Emotional harm and neglect: the legal response

This paper reports on a study of the extent to which child protection applications brought to the Melbourne Children's Court in Victoria, Australia, were based on emotional/psychological harm or neglect of a child and what factors were presented as evidence of harm or neglect. The study examined records of 208 court‐ordered pre‐trial conferences heard in the court between February and July 2002. What was found was that, although cases involving emotional abuse have increased in terms of child protection applications, they remain cases that are difficult to decide. While in 1998/9 emotional harm was a ground in 25.7% of child protection matters completed in the Family Division of the Children's Court of Victoria, legal decision‐makers are reluctant to make a finding of child abuse in these cases because there is less accuracy in the determination of emotional harm and negligible legal criteria available to guide decision‐making. Copyright © 2006 John Wiley & Sons, Ltd.     

Can't hear or won't hear? — the evidential experience of children with disabilities

Twin brothers aged 12 attended a special needs boarding school which had provision for children with emotional disturbances and other disabilities. While they were at home during the holidays, their mother overheard a conversation between them which led her to suspect abuse. She asked them several questions and decided to contact the police. An investigation began which also included interviewing several other boys, some of whom had been removed from the twins' school and were attending a school elsewhere. The evidence obtained from a number of the boys was considered to be strong enough for the Crown Prosecution Service to take the case forward. Almost a year after the mother's initial referral the committal hearing took place. Lobbying from a local voluntary organization resulted in screens being used in the courtroom which would otherwise not have been provided. The case was heard and transferred to the Crown Court for trial. The magistrate in the committal hearing made clear recommendations that the children's disabilities and the delay there had already been in bringing the case to court should determine that the subsequent trial needed to take place as soon as possible. However, more delays ensued and the final date was established almost a year later. The children each spent between 2 and 6 hours in the witness-box. The defence counsel frequently focused on their disabilities in questioning the validity of their evidence. The twins were expecting to give evidence by video-link, but the delays meant they were considered too old to be ‘vulnerable’ witnesses and had to speak in open court. The first twin's evidence was not completed in one day and the mother was told that she could not talk to either of them about the case, nor could they stay together that night. She was told that she had to choose which of her distressed sons to take home and that she had to make alternative arrangements for the other child. She was given no support in making the decision. In addition to this distress, during the day she had witnessed the defence counsel's attitude to her son, who had severe hearing difficulties. The defence counsel had laughed at the child's difficulty in hearing and said, ‘Can't hear or is it that you don't want to answer?’ One of the other children was humiliated by the defence counsel saying, ‘Who would want a smelly, shitty boy on their lap, no-one hugs smelly, shitty boys like you?’. The child was giving evidence on video-link and became so upset he was ‘switched off’ so that he was no longer visible to the court. Another child had epilepsy and counsel argued that he could not put questions to the child in case the child had a fit. In addition, an ‘expert’ witness who had seen some of the children 5 years previously stated categorically that ‘these children are born liars’. The outcome of this trial was that the headmaster was found guilty on several counts and received an 18-month prison sentence.     

Child Sexual Abuse Cases: Implementing a Specialist Judicial List

The damage done to children who are subjected to sexual abuse and the often lengthy delays in the resolution of these matters by the child welfare and legal systems is well documented. With this in mind, the Children's Court in Victoria established for 12 months in 2013 a pilot specialised judicial list (the “D” List) as an intensive case-management approach to more effectively respond to child sexual abuse concerns. The evaluation of the pilot aimed both to review the effectiveness of the list in terms of court functioning, and to provide information about the nature of such cases coming to court, the ages and family circumstances of subject children, decisions made and factors associated with these decisions, and the challenges related to management of and decision-making about such cases. The success of the specialist list has seen it extended to regional courts, because it is a more effective approach to managing and deciding this complex class of cases.     

If Your Worship pleases: an Australian perspective on the role of the magistrate in child protection

This paper examines the hitherto unexplored role of magistrates in child protection. It reports on a series of interviews conducted by one of the authors with magistrates in the Family Division of the Melbourne Children's Court, Victoria (Australia) in 1993–1994. These interviews form part of a current, and larger, study of magistrates' decision-making in child protection. This paper critically examines the role of magistrates in planning for children in need of care and protection. Some of the questions that the paper poses include: do magistrates focus solely on judicial aspects or do they have a role in overall case planning for children? Do they have specific aims or objectives which influence how they deal with children who come before them? Do magistrates mostly agree with the recommendations which social workers put to them? Are magistrates subject to constraints which may not be understood by other professionals? The findings of the paper will assist in clearly defining the role of the magistrate in child protection, which has distinct advantages for all professionals who work in this complex area. The most appropriate outcomes for children can only be achieved when magistrates and other professionals work in partnership. © 1998 John Wiley & Sons, Ltd.     

The Attitude of the Shari'a Courts to Parental Alienation Syndrome: Understanding the Dynamics of the Syndrome in Arab Society

In addition to the many factors leading to parental alienation syndrome (PAS), including the narcissistic injury felt by the abandoned parent, or the custodial parent's personal difficulty, there are further factors unique to Arab society—including strong influence by the extended family on the child. Although all the components of PAS exist and are well known to the shari'a courts, no parallel concept is found in the Arab legal lexicon. This article presents 1 case of a shari'a court hearing that illustrates this phenomenon. The conclusions indicate that the shari'a court considers this a serious phenomenon and sees coping with the situation as an essential and preliminary condition to the custody hearing.     

Parental Imprisonment and Child Protection: A Study of Children Presented to the Melbourne Children's Court

Abstract

This paper reports on a study funded by the Criminology Research Council, Australia, which set out to investigate the intersection between the child protection and criminal justice systems and the extent to which children before the Melbourne Children's Court on child protection matters had a parent currently in prison, awaiting sentencing, or previously in prison. Magistrates identified 156 children as meeting these criteria during the study period June to December, 2006. Analysis of court records gathered quantitative and qualitative data about parents' offending, why the children had been brought to the attention of the court, and the health, welfare, and behavioural concerns the child protection service expressed about the children. There was no coordinated response by the child protection and justice systems to managing these children's situations. Early intervention and the development of child protection service protocols with the corrections system for children whose parents enter prison is essential, to better address the instability and disruption in care these children experience.     

Child Sexual Abuse Intervention: An Exploratory Study of Policy Concerns and Implications for Program Development

ABSTRACT

This exploratory study was designed to determine public opinion regarding intervention options for intrafamilial child sexual abuse offenders, victims, and families. The study investigated the public's willingness to support strategies of victim protection, offender control, and treatment services in various types of child sexual abuse intervention strategies. The respondents to the statewide survey generally supported established, adversarial intervention strategies, and had mixed reactions lo several of the diversion program strategies. The findings suggest that policy makers may have to compromise lo obtain public support when designing and implementing intervention programs for intrafamilial child sexual abuse. The article addresses policy issues and concludes with implications for program development.     

Abusers gaining custody in family courts: A case series of over turned decisions

Abstract

This article presents findings and recommendations based on an in-depth examination of records from 27 custody cases from across the United States. The goal of this case series was to determine why family courts may place children with a parent that the child alleges abused them rather than with the nonoffending parent. We focused on “turned around cases” involving allegations of child abuse that were at first viewed as false and later judged to be valid. The average time a child spent in the court ordered custody of an abusive parent was 3.2?years. In all cases we uncovered the father was the abusive parent and the mother sought to protect their child. Results revealed that initially courts were highly suspicious of mothers' motives for being concerned with abuse. These mothers were often treated poorly and two-thirds of the mothers were pathologized by the court for advocating for the safety of their children. Judges who initially ordered children into custody or visitation with abusive parents relied mainly on reports by custody evaluators and guardians ad litem who mistakenly accused mothers of attempting to alienate their children from the father or having coached the child to falsely report abuse. As a result, 59% of perpetrators were given sole custody and the rest were given joint custody or unsupervised visitation. After failing to be protected in the first custody determination, 88% of children reported new incidents of abuse. The abuse often became increasingly severe and the children's mental and physical health frequently deteriorated. The main reason that cases turned around was because protective parents were able to present compelling evidence of the abuse and back the evidence up with reports by mental health professionals who had specific expertise in child abuse rather than merely custody assessment.     

Exploring Three Functions in Child Custody Evaluation for the Relocation Case: Prediction,Investigation, and Making Recommendations for a Long-Distance Parenting Plan

SUMMARY

The psycho-legal dilemmas posed by child custody relocation cases are discussed in terms of the four decisional alternatives facing the court and evaluator. Different legal contexts for relocation are reviewed in terms of their implications for the custody evaluation. Complexities involved in the evaluator's function of making predictions for the court are presented. The need to conduct careful investigation on both risk and pragmatic factors is highlighted by case illustrations. The obstacles of crafting of long distance parenting plans that will be in the best interests of the child are presented as governed by the goal of harm mitigation.     

Are Children Protected in the Family Court? A Perspective from Western Australia

Despite a landmark High Court judgement in the area of child sexual abuse allegations (M and M, 1988), a major concern in such cases seems to be the fear that mothers use false accusations against fathers as ‘weapons’ in custody and contact cases. This paper seeks to examine the validity of such views as they apply to Western Australia. In particular, it examines the belief that false accusations are rampant; the questionable nature of ‘parental alienation syndrome’, the belief that young children's accounts of abuse lack credibility, and the ignoring of the effect of abuse itself on the nature of a child's testimony. The paper argues that the principle of ‘protection of the child's best interests’ should not necessarily be equated with the child having access, even supervised access, with a parent previously accused of having abused the child.     

Child maltreatment victims' attitudes about appearing in dependency and criminal courts

In the present study, we investigated the attitudes of maltreated children involved in court hearings. Specifically, this pilot research examined whether type of abuse (sexual vs. physical vs. neglect), type of court (dependency vs. criminal), and child and abuse characteristics predicted child victims' feelings about seeing defendants in court and answering questions in the courtroom. Data were collected from interviews with the children and from their court files. Results indicated that greater negativity about seeing defendants in the courtroom was significantly predicted by testifying as a sexual abuse victim in criminal court and by being female regardless of court system, whereas greater positivity about seeing defendants in the courtroom was predicted by appearing in dependency court hearings as a physical abuse victim. In addition, greater severity of maltreatment and older age of the children were significantly associated with greater negativity about answering questions in court. Implications for future research are discussed.     

What Happens When There Is Presumptive 50/50 Parenting Time? An Evaluation of Arizona’s New Child Custody Statute

ABSTRACT

The current study presents the findings of an evaluation of Arizona’s 2013 revisions to the child custody statutes that directed courts to “maximize” the child’s parenting time with both parents. A state-wide survey of the four family law professions (i.e., conciliation court staff, judges, mental health providers, and attorneys) assessed their perceptions of the law 4 years after implementation. We averaged the ratings across the four professions to obtain a comprehensive perspective that gave equal weight to each profession. Results revealed that the law functions as a rebuttable presumption of equal parenting time; that it is evaluated positively overall and in terms of children’s best interests; that it is has a neutral impact on legal and interparental conflict; and that it has led to small increases in allegations of domestic violence, child abuse, and substance abuse.     

Collateral Damage: The Lived Experiences of Divorced Mothers Without Custody

This qualitative study utilizing narrative analysis and grounded theory examines the history and experiences of 14 Canadian women who have lost custody of their children within a legal divorce process. Each woman's storied experience focused on themes of attachment and loss associated with involuntary child absence, legal abuse within the adversarial system, and judgment based on nonconformity to a motherhood ideal; physical violence and emotional abuse in the family system; access denial and parental alienation; stigma and lack of support services; and serious financial losses. Women's perceptions of their children's needs in the divorce process, mothers' responsibilities in relation to those needs, and the responsibility of social institutions to support mothers as parents were also examined. The study sought mothers' views about needed changes to the legal framework of child custody determination and other priorities. Implications for socio-legal policy are discussed, including a consideration of a rebuttable legal shared parental responsibility presumption as facilitating the most salutary postdivorce outcomes for women and children, as are guidelines for direct service provision.     

Shouting from the Bottom of the Well The Impact of International Trials for Wartime Rape on Women's Agency

This article critically examines the presumption that international adjudication of wartime rape cases advances the interests of survivors. It argues that just as national women's rights advocates recognize the futility of relying on court testimony alone for the production of a narrative that reflects women's experiences, promotes their agency and addresses their need for closure and healing, international women's rights advocates should explore the limitations of international tribunals and examine complementary and alternative mechanisms. Using the landmark "Foca case' as an illustration, the author explains that although women may still exercise agency in the context of the adversarial process, their ability to do so is stunted. Moreover, I argue that, although witnesses may actively resist the legal meta-narrative of Woman Victim, adversarial processes serve to reinforce gender essentialism and cultural essentialism. This analysis has important implications for women human rights advocates seeking to bring cases before all international courts, including the permanent International Criminal Court.     

Examining hearing quality in child abuse and neglect cases: The relationship between breadth of discussion and case outcomes

Child abuse and neglect court hearings are complex, multifaceted, and necessary for judicial oversight to ensure safe, timely permanency for youth and families involved in the system. While best practices have been suggested, little research has been conducted to examine what the critical components of a “high quality” dependency court hearing are, and, more importantly how these factors might be related to improved outcomes for children and families. The current study explores the relationship between breadth of discussion at the first hearing on the case and subsequent case decisions and outcomes. Findings suggest a positive relationship between breadth of discussion at the initial hearing and a higher likelihood of relative or parent placements compared to foster care placements, increased presence of parents throughout the life of the case, and higher likelihood of case closure and reunification. The study is limited by a small sample size and focus on one of many court hearings; however, it does provide empirical support that the quality of the court hearing may be related to better outcomes for families.     

Alternative Dispute Resolution in Child Protection Matters: The Victorian Experience

Abstract

Pre-hearing conferences were introduced in 1992 into the Family Division of the Children's Court, Victoria. Pre-hearing conferences take place when there is a dispute between the Child Protection Service and the child's family about the need for statutory intervention in their family's life. The conference is held prior to any formal hearing so that the family, their legal representatives and the welfare authority can see whether they can negotiate an agreement about a child protection order. The present paper sets out the findings of a study of 208 pre-hearing conferences held in the Melbourne Children's Court from February to July 2002. The study found that the quality of legal advice provided to parents significantly affected the outcome of pre-hearing conferences. Legal representatives varied in their willingness to step aside from the adversarial approach and give priority to discussion about child welfare concerns. It was apparent that professionals coming to the pre-hearings, both legal and welfare, had different expectations of these forums. It is imperative that if pre-hearings are to succeed, then their role and place in the child protection legal process is clearly explicated and professionals receive training in alternative dispute resolution.     

Parental substance misuse and compliance as factors determining child removal: A sample from the Victorian Children's Court in Australia

Purpose

The current study explores the role of parental substance misuse in child protection cases and examines its impact as a factor in decisions on child removal in court orders.

Methods

A cohort of 273 child protection cases from the Victorian Children's Court was reviewed. This sample consisted of cases where children have been removed (Custody to Secretary Order, n = 142 cases) or remained with parents (Supervision Order, n = 131 cases). Data was extracted on parental substance misuse in single and two parent households as well as compliance with court-based and child protection directives.

Principle results

Parental substance misuse (PSM) was present in 51% of child protection cases sampled and among those, poly-substance abuse was common (67%). PSM was associated with Indigenous status; younger age of child at court appearance; having a court-proven case of emotional abuse, less compliance with child protection services and a longer time between notification to authorities and final court decision. In one parent households, only parental compliance is the primary factor underlying decisions of child removal. In two parent households, the decision to remove a child from the family home was ultimately driven by parental compliance, and to a lesser extent by PSM of illicit drugs and the number of parents misusing drugs.

Conclusion

PSM and non-compliance appear to be significant factors in delaying stability for the child through the granting of court orders which may involve child removal. There is a need, by child protection professionals, for prompt recognition of PSM and associated compliance/engagement issues in order to refer appropriate cases for further assessment and treatment in specialist drug treatment services. Early involvement with specialist drug treatment services provides the Court with an indication of compliance which is an important factor for making decisions that assist with achieving stability for the child.     

Teachers' Training Needs in the Area of Child Abuse and Protection

SUMMARY: In issue 5(2), Robert Webster outlined the issues in school-based child sexual abuse prevention. He argued that teachers were not being given the training they needed and wanted. This paper reports on a survey in one county of England, and shows the lack of training in child sexual abuse matters to be consistent with Robert Webster's experience. The authors go on to outline the types of training demanded by the vast majority of teachers.     

Child sexual abuse suspicions: treatment considerations during investigation

This article addresses what, if any, psychotherapeutic interventions should be provided to meet the emotional and clinical needs of alleged child victims of sexual abuse while they await judicial determinations from the family, dependency, or criminal courts. The discussion emphasizes that to minimize iatrogenic outcomes, professionals involved in sexual abuse allegation cases should carefully establish and maintain professional role boundaries and take on only one role in a case. Professional roles may include an investigative forensic interviewer, court appointed forensic evaluator, and therapist. Special attention is given to complex issues that arise in child custody cases with allegations of child sexual abuse in family court.