ALLEGATIONS OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION: A DISCUSSION PAPER
Strong concerns were raised during the public hearings of the Special Joint Committee on Child Custody and Access about deliberately false allegations being a substantial and growing problem. Some witnesses suggested that false allegations are being used as a tactical weapon by a large number of family law litigants and warned that it was becoming a practice condoned and sometimes even encouraged by some women's shelters, child welfare workers, and lawyers. This chapter examines more closely the issue of false allegations of abuse in the context of parental separation. It includes a summary of the research literature in this area; relevant findings from the Ontario Incidence Study (OIS) of Reported Child Abuse and Neglect, and also a review of Canadian case law. It should be emphasized that, as noted in Section 1.0, it is important to distinguish between intentionally false allegations and other types of unfounded or undetermined allegations.
The information in this chapter is particularly relevant to question 2 in Section 1.0: what are the nature and extent of allegations of child abuse in the context of custody and access disputes?
Child abuse, particularly child sexual abuse, was identified by child protection workers and mental health professionals as a serious problem by the mid-1970s. Professional and public awareness of the problem increased as the federal government sponsored various initiatives designed to address the problem (Hornick & Paetsch, 1995). In the mid-1980s, however, newspapers in Canada and the United States began to publish reports claiming that mothers were falsely accusing fathers of child abuse during custody disputes (Bonokoski, 1986; Jones, 1986; Dullea, 1987; Zweig, 1987). Influential writings by Gardner (1987), Green (1986), and Benedek and Schetky (1985) argued that false allegations of abuse in the context of parental separation are a serious, widespread problem. The limited research on the extent of false allegations of child abuse is summarized in Table 1 and discussed below.
Gardner (1987), an American child psychiatrist, claimed that the vast majority of children who said they had been sexually abused by a parent following separation were brainwashed and programmed by their vindictive and hostile former spouses,
usually mothers. He coined the term "Parental Alienation Syndrome" to describe the situation where a child demonstrates a strong affinity for one parent and alienation from the other, usually in the context of divorce.
However, in a review of Gardner's work and the Parental Alienation Syndrome, Faller (1998: 112) stated that
"no data are provided by Gardner to support the existence of the syndrome and its proposed dynamics. In fact, the research and clinical writing of other professionals lead to a conclusion that some of its tenets are wrong and that other tenets represent a minority view."
| Rate of
| Definition of
|Benedek & Schetky
|18 custody cases
|55% (10 cases)
|Intentionally and unintentionally false, and seven cases where accuser had psychiatric disorder.
|11 cases of alleged sexual abuse in custody and access disputes
|36% (4 cases)
|Refers to unintentionally false or unsubstantiated.
|Jones & McGraw
|576 reported cases of child sexual abuse
|"Fictitious" reports-cases where professionals did not consider that abuse had occurred (including parents with psychiatric disturbances).
|Hlady & Gunter
|370 children referred to child protection service; 41 also involved in custody disputes
|Rate not given
|Authors conclude that while the issue of false allegations of sexual abuse is a prevalent concern in custody/access cases, it is not reflected in their research.
|Thoennes & Tjaden
|Court files of more than 9,000 families in custody or access disputes; 169 involved allegations of sexual abuse
|Less than 1% of total; 33% of 169 abuse cases unfounded, 17% no documentation
|False allegations not looked at specifically-rates refer to cases that were not believed to involve abuse.
|Anthony & Watkeys
|350 cases of reported child sexual abuse; 24 involved in custody disputes
|8.5% of total
|False and malicious.
|Trocmé, McPhee, Tam & Hay
|2,447 investigations, of which 9% are cross-custody allegations
|1.3% of allegations by mothers and 21.3% of allegations by fathers
|Determined by child welfare investigators to be intentionally false.
|Faller & DeVoe
|Clinical sample of 215 cases of allegations of sexual abuse in families also involved in divorceClinical sample of 215 cases of allegations of sexual abuse in families also involved in divorce
| 20.9% possibly
or actually false
| Misinterpretations by the adults making the report.
Determined to be intentionally false by clinical assessment.
|Brown, Frederico, Hewitt & Sheehan
|200 child abuse allegations in custody and access disputes
|Allegations that were investigated by child protection services and found to be false as opposed to allegations that were investigated but not substantiated.
* Please note that the studies included in this table are not necessarily incidence studies designed to measure the extent of false allegations. Also, note that the studies use different definitions of "false allegations," making comparisons difficult.
American researchers, Benedek and Schetky (1985), reported that their assessment of 18 custody cases with sexual abuse allegations found that 10 were false, resulting in a false allegation rate of 55 percent. In all 18 cases the accusations were made by mothers, mainly against fathers (n=16), with one report against a stepfather, and one against a boyfriend. The authors claimed that of the mothers making the false accusations, seven had psychiatric disorders including paranoia, hysteria, and schizophrenia. This study has also been criticized for its small and possibly biased sample (Faller, 1998; Thoennes & Tjaden, 1990).
An American psychologist (Green 1986), claimed that there are more false allegations of sexual abuse during court litigation involving custody or visitation than in other contexts, basing his assertions on his own documentation of false allegations involving 4 of 11 children reported to be sexually abused by the non-custodial parent in custody and visitation disputes. He hypothesized that false disclosures by children occur in the following situations:
- the child is brainwashed by a vindictive parent, usually the mother, who alleges the abuse to stop access to the child;
- the child is influenced by a delusional mother who is projecting her own unconscious sexual fantasies onto her spouse;
- the child's allegations are based on his or her own sexual fantasies rather than reality; and
- the child is falsely accusing the father for revenge or retaliation.
Green's claims are challenged by Corwin, et al. (1987), who argue that Green used a biased sample, an inadequate database, and unsupported conclusions. These authors also claim that one of Green's four "false allegation" cases was misdiagnosed by him, and was actually a valid abuse allegation.
It should be noted that the studies by Benedek and Schetky as well as by Green are based on highly contested cases being assessed for trial. More recent and comprehensive studies (discussed below) of all cases where abuse allegations are made in the context of parental separation indicate lower rates of unfounded and deliberately false allegations. It is likely that studies with family law litigation-based samples have higher rates of unfounded and false allegations than studies based on all cases involving parental separation that are referred to child protection investigators; cases where the allegation is investigated by child protection workers and believed to be founded are less likely to be litigated in the family law context.
4.1.1 Extent of the Problem
There is a lack of incidence studies on the extent of false allegations of child abuse, and what little information we have is primarily from other countries. Further, it is important to note that the studies described below use different definitions of false allegations, making comparisons difficult. In the largest study to date, Thoennes and Tjaden (1990) collected data over a six-month period from eight courts in different American cities. Of the over 9,000 families involved in custody or visitation disputes, only 169 cases (1.9 percent) also involved an allegation of sexual abuse. Further assessment of 129 cases (of the 169 above) that could be evaluated by child protection service and court workers resulted in the following classification of cases:
- 50 percent were believed to involve abuse;
- 33 percent were not believed to involve abuse; and
- in 17 percent, no determination could be made.
While the authors do not provide a breakdown of the 33 percent of the cases that were not believed to involve abuse, they do state that
"we also found no evidence to support the belief that these cases typically involved mothers
falsely accusing fathers to gain or maintain custody of the children" (Thoennes and Tjaden, 1990: 161). Indeed, Pearson (1993: 279) concludes from this study that the contention
"that there is a rising tide of false sexual
abuse allegations in divorce cases in an effort to gain some custody advantage" is a myth.
Interestingly, Thoennes and Tjaden (1990) also found that the substantiation rate was the same (50 percent) for all cases of allegations of child sexual abuse, regardless of whether there was a custody or access dispute. This is contrary to findings of a study by Haskett et al. (1995) which indicated that allegations were much less likely to be substantiated if there was a custody dispute. Haskett and her colleagues analyzed 175 cases of alleged child sexual abuse from seven counties in Florida and North Carolina, of which eight percent (n=14) involved a custody dispute. While the authors determined that sixty-seven percent of the total sample of allegations were substantiated, only fourteen percent of the cases that involved a custody dispute were substantiated. The authors acknowledged potential bias in their sample, however, and stated that despite published guidelines that recommend extended assessments for investigating such allegations involving custody disputes, they found that child protection service workers were no more likely to interview alleged offenders in custody disputes than in other cases.
Faller and DeVoe (1995) examined a clinical sample of 215 cases of allegations of sexual abuse in families also involved in divorce. The cases were drawn from a university-based clinic in the American Midwest over a 15-year period. The clinic conducts multidisciplinary evaluations to determine whether sexual abuse has occurred and to make recommendations for intervention. The evaluations involved reviewing case records, interviewing alleged victims, interviewing both parents and often other adults, undertaking psychological testing of both parents, and conducting medical exams of children if needed.
Faller and DeVoe concluded that in 31 cases (14.4 percent) the allegations were unfounded, and an additional 14 (6.5 percent) were possibly unfounded. However, 34 of the 45 cases were classified as misinterpretations by the adults making the report and, in 1 case, classification was uncertain. Only 10 of the total sample of 215 allegations (4.7 percent) were determined to be intentionally false, and these 10 allegations actually involved only six parents, since 4 allegations were made by one father.
In a study of 576 reported cases of child sexual abuse (in all contexts) in Denver in one year, Jones and McGraw (1987) found that six percent of the cases involved "fictitious" reports. Five percent of these reports were made by an adult, and one percent were made by children (n=5 cases). The authors defined "fictitious" as cases where professionals did not consider that abuse had occurred. Of the children making the false accusations, the authors state that four of the five:
...were disturbed female teenagers who had been sexually victimized by an adult in the past, but had made this current allegation fictitiously...the youngsters had symptoms of post traumatic stress disorder (PTSD) with sleep disturbance, recollection symptoms, and a disturbance of affect (Jones and McGraw, 1987: 30).
While a comparable breakdown of the 26 adult reports was not available,
the authors state that 2 adults were parents with major psychiatric
disturbances, and other cases had arisen in the context of a custody
or visitation dispute. Jones and McGraw (1987: 38) conclude
from their study that
"fictitious allegations are unusual and that
the majority of the suspicions of sexual abuse brought to professional
attention prove to be reliable cases."
A study of 350 fully investigated cases involving reported child sexual abuse in the United Kingdom found that 7 percent of the cases (n=24) also involved custody disputes (Anthony & Watkeys, 1991). Further, the investigators found that 8.5 percent of the total number of reports were false and malicious, including 6 percent by adults and 2.5 percent by children.
A study of child abuse allegations in custody and access disputes between parents in Australia collected data on 200 cases from a court registry in each of Canberra and Melbourne (Brown et al., 1998a). The cases were active in the period January 1994 to June 1995, and were followed through to their end or to July 1996, whichever came first. To address the perception that allegations of child abuse in Family Court proceedings were more likely to be part of the family fight about the divorce or separation, the researchers conducted a sub-study of 30 cases. They found the rate of false allegations to be 9 percent, which was the same as the rate for all types of cases reported to the state child protection service. The researchers defined "false allegations" as allegations that were investigated by child protection services and found to be false as opposed to allegations that were investigated but not substantiated (Brown et al., 1998b). According to the authors:
...child abuse allegations made in the Family Court were found to be no more frequently false than abuse allegations made in other circumstances; so they cannot be dismissed as weapons manufactured especially for the gender war that often follows partnership breakdown...
The Canadian literature is sparse. A study by Hlady and Gunter (1990) aimed to determine the frequency of custody and access disputes among the patient population of the Child Protection Service at British Columbia's Children's Hospital. Of the 370 children seen, 41 (11 percent) were also the subject of custody and access disputes. Seven of these cases involved allegations of physical abuse, five of which had corroborative positive findings (soft tissue injuries including bruises, scrapes, and old burns). Of the 110 cases where physical abuse was alleged but custody and access was not an issue, only 48 (43.6 percent) had positive physical findings.
In the custody and access dispute group, 34 cases (of a total of 41) involved allegations of sexual abuse. In 6 of these cases (17.6 percent), there were physical findings evidencing sexual abuse. This is comparable to the 219 children seen for alleged sexual abuse not involving custody and access issues, where physical evidence was found in 15 percent of the cases (33 children). Hlady and Gunter (1990) acknowledge that while the issue of false allegations of sexual abuse is a prevalent concern in custody and access cases, it is not reflected in their research. They conclude:
This study highlights the importance of an exceedingly thorough assessment when any allegation is made. It also demonstrates need for sound research to guide all professionals involved to deal with the dilemma of true or false allegations, whether or not custody is in question (Hlady and Gunter, 1990: 593).
4.1.2 Who is Making the Allegations and Who is Being Accused?
Thoennes and Tjaden (1990) found that the mother was the accuser in 67 percent (n=110) of the cases, the father was the accuser in 22 percent (n=36) of the cases, and in 11 percent (n=19) of the cases a third party such as a grandparent was the accuser. Mothers accused the father (48 percent), the child's stepfather (6 percent), or a third party (13 percent). Fathers accused the mother (6 percent), mother's new partner (10 percent), or a third party (6 percent).
In their study (n=370), Hlady and Gunter (1990) found that the cases were brought to the attention of the Child Protection Services in the following ways: family physician (31 percent); mother (28 percent); Ministry of Social Services and Housing (23 percent); police (10 percent); and father (8 percent). In almost half the cases (46 percent), the father was accused; there was no identified alleged abuser in 51 percent of the cases, and in three percent, the alleged offender was an "other."
4.1.3 Reasons Why Allegations Arise in the Context of Parental Separation
Although Thoennes and Tjaden (1990) found that the rate of sexual abuse allegations in families with custody and access disputes was low (less than 2 percent), they did find that the reported incidence of sexual abuse in families with custody and visitation disputes was six times greater than the reported incidence of child sexual abuse in the general population. The authors suggest several reasons why child sexual abuse may occur more frequently in the context of marital breakdown than in intact families. First, the child sexual abuse may create the stress in the marriage that leads to its breakdown, or indeed the discovery of the abuse may be the reason for the marriage breakdown. Second, the separation may create opportunities of abuse that are not present in intact families. A psychologist is quoted in Thoennes and Tjaden (p. 160) as saying:
It's not hard to believe that some abuse starts after divorce. If you take parents with such inclinations and make them lonely and needy, and give them a child who is also lonely and scared, and put them together for entire weekends, alone, you've created a perfect opportunity for abuse to occur.
Third, children may be more likely to disclose abuse by a parent following separation because the abusing parent is less able to enforce secrecy, and the other parent is more willing to believe the child (Thoennes & Tjaden, 1990; Fahn, 1991; Fassel, 1988). Additionally, the prospect of a child being alone with an abusive parent during visitation may prompt disclosure by the child (Haralambie, 1999).
Several authors suggest reasons for an unfounded allegation following parental separation. According to Green (1991), the following types of behaviours could form the basis for an unfounded allegation:
- misinterpretation of normal care-taking practices (e.g., washing or drying of the genital or anal area may be viewed as fondling, or a father who permits his frightened child to sleep with him may be accused of sexual seduction);
- misinterpretation of normal sexual behaviours in children (e.g., normal sexual exploration by preschool-aged children including genital stimulation may be confused with behaviours of children who have been molested);
- misinterpretation of common psychological symptoms due to parental separation (e.g., separation anxiety, regressive behaviour, sleep disorders, and phobic symptoms); and
- misinterpretation of physical signs and symptoms in the child (e.g., vaginal irritation or discharge).
Penfold (1997: 16) states that numerous conditions can lead to, or influence, an unfounded allegation of sexual abuse, including:
…a young child's immature social and communication skills; parent's lack of knowledge re: normal sexuality; misperceptions, e.g., of borderline situations such as sleeping or bathing with the child; confusion re: separation anxiety in young children; an overanxious child with an anxious parent; presence of other types of family violence; abuse attributed to the wrong person; child lying e.g., to seek alternate placement; psychopathology of child or parent; coaching by parent; influence on parent of media exposure about sexual abuse; hostility and mistrust between the parents; child being exposed to pornographic material; child witnessing adult or animal sexuality; sex play with peers; leading and coercive interviewing techniques; excessive interviewing; poor documentation; and cross germination.
As Penfold points out, a parent with feelings of hostility or mistrust may unwittingly begin to engage in suggestive interviewing of a young child about possible abuse, perhaps based on ambiguous physical symptoms. The questioning may require a child to assess whether touching had a "sexual" intent, which a young child may not be able to do. These are circumstances in which an "honest" mistake may easily be made.
4.2 The Ontario Incidence Study of Reported Child Abuse and Neglect and the Canadian Incidence Study of Reported Child Abuse and Neglect
The Ontario Incidence Study of Reported Child Abuse and Neglect (OIS) and the Canadian Incidence Study of Reported Child Abuse and Neglect (CIS) are currently the most comprehensive Canadian sources of statistics on child maltreatment investigations conducted by child welfare authorities. The OIS documents maltreatment investigations conducted in Ontario in 1993 (Trocmé, et al., 1994), and the CIS collected information on investigations conducted across Canada in 1998 (Trocmé, et al., 1997). The first set of findings from the CIS will be available for release in the year 2001. The following section of the paper examines findings from the OIS relevant to situations involving parental separations and discusses the relevant data that the CIS will yield.
4.2.1 Allegations in the Ontario Incidence Study (OIS)
The 1993 OIS was the first Canadian study to examine the incidence and characteristics of reported maltreatment of children (involving alleged physical, sexual, and other abuse). The study is based on a survey form completed by child protection workers on a representative sample of 2,447 children investigated in 15 Children's Aid Societies (CAS) across the province. CAS intake workers completed the two-page information collection form following their initial investigation. This form included questions on case status, family and child demographics, a short risk-factor checklist, sources and reasons for referral, and outcome of investigation (types, severity and duration of maltreatment, perpetrators, placement, and court involvement).
Based on the OIS sample of 2,447 investigated children, estimates can be made of the total number of cases in Ontario opened by CAS because of allegations of child maltreatment. Therefore, it can be estimated that of the 53,000 family cases opened for CAS services in 1993, 36,799 were opened because of allegations of child maltreatment, involving 46,683 children who were the subject of an allegation. There was an average of 1.3 children for every investigated family.
Close to half of the investigations (46 percent) involved children from families where the parents were separated or divorced. The OIS did not, unfortunately, collect information on whether the investigated families were involved in custody or access disputes, or whether there was any contact or involvement with the non-custodial parent. Information about source of allegations and alleged perpetrators can be used, however, to examine situations where separated parents make allegations about one another. For the purpose of the present analysis we refer to these cases as "cross-custody allegations."
Cross-custody allegation estimates were derived by combining two OIS questions: Question 5. Source(s) of allegation/referral and Question 13. Person(s) suspected/responsible for maltreatment. These two questions theoretically produce four types of cross-custody cases:
- Allegations made by a custodial mother or her children against a non-custodial father.
- Allegations by a non-custodial father or his children against a mother.
- Allegations by a non-custodial mother or her children against a father.
- Allegations by a custodial father or his children against a non-custodial mother.
No cases meeting criteria 3 or 4 were identified in the OIS sample. This does not mean that such cases do not exist, but that they are relatively infrequent occurrences (less than 2 percent of investigations) and did not appear in the OIS sample. Therefore we can only present data on cross-custody allegations involving non-custodial fathers (category 1) and custodial mothers (category 2).
It is important to note that these cross-custody allegations are an overestimate of the proportion of cases that actually involve custody or accessdisputes. It is not possible to determine how many of these cross-custody allegations of maltreatment actually involve situations where there is an ongoing custody or access dispute, as opposed to a situation where parents have separated or divorced, but there has been no dispute over custody or access. Given the small amount of Canadian data, however, these estimates may provide an outside limit to help delineate the extent of the problem.
Table 2 provides a breakdown by form of maltreatment and level of substantiation for cases involving cross-custody allegations. While close to half of the maltreatment investigations in Ontario involve families where there has been a separation or a divorce, less than ten percent of investigations involve cross-custody allegations. The proportion of cases involving a custody or access dispute will account for an even smaller proportion of maltreatment investigations. That is, it is much more common in situations where parents have separated for an allegation of abuse to be made against a parent by someone who is not a family member (e.g., a teacher, a neighbour) than for the allegation to be made by the other parent.
|Allegations by Custodial Mother AgainstNon-custodial Father(%)
|Allegations by Non-custodial Father Against Custodial Mother (%)
|All Other Allegations (%)
|Total Investigated Children (Row Percentages)
|Primary Forms of Investigated Maltreatment (Row Percentages)
|Substantiation (Column Percentages)
|Malicious/Intentionally False Allegation
In the context of parental separation, non-custodial fathers were most likely to be investigated because of allegations of sexual abuse made by the mother (13 percent of all sexual abuse investigations). Custodial mothers were most likely to be investigated because of allegations of physical abuse or neglect made by the father. The neglect allegations are noteworthy, given that much of the media focus in the context of custody disputes has been on allegations of abuse, not neglect. It appears that non-custodial fathers are as likely to be concerned about neglect as abuse.
One-half (50 percent) of cross-custody child protection investigations against non-custodial fathers and over two-thirds (72 percent) of investigations against custodial mothers were classified as unfounded by CAS investigators, compared to the unfounded rate of 40 percent for other investigations. Controlling for form of investigated maltreatment, the rate of unfounded cross-custody allegations involving non-custodial fathers is not significantly different than the overall rate of unfounded investigations in cases of abuse (48 percent of abuse cases in the OIS were unfounded).
Unfounded allegations should not be confused with intentionally false allegations. The rate of unfounded allegations is comparable to rates in most other jurisdictions across North America. The large proportion of unfounded allegations in all child protection cases in part reflects the fact that professionals and the public have a duty to report suspected maltreatment, not confirmed maltreatment, as well as difficulties in substantiating abuse.
Significantly, only 1.3 percent of allegations against non-custodial fathers were considered by investigators to be intentionally false, compared to 2.2 percent for investigations of abuse and neglect allegations in situations where parental separation was not a factor. Despite concerns about intentionally false allegations in situations involving custody disputes, the investigating workers rarely considered allegations by mothers or children against a non-custodial father to have been intentionally false. In contrast, over one-fifth (21.3 percent) of allegations by non-custodial fathers against custodial mothers were judged to have been intentionally false.
Criminal Charges for Abuse
Cross-custody investigations were as likely to involve police investigations as were other investigations. Charge rates for abuse-related offences against non-custodial fathers (7.6 percent) were comparable to the overall charge rate (6.4 percent), while no cross-custody cases involving mothers as alleged perpetrators lead to charges. However, the OIS underestimated charge rates since it only tracks the first two to three months of investigations, and decisions to lay charges can take longer.
4.2.2 Maltreatment Investigations in Cases Involving Custody Disputes in the Canadian Incidence Study
Using an expanded version of the OIS design, the 1998 Canadian Incidence Study of Reported Child Abuse and Neglect (CIS) was funded by the Child Maltreatment Division at Health Canada to collect information on child maltreatment investigations conducted across Canada. Including provincially funded over-sampling, the CIS gathered data from over 100 child welfare authorities, yielding a sample of approximately 10,000 investigated children. As with the OIS, the CIS form was completed by investigating child protection workers following the completion of their investigation. A number of additions were made to the OIS form for the CIS study, including an expanded number of questions on health determinants, child injuries and child functioning. Data collection on cases reported between October 1, 1998 and December 31, 1998 was completed in 1999, and the final report for the study is anticipated later in 2001.
The CIS will provide a more complete picture of allegations of abuse in the context of parental separation. Question 7(b) asks whether there is
"an ongoing child custody dispute." The CIS also includes questions about
substantiation, intentionally false allegations, and police involvement. Analysis of the CIS will be able to determine what proportion of child protection investigations across Canada involve custody disputes, and whether these cases lead
to different outcomes or involve unusually high numbers of false allegations.
4.2.3 Limitations of the OIS and CIS Databases
The OIS and CIS gather information from child protection workers upon completion of their initial investigation, usually within the first two months of the initial complaint. The information on intentionally false allegations is somewhat constrained by this design. First, there is no independent corroboration of the investigating worker's judgement that an allegation was intentionally false. However, 73 percent of workers who participated in the OIS had BSW or MSW degrees, 79 percent had over three years of child protection experience, and 36 percent had over six years of experience. In addition, most sexual abuse cases are jointly investigated with the police.
Second, in some cases, information may emerge after the initial investigation that may change the validation status of the investigation. This could be particularly problematic in cases involving criminal proceedings where new evidence could emerge several months, if not years, after the child protection investigation. Likewise, investigations in custody and access cases may take longer than two months.
Third, the OIS and CIS are limited to cases investigated by child protection authorities and do not cover cases that are investigated only by the police. While cases of abuse involving family members are usually investigated by child protection authorities, in some jurisdictions cases involving alleged non-custodial parent perpetrators might be investigated only by the police. It is not possible at this point to estimate the rate of police only investigations (Trocmé & Brison, 1998).
Finally, while the CIS specifically identifies families where there is an ongoing custody dispute, the survey form does not document the details of the dispute. As a result, it is not possible to determine whether an allegation of abuse may have precipitated the separation that has lead to a custody dispute, or whether the allegation emerged following the separation. However, the CIS does document the investigating worker's judgement about the potential malicious intent of a referral. Also, some investigating workers may not be aware of an ongoing custody dispute, thus leading to a potential underestimation of the rate of custody disputes in the context of abuse investigations.
As part of this research project, a study of reported Canadian family law decisions from 1990 to 1998 was conducted to identify how the courts were dealing with cases involving allegations of child abuse. This study considered all reported judicial decisions that dealt with sexual and physical abuse allegations in the context of parental separation on the Canadian computer databases of Quicklaw in that period. It dealt only with family law cases; child protection and criminal cases were excluded. Quicklaw databases depend on receiving written decisions from judges, and many decisions delivered in Canada are not included in legal databases. Most family law judicial decisions do not result in written reasons and do not appear on legal databases. While this may mean that certain types of decisions are under-represented in the legal databases, there is no more complete set of written judgements than in Quicklaw. This study, at the least, gives a sense of what is happening in many of the highly contentious cases decided by family law judges in Canada.
A review of judicial decisions may not be representative of all cases where abuse allegations are made after parents have separated. For example, in cases where there is strong evidence of abuse, the perpetrator is not likely to contest the issue of abuse in family law proceedings and there may be no reported family law judgement.
In the nine years covered by this review, 196 cases that dealt with sexual and physical abuse allegations in the context of parental separation were identified. Of these, a clear judicial finding on the balance of probabilities (the civil standard) that abuse occurred was made in 46 cases (23 percent). In 89 cases (45 percent), the judge made a finding that the allegation was unfounded, while in 61 cases (31 percent) there was some suspicion of abuse, but no conclusive judicial finding that abuse occurred. In 45 of the cases (30 involving sexual abuse allegations), the judge believed that the accusing party made an intentionally false allegation. That is, the judge believed that there was deliberate fabrication in 30 percent of court cases where abuse was not proven (45/150). In other words, over the nine year period of the study, there were an average of 5 cases per year reported in Canada where the judge believed and reported that the accusing party made an intentionally false allegation.
In the 89 cases where the court found that the allegations were clearly unfounded, the accusing party lost custody in 18 cases, though this was sometimes for reasons not directly related to the allegation of abuse. In only 1 case was the person who made the false allegation charged (and convicted) of a criminal offence-mischief-in connection with the false allegation. In 3 other cases the accusers were cited for contempt of court, usually in connection with denial of access. In the 46 cases where abuse was found, access was denied in 21 cases, supervised access was granted in 16 cases, and the alleged abuser faced criminal charges in only 3 cases.
The cases involved 262 alleged child victims (74 percent of them involving alleged sexual abuse), of whom 32 percent were under five years old, 46 percent were five to nine years old, 13 percent were ten or older, and in 9 percent the age was unspecified.
The study found that about 71 percent of the allegations were made by mothers (64 percent custodial and 6 percent non-custodial), 17 percent were fathers (6 percent custodial and 11 percent non-custodial) and 2 percent were from grandparents or foster parents. In about 9 percent of the cases, the child was the prime maker of the allegations (and often testified in court). Fathers were most likely to be accused of abuse (74 percent), followed by mothers (13 percent), mother's boyfriend or a stepfather (7 percent), grandparent (3 percent), and other relatives, including siblings (3 percent).
Given the lack of relevant Canadian research regarding the issue of allegations of abuse, we decided to conduct a small survey of key informants to examine a number of issues, including the extent and nature of false allegations. It was hoped that the information from the key informants would corroborate the information gathered through the review of research literature and case law. While the total number of informants interviewed was very small (due to the time constraints of this review), they were chosen on the assumption that they were likely to have professional experience with allegations of child abuse.
The key informant interviews were conducted by telephone with selected child welfare workers/supervised access providers (two police, three judges, one lawyer and a researcher). Key informants were identified through contacts known to the authors. A total of 24 people were called, including a child welfare worker from each province and territory in Canada. Nine people could not be reached or did not return our calls, and one person asked to respond in writing, but did not complete the interview schedule. Ultimately, 14 key informants were interviewed from eight provinces and territories and one state. Key informants were from British Columbia, Alberta, Saskatchewan, Ontario, Nova Scotia, Newfoundland, Yukon, Northwest Territories and Colorado.
A variety of questions were asked on the extent of the problem, as well as on investigative processes (see Appendix A). Overall, there was significant consistency among the key informants, regardless of their professions. Due to the economic and time constraints of this project, the key informant interviews were limited in number and cannot be construed as representing the experience of the various professions encountered. However, they were useful in putting the problem of false allegations of abuse in custody and access cases into context and in identifying issues. The interviews are summarized below according to the extent and the nature of the problem, the adequacy of current legislation, the investigative processes, and the limitations on access.
4.4.1 Extent and Nature of the Problem
Almost all of the key informants (thirteen) said they had some direct experience with cases of false allegations of child abuse, although most (nine) said they were a relatively rare occurrence. In most cases (eight) the false allegation
involved sexual abuse, but some respondents reported having cases involving false allegations of physical abuse (five) and neglect (three) as well. When asked if they had any cases that could be classified as
"clear cases of mischief,
obstruction of justice or perjury," four of the key informants said no, and ten said yes, but they were very rare (e.g.,
"less than one percent" or
"maybe one case per year").
Key informants were split on whether the incidence of false allegations of child abuse was higher in cases involving custody and access disputes than in other settings. For both cases of intentionally false allegations (or clear cases of
mischief, obstruction of justice or perjury) and false allegations due to honest mistakes, four respondents said the incidence was not higher in cases of custody and access disputes. However, eight said it was higher or marginally higher,
and one informant said that there is
"no question it is [higher]." One respondent who thought the incidence of false allegations due to honest mistakes might be slightly higher in the context of parental separation than other
"it's easier to believe something bad [misinterpretation] at the point of separation than when you're living with that person." Another said
"the dynamics in this context are stressed because
there may be: (1) parenting issues; or (2) poor communication between the parents."
One-third of the key informants (five) thought that the problem of false allegations, both intentional and unintentional, has increased compared to ten years ago. About one-third (four) thought that while allegations of child abuse have
increased compared to ten years ago due to increased public awareness and education, the problem of false allegations has not increased although it has gained public attention. A further one-third (four) did not think that the problem of
false allegations has increased. One respondent said that
"if anything, the problem has diminished due to police being better trained at interviewing."
When asked if they had experience with cases of intentionally false allegations of child abuse being made repeatedly in the same case (i.e., within the same family), over half of the key informants (eight) said yes, but that it is not
common. One respondent said a typical scenario would involve a three- to four-year-old child, whose mother comes back repeatedly with more stories. Another said that there are
"certain problem families, but they are few in
number." Another said,
"it can happen if there are siblings…there is a ripple effect."
Most key informants (ten) said it is usually the mother or primary caregiver who makes an intentionally false allegation of child abuse against the father, although seven respondents said fathers also make intentionally false allegations of child abuse against mothers. Two respondents reported having cases involving teenaged girls or older children who make false allegations, and one said close to one-third of the false allegations of abuse are made by children. When asked if children are being coerced or manipulated by custodial parents to make accusations against non-custodial parents, eight key informants said no, or it was very rare. Four key informants thought children were sometimes being coerced or manipulated by a parent.
4.4.2 Adequacy of Current Legislation for False Reporting
Key informants were asked if they thought the problem of intentionally false allegations of child abuse required a stronger legal remedy than that which is currently available. Respondents overwhelmingly said no (twelve). One
"You are taking an emotionally charged issue and trying to remedy it with a criminal penalty-this just will not work." Some respondents said that adequate legislative provisions are already in place, but
are not being used. One key informant said,
"It's there if we want to proceed with charges, but police and child welfare agencies deal with the best interests of the family unit and use other resources." One
respondent said obstruction of justice is a broad charge, and therefore it is more useful to prosecutors than would be a provision, if enacted, for a specific offence related to false allegations in the context of custody and access
disputes. Two key informants thought sentencing could be more punitive in this context.
When asked if they were concerned that stronger legal sanctions against people making false allegations would discourage legitimate reports of abuse, half of the key informants (seven) said yes or there was that risk, and half (seven) said no or
they did not think it would make any difference. One key informant said,
"You would eliminate the people who suspect something is happening but have no evidence." Another said,
"No, as long as the statement of
sanctions was clear that only allegations made maliciously would be addressed."
4.4.3 Investigative Processes
Only the seven key informants who were child welfare workers or police officers were asked questions regarding the investigative processes involved when there are allegations of child abuse. None of the key informants said that their organizations had a specific protocol for responding to allegations of child abuse in the context of custody and access disputes. One respondent said that their general protocol included a caution not to discount an allegation just because it came in the midst of a custody and access dispute. Most key informants (six) said their organizations did not provide specific training on the dynamics of child abuse allegations in situations of parental separation, although one organization did address the issue. Another was in the process of developing a training course on this topic, and one was aware of a course that was recently dropped due to lack of funding.
Key informants were asked how long they had to begin an investigation when an allegation of child abuse is made, whether or not the allegation occurs in the context of parental separation. All seven respondents said that it depends on the safety risk to the child. Responses ranged from immediate response, to within 12 hours, 24 hours, 2 days, 5 days, 15 days or 21 days-depending on the risk assessment. When asked how long a child protection investigation typically lasts, most key informants (five) said 14 to 21 days, although one respondent said if a case goes to court, it could last two years. Cases involving allegations of abuse against a non-custodial parent when parents have separated are complex, but pose relatively little immediate risk to a child, and may take longer than average to complete. All key informants said that statements that are taken from the person reporting the abuse are usually not sworn, although one key informant said that more are sworn now than previously because of recent court decisions.
4.4.4 Limitations on Access
All fourteen key informants were asked questions regarding limitations on access during investigations. When asked if access rights of non-custodial parents were being denied during typical child abuse investigations, the responses were varied. Half of the respondents (seven) said that access rights were denied or limited during the investigation, which was usually a brief period. Three respondents said that access rights could be denied for "awhile" and three respondents said no, or they did not know.
Almost all respondents (thirteen) were aware of services in their jurisdictions for supervised access. Respondents said child welfare agency workers, contracted workers, court service workers, family members, homemakers, and the community
provided supervision. One key informant was aware of a supervised access centre funded by the government or by the parties. However, when asked if the current supervised access services were adequate, only two respondents said
yes. Half the respondents said that there were not enough resources and the user-pay services were too expensive and therefore not available to many families. One respondent mentioned the need for after hours supervision (e.g.,
evenings and weekends); another said there was a need for court-defined expectations and trained supervisors, and one said there needs to be a standardization of supervised access services. One key informant said that
not a solution in itself-it is a short-term remedy to allow parents to contact while something else happens."
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