CPS) will receive reports directly from parents or police (or other professionals) in regards to child abuse and domestic violence allegations. The CPS response may vary according to provincial legislation and local practices. Many jurisdictions have enhanced their efforts at collaboration between CPS and violence against women agencies including the placement of domestic violence experts within CPS agencies (OACAS, 2010). Nonetheless, CPS may be hesitant to be drawn into what appears on the surface to be a "private family dispute" that could be resolved by the family court without their intervention. There is some worry expressed by CPS agencies that they may be used by one parent or the other to make a case for custody or restricted access on minor or exaggerated allegations.
  3. If family law matters need to be resolved (i.e. custody or access), parents may seek a host of resources to help arrange parenting plans including access to a lawyer, support for self-representation, family law information services, mediation services, parent education programs and voluntary or court-ordered custody assessments. Judges may play a role in helping to settle matters in a variety of forums such as settlement conferences or a brief hearing over a child custody motion. In a minority of cases, judges may decide cases after a trial. There is general agreement that legal education on domestic violence and child abuse needs to be a system priority. Education programs on this topic are increasingly available for judges and lawyers through provincial and federal agencies (e.g., National Judicial Institute in Ottawa). In some jurisdictions, mandatory training is required for lawyers who practice in this area such as learning about power imbalances prior to undertaking arbitration in Ontario (see Screening for domestic violence and power imbalances). Similarly, new regulations for the Family Law Act in British Columbia were passed in 2012 that included minimum training and practice standards for family dispute resolution professionals (see Statutes, Regulations & Policy). These are encouraging developments.

Although the three points of intervention may be unique for parents depending on who is seeking assistance and what information gets disclosed, in complex cases that represent risk to children, there may be multiple agencies and courts involved. Sometimes there are efforts to share information and collaborate in an assessment and intervention. Most often there is a lack of information sharing and coordination of services. Complicating these matters are different professionals using different risk assessment tools or no tools at all. There are few documented efforts to red flag cases or develop specialized case management strategies even though the need to do so has been identified repeatedly (e.g. DVDRC Annual Report 2011).  Senior judges and lawyers have made repeated calls to family courts to develop a triage function for an initial assessment of a case to determine degree of urgency, needed resources and community referrals. This concept would be essential to ensure safety planning and risk management in domestic violence and child abuse cases (Action Committee on Access to Justice in Civil and Family Matters, 2012).

The experts we interviewed suggested that collaboration within and between systems is essential for an effective response for adult victims and children. They emphasized the following points:

  • Good communication is critical amongst service providers based on trust relationships. These relationships can be fostered through joint training which includes an understanding of diverse professionals and agencies mandates as well as an appreciation of the dynamics of family violence.
  • Information sharing is often a barrier to risk assessment and management. Many agencies are working within different, and often opposing, mandates and legal frameworks and agencies do not understand what information is allowed to be shared under Freedom of Information and Protection of Privacy Act (FIPPA). Some agencies lack experience with, and therefore appreciation for, the significant benefits that can be achieved through information-sharing and collaboration. Joint meetings or committees can be developed to find creative ways to work with and around the current mandates and legal frameworks these systems are working within in order to share information and ensure the safety of women and children. Structured mechanisms are needed for routine information-sharing such as protocols, formal memoranda of understanding, and provisions in relevant legislation allowing information-sharing for case management/integrated service delivery that is in the best interests of the child/family. One caution raised was that information sharing protocols should be developed that include a restriction on sharing of information relating to risk indicators in assessments when this will increase the risks for further harm to child and mother.
  • Professionals and agencies in different systems need a more holistic approach to risk management and safety planning by collaborating on developing and implementing effective safety plans and risk management strategies that include working with the abuser. Experts point to a need for adopting a more comprehensive risk indicator tool that combines risks to women (information from domestic violence homicides) including what we already know about risk indicators from the 'adult world' (e.g., risk indicators used in the risk assessments of male perpetrators of domestic violence and risk assessment used by police and the criminal justice system), with risks from child maltreatment research –'child abuse world' (information from child deaths), and also include risks associated with the deaths of women and children within a separation/child contact situation.
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