Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective
I. Introduction: Scope of This Paper
Purpose & Perspective of this Paper
This paper explores the issues that arise in child protection proceedings involving family violence, where there are concurrent family Footnote 1 and/or criminal proceedings. A particular focus is on issues in concurrent proceedings in cases involving intimate partner violence, though there is some discussion of child abuse cases, especially those involving emotional and other child abuse issues arising in the context of high-conflict separations. We discuss and compare the social and legal contexts of these different proceedings, offer analysis of both legal and professional practice concerns that concurrent proceedings create, and conclude by offering suggestions about promising practices to improve processes and outcomes for children in these challenging cases.
These cases are inevitably complex and difficult for parents, children, professionals and the justice system. While the same factual circumstances may be considered in each of the proceedings, if there are concurrent proceedings there is the potential for inconsistent and even conflicting outcomes and orders. This paper explores the complex social, institutional and legal context of these concurrent proceedings, and provides suggestions for changes that should result in more effective and efficient interventions.
This paper is written primarily from the perspective of the professionals and agencies involved in the child protection system, that is those with a responsibility for the protection of children and promotion of their best interests, and with the primary focus of improving the process and outcomes for children involved in that system. However, it is recognized that the protection of children and promotion of their interests must be balanced against other concerns. The justice system must also consider the accountability of perpetrators and the protection of rights of accused persons, and the rights and interests of parents. And in all parts of the justice system, reform is constrained by significant resource issues.
We use the term “family violence” to refer to both “intimate partner violence” and “child abuse”. “Intimate partner violence” refers to violence perpetrated by one spouse against the other, or by both spouses to each other. “Child abuse” refers to physical or sexual violence perpetrated by either or both parents against a child; it also includes neglect and emotional abuse that children may suffer, including from witnessing or living in families where there is intimate partner violence or a high-conflict separation. “Family proceedings” usually refers to custody and access proceedings, and may also include applications for child support, spousal support, restraining orders and division of property.
Situations Where There May be Concurrent Proceedings
There are a number of situations where there can be child protection proceedings and concurrent criminal or family proceedings. There is a significant likelihood of concurrent proceedings in four situations:
- (1) Cases where there is only one parent involved in the child’s life (usually the mother) and there are allegations of abuse or neglect by that parent. There may be child protection proceedings and the parent may also face criminal charges based on the abuse or neglect.
- (2) Cases where both parents are cohabiting and there are allegations of direct child abuse or neglect by one or both parents. There may be child protection proceedings, and one or both of the parents may also face criminal charges based on the abuse or neglect, or a failure to protect the child.
- (3) Cases where the parents have not separated but there are intimate partner violence issues giving rise to concerns that the child may be emotionally or physically harmed as a result of exposure to intimate partner violence. In these situations, the abuser may face criminal prosecution for intimate partner violence, and there may also be child protection proceedings if there is also serious risk to the children. At some point in these proceedings, the parents may separate, resulting in the possibility of family proceedings.
- (4) Cases where the parents have separated and one parent alleges that the other parent has abused a child or engaged in intimate partner violence, or there is ongoing parental conflict that does not involve violence but may place the child at risk. In such situations, there may be concurrent child protection, criminal and family proceedings.
This paper largely focuses on the last two situations, where the alleged violence or conflict between the parents is placing the child at risk and there is the prospect of concurrent proceedings, though some of the discussion may be relevant to the other situations as well.
The Challenge and Complexity of Concurrent Proceedings
For parents involved in high-conflict separations, especially for those who are the victims of intimate partner violence, the lack of coordination between agencies, professionals and court proceedings can be bewildering, time-consuming, and emotionally and financially devastating. The parents and children may have to navigate between two or three legal processes (child protection, criminal, family, which itself may have proceedings in both superior and provincial courts, and in some cases, immigration), repeat their stories in multiple proceedings, understand the consequences of different and often conflicting orders, and reconcile different results in the different proceedings. An acquittal of the alleged abuser in the criminal proceedings, a finding that the children are in need of protection resulting from exposure to violence in the child protection proceedings, and an order for joint custody in the family proceedings are all possible determinations for one family.
Parents who are victims of intimate partner violence, most often mothers,Footnote 2 may face the threat of apprehension of a child by a child protection agency for failing to keep the abuser from the child, but may have felt insufficiently protected from prior victimization by the criminal or family justice systems, or worry that they will not be adequately protected in the future. The stress and financial consequences of dealing with multiple concurrent proceedings while the parents deal with the stress of ending or managing a violent relationship can lead targeted parents to recant, drop out of contact with police and child protection services, and refuse to contact authorities following subsequent incidents of violence; the stress may also trigger abusers to engage in further threatening and violent behaviour. Finally, the presence of both parents at multiple court appearances can increase the risk of abuse and the emotional trauma resulting from contact between the victim and the abuser.Footnote 3
Children may be interviewed by a number of unfamiliar professionals about matters that they find deeply troubling, be represented by counsel and/or speak to the judge in the family or child protection proceedings. They may have contact with one or both parents prohibited, be reintroduced to the parents and then prohibited from contact again, and may have to accompany their custodial parent to the multiplicity of court dates that can all result from the same underlying history of violence. In some cases, especially in the criminal process, children may be required to testify against a parent.
Concurrent proceedings also pose significant challenges for professionals, agencies and the courts. While all of the professionals involved may in some way want what is best for the children, they also have defined roles and expectations, and may face significant resource constraints. In some cases, some professionals may not appreciate the limitations and expectations of other agencies and professionals involved with the same family. Policies or laws may hinder or prevent effective communication and co-ordination between agencies and systems, frustrating professionals and parents, and in some cases preventing the implementation of plans that will best meet the needs of the children involved.
In some cases, confusion resulting from conflicting orders in concurrent proceedings and a lack of information-sharing between service providers may have contributed to the deaths of children and their parents.Footnote 4
Outline of the Paper
Following this Introduction, Part II discusses the institutional context of these cases, with particular attention to the role of the child protection agency (CPA) in responding to cases of intimate partner violence, child abuse and high-conflict separation. Part III explains the social context of these cases, exploring the effects of intimate partner violence (IPV) and high-conflict separations on children, including some discussion of allegations of alienation, which are sometimes made in high-conflict separations or in response to allegations of IPV. Part III also provides an introduction to typologies of intimate partner violence, including mutual or conflictual violence, separation engendered violence, and coercive controlling violence.
Part IV explores the issues that arise when there are concurrent child protection and family proceedings, while Part V explores issues that arise if there is a concurrent child protection and criminal proceeding. Part VI identifies some promising practices that can address the problems and challenges of concurrent proceedings.
Part VII concludes the paper by emphasizing the importance of better systemic responses to high-conflict separation cases, especially those involving allegations of IPV, and by briefly discussing some of the limits of current knowledge and suggesting issues that need to be further researched.
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