Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective
VI. Promising Practices
This section identifies a number of options for legislative, systematic and individual responses to the challenges created by concurrent proceedings. This is not an exhaustive list of options. Many of these practices and proposals have not been evaluated, and their inclusion in this list should not be taken as an unqualified recommendation, but rather as a suggestion that they merit serious study.
1. Legislative provisions
A number of provincial statutes have provisions that address concurrent proceeding issues in intimate partner violence cases. These include:
- Definitions of best interests of the child in custody/access legislation, which includes consideration of the impact of intimate partner violence on children,Footnote 124 including consideration of intimate partner violence on joint custody;
- Requirements in custody legislation that courts consider the existence of criminal and/or civil (including child protection) proceedings relevant to the child’s safety, security or well-being when considering the best interests of the child;Footnote 125
- Presumptions in child protection legislation that access between a child and a parent who has been charged or convicted of an act of violence toward the child or other parent be supervised;Footnote 126
- Broad definitions of family violence which include emotional abuse, financial abuse, and children’s exposure to intimate partner violence;Footnote 127
- Requirements that the specific level of seriousness, frequency, and timing of the violence, along with evidence of coercive and controlling behaviour, be considered when assessing the impact of violence on parenting ability and the child’s best interests;Footnote 128
- Provisions making the breach of family law restraining orders a criminal offence;Footnote 129 this could be extended to child protection orders as well;
- Provisions requiring police to share information with child protection officials that may be relevant to a child protection investigation or application;Footnote 130
- Requirements that parents or other persons applying for custody or access to a child advise the court of the applicant’s current or previous involvement in any family, child protection or criminal proceedings;Footnote 131
- Provisions requiring child protection authorities to be notified of any custody application, and granting a CPA standing in the custody application if it determines it is in the best interests of the child to intervene;Footnote 132
- Provisions in child protection legislation allowing the court to make a custody order in favour of any person named in the child protection application, which avoids the need for a parallel family law proceeding;Footnote 133
- Provisions in child protection legislation clarifying that the duty to report is an ongoing and personal duty, which remove the option of delegating the reporting or failing to report as new information arose.Footnote 134
- Enactment of legislation in all provinces and territories to allow expeditious access to the justice system to obtain civil orders where family violence is at issue, and provision of adequate supports to allow victims to make effective use of such laws.
Other statutory provisions that might improve outcomes in concurrent proceedings include:
- Including exposure to intimate partner violence as an explicit ground for a finding that a child is in need of protection under child protection legislation. We note that many child protection statutes make no reference to intimate partner violence in terms of the definition of a child in need of protection.Footnote 135 The jurisprudence has generally evolved to consider a history of exposure to intimate partner violence as relevant to a finding that the child is in need of protection and to the application of the best interests test; however, specific reference to intimate partner violence – including exposure to violence – would assist the parties, child protection staff and the public (when contemplating whether they have a duty to report).Footnote 136
- Effective enforcement provisions for family and child protection court orders with police assistance and criminal penalties for breaches.Footnote 137
2. Record-keeping systems
Database of cases, orders and conditions
A computerized database of all charges, applications, court proceedings, orders and conditions, accessible by the Crown, police, child protection officials, judges and lawyers would be of enormous benefit to all actors in the system. While there clearly need to be some “fire walls” for some types of information, at present even matters of “public record” are not being adequately shared. Police and child protection workers should be aware of all current orders affecting the family; courts would avoid making conflicting orders; and court appearances could be coordinated to minimize disruption to the family. Such a system has been established in some jurisdictions (such as New York State). It would be desirable to create an alert system through such a database to inform all parties of any changes in orders or proceedings (such as dropped charges, findings that a child is in need of protection, or variations in conditions).
3. Court structure and procedure
Unified Family Courts
Unified Family Courts replace the separate provincial and superior courts with one court, which has jurisdiction over all family-related matters. Where the child protection, divorce/property, and custody/access matters are all heard in the same court, they can be consolidated and heard at the same time by the same judge (assuming the court also has one-judge-one-case case management in place, and a mechanism for identifying related proceedings). This significantly reduces the strain on families caused by multiple proceedings, is a more efficient use of court resources, avoids conflicting or missed information from one proceeding to the next, and avoids conflicting family law orders and conditions. A number of recent reports have recommended that Unified Family Courts be created in all jurisdictions where it is feasible to do so, with an appropriate degree of judicial specialization and support services.Footnote 138
Case management (one judge hears each case from first appearance through settlement conferencing, though a second judge may preside at the trial) has been repeatedly recognized as a key measure to ensure effective resolution of family law cases, including child protection. Having one judge hear both the intimate partner and child protection applications can have a particular benefit in family violence cases, as it reduces the risk of conflicting orders and missed information (which can hamper the court’s ability to effectively assess risk). Case management also reduces the potential for litigation abuse, and allows the case management judge to become familiar with the complex dynamics typically involved in these cases. Other general benefits of one-judge-one-case management include reduced delay, more efficient use of court resources, and higher rates of settlement.
Integrated domestic violence courts
The Ontario Court of Justice has created an integrated domestic violence court pilot (IDVC) project in Toronto. This court is able to hear the custody/access and criminal proceedings relating to the same family. Child protection cases are not being heard in the IDVC at this time, and few cases overall have been dealt with as participation was initially voluntary. Use of the IDVC is expected to increase because as of April 2013, it has become mandatory to use this court for all intimate partner violence summary conviction criminal charges scheduled for appearance in two Toronto courts, where the accused is out of custody and is a litigant in a related custody/access or support case within the jurisdiction of the Ontario Court of Justice. The IDVC may hear all matters related to either proceeding, including short trials.Footnote 139 One dedicated judge hears both matters on the same day in the same courtroom, and will be able to monitor the family, which may increase the accountability of the accused and enhance the complainant’s safety. The IDVC initially had a Community Resources Coordinator who was responsible for assisting the parties in finding resources and services to assist the parties,Footnote 140 although that position has been eliminated. The goals of the IDVC are “a more integrated and holistic approach to families experiencing intimate partner violence, increased consistency between family and criminal court orders and quicker resolutions of the judicial proceedings.”Footnote 141
The IDVC in Ontario is modelled on the IDVC in New York State, where 24 courts hear family and criminal cases together (including, in some jurisdictions, child protection cases) and the presiding judge decides whether a given case will be transferred to the IDVC.Footnote 142 The goals of the IDVC in New York have been identified as follows:
- informed judicial decision-making based on comprehensive and current information on multiple matters involving the family;
- consistent handling of multiple matters relating to the same family by a single presiding judge; efficient use of court resources, with reduced numbers of trips to court and speedier dispositions;
- linkage to social services and other resources to address comprehensively the needs of family members;
- promotion of victim safety through elimination of conflicting orders and decisions;
- increased confidence in the court system by reducing inefficiency for litigants and by eliminating conflicting orders; and
- coordinated community response and collaboration among criminal justice and child welfare agencies and community-based groups offering social services and assistance to intimate partner violence victims and their children.Footnote 143
We note that in New York, the IDVC is under the jurisdiction of the Superior Courts, which permits all criminal and family cases to be heard by one judge. The Toronto IDVC is part of the Ontario Court of Justice, the provincial court; therefore, any case involving proceedings under the Divorce Act is not eligible for the IDVC, as they can only be heard by Superior Court judges.
A full evaluation of the Toronto IDVC would be valuable, and consideration should be given to expanding its jurisdiction to include child protection matters. Consideration also should be given to finding means for expanding such courts in cases where the criminal and family/child protection proceedings are in two different levels of court, and in jurisdictions in which family cases are heard in Unified Family Court.
Specialized criminal domestic violence courts
Specialized domestic violence criminal courts exist in most provinces and territories for dealing with criminal prosecutions for many intimate partner violence cases. These courts are not special locales and judges generally rotate through this assignment. However, these courts have specially trained Crowns and staffing, allowing prosecutors, police, victim services, abuser counselling programs and other service providers to better co-ordinate services and safety planning, especially at the bail stage, and where appropriate, allow an offender to a have sentence that includes a rehabilitative component. The models differ from jurisdiction to jurisdiction, and there is a need for a comprehensive evaluation of these courts to identify which models are most effective. For example, most DV courts only work with first-time offenders; in the Yukon, however, the specialized DV court is available to repeat offenders and may be more effective, as the stakes are higher for the accused and there may be more recognition of an ongoing, serious problem.Footnote 144
Some of these courts involve child protection agencies. For example, the Yukon Domestic Violence Treatment Option Court has a representative of the local child protection agency on its working group (providing advice on operational issues), has a protocol for reporting to and involving child protection workers in specific cases, and schedules court in order to allow child protection workers to attend.Footnote 145 Court workers in Calgary’s domestic violence court liaise with child protection agencies where appropriate, although an evaluation of that court noted that a number of stakeholders believed that the court would be more effective if child welfare workers were actually part of the court team.Footnote 146
Given the prevalence of mental illness as a concern in intimate partner violence cases – particularly those cases where there is a risk of lethality – it would be helpful to have a mental health professional available to consult with these courts and their team of professionals.
These specialized courts often require offenders to complete specific, provincially-approved programs (such as PARS – Partner Assault Response Service – in Ontario). Again, a comprehensive evaluation of the effectiveness of such programs is important to ensure that the programs truly address the issues facing the family. There should also be consideration to allowing alternate programming for parents facing charges who are involved with child protection services, as those interventions may be as or more effective than the court-associated program. Programs specifically geared toward Aboriginal offenders and recommended by child protection authorities should also be considered acceptable alternatives. This will prevent individuals from having to complete one program for the criminal proceedings and another for the child protection proceedings (although it has been noted that parenting-focused programs such as Caring Dads do not replace programs focused on woman abuse).Footnote 147
Specialized courts using models that have been proven to be effective, with involvement of child protection officials and express requirements to consider the impact of concurrent family and child protection proceedings, should be considered in all jurisdictions.
In the absence of integrated courts, a promising option is protocols for communication between courts hearing concurrent proceedings involving the same family.
The Honourable Donna Martinson, who was a judge of the British Columbia Provincial Court and then the British Columbia Supreme Court prior to her retirement in 2012, is a strong proponent of direct judicial communication in concurrent family violence cases.Footnote 148 She notes that direct judicial communication is currently used in cross-border litigation, typically Hague Child Abduction Convention cases but also class action cases and cross-border insolvency cases. Some courts have rules and guidelines for this type of communication.Footnote 149
The Canadian Network of Contact Judges for the Hague Convention is made up of trial judges from each superior court and authorized by the Canadian Judicial Council to consider judicial networking and collaboration in cases of child abduction and custody. The Network has developed guidelines for Canadian and international communication between courts. These communications occur through conference calls or video links and are “on the record,” with counsel and the parties directly involved.Footnote 150 As Martinson has suggested, this existing framework for judicial communication could be adapted for use in cases involving concurrent family violence proceedings.
Joint settlement conferencing
Where there are separate but relatedproceedings, consideration should be given to a joint settlement conference with judges from both proceedings, all of the parties in both proceedings, and other professionals agencies that may be involved with the family, including Crown and defence counsel, family lawyers, child protection staff, victims’ services and possibly mental health services. This would allow the litigants and different professionals to better understand how the other system could assist in addressing the problems faced by the family, and permit resolutions which do not conflict with each other.
Where, for example, the abuser has been working well with the child protection agency, and the agency and child protection court judge are comfortable with working towards reunification of the parent and child, that may assist the Crown in determining that a stay or plea without a custodial sentence may be best for the child and targeted parent. In cases where it becomes apparent that there is a significant risk to the child and targeted parent, the focus of court intervention may change to the criminal proceeding. Criminal sentences can be coordinated with child protection and family custody orders, and the judges can determine which proceeding ought to be given scheduling priority if a trial or trials are necessary. These joint conferences can also assist in information-sharing (see below) and disclosure issues, and may avoid unnecessary motions for production.
There are two significant challenges to joint settlement conferencing. The first is jurisdiction. In some places, and depending on the nature of the charge, the family and criminal matters will be heard by the same level of court (provincial, or superior). In other places, the criminal matter may be in superior court while the child protection and/or custody matter is in provincial court. The reverse may also be true. Coordinating proceedings may be difficult in these circumstances.
The second challenge is scheduling. It is difficult to schedule court dates for cases involving two lawyers and one judge; adding another judge and another two or more lawyers and other agencies may cause significant delay. Indeed, in most jurisdictions there is little or no judicial settlement conferencing in criminal proceedings; pre-trials are brief and negotiation often takes place on the day of trial.
Specific practices of criminal court judges and court staff:
The following practices could assist child protection agencies working with families who have concurrent criminal proceedings:
Reporting concerns to child protection agencies: Some family court judges hearing a family case in which there are credible allegations of intimate partner violence or child abuse will report, or direct their court staff to report, to the local child protection agency. On occasion, criminal courts may report concerns to the child protection agency, typically where the mother recants or there is evidence that the parents have reunited in a case involving serious violence affecting a child.
However, reporting to CPAs is not uniformly accepted as a function of the judge or court staff. Regardless of whether the duty to report applies to members of the judiciary, reporting to child protection agencies allows for an independent investigation that is otherwise not available to judges hearing family cases, and may lead to the provision of services that can encourage the victim to testify in a criminal proceeding, and help the child and parents avoid future violence. Protocols setting out the process and factors for such communication by judges or court staff would assist in ensuring timely and appropriate reports and investigations.
Seeking information: The impact of conflicting bail and probation orders on family proceedings can be minimized if the criminal court requests and is given accurate information regarding the state of any current or pending family proceeding prior to making any order of judicial interim release. With respect to child protection proceedings, the Crown can obtain information regarding the most recent court order and the position of the child protection authority by speaking to the social worker or the child protection lawyer acting for the agency. (The child protection lawyer is likely to have more accurate information than the social worker regarding the wording of the order and the stage of any application before the court.) Unlike most family law files, child protection court files are not available to the public. Orders in family or child protection cases are often varied, so up to date information should be sought at each appearance of the criminal matter.
Considerations prior to release: In a case involving intimate partner violence, prior to determining whether to release the accused, and/or whether to attach certain conditions to the release, it is good practice for the criminal court judge to inquire of the Crown as to the following:
- Are there any children in the home?
- Were the children present during the alleged violence?
- Has the local child protection agency been informed of the charges? If not, why not? The court can remind the Crown of the duty to report, and the jurisprudence indicating that exposure to violence constitutes grounds for a finding that a child is in need of protection.
- Is there a history with the child protection agency? If so, are there any concerns about the accused’s mental health, his or her ability to comply with conditions and/or the victim’s ability to keep the accused from the home if necessary to ensure the children’s safety?
- Is there any family or child protection court order, either in intimate partner or child protection proceedings, in place? If so, what are the terms?
Prohibitions on contact: Conditions regarding contact between the accused and any children should, except in very serious cases, provide for access to be “as per family or child protection court order made following the date of this order, provided that judge has awareness of this criminal court order.” A term requiring the court clerk or Crown to inform the child protection and/or family court of the charge and of the terms of the criminal court release order would help ensure that the family court order is only made on notice of the criminal charges.
Court attendance: Conditions permitting the accused to be in the presence of the victim and/or child for the purpose of attending court will avoid placing the parent in the position of breaching criminal conditions in order to participate in child protection or family proceedings.
Changes to conditions: Where the Crown and defence suggest that restrictions on contact with the accused be changed or removed, it would be helpful if criminal courts were to inquire whether child protection authorities are aware of this plan and if there is a family or child protection court order in place addressing the contact. (For example, where a parent who presents a serious risk of violence or trauma to the child has been incarcerated since the date of the charge, the child protection order may not include a term restricting that person’s access to the child.) Where there is no family or child protection court order addressing access, options include adjourning the sentencing or bail review to allow child protection authorities to obtain a child protection court order, or imposing a term of sentencing that provides for contact to be as per family or child protection court order.
Notice to agency: Where a sentence includes restrictions on contact with a child, or states that access should be as per a family or child protection court order, consider including a term requiring that the offender give notice to the child protection authorities prior to any application for access in family proceedings, in addition to the required notice to the custodial parent.
Communication of findings and orders: Criminal court judges or court staff can order service or provide copies of bail orders, reasons for judgment, sentencing and probation orders on child protection authorities in cases of family violence, or related crimes (such as probation breaches).
Specific practices for child protection judges and court staff:
Screening: Some child protection courts have developed protocols to screen for cases involving violence, so that court staff and security will be aware of the need to keep the parents separate and be alert to any potential conflict or threat.
Seeking information on criminal and civil proceedings: In cases involving allegations of assault or other conduct that may result in criminal charges, judges in child protection cases can inquire about any undertakings or conditions of release. Judges can and usually do inquire about related family law proceedings; in some courts, it is standard practice for both files to be placed before the judge (where both proceedings are in the same jurisdiction), though there are many locales where the judge may not be aware of concurrent family and child protection proceedings even though they are in the same court.
Conflicting bail conditions: Where the undertaking or conditions of release in criminal proceedings prohibit contact with children, and the child protection court is of the view that some form of contact is warranted, judges in child protection cases have, on occasion, asked CPA counsel to immediately locate a Crown counsel and then conducted a bail variation on the spot (provided that the judge has jurisdiction over this type of proceeding). Other options include:
- endorsing the matter to provide for a return to child protection court upon two-days’ notice in the event of a change in the parent’s conditions of release by the criminal court ;
- including a provision in the temporary child protection care order providing for access to the parent, “subject to any undertakings or conditions of release”, thus allowing the access to commence as soon as there is a change of the criminal conditions, without a return to family court;
- encouraging CPA counsel and the worker to contact the parent’s criminal defence counsel, the Crown or the police officer in charge in an effort to have the conditions varied on consent in criminal court;
- indicating in the endorsement that the child protection court is satisfied that the child will be safe under the access plan presented by the parties (which may help persuade the Crown to agree to a bail variation);
- creating a committee of representatives from the bench, the Crown, local police services and the CPA to work toward a mutually agreeable standard condition of release pertaining to contact with children in such cases (such as “no contact, direct or indirect, with the child, except as ordered on a date following [date of release] by a family court of competent jurisdiction that is aware of this criminal court order.”).
Disclosure requests: The approach taken by Justices Keast and Thompson, cited above, values the child protection case equally with that of the criminal case (depending on the circumstances), and permits appropriate investigation for the child protection process by requiring disclosure of police files to the CPA.
Requests for adjournments: As noted above, parents facing criminal charges often request adjournments of the related child protection proceeding on the grounds of potential prejudice to their criminal proceedings. The child protection court may refuse the request, depending on the anticipated consequences for the child;Footnote 151 may direct CPA counsel or parents’ counsel to contact the parent’s criminal lawyer and ensure that lawyer is aware of the “potential cost of delay and silence in the face of companion protection proceedings,”Footnote 152 propose a joint settlement conference/criminal pre-trial (involving judges and counsel from both courts in an attempt to resolve one or both matters); communicate directly with the judge in the criminal proceeding to determine which matter should take priority in scheduling, or explore ways in which the parent might be able to address the concerns of the CPA without making an admission that could be used against the parent in a criminal proceeding.
Use of a checklist, such as the following, may ensure that all relevant information is before the court:
CHECKLIST FOR CHILD PROTECTION JUDGES WHEN DV IS AN ISSUE
Is this a case where there may be family violence?
Are there criminal charges?
Are there any family or civil protection order proceedings? – if the answer is “unknown”, direct child protection counsel or court staff to provide this information. Are there any bail or probation conditions relating to access to the child or other parent? If they affect the ability of this court to order access or interventions, what steps are appropriate? – endorsement specifying the intended access, to be provided to Crown; communication with criminal court; direction to CPA lawyer to communicate with Crown and possibly defence counsel.
Are there any interventions taking place as a result of the criminal proceedings that may be relevant to the child protection proceedings?
How will this court keep apprised of the criminal proceedings? E.g. condition of supervision order to keep CPA worker informed; undertaking by child protection counsel; communication with criminal court judge
Is this a case where it might be useful to hear from police or the Crown?
Is this a case where a joint settlement conference might be useful and possible?
4. Practices for service providers
Increased communication: A number of options exist to increase communication and collaboration between service providers and justice system actors, including Crown, defence, family and child protection counsel. These options include:
- Joint training of all professional groups on their respective roles and responsibilities in responding to and preventing family violence
- Formal protocols between agencies
- Co-location of services
- Sharing of staff between agenciesFootnote 153
- Regular “wraparound” meetings regarding particular families
- Bench and bar committees focused on family violence
Regular communication can facilitate the following:
- Consultation by police with child protection staff during the criminal investigation. This would help police to receive and provide information relevant to the risk of future violence, determine whether the intervention of mental health professionals may be necessary, ensure which bail conditions and services the family may need to ensure safety if the accused parent is charged and released, and consider what measures could be put in place to minimize the likelihood of recantation by the complainant.
- Awareness by all parties, on an ongoing basis, as to the progress of the family, changes in charges, orders, bail and probation conditions, the family’s living situation, the accused parent’s level of cooperation with service providers, and other key information.
- Full understanding by the accused and his/her family lawyer and defence counsel as to the impact of a refusal to discuss the allegations on the child protection case.
- Full understanding by police and Crowns as to the impact of a plea or charge withdrawal, and the opportunity by the child protection agency to plan for pleas and charge withdrawals (and consequential release from custody and/or revocation of bail orders).
- Sharing between agencies and parties of documents relevant to the violence.There is often documentary material filed in one proceeding that could well be significant to the court or parties in the other proceeding. For example, a parenting assessment done for the custody/access proceeding may be relevant to the child protection proceeding; a psychological assessment of a parent done for the child protection proceeding may be of use in the criminal sentencing hearing. While it is unrealistic to expect that all this material could or should be freely shared (due to privacy concerns, evidentiary rules and concerns about prejudice and self-incrimination in the criminal proceeding), there is considerable scope for improving the flow of information and resources about a given family. In the context of a joint settlement conference, in which the explicit focus is to find a solution for the child and family that is consistent with the public interest, all information about a family could be provided to the court; in other contexts, information may just be shared between agencies and parties.
- Awareness by Crowns and defence counsel of the accused parent’s progress in programs for reducing the risk of future violence, which can assist in the effective resolution of criminal charges.
- Awareness by the child protection agency of the victim parent’s level of cooperation (or lack thereof) with the criminal prosecution, which can, in some cases, indicate an increased risk to the child or suggest that another approach (towards reunification, for example) should be considered.
- Consideration by all professionals of sentences, custody orders and child protection orders that best meet the interests of the child.
Integration, collaboration and coordination: Numerous agencies have moved toward more collaboration, coordination and in some cases integration of services for family violence cases. The Ontario Association of Children’s Aid Societies hosted a forum on the topic, called “Critical Connections: Where Woman Abuse and Child Safety Intersect” in 2009,Footnote 154 showcasing a number of initiatives being developed in Ontario to increase inter-agency communication and collaboration such as Differential Response teams and the Family Violence Project of Waterloo Region (see below). Calgary has an Intimate Partner Violence Collective, aimed at coordinating the response of 50 agencies (including child protection and police) in intimate partner violence cases.Footnote 155 British Columbia has established a Provincial Office of Domestic Violence, which among other responsibilities has the mandate to provide training on information-sharing, host provincial consultation forums, identify strengths and gaps in all legislation, policies, programs, services and committees focused on intimate partner violence, and develop a website so service providers can share information on policies, services and initiatives across sectors.
Co-located services: One of the most effective means of ensuring information-sharing and collaboration would appear to be the creation of “one-stop” facilities where child protection workers, police officers, shelter workers and other service providers for families experiencing violence are in the same building. These provide numerous benefits, including information-sharing from the commencement of the family’s involvement with the justice system, numerous services accessible at once, and policy development borne from shared experiences between agencies.
The Family Violence Project of Waterloo Region in Ontario,Footnote 156 which opened in 2006, is the first such agency in Canada. One location – identified as a community services agency - houses the Waterloo intimate partner violence child protection teams, the intimate partner violence investigations branch of the police, an elder abuse response team, a Crown Attorney’s office, representatives from the Victim Witness Assistance Program, medical and counselling staff for victims of intimate partner and sexual violence, and numerous other support services such as victim relocation services, immigrant outreach, and credit counsellors. These service providers refer families to each other, and co-location allows for immediate coordinated response by multiple service providers to developments in the family’s situation. The Crown Attorney’s office consults with the child protection team regarding bail, and the Crown communicates with the judiciary to work towards better coordination of family and criminal court proceedings. There is also a high risk case review team providing a multi-service response to avoid gaps in communication. Co-location and integration of services significantly reduces the stress experienced by the parent seeking services, increases the reliability of risk assessment, and enables the immediate and comprehensive provision of services. Since the facility opened, the number of reports of intimate partner violence that have led to charges has significantly increased.Footnote 157
Protocols: Formal protocols between agencies can also assist in ensuring information-sharing and avoiding conflicting orders. Many police and child protection agencies have protocols for the joint investigation of cases where the parent is charged with abusing a child, but fewer may have protocols where the child is not the direct target of the abuse. It should be noted, however, that some provincial standards are now moving away from structured, traditional investigations in which existing protocols dictate the agency’s approach, toward a more flexible, customized response that may or may not follow the protocols.Footnote 158
Promising practices for Crowns and police
Even without co-location, formal protocols or other institutional initiatives, individual professionals can change their practices so as to more effectively respond to some of the challenges presented by concurrent proceedings. Some of these practices include:
Consultation during investigation: Consultation by police with CPA workers as soon as an investigation into allegations of intimate partner violence in cases where there are children resident would benefit the children. In some cases, for example, the police might learn from the CPA of prior incidents that were not reported, or otherwise unknown aspects of the family history (such as signs of mental illness) which could alter their response to the allegations. Consultation also allows the agency to provide services to the victim and children, and permits information relevant to detention and conditions of release to avoid conflicting orders.
Bail condition protocols: Child protection agencies and police forces have, in some jurisdictions, worked together to identify conditions of release that permit access and interventions in the best interests of the child and victim.
Police, Crowns and criminal defence counsel should request that no-contact conditions allow exceptions for court attendance in family or child protection proceedings.
Further, where appropriate, no-contact orders should be subject to allowing “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 and the nature of the charge.”
Plea bargaining and withdrawal of charges: When entering into plea negotiations, Crowns who are familiar with the child protection proceedings are in a position to consider the parent’s progress in addressing the protection concerns, how the proposed plea and agreed-upon facts will affect the child and the options for the child protection proceedings. Where time allows, it is helpful for the Crown or police to advise the agency of any impending release from detention or change in conditions to allow the agency to respond appropriately. Advising the child protection lawyer as to the charges and facts pleaded to can also assist in the child protection proceedings.
Disclosure to child protection authorities: When police or Crowns are responding to applications for disclosure of records to child protection authorities, efforts should be made to minimize the delay in releasing the records, given the importance of speed in responding to threats to children’s safety. Regular communication by the Crown or police regarding specific events – such as new charges, recantation by the parent complainant, or convictions –which may be relevant to the child protection application would also be helpful.
Children testifying in criminal proceedings: Where there is a chance the child will be subpoenaed to testify in the criminal proceedings, the Crown and child would both benefit from consultation by the Crown with the child protection agency to determine whether testifying will be harmful to the child, whether the child is receiving counselling or treatment, and what safeguards and accommodations may assist the child if s/he does testify.
Aboriginal families: Where restorative justice measures are being used in the criminal process, inclusion of child protection workers or their delegates may be appropriate.
Promising practices for child protection lawyers and agency staff:
Screening of bail conditions: Prior to court, counsel involved in child protection proceedings (for both parents and agencies) should attempt to learn whether criminal court conditions restrict the accused from having contact with the other parent or the child, and advise workers to keep parents in separate areas of the courthouse where necessary, as well as advising the child protection court of the existence of the conditions in advance.
Conflicting orders: Where the criminal order prohibits contact between a parent and child and the child protection agency believes that it would be in the child’s best interests to have such contact, child protection authorities should communicate directly with the Crown to determine what options are available, and whether the police have information regarding risk to the child that is unknown to the agency.
Communication regarding breaches: Child protection workers are more likely than police to become aware of breaches of criminal court conditions regarding living arrangements and contact between the offender and the other parent and children. In some circumstances, it may be appropriate for the child protection workers to report these breaches to police. However, agency workers are often understandably reluctant to do so. In some cases, particularly where the breach or offence in question does not appear to affect the well-being of the children, police involvement may be seen as detrimental to the interests of the children. In many cases, reporting to police will damage – sometimes irrevocably – the relationship between the parents and the worker. For example, the BC Representative for Children and Youth noted that when Alan Shoenborn attended at the child protection offices for a meeting with his children, he was met by police who promptly arrested him;Footnote 159 a parent is unlikely to engage or trust workers following such an experience.
This apparent “one-way street” – where police have a duty to report to child protection officials, but child protection staff have no corresponding duty to report to police – can cause tension between the two agencies. Indeed, it highlights the chief tension felt by child protection workers themselves: they are mandated to assist families, but at the same time have the duty and authority to remove their children where appropriate. Joint training, local protocols and more communication between police and child protection agencies may assist in creating an understanding of their different roles and necessarily different approaches to particular developments.
Child protection staff should not be seen to be encouraging violations of conditions imposed by a criminal court. If CPA workers become aware of breaches of criminal court conditions, it is preferable for child protection staff to encourage the accused parent to have the bail conditions changed in order to reduce the risk of a criminal charge when the target parent has decided to reunite, provided reunification can be done safely for the children. It may be appropriate for child protection staff or agency counsel to contact the Crown to facilitate such a variation in bail conditions.
Child and parental statements: Where a child and/or victimized parent have been interviewed by police, and the videotaped statement may be of use in the child protection proceedings, the child protection lawyer should request a copy from the Crown. This can ensure that the child protection court has the best evidence available.
Review changes in criminal orders with both parents: When the agency becomes aware that a parent’s charges or conditions have been dropped or varied, the worker should review the remaining conditions – under family court or criminal court orders – with both parents, to ensure they are aware which conditions are now in force. CPA counsel can also advise the parents’ counsel of the conditions if they are represented. The agency should also alert the parents’ counsel of such changes, so that they can provide any necessary legal advice.
Reports on accused’s progress: Where a charged parent has participated in counselling or other interventions which suggest a reduction in the risk of future violence, child protection workers should advise the Crown. The parent’s child protection lawyer can also advise defence counsel. This can assist in ensuring informed plea negotiations and sentencing. Child protection authorities should be cautious, however, about advising Crowns and police of any admissions made by a parent, as the use of that information against the parent may affect the parent’s relationship with the agency.
Advise police and Crown of obstacles to progress: Where the criminal charges or bail conditions are creating obstacles toward progress in the child protection case – for example by creating stress due to the possibility of deportation, or causing a parent who would otherwise admit to the abuse and undergo treatment to refrain from doing so for fear of prejudicing the criminal case – the child protection worker may advise police, the Crown and the parents’ criminal and child protection lawyers, in the hopes that a resolution satisfactory to both agencies and in the child’s and public’s interest can be found.
Focus on the abuser, regardless of charges: A number of child protection agencies have changed their overall approach to cases involving intimate partner violence. This has taken place in response to the significant increase in reports to child protection agencies of intimate partner violence cases in the last decade and a half (the Toronto CAS reported a 400% increase since 1999)Footnote 160 and a realization that the traditional model did not work. The traditional model resulted, in the typical case, in a brief opening of the file with the goal of achieving separation of the parents; closure of the file immediately upon separation, with little or no services provided; apprehension or threats of apprehension if the victim and children returned to the abuser; women hiding their family situation and going underground in response; tension with the VAW community; tragedies where risk factors were not identified and/or there were gaps in the system; and workers feeling ill-equipped to deal with these cases. These agencies developed a Differential Response to intimate partner violence cases, with the following characteristics:
Dedicated teams focused on IPV cases: The child protection agency intake departments screen cases and refer those with intimate partner violence concerns to specialized, trained intimate partner violence teams.
Work with the abuser (usually the father), not just the victim parent (usually the mother). Communication with the abuser, which used to be secondary and often non-existent, is now a priority. The agencies spend considerable efforts trying to engage with the abusive parent, meeting him in prison if necessary, assisting him with other issues such as literacy or housing, and encouraging him to consider the impact of the violence on his children. Responsibility for ending the violence is placed on the abusive parent, rather than the victim.
Referrals to interventions specifically created for fathers: Many of these agencies refer the abusive parent to the 17 week “Caring Dads” program, which focuses on the abusers in their role as parents. These can complement interventions focused on intimate partner abuse. The child protection agency will receive a report if the abusive parent fails to attend or otherwise indicates a lack of progress, and the agency can provide support to the abusive parent throughout the program.
Work with the family toward reunification, where safe to do so. These agencies recognize the reality that women often return to a partner who has a history of abusing them, and that their reasons for doing so are complex. The agencies will not threaten to apprehend solely because the parties reunite; rather, they will work with the families to reduce the violence to a level where it is safe for the child to reside with both parents. The focus is on harm reduction rather than “zero tolerance.”
Work with police, Victim Witness Services, the VAW sector and other service providers. The agencies using the differential response approach to intimate partner violence cases typically have far more involvement with other service providers. Agency workers may also appear in family and criminal court to advise the judge of the family’s progress, and sit on the intimate partner violence court advisory committee.
Work with the offender notwithstanding criminal charges. The Differential Response approach does not require an admission of guilt to work toward reunification. This allows for better outcomes in cases where there are concurrent criminal charges and the parent is concerned about prejudicing the criminal proceedings.
Focus on voluntary involvement. The Differential Response typically relies on voluntary child protection involvement with the families, and only rarely are protection applications commenced. This significantly reduces the pressure on families who may already be involved in the criminal justice system
The CPAs which have adopted this Differential Response approach report that it has led to far better outcomes for families and children, including substantially fewer court applications and apprehensions.Footnote 161 There has, however, been no comprehensive evaluation of this approach, other than some evaluations of the Caring Dads program, but the reports suggest it holds considerable promise for reducing violence, assisting families, and avoiding some of the challenges associated with intersecting proceedings.
A complaint often heard regarding specialized intimate partner violence courts, and which could also be made regarding this type of child welfare approach, is that it suggests that family violence is less deserving of judicial sanction than other kinds of violence or child abuse. There is a risk that the CPA may not intervene with sufficient zeal in serious cases for the sake of a differential response. It is important that agencies taking this kind of approach ensure that those cases involving serious violence and/or significant risk of lethality are treated appropriately, and that women do not feel pressured to reunite or withdraw charges for the sake of the children.
5. Concurrent Child Protection & Family Proceedings
Recognizing the complex dynamics of high-conflict cases
Where there are allegations of abuse or violence in the context separation that appear unfounded or significantly exaggerated, and especially if there are repeated unfounded allegations that the CPA has investigated, the CPA may become involved with a family due to the issue of emotional harm resulting from the conflict of the separation. In a high-conflict dispute between parents, the position of the CPA may evolve over time from support of one parent to support of the other, as the agency gains a better understanding of the dynamics of the case or as parental behaviour changes.Footnote 162 While this change in position is appropriate, it can be a cause for strain in agency relationships with parents.
In some high-conflict separation cases involving possible emotional harm but no substantiated evidence of intimate partner violence, the agency may not have a strong view as to which parent is better able to care for the child and the agency may decide to present little evidence at a child protection trial and leave it to parents to call most of the evidence.Footnote 163 In other cases, the CPA may have a view about which parent is a preferable caregiver, but leave the parents to resolve the issue in a family proceeding, content to allow its worker to be called as witnesses. Presumably, in these cases the agency believes that the threshold for finding that a child is suffering “emotional harm” or at risk of emotional harm has not been met. There may, however, also be cases in which the agency has serious concerns but for resource or other reasons is not bringing a child protection application.
Child protection agencies are being called upon more frequently to play a role in high-conflict separations, as the emotional well-being of children, and sometimes their physical safety, is often at risk in these cases. The CPA can have an important role in investigating allegations and providing services; like other agencies involved with high-conflict cases, in many situations its primary role will be to help the parents resolve their disagreements in a child-focussed manner. There will, however, also be cases where the agency should be playing an active role in family litigation.
Promising practices for family court judges and court staff:
Duty to report: Where family violence is alleged in family court proceedings, or when the case appears to be one of high conflict, judges and court staff should consider whether the duty to report to child protection authorities has been triggered. It may be helpful to create a protocol for reporting such cases, and for sharing information such as reasons for judgment, expert reports and/or evidence of violence.
Past history information: In those jurisdictions where disclosing to the family court information about prior child protection proceedings is not mandatory, it is helpful for judges hearing custody and access applications to inquire as to whether the family is or has been involved in child protection proceedings.
Case management: Some courts which do not impose case management in general will have case management for high-conflict family cases. This is a promising practice.
Educating parents regarding impact of conflict: Judges have a key role in dealing with high-conflict separation cases. While this can be in the traditional judicial role of “decision-maker” in a judgment after a trial, it is increasingly accepted that judges have an important role at case conferences and interim proceedings in persuading parents to focus on needs of children and educating them about the harm to their children from their conflict and violence. These judicial efforts to reduce conflict may be revealed in comments that the judge makes in a conference or even in a judgment, and may result in court orders for counselling. This judicial role is most effectively achieved if high-conflict cases are case managed by a single judge through the family justice process.
Firm response to high-conflict and family violence cases: While there is a growing emphasis on facilitating settlement of family cases, and on the whole this is a desirable trend, there is also a role for a firm, timely legal response to high-conflict cases, especially if there is alienating or violent behaviour. If parents believe there will be no effective legal response to such bad parental conduct as intimate partner violence or defying an access order, they may be more inclined to engage in such conduct, dispiriting the other parent and emotionally harming the children. Conversely if there are effective legal responses to bad parental conduct, parents may be more inclined to respect the terms of orders and promote the interests of their children.
Promising practices for lawyers for parents in family cases
Advising clients of impact of conduct on children: Lawyers for parents are advocates for their clients, but they also have a critical role in advising and educating parents about the effects of their behaviour on their children. The Rules of Professional Conduct of Ontario’s Law Society provide that counsel for a parent has an obligation to advise a parent about the effect of their conduct on their children:
In adversary proceedings that will likely affect the health, welfare, or security of a child, a lawyer should advise the client to take into account the best interests of the child, where this can be done without prejudicing the legitimate interests of the client.Footnote 164
This advisory role requires family lawyers to understand how children are affected by high-conflict separations and intimate partner violence. While not parenting experts, lawyers need to warn abusive parents of the effects that their conduct may be having on their children. In alienation cases, lawyers should also be advising clients that, absent proof of abuse, they are expected to support, not undermine, the child’s relationship to the other parent. It is often appropriate for a lawyer to point parents to various resources to improve their parenting or deal with the stress of separation, including making referrals to mental health professionals and agencies for advice and counselling.
Other advice to clients: Lawyers are ethically obliged to advise parents about the emotional and financial costs of litigation, and should generally encourage settlement and dispute resolution early in the process, although in intimate partner violence cases a settlement must always afford the victim and children adequate protection. Lawyers should advice parents not to involve their children in litigation by discussing proceedings or showing them documents prepared for court. Most clients respect their lawyers, and modify their behaviour according to the advice that they receive. There are cases in which lawyers may, after fair warning to the client, feel that they must withdraw from providing representation for a client who is consistently refusing to follow their advice and whose on-going conduct is potentially harmful to their children. There are some clients who do not appreciate the advice of their lawyers, and who seek representation by other counsel, or who choose instead to represent themselves. However, there are also cases in which the conduct of the other party requires a lawyer to take a strong adversarial position to protect both the interests of the client and of the children.
While the focus of this discussion has been on “good family lawyers,” it must be acknowledged that some lawyers who represent clients in family cases may not be performing their roles according to the highest standards of their profession, and may be doing their clients, and the children of their clients, a long term disservice by actually heightening the level of animosity between the parents, and prolonging litigation rather than helping to resolve it. Better education of family lawyers (addressed below) is important.
- Duty to report: Where a client advises their family lawyer of a history of violence, the lawyer should advise the client about the value of contacting the police or the CPA, and indeed may point to a parental duty to report in some situations. The lawyer should also consider whether he or she has a duty a report to the local CPA, or is at least permitted to do so. Because the duty to report does not apply where the report would result in a breach of solicitor-client privilege,Footnote 165 a report should only be made with permission of the client. Encouraging the client to report is clearly preferable than having the lawyer do this. Similarly, the client may reveal information during the course of the proceedings relevant to the risk to the child and/or victim parent; the lawyer may seek permission to disclose this information to the CPA, police and/or court where appropriate.
Specific practices for child protection agencies and other service providers:
Education: CPA staff need more training about the dynamics of high-conflict cases, their impact on children, the potential for violence in such cases, and effective responses to high-conflict families.
Protocols and policies: Protocols should be developed between child protection agencies and family courts, lawyers, children’s mental health and other service providers, to identify appropriate responses and information-sharing approaches in high-conflict cases.
High Conflict Forum: The High Conflict Forum in Toronto is comprised of child welfare agencies, children’s mental health centres, judges, lawyers, family counselling agencies, police and other service providers. Its goals include providing multi-disciplinary training to professionals in the identification of high-conflict families, identifying best practices to diffuse conflict and focus on the children, prevent emotional harm to children, promote the development of a network of professionals for consultation, and develop a collaborative service response for high-conflict families.Footnote 166 A similar forum was established in Ottawa in 2006. This is a promising practice that deserves evaluation.
6. Interdisciplinary Education
Education and training are essential to effective responses to cases involving intimate partner violence and high-conflict separations. Joint training of police and child protection workers, alongside joint training for Crown counsel and child protection counsel, will create connections between the agencies, ensure a shared understanding of the dynamics of family violence and effective responses to those families, and go a considerable way toward addressing the tension that exists between the two systems in many jurisdictions. A number of joint training initiatives have been developed by the Centre for Research and Education on Violence Against Women and Children and their partners in Ontario, for example.Footnote 167
Forums like the Critical Connections Forum in Ontario are useful means of exploring the agency-based innovations. A national event, similar to the 2009 Justice Canada Symposium on Family Violence, but focusing on cases involving child protection proceedings, can bring those innovations to a much broader audience.
Many of the professionals involved in high-conflict and intimate partner violence cases are independent professionals in private practice, albeit in regulated professions. It is important that providers of professional education for lawyers, social workers, psychologists and mediators offer adequate education and training to allow them to deal in an effective, interdisciplinary fashion with these challenging cases. Interdisciplinary organizations like the High Conflict Forums in Toronto and Ottawa, and the Association of Family & Conciliation Courts are starting to provide this type of education and improve communication between professional groups.
Judicial education on concurrent proceedings is an ongoing part of the curriculum of the National Judicial Institute, and options for avoiding conflicting orders and promoting effective multi-sector responses are identified in NJI’s publication, Problem-Solving in Canada’s Courtrooms: A Guide to Therapeutic Justice. We note that in a number of provinces, judicial interim releases are presided over by justices of the peace, who would also benefit from increased education in this challenging area.
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