ALLEGATIONS OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION: A DISCUSSION PAPER

2001-FCY-4E

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1.0  INTRODUCTION

1.1 The Problem

Few issues are as emotionally charged as those surrounding allegations of child abuse, particularly when they occur in the context of parental separation.  Stories in the media of fathers being denied access to their children due to accusations of child abuse were reported to the Special Joint Committee on Child Custody and Access, which began hearings in 1998.  Headlines such as "Divorce law 'Hell' for Dads; Urgent reform needed, MP says,"^[1] "Senator fights to even the odds in child-custody battles,"^[2] "Sex-abuse allegation a perfect ploy:  Some mothers accuse dads to keep custody of kids,"^[3] "Silver Bullet:  When parents fight for control of the children, a sex-abuse allegation is the ultimate weapon,"^[4] "'Abuse' becoming weapon of choice on the marital battlefield,"^[5] "Senator outraged by lies in abuse cases,"^[6] and "Men's groups urge caution with abuse law"^[7] may give the impression that the problem of false allegations of child abuse in the context of parental separation is very widespread.

Unfortunately, the actual incidence in Canada of allegations of child abuse in the context of parental separation is not known.  However, it appears that a relatively small portion of all contested parental disputes raise abuse issues.  Some professionals believe that the incidence of false allegations is higher in cases where parents have separated than in other contexts, but even this has not been clearly established.  It is clear, however, that many abuse allegations in this context are well-founded, and that any abuse allegation needs to be taken seriously.  In some situations, abuse may have commenced while the family was intact, but this was not disclosed by the child until after separation.  In others, abuse may have begun only after separation, or may be perpetrated by a parent's new partner.  While some false allegations after separation may be the product of deliberate manipulation by one parent, the majority of unfounded allegations do not appear to be deliberate fabrications.  Distrust or hostility between parents may result in misunderstandings that lead to false allegations, especially in cases where the children involved are young and the allegations are reported through a parent.

As explained by Leonoff and Montague (1996: 357), unfounded accusations are most often multi-causal and are rarely simply the conniving manipulation of a competitive parent who wishes to win at all cost.  There is a gradient between the parent who consciously deceives and the one who is deluded in belief and whose accusations are built of several elements:

• personal history projected onto the present relationship;
• shock and betrayal turned into malevolent mistrust of the other;
• aggression and hatred;
• fears based on regressed violent behaviour at the termination of the marriage;
• comments made in emotional turmoil;
• suggestibility enhanced by outsiders who are keen to find sexual abuse in men;
• wishes to denigrate, humiliate and punish the former-spouse;
• distortion in thought processes in mentally vulnerable parents who view their overreactions as protectiveness; and
• a fervent desire to win a custody case and be rid of that person forever.

Parental custody and access disputes are often emotionally charged and difficult for everyone involved, including parents, children and professionals.  The adversarial nature of the litigation process may result in exaggerated statements in affidavits and other court documents.  If there are allegations of abuse, the emotional tension, bitterness and complexity that are present in all custody and access disputes are invariably heightened.  These cases can be very challenging for all of the professionals involved:  lawyers, judges, police, social workers, mediators, and mental health workers.  There is no valid psychological test or profile that can conclusively determine whether an accuser, an accused or a child is telling the truth about an allegation.  There may be a number of mental health professionals and social workers involved in a case, with differing levels of involvement and expertise and conflicting opinions about the case.  It may be very difficult to prove conclusively that abuse did or did not occur.

Once the issue of abuse is raised, a number of agencies with differing mandates may become involved in a case.  There is the potential for a child welfare investigation, a parental custody or access family law case, a criminal prosecution, and a civil action to be proceeding at the same time in different courts, adding to the complexity, expense and stress.  In practice, however, criminal or child protection proceedings are most likely in cases where there is clear evidence of abuse.  Cases in which there is greater uncertainty about whether abuse occurred are most likely to be dealt with in family law proceedings.

Many issues arise in the investigation of child abuse allegations made in cases where custody and access are being disputed.  Some of the key issues are:

• Is a clear distinction drawn between an allegation that is proven to be false, and a claim that is not proven true or false (i.e., an unsubstantiated allegation)?
• Is a false allegation of child abuse being deliberately made to gain a tactical advantage in a custody or access dispute?
• Is a child's statement or other information being honestly misinterpreted as indicating abuse because of the level of mistrust or the poor communication between the parents?
• Who is making the allegation?
• What is the factual basis of the allegation?
• Did the abuse allegedly occur prior to separation and only come to light after separation, or did it begin after separation?
• Are access rights of non-custodial parents being denied during investigations?  If so, why and for how long?
• Are false allegations of child abuse being made repeatedly in the same case?
• Are children being coerced and manipulated by custodial parents to make accusations against non-custodial parents?

In addition to the issues related to investigation, there are significant public policy issues that arise in connection with false allegations of abuse where parents have separated, including:

• Does the problem of false allegations require statutory responses, justice system reforms, changes in social services, or more education for professionals?
• Would legal sanctions for the making of false or unproven reports have the effect of discouraging legitimate reports of abuse?

1.2 Purpose of Discussion Paper and Questions Addressed

The tension, hostility and challenges that arise when parents separate are inevitably heightened if there are allegations of child abuse.  If the allegations are true, the child and a supportive parent will suffer, and if the courts improperly dismiss those allegations as unfounded, the consequences for a child and a supporting parent can be devastating.  An unfounded allegation can also have very damaging consequences for a child and the wrongly accused parent.  This paper reviews what is known about these very difficult cases, and how our legal and social service systems try to achieve a balance between the various rights and interests that arise.  Unfortunately, there is only a limited amount of research that deals with allegations of abuse in the context of parental separation, and much of the literature in this area is from countries other than Canada.  This report must be viewed as only a preliminary step in trying to understand the nature of the problems that arise and formulate appropriate responses.

This paper addresses the following four questions:

1. What are the current responses to allegations of child abuse by child protection agencies and the civil and criminal legal systems?
2. What are the nature and extent of allegations of child abuse in the context of parental separation
3. What are the key issues associated with false allegations of abuse?
4. What strategies could be developed to deal appropriately with this problem?

1.2.1 Strategy for the Discussion Paper

To address the questions listed above, a three-part exploratory study was designed and conducted.  The first component consisted of a broad literature review of the issues in Canada as well as other jurisdictions.  The second component consisted of a review of the current Canadian legislation and case law regarding allegations of child abuse in the context of parental separation, as well as a study of reported judicial decisions on Quicklaw databases in Canada from 1990 to 1998.  The third component involved interviews with a limited number (14) of selected key informants in Canada and the United States regarding their experiences with cases involving false allegations of child abuse in custody and access disputes.  The purpose of these interviews was to check the relevancy of the findings of the other two study components, particularly the non-Canadian information.  Key informants included practitioners working in the field, such as child welfare workers, supervised access program workers, police, lawyers, judges, and researchers (Appendix A contains a copy of the interview protocol).

1.2.2 Limitations

There are several limitations to the information presented in this paper that should be acknowledged.  First, due to the lack of relevant Canadian studies, the literature reviewed is primarily American and may not be totally applicable to the Canadian context.  Second, Canadian data are from specific jurisdictions within Canada, and cannot necessarily be generalized to the whole country.

Third, the study of reported judicial decisions dealt only with family law cases; child protection and criminal cases were excluded.  Quicklaw databases depend on receiving written decisions from judges, and many decisions delivered in Canada are not included in legal databases.  Most family law judicial decisions do not result in written reasons and do not appear on legal databases, which may mean that certain types of decisions are under-represented in the legal databases.  Despite this, there is no more complete set of written judgements than the Quicklaw databases.  This study, at the least, gives a sense of what is happening in many of the highly contentious cases that family law judges in Canada decide.

Fourth, the key informant interviews were very limited in number and cannot be taken as representative of the various professions interviewed.  Information from these interviews is included throughout this paper, however, to reflect the practical experience of some professionals who deal with allegations of abuse in the context of parental separation, and to illustrate common Canadian investigative practices and procedures.

Finally, the legal system and related support services are evolving, and the data collected for this paper reflects developments and understandings at the end of 1998.

This paper is only a preliminary look at a very complex set of interrelated issues and should not be taken out of that context.

1.3 Definitions of Investigation Outcomes

A critical issue in any discussion of allegations of child abuse is the difference between a false allegation that is deliberately made to gain a tactical advantage in a custody or access dispute, and an unfounded allegation that is made due to an honest mistake.  In this paper, we try to make this distinction clear.  However, there is a lack of consistency in the literature and case law in the terms used to describe the outcome of an investigation into an allegation of child abuse.  For the purpose of this discussion, we use the following terms and definitions for the possible outcomes of an investigation:

Intentionally False Allegation

An intentionally false allegation (or fabricated allegation) is an allegation of child abuse that is known by the accuser to be false but is deliberately made, whether or not maliciously, to gain a tactical advantage in a custody or access dispute, or to seek revenge on or punish a former spouse.  An example of an intentionally false allegation would be a custodial mother who makes up a story that her child is being abused by her former spouse because she does not want the father to have access to his child, and tries to manipulate or indoctrinate the child to support this allegation.

False Allegation Due to Honest Mistake

A false allegation due to an honest mistake can occur for a number of reasons, such as children's statements being misinterpreted, poor communication between the parents, or poor interviewing techniques.  Poorly trained assessors or investigators may contribute to this problem.  An example of a false allegation due to an honest mistake would be a custodial mother who misinterprets her three-year-old daughter's red vagina after a visit with the father as evidence of sexual abuse rather than a reaction to the strong soap used during a bath, and misunderstands her child's explanation.

False Allegation Due to Mental Health Problem of Accuser

A false allegation may be a result of mental disturbance or mental illness of the accuser.  In most of these cases, the accuser is a parent.

Undetermined (Unsubstantiated) vs. Unfounded

An investigation into an allegation of child abuse may yield no conclusive evidence, and thus no determination can be made of the allegation's validity.  We have termed this situation undetermined or unsubstantiated.  Such a case may be reinvestigated at a later time if additional evidence is presented.  We distinguish the "undetermined" case from the "unfounded," which is a case where there is a clear determination that the allegation is false, although some authors and judges use the terms interchangeably.

Founded (Civil Standard of Proof)

If an allegation of child abuse is said to be founded using the civil standard of proof, this means that proof of the allegation was established on a balance of probabilities (or preponderance of evidence).  This is the standard of proof used in custody and access disputes (family law cases) and under child welfare legislation.

Founded (Criminal Standard of Proof)

If an allegation of child abuse is said to be founded using the criminal standard of proof, this means that proof of the allegation, hence guilt, has been established beyond a reasonable doubt.  This standard of proof is used when criminal charges are tried.

The distinction between intentionally false allegations and false allegations due to honest mistakes or mental health problems is very important, although many studies, and therefore the statistics, do not differentiate false allegations by their source.  Ceci and Bruck (1995: 31), for example, argue that rates of false allegations should include honest mistakes as well as deliberate lies because honest mistakes "can do just as much harm."  While this assertion has considerable force from the perspective of the alleged perpetrator, the distinction between the intentionally false allegation and the honest mistake is vitally important.  There are very significant differences in how children may be affected in these situations, and the consequences for the accusers of each type should be very different.

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