Spousal abuse, children and the legal system final report for Canadian Bar Association, Law for the Futures Fund
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2001
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Abstract
Despite years of professional, academic, public education and discussion about family abuse and its dangers for women and children, little seems to have changed for the better in the legal system, in practice. Indeed the weight of the evidence suggests that the dangers for children are increasing with increasing politicisation of rights claims associated with parenting. While, theoretically, reported cases suggest increasing awareness among at least some judges of partner abuse and the implications for children, closer examination reveals that such understandings are not always mirrored in legal praxis. We found limited, albeit some, evidence of gender bias or discrimination in child custody and access cases and much evidence that responsible parenting during access visits is more an exception than a rule in partner abuse cases. Custodial parents are reporting that their children are being harmed by contact orders and agreements; they ask for a mechanism to protect their children, and the children of others, from further harm.
In connection with partner abuse generally, we found some evidence of false or exaggerated claim in isolated cases but little evidence to support the notion that exaggerated or false claims of partner abuse are common in child custody and access cases. Interview data - about patterns and details of partner abuse in former relationships - were consistent in their entirety with allegations and statements about partner abuse found in court files. And reported cases, court files and lawyers all disclosed lower rates of claims of partner abuse by separating and divorcing couples than researchers report for the same population.
In terms of legal assessments of abuse, reported cases, court files, lawyers and clients all indicate conceptualisations of abuse that focus on action and intention with incomplete analysis of social context. Although assessments of social context do not preclude the experiences of abused men, failure to assess context (history of the dynamics of the relationship, including the patterns and severity of prior abusive behaviors and the psychological and physical consequences to the recipient) will commonly produce false interpretations and assessments - in favor of abusive partners. This issue is particularly important in light of another finding: that survivors of long-term abuse commonly report incidents of their own violence at the point they decide to separate from abusive partners.
All data sources indicate limited understandings, within the legal system, of the dynamics and implications, especially for children, of partner abuse. While, theoretically, experts are able to advise lawyers and judges about these matters, the involvement of experts in partner abuse cases is rare and indeed financial information in court files indicates that most families involved in such cases do not have the resources necessary to hire experts.