Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems
Chapter 2 - Risk assessment
Individuals working with victims of family violence are often haunted by a fear that something horrible will happen to the survivors of the violence and/or their children. This chapter explores risk assessment tools employed to help identify and mitigate risk.
Case Study – Different systems may have information relevant to risk assessment
On July 31, 2007, a car driven by Peter Lee in Victoria, British Columbia, struck a telephone pole. His wife, Sunny Park was a passenger in the vehicle and was injured. The incident was investigated by the local police department, and while in hospital for her injuries Sunny Park alleged that Peter Lee had intentionally caused the accident.
When she was interviewed by the police, Sunny Park indicated that there had been a history of escalating family violence. She suggested that Peter Lee had intentionally caused the accident after she told him that she wanted a divorce. Peter Lee had previously indicated that he would kill her and himself if the relationship ended. She was fearful that he would harm, and possibly kill their son, Christian Lee, and her parents. Police provided Sunny Park with information about victim assistance and shelters; she indicated, however, that she wished to stay in her residence.
Peter Lee was held in police custody until August 2, 2007. Police recommended to Crown counsel that he be held in custody and not be released on bail due to fear for the safety of Sunny Park and her family; at the time of the car crash, Peter Lee was already on bail, having been charged with uttering threats and unlawful confinement against a non-family member. Charges of unlawfully causing bodily harm and dangerous driving causing bodily harm were approved; Peter Lee was released on bail with the consent of Crown Counsel with a recognizance of $5,000, and conditions including:
- To report to the bail supervisor on a regular basis. He was to notify the bail supervisor of a residential address and not to change that address without written permission;
- No direct or indirect communication with Sunny Park;
- Not to attend his family’s residence;
- Not to be in possession of knives; not to be in possession of firearms or other weapons as listed on the recognizance.
There were no conditions related to Christian Lee or to Sunny Park’s parents.
On August 3rd, the police contacted the Ministry of Children and Family Development (MCFD), and they became involved with the case. MCFD suggested to Sunny Park on more than one occasion that she have Christian’s name added to the criminal restraining order as a “no-contact” person. MCFD spoke to Sunny Park about a safety plan; she indicated, however, that she felt safe at home after changing the locks and alarm code. MCFD concluded that Christian was safe because his parents were not together and his mother was safe.
Until August 15th, Peter Lee was of “no-fixed address”; it was on this date that an address was provided to his bail supervisor. On August 15th, the bail condition of “no-contact” was amended to allow for contact through legal counsel.
Although Sunny Park advised police on a number of occasions that bail conditions had been breached, no action was taken. For example, she advised that Peter Lee had called her to speak to Christian.
The issue of access to the child came up on several occasions. For example, Crown counsel suggested to Sunny Park to seek the advice of a family law lawyer regarding custody and access of Christian. In addition, Peter Lee called MCFD about access to Christian and was told that he should seek legal counsel since custody and access matters were outside of their mandate. It appears that Peter Lee had also been trying to see Christian through another individual.
Sunny Park retained a family law lawyer, who advised her that although an application for a restraining order would be made, she would also need a safety plan and should not return to the family home, based on the lawyer’s assessment of the risks. Sunny Park’s family law lawyer believed that this was a very extreme case, and “told office staff of concerns that Peter Lee would not stop until he killed Sunny Park.”
On September 4, 2007, a 911 call was made from the home of Sunny Park. The police discovered the deceased bodies of Sunny Park, her parents, and the child. They had been killed by Peter Lee who then killed himself.
In relation to this case, the British Columbia Representative for Children and Youth noted that the criminal justice system, the child welfare system and the family justice system had different details about the case, but because they were working independently from one another, no one system was able to conduct a fully informed risk assessment or develop an appropriate safety plan.Footnote 75 For example, with respect to the family justice system, the Representative for Children and Youth noted that lawyers for victims of intimate partner violence have no clear path to participating in an overall safety plan.
2.1 Importance of risk assessment
The criminal justice system must strike an appropriate balance between protecting victims of family violence and ensuring that the rights of the accused are respected. This challenge is most at play at stages where the liberty of the accused/offender is at stake, such as bail, sentencing and parole.Footnote 76 The issue of family violence is most relevant in the family justice system in determining which custody and access outcomes will be in the best interests of the children involved, and in the child protection system determining whether the children have any need of child protection services. Where one parent poses a risk of violence to the other parent, the issue is whether giving the allegedly violent parent contact with the child poses a risk to the target parent. Also of concern is whether the fact that the one parent has been violent toward the other increases the risk that the children are in danger in the care of the violent parent. As noted in the case of Sunny Park, children may also be in danger when they are not in the care of the abusive parent. Unfortunately, these fears are based on the grim reality that in far too many cases of family violence, the violence has continued after justice system involvement, sometimes with lethal consequences. Indeed, in 2011 there were 89 intimate partner homicides in Canada.Footnote 77 Almost half of spousal homicide victims had a reported history of domestic violence (44%).Footnote 78 In the same year, there were 31 homicides of children by a family member.Footnote 79
Over the years, individuals working with victims and perpetrators of intimate partner violence, and their children, have come up with various ways of attempting to predict which victims were at the greatest risk of continuing violence or death, how to best reduce the chances of these undesirable outcomes, and how to make best use of limited personnel and resources. The appropriate level or type of intervention in a given case cannot be determined until a threat assessment or risk assessment has been made.
Different officials in the justice system may conduct various forms of risk assessment. Some assessments may be informal, sometimes through the use of a checklist, while others may be structured and based on a formalized evaluation system. It is important to keep in mind that there is no system-wide method for evaluating risk and while some jurisdictions may use very formal risk assessment tools, others may use more informal methods.
2.2 Terminology: “screening,” “threat assessment” and “risk assessment”
While the terms “screening,” “threat assessment” and “risk assessment” are often used interchangeably, they have different meanings. The first stage of assessment that a case of family violence will usually go through is a “screening”. Professor Linda C Neilson defines this term from the perspective of its use in the family law system, as follows: “screening refers to processes used to detect and identify the presence, type, frequency, pattern, timing, and severity of domestic and family violence. The ultimate purpose of screening is to match appropriate services, processes, and interventions to the type and level of abuse and violence.”Footnote 80
Moreover, the Politique québecoise d'intervention en matière de violence conjugaleFootnote 81 [translation: Quebec domestic violence intervention policy] and the Orientations gouvernementales en matière d’agression sexuellesFootnote 82 [translation: Government Guiding Principles on Sexual Abuse] indicate that screening consists of recognizing the indicators of these forms of violence and creating an atmosphere of trust that is likely to encourage victims to disclose their situation. Screening provides victims with the assistance they need and helps prevent the harmful effects of the assaults they have experienced from escalating.
Screenings are often done using prescribed forms that may not require highly specialized knowledge of family violence by the individuals using them, may be designed to collect other information unrelated to family violence, and may or may not be based on established risk indicators.Footnote 83 Many police services also use screening tools or checklists in responding to calls involving family violence, as these tools are less complex and easier to complete in the field than more formalized assessments. The information gathered through these checklists can then be used to determine if the situation appears to be high-risk, requiring more thorough and formalized risk assessment.
“Threat assessment” is a term most often used in the law enforcement community. It refers to the process of assessing the risk of violence that the suspect poses to the complainant and assessing the potential impact of contemplated types of intervention on the complainant’s safety.
The term “risk assessment” refers more specifically to a developing body of research and tools aimed at improving the ability of various professionals in the criminal and civil (forensic) justice systems to evaluate “individuals to (a) characterize the risk that they will commit acts of violence and (b) develop interventions to manage or reduce that risk ….”Footnote 84 The assessments generally require more training and resources to implement, and are often reserved for cases that are perceived to be of higher risk.
Assessment tools for one type of offence may not be applicable to another offence. Threat assessment should involve considering all available evidence, as well as all records of police action. It should take into account relevant research findings, such as the facts that the risk of physical harm to a victim fleeing domestic violence is highest during the first three months of separation, and that such violence often arises from long-term problems or a history of violence.Footnote 85
2.3 Purpose: what do risk assessments tell us?
Each case must be treated seriously until evidence indicates otherwise. It is crucial to keep in mind that threat and risk assessments are contextualFootnote 86 and only relevant for a specific period. Factors should be updated and re-evaluated as needed for subsequent decision making. Furthermore, although this process can help the parties make decisions, the absence of “identified risk markers” does not mean that violence will not occur.Footnote 87
Risk assessments are conducted within many sectors of the justice system, as well as outside the justice system. For example, they may be conducted by police, child protection officials, victim services workers, mediators, those conducting supervised access, parole and probation officers, and shelter workers. As a result, victims can be repeatedly called upon to respond to similar questions regarding their risk, which can be a source of frustration for them.
Once a risk assessment has been done, the information is used to manage any risk that has been uncovered. The four main activities of risk management are: monitoring, treatment, supervision, and victim safety planning.Footnote 88
2.3.1 Risk assessment of family violence or lethality
Several risk assessment and management tools are now being used across Canada. Justice Canada’s 2009 report, Inventory of Spousal Risk Assessment Tools Used in Canada,Footnote 89 lists these tools, as well as investigative protocols and checklists used across the country in situations of family violence.Footnote 90
Diligence should be exercised in choosing tools and protocols used to assess and manage the risk of family and related violence, since each tool has been developed to predict the likelihood of a certain outcome within a particular context. In fact, many of the tools used across Canada were developed specifically for use in cases of intimate partner violence. For example, the Spousal Assault Risk Assessment Guide (SARA) was designed to assess the risk of an individual being violent against a spouse. On the other hand, the Danger Assessment has two parts: the first is a tool to help raise the victim’s awareness of the degree of risk he or she faces; and the second “presents a weighted scoring system to count yes/no responses of risk factors associated with intimate partner homicide.”Footnote 91
Professor Neilson emphasizes the importance of considering the nature of the risk each tool was designed to predict:
[I]t is important to distinguish facts and characteristics associated with the onset of domestic violence, from facts that indicate the likelihood domestic violence will continue, from facts associated with the potential for lethal outcome. ... For example, research has revealed that depression and suicidal thoughts are associated with a potential for a lethal outcome but not necessarily with the likelihood of repetitive domestic violence; witnessing domestic violence as a child is associated with the likelihood a person will engage in at least one incident of domestic violence as an adult, but has not been identified as a good predictor of whether or not a particular person will continue to engage in domestic violence.Footnote 92
There is also great variation in the method each risk assessment tool uses to determine the level of risk. The most common types of risk assessments are based on: (1) Unstructured Clinical Decision Making; (2) Structured Clinical Judgment; and (3) Actuarial Approach. Other approaches of assessing risk of intimate partner violence include (4) Consulting the Victim; and (5) Using Risk Assessment Tools for General and Violent Offending.Footnote 93 With such variation in the approaches to risk assessment and the tools available,Footnote 94 professionals need to consider a number of factors when determining which tool to use in appropriate circumstances, including:
- The type of information available to the individuals doing the assessment (e.g. whether the information is provided by the victim or by the perpetrator).
- The specific professional qualifications required to use the tool.
- The population group targeted (e.g. the gender of the perpetrator and the victim, application to intimate or non-intimate relationship, cultural or ethnic groups and the type of outcome to assess or manage).
Caution: meaning of a" low risk of domestic violence" assessment
What does it mean when a witness testifies that a violator has scored 'low risk' on a recognized domestic violence risk assessment tool …? It means only that other people who have committed violent acts of domestic violence, who have similar attributes and who have faced similar circumstances, have tended not to engage in repetitive domestic violence. It also means that most people who engage in repetitive domestic violence have different attributes and circumstances. It is thus not an absolute finding. And, since risk is situational, it [sic] risk can change rapidly as circumstances change. A low score does not mean the same perpetrator will continue to have a low score if circumstances change. In addition, a low score does not rule out the possibility that a particular domestic violator has an unusual set of circumstances that are not measured by risk assessment tools. Risk and safety assessment should be periodic, not a one-time occurrence.
Moreover, in a family law context, since the risk assessment tools tend to focus on violent physical acts, as opposed to other forms of domestic violence, a low risk assessment may not offer much reassurance with respect to other forms of domestic violence, including forms of coercion associated with child abuse and poor parenting.
Excerpted from: Linda C Neilson, Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Criminal, Family, Child Protection) A Family Law, Domestic Violence Perspective (June 30 2012) at 56-7, online.
2.3.2 Risk assessment by responding police officers
The family violence risk assessment tools currently used in the field by responding police officers are less formal screening tools or specialized checklists. A formal risk assessment is typically only undertaken when front-line police officers have identified a case as possibly being high-risk based on the preliminary risk assessment.
For example, all police services in Alberta use the Family Violence Investigation Report (FVIR). The FVIR is not a risk assessment tool but is a mandatory report which must be completed when responding to matters related to family violence. The FVIR assists police officers by providing the questions that need to be asked to ensure that there is a complete investigation and risk factors are identified.
For some high-risk files or when police officers require a more specific assessment, police services in Alberta will consult with the Integrated Threat and Risk Assessment Centre (I-TRAC), a joint forces multidisciplinary unit that provides law enforcement and other criminal justice agencies with threat assessment services and proactive approaches to reduce acts of targeted violence within their communities (a more detailed description of I-TRAC is provided in subsection 2.7.2).
Likewise, some high-risk cases in Ontario are referred to the Threat Assessment Unit of the Ontario Provincial Police’s Behavioural Sciences and Analysis Section. Some Ontario municipal services have their own Threat Assessment Units, such as Peel Regional Police, York Regional Police and Durham Regional Police. The Threat Assessment Unit of the Ontario Provincial Police’s Behavioural Sciences and Analysis Section has trained those officers and works collaboratively with them, for example through case conferences. In other jurisdictions where dedicated units do not exist, high-risk cases are normally assigned to senior officers who have been trained in more formalized risk assessment tools.
In Quebec, work to incorporate the tool Prévenir l'homicide de la conjointe – Aide-mémoire [translation: Preventing domestic homicide of women – checklist] into the Guide de pratiques policièresFootnote 95 [translation: Guide to police practices] is ongoing. This tool enables police to more accurately describe the risks of homicide in cases of domestic violence.
2.3.3 Screening in family law settings
Various family law programs initially screen applicants for indicators of family violence. For example, as part of an initial needs determination process, a preliminary family violence screen is conducted with all clients who contact a family justice centre in British Columbia. Clients who are referred to a family justice counsellor for further information or dispute resolution services complete a comprehensive assessment which screens for family violence, child protection issues, mental health issues, drug and alcohol issues, and financial issues. This assessment is used to determine whether mediation is an appropriate dispute resolution process for a particular family, and to facilitate effective referrals that address the family’s needs. The comprehensive assessment process is also being used by family justice counsellors preparing court-ordered custody and access reports. In this context, the assessment screens for family violence issues and flags other issues that may impact the parties’ abilities to care for their children. In Manitoba, mediators and custody and access assessors who work in the Family Conciliation office within government do conduct screenings for family violence as do the lawyer and social worker teams who deliver comprehensive co-mediation. The tool most used by these service providers is the Tolman Screening Model.
Mediators who are accredited by mediation governing bodies, as well as those who mediate in court-annexed or publicly funded programs, are required to screen for family violence.Footnote 96 There are several screening tools available.
Some have also suggested that family law lawyers should be screening their clients for family violence. From the perspective of the family law lawyer and his or her client, screening is important for several reasons:
- To assist the client with developing a safety plan;
- To refer the client to appropriate resources and forms of dispute resolution;
- To assist in determining what (if any) relief should be requested from the court in respect of the family violence (e.g. restraining orders, custody and access (parenting) orders).
For the most part, family law lawyers in Canada are not required to screen their clients for family violence. In fact, it appears that most family law lawyers do not use a screening tool to assess whether their clients have been victims of family violence. There is, however, a promising practice in British Columbia, where the Family Law Act,Footnote 97 implemented in March 2013, requires all family dispute resolution professionals, including lawyers, mediators, parenting coordinators and arbitrators to screen for family violence to assess whether dispute resolution processes are appropriate and safe for the family.
The related regulations provide that, as part of the minimum training and practice standards they must meet, family mediators, parenting coordinators and family arbitrators must complete at least 14 hours of family violence training to learn to identify, screen for, and deal appropriately with family violence. The Law Society of British Columbia practice standards have a similar requirement for lawyers acting as family mediators, parenting coordinators and family arbitrators and the Law Society strongly recommends that all family lawyers take the family violence training.
This training must include training on identifying, assessing and managing family violence and power dynamics to ensure that the processes used are appropriate for the family’s circumstances. Professionals will learn how to screen for family violence so that they can determine whether or not dispute resolution processes can be used or adapted to account for safety concerns or power imbalances.
This is an area that is evolving rapidly. Many regulating bodies are providing a flexible approach to screening that can evolve with the field and be adapted to the needs of the various professions, while ensuring the professionals have the training needed to appropriately address the issue of family violence. For instance, the Law Society of Upper Canada provides voluntary free training on risk assessment in the context of family violence.
Quebec also has a guide to family mediation standardsFootnote 98 and a guide on supervised access services.Footnote 99 These guides include sections that raise stakeholder awareness about individuals living with domestic violence in order to adapt the intervention accordingly and to conduct ongoing risk assessments.
In addition, there are good examples of checklists that have been developed to assist family law lawyers in screening for family violence. For example:
- The Saskatchewan Practice Checklists developed by the Law Society of Saskatchewan includes a Family Law ChecklistFootnote 100 that provides lawyers with advice on the type of information that should be requested during interviews with clients. The issue of the physical safety and abuse of the client and children is included in the checklist. The checklist is considered to be a starting point only and family law practitioners are required to do further legal analysis based on the facts of the particular case.
- The Best Practices for Representing Clients in Family Violence Cases developed by Justice Canada.Footnote 101
- Is Your Client Safe? A Lawyer’s Guide to Family Violence by the Legal Services Society of British Columbia in collaboration with the Ending Violence Association of British Columbia.Footnote 102
Another promising practice with respect to screening relates to family arbitration in Ontario, which is regulated under the Arbitration Act, 1991.Footnote 103 Where a separating couple chooses to submit their legal issues to an arbitrator, each of the parties must be screened for family violence. The screener will assess whether there is anything standing in the way of a party’s full participation in family arbitration or whether any safeguard should be imposed (such as that the parties should not be alone together) before the arbitration begins. This report is provided to the arbitrator, who uses it to determine the appropriate process. While no specific screening tool is required, it has been suggested that the tools used in the context of family mediation could also be adapted to this context.
Finally, Australia has recently introduced its Detection of Overall Risk Screen (DOORS) framework for use across the family law system to detect risk to the well-being and safety of families. It was originally designed for former intimate partners who have or wish to have an ongoing parenting role after separation; a separate version now exists for clients who are not parents. The DOORS framework defines risk as “physical or psychological harm to self and other family members, and in the case of children, developmental harm.” The DOORS framework was designed for use by all professionals working within the Australian family justice system, such as lawyers, court staff and family dispute resolution practitioners. DOOR 1 is a risk assessment questionnaire to be completed by clients; this is followed by DOOR 2, which is a questionnaire completed by practitioners who follow up on areas of risk identified in the DOOR 1 questionnaire. DOOR 3 involves identifying resources to respond to the identified risk.Footnote 104
2.3.4 Risk assessment for children whose parents are experiencing intimate partner violence
The intimate partner violence risk assessment tools currently used in the criminal justice system in Canada generally measure the risk of continued violence or lethality to the female partner of a male abuser. As such, these tools should not be used to determine whether or not the children of the intimate partners being assessed are at risk themselves. There does not appear to be a family violence risk assessment tool that focuses solely on the risk to children within the context of criminal or family law at this time. Although intimate partner violence risk assessment tools do include indicators that are relevant to the safety of children, these indicators are not necessarily those that have been validated as indicators of whether or not the perpetrating parent presents a risk to the child. Therefore, when children are involved, intimate partner violence risk assessment tools are not appropriate on their own for determining whether the accused should have contact or communication with their children during criminal proceedings, nor should they be used “in a family law context to assess the safety of children, or to justify denial, reduction or delayed access to assistance or as a replacement for detailed consideration of factual evidence.”Footnote 105 Furthermore, the question of whether or not the child is at risk of physical violence, while an important consideration in determining if continued child-parent contact is in the best interests of the child, is not the sole consideration in the family law context.Footnote 106 Other psychological factors such as continuing trauma to the child and level of conflict between the parents are also relevant.
Although there does not appear to be any formal risk assessment tools used in the family justice system that measures risk to children, many provinces have custody and access assessors, such as in Saskatchewan, who use their clinical judgment in determining the needs of the child and the best parenting plan (including whether to have time with both parents). It is important to note Professor Neilson’s caution that children from homes where there is family violence require assessments from experts who are not only expert in the traditional areas of expertise, like child development, required by custody and access evaluators, but also in the dynamics and impacts of family violence. She notes that “professionals who evaluate child best interests in a child protection context or in a family law context may have appreciable expertise in connection with child development but may have limited understanding of how domestic violence affects adult parenting [of] children.”Footnote 107
The child protection authorities in five Canadian provincesFootnote 108 currently use a Structured Decision Making (SDM) Tool developed by the Wisconsin Children’s Research Centre in the United States. The SDM is an electronic case information and assessment tool, which assesses the risk of maltreatment to the child by his or her caregivers. If the parents are accused of or charged with violent criminal offences, they are assessed independently of one another. There are minor variations in the SDM used in each province since the tools are tailored to provincial legislation. Each index considers prior child abuse or neglect investigations. The abuse index also considers family violence in the household over the past year.
2.3.5 Risk assessment tools with diverse client populations
Challenges and cautions have been identified surrounding the use of risk assessment tools that have been designed and validated using populations that are primarily white and male with clients from diverse communities, including Aboriginal clients. These tools can have inherent biases that result in differential impacts on Aboriginal people, women, and members of other marginalized groups.
Specific examples of where bias can enter into risk assessment tools include: the assumption of universal applicability without accounting for age, race/ethnicity, class and gender; the selection of need/risk factors; and the focus on the individual to the exclusion of social, historical and situational context. In application, the attitude and skills of the assessor have an impact on the assessment, which also leaves the process open to bias.Footnote 109
For example, it has been argued that factors such as educational attainment, employment record, and substance abuse that are included in some tools are evidence of a middle-class perspective. In the case of Aboriginal peoples, responses to these factors record what is happening in communities (low educational attainment, high unemployment) rather than the characteristics or proclivities of individuals. Research has demonstrated that Aboriginal inmates in Canadian correctional facilities are disproportionately classified as high risk, based on actuarial assessments that do not take into account the unique needs and circumstances of Aboriginal offenders.Footnote 110
Similar issues are at play with risk assessment and safety planning tools conducted from the victim’s perspective. Approaches developed for the “mainstream” do not adequately address the circumstances of all clients. In Ontario, the unique circumstances of remote First Nation communities require distinct approaches to safety planning, the tools for which are currently lacking. For example, if there are no police on duty at night, a safety planning tool that assumes a police response will not work.
2.4 Risk management: how is the information used?
In keeping with the predominant goal of risk assessment, namely to prevent further violence or lethality, once a risk assessment has been done, the information is used to manage any risk that has been uncovered. The four main activities of risk management are: monitoring, treatment, supervision, and victim safety planning.Footnote 111
“Monitoring” refers to a form of continual, non-intrusive surveillance of how the perpetrator is doing in terms of the variable risk factors and is done in the way of continual assessment or reassessment of risk. This can include meetings with the perpetrator, and/or the victim and other key people who come into contact with the perpetrator (e.g. “therapists, correctional officers, family members, coworkers”).Footnote 112
“Treatment” involves a plan to rehabilitate the perpetrator’s variable risk factors that may be remedied through: “individual or group psychotherapy, psycho-educational programs designed to change attitudes toward violence; training programs designed to improve interpersonal, anger management, and vocational skills; psychoactive medications, such as antipsychotics or mood stabilizers; and chemical dependency programs. Another important form of treatment is the reduction of acute life stresses, such as physical illness, interpersonal conflict, unemployment, legal problems, and so forth.”Footnote 113
“Supervision” consists of the restrictions on an individual’s liberty in order to make it more difficult for the perpetrator to engage in further violence. The most extreme form of this is incarceration, or civil commitment in a mental health facility. Other forms of supervision generally involve “allowing the individual to reside in the community with restrictions on activity, movement, association, and communication”Footnote 114 through use of peace bonds, bail conditions, probation conditions or civil restraining orders. Screening tools, threat assessments and risk assessments are often used by police and prosecutors in determining whether or not to release an accused pending trial, and if so, what conditions would be most appropriate. Similarly, the same tools are also used in making recommendations in pre-sentencing reports for probation and conditional sentences, including treatment conditions. Risk assessments are used by correctional officials to “develop treatment plans and to determine suitability for various conditions.”Footnote 115 And lastly, risk assessments are used when offenders are released from custody in “setting conditions for release and developing treatment plans.”Footnote 116
“Victim safety” is the ultimate goal of risk assessment and management. Therefore, victim safety planning is a key component of risk management.
Victim safety planning involves improving the victim’s dynamic and static security resources, a process sometimes referred to as “target hardening.” The goal is to ensure that, if violence recurs—despite all monitoring, treatment, and supervision efforts—any negative impact on the victims’ psychological and physical well-being is minimized.Footnote 117
Victim safety planning is often done by victim service providers, either through police services or non-governmental services, including shelters. It is also done by police, probation and parole officers, family services, child protection services, and family justice officials, including family lawyers. Safety planning generally consists of providing the victim with information to increase their awareness of the risk they may be facing and steps they can take to minimize that risk.Footnote 118 This can also include planning for the safety of the children of the victim and perpetrator, including recommendations to assess risk to the children, and prohibiting or supervising contact between the children and the perpetrator until an assessment has been made regarding the children’s safety with the perpetrator.
2.5 Communicating risk
A critical issue relates to whether risk assessments should be and can be shared between the criminal and civil justice systems. Dr. Randy Kropp notes that:
Effective risk communication can and should prevent violence. Domestic violence fatality reviews tell us that in many cases of spousal homicide, many risk indicators were present and known but not necessarily documented or communicated to those who needed to know such as the victims, offender treatment providers, police, correctional agencies, and so forth.Footnote 119
The effectiveness of a risk assessment is dependent on the degree to which its conclusions and recommendations are communicated to the various individuals who will be interacting with and managing the cases of the perpetrator, victim and their children. It is also critical that the information used to perform the risk assessment is as accurate and complete as possible.
Dr. Randy Kropp offers the following guidelines in effectively communicating risk:Footnote 120
- Risk opinions must be supported clearly, concisely and with appropriate supporting evidence.
- Risk opinions should be communicated to the evaluee’s potential victims in order to properly inform them about the nature and severity of risk they may be facing, as well as to assist them in tailoring their safety planning.
- Risk opinions should be clear as to what they are and are not assessing, as well as stating any limitations of the assessment. For example, the opinion should state whether any particular information was missing, such as victim input.
- Risk assessments should be as specific as possible, for example where feasible, the opinion should “discuss the nature, frequency, severity, likelihood and imminence” of the predicted violence.
Risk opinions should state the qualifications of the assessor to conduct such an assessment, as they may assist those using the opinion in determining what kind of weight to give the opinion.
It cannot be emphasized enough that the safety of the targets of the violence and their children depends on the quality of the information used to inform the risk assessment tool, and the effectiveness with which resulting risk opinions are shared. The accuracy and validity of the opinion and the effectiveness of the risk management strategies can only benefit from sharing of information regarding risk indicators and coordination of individuals involved in managing the risk – including across various systems that a family experiencing violence may encounter, such as, criminal justice (including corrections), family justice, child protection, health care, social services, and child, youth and adult mental health.
2.6 What are the challenges/barriers to sharing risk assessments?
There are a number of challenges associated with effectively sharing information about risk across agencies and across disciplines. These often involve issues surrounding victim privacy, professional rules of conduct, confidentiality, as well as the fact that different assessment and screening tools are often used by different professionals due to the varied purposes for which the tools are needed.
When risk assessments are shared among justice system officials, the likelihood that the assessment will need to be disclosed to the perpetrator increases. In the criminal context, the accused can obtain disclosure of material in the possession of the prosecution and has some rights to access material in the possession of third parties. In the child protection system, similar Charter based disclosure requirements will apply (see subsection 6.1.2 for a more detailed analysis of this issue). The victim may be hesitant to provide full and accurate information as she or he may feel that when this information is disclosed to the perpetrator, it may provide them with additional information they were unaware of that could compromise the victim’s safety (e.g. the perpetrator may use retaliatory violence after learning the victim shared certain information).Footnote 121 Victims may also be hesitant to participate in the risk assessment process for the multitude of other reasons they are often reluctant to participate in the criminal justice system, such as fear that child protection may remove the children, or not wanting the perpetrator to lose his or her job.Footnote 122 This highlights the need for the individuals interviewing victims to be sensitive to the needs of victims and to build a relationship of respect and trust with them.
Professional confidentiality as well as privacy issues are often identified as challenges. For example, in British Columbia, pursuant to provisions in the Family Law Act,Footnote 123 risk assessment information collected by family justice counsellors is confidential, except for information regarding child protection concerns or a risk of serious harm. These provisions protect the confidential nature of the mediation process, while permitting the family justice counsellor to report any risk to children or serious risks to others. Also in British Columbia, the province’s judiciary records access policy restricts access to medical reports, victim impact statements, and pre-sentence reports to Crown counsel, accused, defence counsel, the victim and to Corrections officials who require access for preparation of pre-sentence reports or parole hearings, unless otherwise ordered by the court. Notwithstanding these challenges, British Columbia revised its Freedom of Information and Protection of Privacy ActFootnote 124 in 2011 to give public bodies the ability to authorize the collection, use and disclosure of information for the purpose of reducing the risk that an individual will be a victim of domestic violence, if domestic violence is reasonably likely to occur.
In Quebec, the Act to amend various legislative provisions as regards the disclosure of confidential information to protect individualsFootnote 125adds, particularly to legislation regarding professional associations and privacy, provisions that make it possible to communicate confidential information without the consent of the person concerned, in order to prevent an act of violence. For more information on privacy legislation see Chapter 7.
Another challenge that has been identified in some jurisdictions is the lack of a formalised process or mechanism to share information. For example, in some cases the sharing of information currently occurs on a case-by-case basis, and protocols may need to be developed to clarify issues such as the nature of the information sharing (i.e. what information is to be shared), who the information can be provided to and for what purposes.
2.7 Promising practices
2.7.1 High-risk case coordination protocol framework & protocol committees
After a domestic violence related murder-suicide in Nova Scotia in early 2000, the government of Nova Scotia undertook a review of its Framework for Action against Family Violence, which is a set of integrated policies and procedures for responding to family violence that had been in place since the mid-nineties. The reviewFootnote 126 made several recommendations for improved response to family violence including improved communications between justice and community partners and service providers in cases that were high-risk with the goal of improving case coordination and effective planning to reduce the dangers.
Based on the recommendations and working with community and justice stakeholders, the High Risk Coordination Protocol Framework was developed and signed in 2004. Six “primary service providers” were identified for the purpose of critical information sharing – police and police-based domestic violence case coordinators, victim services, corrections, child protection, Transition House Association of Nova Scotia member agencies (shelters for assaulted women and their children) and men’s intervention programs.
Risk assessment used in the identification of cases best suited for coordination has changed over the years as research and availability of tools has grown. Nova Scotia adopted the Ontario Domestic Assault Risk Assessment (ODARA) tool for all of its police agencies in 2008. Those cases that score in the highest range for risk of another violent offence are designated as high-risk for the purposes of proactive referral and case coordination. The Jacqueline Campbell Danger Assessment continues to be used by direct-service agencies such as transition houses, men’s intervention programs and victim services. Cases that register as highest risk using the Danger Assessment may also be designated for case coordination. In cases where no risk assessment tool is available or suitable, police may designate a case as high-risk if they can articulate their reasons for doing so.
Critical information is defined in the High Risk Case Coordination Protocol Framework and is based on risk factors associated with domestic violence (such as separation or renewed contact between victim/perpetrator) or information required for improved safety planning (release conditions, etc).
Because local information sharing and case coordination were seen as critical to the success of the Protocol, a Protocol Committee was formed of the primary service providers in each of the 18 counties in Nova Scotia. Each Protocol Committee was tasked with the development of a set of local procedures that would help them share critical information. Since their initial work, some Protocol Committees have merged with each other as it makes most sense in their areas. These Protocol Committees have become places to foster expertise on the issue of domestic violence within their regions. They are a critical connection to direct service providers and are valuable for the development and dissemination of new policies, programs and research on the issue of domestic violence.
Other provinces have established similar protocol frameworks. For example, in the 2010 revisions to British Columbia’s Violence Against Women in Relationships (VAWIR) Policy,Footnote 127 a Protocol for Highest Risk CasesFootnote 128 was established with a stated intent of enhancing the justice and child welfare system response to highest risk domestic violence cases through heightened information sharing, comprehensive and collaborative safety planning and risk mitigation strategies.
It should be noted, however, that most often, committees with a mandate to coordinate and manage individual high-risk cases, do not have a representative from the family justice system. Given that there is no state party involved in family law matters, the question of who should participate on such a committee is a difficult one. In light of the comments by British Columbia’s Representative for Children and Youth on the need for more coordination with the family justice system in terms of safety planning, this issue is an ongoing challenge.
Where coordinating committees are dealing with systemic issues as opposed to individual cases, attempts are being made to integrate the family justice system. For instance, in Alberta, the Family Violence Police Advisory Committee has recognized the need for input from the family justice system and will be extending the invitation for representation at this table. This is discussed further in Annex 4, Volume II.
2.7.2 Integrated threat and risk assessment centres
For high-risk files or when members require a more specific assessment in Alberta, they will often consult with the Integrated Threat and Risk Assessment Centre (I-TRAC). I-TRAC is a joint forces multidisciplinary unit that provides law enforcement and other criminal justice agencies with threat assessment services and proactive approaches to reduce acts of targeted violence within their communities. I-TRAC services include: assessing the level of risk an individual may pose to commit an act of targeted violence, providing case management strategies, training, safety planning, and expert testimony, and facilitating access to external agencies including mental health, specialized law enforcement, and other criminal justice units.
I-TRAC is one of many integrated units found under the Alberta Law Enforcement Response Teams (ALERT), and was established by the Alberta Government in 2007 to address threats posed in violent, high-risk relationships and stalking situations – including homicide and suicide. Domestic violence, criminal harassment and stalking remain I-TRAC's primary focus; however, I-TRAC has expanded its mandate by responding to various threats and acts of targeted violence, including workplace violence, school violence, and sexual violence.
All I-TRAC threat assessors are currently or recently retired police officers with extensive criminal investigative and support experience where duties were specifically dedicated to the investigation of violent and other benchmark crimes. Before becoming threat assessors, candidates go through an understudy period of 18 months. Understudy candidates are assigned a mentor who oversees their progress throughout this period. During this time, candidates attend various training sessions, complete mandatory home studies and reading as well as complete tests and live files. At the end of the understudy period, the candidate is required to successfully complete an oral and written examination in front of a panel as well as accurately complete a test case which demonstrates their knowledge and understanding of the concepts and theories utilized within I-TRAC.
I-TRAC reports may be distributed to the following areas and cannot be disseminated further, without the express written consent of I-TRAC: police, Crown prosecutors, Human Services, Probation (Alberta Justice and Solicitor General), Parole (Correctional Service of Canada), and court-ordered mental health professionals.
I-TRAC reports are used for criminal court proceedings in respect of judicial interim release (show cause/bail) hearingsFootnote 129 and sentencing.Footnote 130 In civil and family court applications, I-TRAC reports are used in respect of child protection guardianship hearings under the Child, Youth and Family Enhancement Act,Footnote 131 emergency protection order applications and reviews under the Protection Against Family Violence ActFootnote 132 and child custody and access hearings under the Family Law ActFootnote 133.
All civil or family court applications require the personal attendance of the I-TRAC threat assessor in court by way of subpoena. Counsel for Children and Youth Services may be exempt from this requirement. Overall, I-TRAC threat assessment reports have been very well received by the courts. Sometimes the threat assessor testifies and other times, the report is read or provided to the court for bail and child protection matters.
2.7.3 Domestic violence death review committees
The death review process was developed in response to recommendations made at public inquests on cases of homicides, where a victim had been killed by an intimate (or former intimate) partner. The Ontario domestic homicide review process builds on the efforts of several jurisdictions in the United States who have developed domestic homicide review committees that seek to address the issue of community and agency coordination, collaboration and communication.Footnote 134
The Ontario Domestic Violence Death Review Committee (DVDRC) was established in 2003 by the Office of the Chief Coroner of Ontario in response to recommendations from two major inquests into the domestic homicides of Arlene May and Gillian Hadley. One of the purposes of the domestic violence death review committee is to identify risk factors to help predict potential lethality and to create recommendations aimed at preventing deaths in similar circumstances. These annual reviews have highlighted the need for more consistent approaches to domestic violence risk assessment and management skills in the justice and community support systems.Footnote 135
A central theme emerges in domestic violence death review committees’ findings: effective risk communication can prevent violence. As is too often observed, the failure to properly share information among the criminal justice system, the child protection system and the family justice system hampers the ability to conduct a fully informed risk assessment. When legal system service providers work collaboratively, risk can be identified more effectively, which can ensure the development of a risk-appropriate safety plan, thus preventing lethal consequences.
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