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PROGRESS REPORT ON... children exposed to family violence

Margaret Jackson

Professor of Criminology, SFU

In the last five years in Canada, significant advances in the area of child custody and access in the context of violence have resulted from the increased focus given more generally to issues of violence against women and children. While "domestic violence research" came to prominence even earlier in the decade, it has only been in the last five years or so that research and knowledge has come to specialize in the examination of particular locations of that violence and the interrelations between violence against women and violence against children.

Custody and access concerns in the context of violence were first profiled through court cases in which the primary issue at hand was the physical and/or emotional abuse of the spouse. However, it became clear that there was often a direct link to the physical and/or emotional abuse of the child over whom the custody and access question was being determined.

Interest in these parameters of the problem has generated a number of research questions. Some pressing ones in the area are:

1) How is the determination of the "best interests of the child" made in these situations? It is clear that the Divorce Act can skew the assessment through the application of s. 16(9) in which the past conduct of any person is not to be taken into consideration unless the conduct is relevant to the parenting competency of that individual. Thus, unless there has been a conviction for child abuse, it is not evident that a present allegation of child abuse would get weighted in the decision making. There is now model legislation existing elsewhere, for example in the U.S. and New Zealand, in which the past behavior of the parents of this nature must be taken into account in such situations.

2) How valid and reliable are the risk assessment instruments which are used to make the assessments of risk of future harm to the child and risk of dissolution of the family? The BC Ministry for Children and Families currently employs a risk assessment approach which some argue is counter-intuitive to the kind of training social workers traditionally receive, but for which, in any event, adequate training appears problematic.

3) How can the dilemmas of mothers in these cases be resolved? That is, it has been shown that if a mother raises safety concerns for her child but is unable to satisfactorily prove them, she "risks" being thought manipulative or punishing; whereas, if she does not report suspected abuse, she "risks" not only the child's well-being, but possible charges of conspiring to harm the child.

4) How do fathers' rights get fairly determined in these cases? For many years there was the belief that fathers are regularly denied access to their children in conflicted custody and access cases. Some research suggests this may not be true, but further study on the actual outcome of court decisions would help clarify the reality.

In conclusion, future research on the above questions would be useful to make meaning of the issues. The findings should promote both consistent and informed policy and procedure; but the first question to be addressed is the policy one - whose rights and best interests should have priority in these conflicted cases of custody and access in the context of violence, the child's or the parents'?