The information in this report was obtained from a variety of sources.  These sources include a literature review of available research information in Canada and other jurisdictions and a review of the current Canadian legislation and case law regarding child abuse allegations in the context of parental separation.  In addition, a limited number of practitioners were interviewed regarding their experiences with cases involving child abuse allegations where parents have separated or divorced.  Based on this information, a number of significant issues can be identified.  This chapter discusses the key issues under the following general categories:

  • (1) Research Issues;
  • (2) Investigative Issues;
  • (3) Legal Issues;
  • (4) Social Issues; and
  • (5) Education and Training Issues.

5.1 Research Issues

5.1.1 The Incidence of False Allegations of Child Abuse

The lack of research studies, particularly Canadian studies, means we do not know the actual incidence of abuse allegations in cases in which parents have separated, or the proportion of these cases in which the allegations are intentionally false.  However, it appears from Canadian and American studies, as well as from information obtained from the key informants, that allegations of physical or sexual abuse occur in a relatively small portion of cases in which parents have separated.  Some research suggests that abuse may be an issue in less than two percent of separations, though other research suggests that in some locales abuse allegations might occur in five to ten percent of contested custody and access cases.

Distinctions must be made between:

The literature and case law are inconsistent in the terms used to describe the outcome of an investigation into an allegation of child abuse.  The distinction between intentionally false allegations and false allegations due to honest mistakes or mental health problems is very important, although many studies do not differentiate false allegations by their source.  There are very significant differences in how children may be affected in these situations and the consequences for the people making false allegations of each type should be very different.

While some literature and research suggests that the incidence of unfounded and intentionally false allegations of abuse is higher when parents have separated than in other contexts, neither the literature nor key informants were uniform in their support of this theory.  It appears that most of the false allegations of abuse are not due to deliberate lies or manipulation, but to honest mistakes and poor communication.  This type of research could be undertaken as part of a broader study about how courts deal with custody and access disputes, or as a more focussed study.

5.2 Investigative Issues

5.2.1 Length of Time Required to Investigate Cases Involving Allegations of Child Abuse

In most Canadian jurisdictions, child protection agencies take the lead in investigating allegations of child abuse.  Usually, the agency begins by ensuring the immediate safety of the child.  For example, if the allegation is made against an access parent, the agency may "request" that the access parent voluntarily suspend visitation or agree to supervised access until the investigation is complete.  Generally, the parent accused of abuse will want to appear co-operative, and the parent's lawyer may caution that a court is also likely to "err on the side of caution" at this initial stage.  Therefore, the parent will usually agree to restrictions on contact with the child.  Alternatively, the agency may ask a court to suspend the visitation rights of the parent suspected of child abuse under child protection legislation.

Given the resource constraints facing child protection agencies, it is not surprising that once the immediate threat to the child's safety is removed through the suspension or supervision of access, investigations of suspected abuse tend to be a low priority and may proceed slowly.  Further, these are complex cases requiring careful assessment, and the investigation may take months to complete.  If the agency concludes that abuse perpetrated by a parent has occurred, the agency has legal authority to seek a court order to protect the child.

If a child protection worker believes there is strong evidence of serious abuse, the worker, in addition to taking protection steps, is likely to contact the police to allow them to investigate and decide whether criminal charges should be laid.  In many communities there is a "protocol" to direct how a joint investigation is to be conducted.  Occasionally, a parent who is alleging abuse in the context of parental separation will directly contact the police.  Frequently, in cases arising out of parental separation, the police are only informed a considerable time after the initial alleged "disclosure" is made, complicating the police investigation.  Given the nature of the criminal process, criminal charges will be laid only when there is very strong evidence of abuse and simultaneous criminal and civil proceedings are not common, though this does occur.

When key informants were asked how long a child protection investigation typically lasts, the largest group (n=5) chose 14 to 21 days.  At the extreme, 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.

5.2.2 Availability of Protocols for Investigating These Cases

Probably the major difficulty with investigations is that some of the investigators, assessors and other "experts" involved in these cases lack the sophisticated experience, skills and knowledge to deal effectively with the type of child abuse case where there is rarely medical evidence to corroborate an allegation.  Many of the behavioural patterns that may be consistent with a child having been abused by a parent may also be consistent with a child suffering from the effects of a high conflict parental separation.  Some research suggests that mental health professionals have considerable difficulty in reliably assessing whether young children have been sexually abused based solely on observing an interview of a "disclosure."

Only 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 (n=7).  None of the key informants said that their organization 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 organization did not provide specific training on the dynamics involved with allegations of child abuse 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.

5.3 Legal Issues

5.3.1 Unfounded Allegations:  Misunderstanding, Fabrication or Mental Disturbance?

There is a range of circumstances that may lead a parent to make an unfounded allegation of abuse in the context of parental separation.  Situations of unfounded allegations can be regarded as arising when:

  1. allegations are made in the honest but mistaken belief that abuse has occurred, often due to some misunderstanding or misinterpretation of events by the complainant or misapprehension on the part of a recipient of a complaint;
  2. unfounded allegations are made knowingly with the intent to seek revenge or manipulate the course of litigation; or
  3. unfounded allegations are made as the result of a mental disturbance by the accuser.

In some cases, it may be difficult to determine which of these factors, or what combination of factors, resulted in the false allegation being made.  It must also be appreciated that in the legal context there may be cases where the allegations are in fact true, but where a judge has made a finding that the allegation was not proven.

In the majority of cases of unfounded allegations, the accusing parent has an honest but erroneous belief that the child has suffered some form of abuse.  In such cases the allegation might, for example, arise from misinterpretation of a young child's answers to questions about having red genitalia after a visit, or a misunderstanding about innocent conduct, such as parental nudity or bathing with a young child.  For example, in the British Columbia case of K.E.T. v. I.H.P.,[49] the mother's concerns about possible sexual abuse began when the three-year-old child returned from a period of shared custody with her father and was "very upset."  The child reported that she had showered with her father, though this was not the source of the girl's concern.  The mother, who was in the process of dealing with her own experiences as a victim of childhood abuse, began to question the young child about whether her father had ever given her a "bad touch" and the child apparently pointed to her vagina.

The mother contacted social services and the police, who began an investigation.  The father's contact was immediately reduced from shared custody of the two children (the girl and her older half brother) to very limited supervised access.  The mother was genuinely concerned that the children had been sexually abused; the children clearly identified with the mother and began to tell investigators that they did not want to see the father (stepfather to the boy).  Various mental health professionals and physicians became involved and most of them concluded that the children had not been sexually abused, although the older boy, then about eight, made some vague "disclosures" that his stepfather may have touched his penis when he was three or four.

By the time the case came to trial the father had almost no contact with the children for a year. Justice Prowse concluded that the mother's "preoccupation with sexual abuse rubbed off on the children," which explained the vague "disclosures" of abuse.  The judge accepted that the mother had not "consciously encouraged or coached the children" to say that they had been abused and that the mother "honestly believed that her children had been sexually abused" and that her actions, including moving from British Columbia to Ontario, were "motivated by a desire to protect."  The judge concluded that the father had not sexually abused either child, though by the conclusion of the trial his relationship with the children was "troubled."  The judge recommended counselling for the children and parents, and concluded that the man should not have access to the older boy, who by this time was refusing to see his stepfather.  The father was awarded access to his daughter, to be supervised, "out of an abundance of caution," for the first three weekend visits.

In the minority of unfounded cases,[50] the judge will conclude that the accusing parent was intentionally making a false allegation, as occurred in one Manitoba case, where the judge concluded:[51]

It is patently obvious from the evidence and the manner in which it was given that the mother thereafter set out to punish the husband for the embarrassment that he had caused her.  The only ways she knew of were to deprive him of property (she took all of the furniture) and their son.  Her motivation was revenge, pure and simple....  I conclude that she never believed that her son had been abused, not when she reported the abuse and not now.

There are a number of cases in which it is apparent that the accusing parent is suffering from some form of mental disturbance that results in the making of an unfounded allegation.  Sometimes in these cases a mental health professional will testify about the accuser's mental disturbance, which may be related to that person having been abused as a child.  For example, in one British Columbia case the custodial mother terminated the father's access and made sexual abuse allegations that the police and child welfare services investigated and found to be without substance.  The father was granted interim custody while the mother continued to make the allegations in the local media and court.  The mother was seen by a number of mental health professionals, including a psychologist retained by the lawyer appointed for the child, who concluded that the mother was suffering from a "delusional disorder."  The judge terminated the mother's access, commenting:[52]

For the past two years, the defendant [mother] has persisted in allegations that S. [the child] has been ritualistically abused by a cult or occult group.  Extensive investigations have proven those allegations to be unfounded but the defendant, who has been diagnosed as suffering from a delusional disorder, continues to assert repeatedly...that S. has been abused.

In some cases, the accusing parent's mental state may affect his or her perception of reality, so it is not clear whether an unfounded allegation is being made honestly, manipulatively, or as a result of mental disturbance.  For example, in one Ontario case, protracted custody litigation went on for three years between parents who were both physicians.  The case centred on the mother's sexual abuse allegations.  Although the young child made some "disclosures" of sexual abuse to investigators, it became apparent that these were a result of her mother's influence.  The allegations were thoroughly investigated by child welfare workers, the police and the Suspected Child Abuse and Neglect team at the Hospital for Sick Children in Toronto, who all concluded that they were unfounded, though there was support for the allegations from some less experienced mental health professionals, including the mother's therapist who purported to conduct her own "assessment" and concluded that the child had been abused.  Justice Janet Wilson rejected the allegations and concluded that the mother was "an emotional, at times irrational person...she has exaggerated, dramatized and modified her evidence to adjust to her reality.  This adaptation may be conscious, unconscious or a combination of both."[53]  The child had spent nine months in a foster home during the proceedings; custody was awarded to the father with supervised access to the mother.

In child-related litigation, judges usually do not follow the ordinary rule of civil litigation to order the unsuccessful party to pay at least a portion of the legal costs of the successful party.  Generally, no order for payment of costs is made in custody or access cases.  However, in cases where a judge believes that a parent has made a groundless allegation for the purpose of gaining a tactical advantage in custody or access litigation, the judge will sometimes order the accusing parent to pay the costs of the parent who was unfairly accused of abuse.  Judges are most likely to do this if the accusing parent has proceeded to trial in the face of clear professional advice that the fears of abuse are groundless and the accusing parent appears to have manufactured evidence.[54]

5.3.2 Children Making False Allegations

As reported above, most cases of false allegations arise out of the misinterpretation, distortion, suggestion or even manipulation of a child's statements by the accusing parent, or even outright fabrication by the parent.  There are, however, a few reported cases of false allegations where the child is taking the lead in making the allegation; the child repeats the statements to investigators or even in court, but the judge ultimately concludes that the allegations have been fabricated by the child.  These cases involve older children, often preadolescent or adolescent girls, who may be manipulative or emotionally scarred by the process of separation.  In some cases, the child may be subtly encouraged by a parent to make these false allegations.  In other cases, the false allegation may arise from a child's desire for revenge against a father who has left the home, or from a desire to remove a person, such as a stepfather, from the child's life.[55]

In the British Columbia case of G.E.C. v. M.B.A.C.,[56] the parents separated when the two girls were very young.  After an initial trial in 1992, in which the mother made allegations of sexual abuse that were not proven, the mother had custody of the two girls and the father had generous access.  The litigation had been very stressful and the girls were seeing various counsellors.  The older girl, in particular, became upset when the father began to live with a new partner and announced plans to marry her.  About two years after the first trial, when she was about eight, the older girl reported to her mother that during an access visit the father had slid his hand down the back of her trousers into her "bum hole."  The disclosure was reported to police and social services, and a psychiatrist who had been working with the children also carried out an assessment.  The investigators and psychiatrist concluded that the allegation was unfounded, with the psychiatrist noting that the child reported the allegation without emotional affect and could give no context or details.  The child's psychiatrist concluded that the girl was the "central player" who was attempting to manipulate her father, although the mother was "only too willing to accept what [the child] says at face value."  In a 1995 trial, Justice Newbury concluded that the allegation was unfounded and awarded custody to the father, with the mother to have limited supervised access, and recommended counselling for the children.  The change in custody was not on the basis of the "fault" of either party, but rather because of the mother's lack of parenting skills and hostility and the "psychological damage" suffered by the girls while in their mother's custody.

Of course, great care must be taken to not improperly dismiss allegations in cases where the child is making the allegation, as the child may well be telling the truth.  Even a recantation by the child does not mean that the allegation was false, but it may instead reflect "accommodation" by the child to the pressure of the accused or other family members, or feelings of guilt or shame.  A false allegation by a child is often symptomatic of emotional distress; such children often need counselling.

5.3.3 Making an Unfounded Allegation-Effect on Family Law Decisions

In most reported cases where a judge decided that an abuse allegation by a custodial parent was unfounded, the accusing parent continued to have custody,[57] though in some cases the judge warned the accuser that if he or she persisted in making unfounded allegations of abuse, custody might be varied.  Those cases in which a judge was most likely to reverse custody (or terminate access if the allegation was made by an access parent), were ones where the accuser appeared to be suffering from an emotional disturbance that contributed to the making of the allegation, or appeared to be so hostile towards the wrongfully accused parent that the children would suffer.

An example of a case where the accusing parent lost custody is the Ontario decision of Ross  v. Aubertin.[58]  Following separation and the establishment of joint custody for a young girl, the mother repeatedly made allegations of physical and sexual abuse against the father, in particular to doctors.  The physicians could find no evidence to support the allegations and began to have concerns about the effect on the child of relatively intrusive medical examinations and of the mother's open discussion of her allegations in the presence of the child.  Assessors from the Family Court Clinic expressed similar concerns and concluded that the father was more "child-focused and more likely to promote a positive relationship with both parents."  Counsel for the child expressed "great concerns about the [lack] of insight of a parent who would continually make these false allegations and not be apparently aware of the risk to the child."  The judge terminated the mother's custody and awarded custody to the father, with reasonable access to the mother.

In some cases, it is the access parent who makes the unfounded abuse allegations.  In D.F. v. A.F.,[59] after the parents separated, the mother was feeling great stress and consented to the father having custody.  Over the next few years the mother made several unfounded complaints to the child welfare authorities and police about alleged abuse by the father.  There was considerable difficulty about access.  On one occasion, the mother assaulted the father's new partner in the presence of the child, and invited the child, then aged five, to join in the attack.  The mother was criminally charged and wanted the boy to testify in the criminal case, though the Crown prosecutor prevented this.  The mother regularly tried to involve the child in her disputes with the father, showing the child all the court papers and questioning the child about his meetings with the Children's Lawyer.  In family law proceedings, the judge referred to the mother's "harassment" of the father and stepmother, and expressed concerns about the "outrageous" conduct of the mother and her failing to recognize the harm caused to the child by the repeated investigations arising from her accusations.  The judge nevertheless allowed the mother to have access on alternate Saturdays, supervised by the maternal grandmother, as well as ordering that the child should receive counselling.

Where the non-custodial parent makes repeated unfounded allegations that result in intrusive assessments and investigations, this can cause real harm to the children.  It demonstrates insensitivity to the interests of the children and a manipulative personality.  In such cases, a judge may well suspend access rights to the accusing parent.[60]

On the whole, judges do not appear to be reducing the parental rights of those who make "honest mistakes" that result in allegations that are ultimately not proven in court, provided their continued relationship does not pose a risk to the welfare of the child.  On the other hand, if the accusing parent appears to be mentally unstable or deliberately undermining the relationship of the child with the other parent, these are factors that the court will consider.

The review of Canadian family law cases showed that in 89 cases where the court determined that the allegations were unfounded, the accusing party lost custody in 18 cases (but this was not always directly related to the allegation of abuse).  Only one person who made a false allegation was charged (and convicted) of mischief in connection with the false allegation, although the accusers were cited for contempt of court in 3 cases, 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 3 other cases.

The caselaw suggests that when there is an allegation of abuse, most judges will tend to "err on the side of caution," pending a full hearing.  Generally, judges are prepared to suspend unsupervised access at the interim stage if there are abuse complaints.  However, it appears this is done because of the governing principle to protect the child's best interest.  As explained in the written decisions, judges are sympathetic to the apparent injustices that can arise for a parent due to that decision, but the court cannot allow sympathy for a parent to interfere with the risk of harm and concerns about best interests of the children.

5.3.4 Dealing with the Uncertain Outcome

Ultimately, there may be cases in which judges, professionals and parents have to accept that there are reasonable suspicions of abuse, but not sufficient proof to convince a court.  Learning to live with uncertainty may be an aspect of some of these cases; it is often possible to take steps to protect the child against the possibility of further abuse without completely terminating contact with a suspected abuser.  This may be done, at least for a time, through supervision of access, first in a neutral setting and perhaps eventually in the home, provided that the supervisor is a person committed to the welfare of the child.[61]  In some cases, concerns about physical or even sexual abuse may be a result of inappropriate parenting as opposed to a desire to exploit a

child, and mandatory counselling or education of the parent may be appropriate.[62]  A long-term plan to ensure the safety of the child may include therapy by a skilled neutral professional, who can both provide support for the child after the stresses of litigation and monitor for possible abuse.[63]  There may also be a rate for lawyers or other advocates for children to attempt to provide on-going monitoring in these cases.  In some cases, educating the child about inappropriate touching and the need to report is useful, though it must be recognized that some children may be too young or otherwise unable to protect themselves.

There are also cases in which the judge determines that the allegation of abuse is unfounded but the accusing parent is unwilling to accept that conclusion and "goes underground" rather than expose the child to the prospect of further abuse.  In some cases, the abducting parent may be correct and the judge was indeed wrong to have concluded that abuse did not occur.[64]  In other cases, the abducting parent may be the one who is wrong and may be suffering from some form of mental disturbance, perhaps a consequence of her own history of childhood abuse.

5.3.5 Children's Evidence in Family Law Cases-The Admission of Hearsay Evidence

It is quite rare for children to testify in family law cases, as lawyers and judges recognize the emotional stress that will inevitably arise if the child is forced to testify in court and openly "take sides" with one parent against the other.

In most cases, judges receive hearsay evidence about the child's out-of-court disclosures to people such as parents or professionals like social workers or police officers about alleged abuse.  In some cases, one of the parties will introduce a videotape of an investigative interview with the child,[65] though it is not necessary to have this type of evidence for the court to hear about the child's out-of-court statements.  Relatively few family law cases discuss the legal basis for the admission of hearsay evidence.  The decisions that consider the issue usually cite the Supreme Court of Canada decision in R. v. Khan[66] for the general principle of admission of hearsay evidence if it is "necessary" to admit such evidence and it is considered "reliable."  The circumstances of the disclosure are often considered in determining the element of reliability, while the "necessity" may arise out of the desire to prevent the emotional harm that might be caused the child by testifying in court or because the child is considered too young to be a competent witness in court.[67]

In some cases the judge will admit testimony about the child's out-of-court disclosure not for its truth, but as evidence of the child's state of mind.  For example, the judge may consider whether the disclosure reveals a fear of the alleged abuser.[68]  If a person is testifying as an "expert witness," whatever the child told the expert may also be admissible as the basis of their opinion evidence.  It is evident that judges in family law cases feel the burden of making decisions about abuse allegations and generally take a flexible approach to evidentiary issues, wanting to receive as much reliable information as possible before making such a difficult decision.

However, there are a few reported cases in which the court ruled that statements by children made to parents involved in a custody or access dispute are inadmissible as they could not satisfy the Khan requirement of being "reliable," considering the potential for the children to say what they thought the parent wanted to hear.[69]

Although it is rare, children sometimes testify in family law cases involving abuse allegations.  Their evidence is entitled to careful consideration by the court, but judges appreciate that a child who is testifying may have been manipulated or coached into making an unfounded allegation or, if denying a previous allegation, pressured into falsely recanting.[70]

5.3.6 The Role of Assessors and Experts

Assessors, mental health professionals and police and child welfare investigators play an important role in resolving cases where abuse allegations are made; few of these cases proceed without some type of "expert" involvement.  Indeed, in most cases in which serious allegations of abuse are made, there are likely to be a number of professional investigators and assessors involved.

One of the difficulties in this area is that some of the assessors, investigators and other "experts" involved in these cases lack the sophisticated experience, skills and knowledge to deal effectively with this particular type of child abuse case, where there is rarely medical evidence to corroborate an allegation.  Many of the behavioural patterns that may be consistent with a child having been abused by a parent may also be consistent with a child suffering from the effects of a high conflict parental separation.  Some research suggests that mental health professionals have considerable difficulty in reliably assessing whether young children have been sexually abused based solely on observing an interview of a "disclosure."[71]

In practice, it is likely that many cases are resolved without trial once the investigators and other experts have assessed the merits of an allegation.  A parent is less likely to pursue a matter to trial if all of the "expert" evidence supports the position of the other party.  Where the initial allegation results from an honest mistake, the accusing parent may be relieved that investigators or assessors have all determined that the allegation is unfounded and the child has not been harmed; such cases are less likely to be pursued in court.  Cases seem most likely to proceed to trial if there is a difference of opinion among the various mental health professionals and investigators, or if one parent seems especially hostile or emotionally unbalanced and is ignoring the expert opinions.

Judges in family law cases will be reluctant to make a decision that is contrary to the unanimous opinions of investigators and assessors, though they will do so if there is a careful critique that demonstrates bias or lack of competence.  Lawyers may have an important role in challenging the opinions of some "experts" in court.[72]

In some cases, there may be divergent expert opinions about whether abuse occurred and the judge must decide which expert opinion to follow.  Sometimes, counsel can persuade a judge to discount one opinion, on the basis of a lack of expertise with child sexual abuse assessments or because of bias.  Sometimes, the bias of an assessor or investigator may be apparent from the manner in which the professional became "allied" with one parent (often the accusing parent who is usually the first person to contact an investigator) and the unfair or unprofessional treatment afforded the other parent (often the accused parent).[73]  In a few reported cases, the "expert" putting forward an opinion has been involved in a therapeutic relationship with one parent and hence is in no position to present an unbiased position about whether or not the child has been abused.[74]

In some cases, the judge must assess the methodology of each of the experts.  For example, in K.M.W. v. D.D.W.,[75] the judge rejected a mother's allegations of inappropriate sexual conduct and permitted the father of a four-year-old child to have unsupervised access.  The court severely criticized an assessment conducted by a psychologist, which was characterized as a "blitzkrieg assessment," conducted in six hours on one day.  The psychologist, who had been selected with the consent of both parties, asked the child leading questions about the disclosure and relied on his interpretation of the child's play with anatomically correct dolls to come to his conclusion that abuse had occurred.  The psychologist ignored the fact that the child also reported that the mother kissed her genital area.  The judge preferred the opinion of a child protection worker, who followed the investigative protocol of the Institute for the Prevention of Child Abuse, and rejected the abuse allegation.  While the protection worker was not technically accepted by the judge as an "expert witness" who was professionally qualified to give "opinion evidence," the judge gave "her testimony great weight," noting that she had 14 years experience.  Her interview with the child, following the Institute's protocol, avoided asking leading questions, and posed questions that challenged the allegations.  The worker concluded that the child was "highly suggestible" and exposed to "inappropriate sexual material" on television at her mother's home.  The child's original "disclosure" to her mother, that her father touched her "peepee," may have been related to the child's diaper rash at the time.

A parent may have an expert critique the work of a court-appointed assessor or state-employed child welfare investigator, in an attempt to persuade the court that the first assessment was incompetently conducted.  In M.T. v. J.T.,[76] parents were involved in custody litigation in which the mother alleged that the child had been sexually abused by the father.  A child psychiatrist was appointed by the court to conduct an assessment, but he was not an expert in child sexual abuse.  Although the assessor saw the child only once and the child disclosed that the father had done "something bad" to her, the assessor did not pursue this with the child.  The assessor concluded that the child had not been sexually abused because she seemed to play happily with her father during an observation session and spoke positively about her father.  After this assessment, the child welfare agency conducted its own assessment and two psychologists with expertise in child sexual abuse investigations were retained to critique the first assessment.  It became clear that the child was afraid of being alone with her father.  In the family law trial, the judge was persuaded that the first assessment was inadequate and concluded that the father had inappropriately touched the child in a sexual manner.  The father was permitted limited professionally supervised access.

5.3.7 Are Stronger Legal Remedies Required to Prevent False Allegations?

There are a number of offences that may be committed under the Criminal Code by a person who knowingly makes a false allegation of sexual abuse, but there are almost no reported Canadian cases for such prosecutions in the context of parental separation.  A person who knowingly makes a false statement to a police officer that accuses another person of committing a crime (which would include any situation of child abuse) commits the offence of mischief, contrary to section 140 of the Code.  If the false allegation resulted in a civil or criminal proceeding in which the person who made the allegation gave evidence, other offences would be committed, including perjury (giving false evidence under oath, section 131) or making a false affidavit (section 138).  If the reporter persuaded or misled the child or another person to make a false statement, this would be the offence of obstruction of justice (section 139).

The difficulty with laying any of these charges is that a prosecution will only succeed if it can be proven beyond a reasonable doubt that the statements were false and that the person making the statement knew it was false.  People who make false reports have a defence if they have an "honest belief" in the allegations when made, even if their beliefs were not reasonable.

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 (12 out of 14).  One respondent said, "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 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 informants thought sentencing could be more punitive in this context.

5.3.8 Would Stronger Legal Remedies Discourage Legitimate Reports of Abuse?

Some lawyers and advocates for women worry that if an allegation of abuse is made that the judge does not accept, the accuser may be "punished" by the court.[77]  In particular, they worry that if a custodial mother makes an unproven allegation of abuse against an access father, she may lose custody.  There are some reported family law cases where judges have suggested that a custodial parent who makes an unfounded allegation is by that very act harming the child and should therefore lose custody.  For example, in one Ontario case the judge commented:[78]

It is also my opinion that if the allegations of abuse are determined to have been unfounded, then the raising of these allegations by the accuser parent are in themselves the ultimate abuse by that parent against the child, for it spoils or at least shadows, the future relationship that child has with the now proven innocent parent.

There is an understandable concern that this type of judicial response may discourage parents from bringing forward valid concerns of abuse for fear that they might not be able to prove them.  There is also concern that parents who make true allegations which are not proven in court may be unfairly punished for bringing these allegations to the attention of the authorities.

While these are legitimate concerns, it would appear that most judges take a sensitive and contextual approach to these cases.  Where an allegation of abuse is rejected by a judge, the most common response is to then proceed to a "best interests" assessment, considering the accuser's motive in making the allegation, the reaction of the children to the allegation, and whether the accuser can maintain a positive relationship with the child and the other parent.

When key informants were asked if they were concerned that stronger legal sanctions against reporters of false allegations would discourage legitimate reports of abuse, half of the informants said yes, or there was that risk, and half 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."

5.3.9 Balancing the Interests of Children with the Rights of the Parents

The family law case review suggested that while judges are sympathetic to the rights of accused parents, these rights are a secondary consideration relative to the best interests of the child.  Further, judges do not appear to be reducing the parental rights of those who make an honest mistake that results in unfounded allegations.  It would appear that, on the whole, judges are not altering custody to "punish" accusing parents after an unfounded allegation is made by a custodial parent.  On the other hand, if the accusing parent appears to be mentally unstable or deliberately undermining the relationship of the child with the other parent, these are factors that the court will legitimately consider as a basis for varying custody.

The child's best interests also seem to be weighted heavily in dealing with evidentiary issues.  Children rarely testify in family law cases, in recognition of the emotional stress to the child of appearing in court and openly supporting one parent.  Instead, judges will often receive hearsay evidence about the child's out-of-court disclosures to parents, social workers or police officers about alleged abuse.  Sometimes, one party will introduce a videotape of an investigative interview with the child.

When an abuse allegation is made, the child's safety is a primary concern, but there is also a recognition that children (if there is not actually abuse) also seem to fare better if they maintain contact with both parents in an atmosphere of co-operation (Wallerstein & Kelly, 1980; Maccoby & Mnookin, 1992).  Supervised access can help maintain contact between an accused parent and a child while protecting the child from physical or sexual abuse.  A person such as a child welfare worker, a volunteer or a relative can provide supervision, or it can be provided through a program operated by a social service agency or visitation centre.  A centre or program can offer supervised exchange, on-site supervised visitation, supervised visitation off-site or monitoring through mirrors or cameras.  It may also offer court assessments and therapeutic interventions.

The accused parent's right to access to the child is probably an area where it is most likely difficulties and disagreement will occur.  All 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 said that access rights were denied or limited during the investigation.  Three respondents said that access rights could be denied for "awhile," and three respondents said that they did not know or that access was not denied.

Almost all respondents (thirteen) were aware of some possibilities in their jurisdiction for supervised access.  Respondents said supervision was provided by child welfare agency workers, contracted workers, court service workers, family members, homemakers, or volunteers from the community.  One key informant was aware of a supervised access centre funded by the government or by the parties.

5.4 Social Service Issues

5.4.1 The Role of Therapists and Counsellors in Making False Allegations

It is apparent that in some cases of false allegations, a therapist, counsellor or other "helping professional" (like a shelter worker)[79] has had a critical role in bringing forward a false allegation of child abuse.  In some cases, these professionals led the accusing parent to misinterpret statements or the behaviour of the child.  Typically, these people are acting in a professionally inappropriate fashion, and outside their area of expertise.

In M.K. v. P.M.,[80] the mother alleged that the father had sexually abused their six-year-old daughter.  Child protection, police and experienced medical investigators all concluded that the allegations were unfounded and that the child's "disclosures were a result of the mother's manipulation and suggestions to the child."  However, two mental health professionals testified to support the mother's allegations.  Both had been involved in a therapeutic relationship with the mother, one for over two years, and neither had examined the child or the father.  They nevertheless came to court and critiqued the work of the independent assessors and investigators, and to express their "professional opinion" that the mother did not "consciously or unconsciously" suggest anything to the child.  In rejecting their evidence, Justice Janet Wilson commented:

Therapeutic counselling and providing objective expert opinion are two very different professional functions...therapeutic contact [with a parent] may make it very difficult for an expert to provide a neutral balanced assessment of a situation.  Unless the expert evidence relates to the course of counselling itself, it...may not be very useful.

A parent's therapist is most obviously in a problematic role if that professional comes to court and testifies about the child's condition.  Less obvious, but also problematic, are cases in which a therapist may be encouraging a parent to make an unfounded allegation.  There are cases involving abuse allegations in which the courts have ordered the accusing parent's therapist to disclose records related to the therapy for possible use in the custody case.[81]

In some cases, it is the child's therapist who has become inappropriately "allied" with one parent in supporting or even inducing unfounded allegations of abuse.  In D.A.B. v. J.J.K.[82] there was ongoing difficulty between the parents of a four-year-old child over access, including concerns by the mother that the father was drinking alcohol during visits.  The mother reported to the police and child welfare workers that the child told her that:  "Daddy pee-peed in my mouth" and "Daddy punched me."  The child was interviewed by investigators three times but was non-communicative and made no disclosure, but on the basis of the mother's statements the child was referred for counselling, and the mother stopped allowing access.

After several months without seeing his son, the father began court proceedings to obtain access.  As soon as the mother received the court documents, she again contacted the child welfare authorities and said that her son was ready to talk.  A videotaped interview was conducted by the child welfare agency, with the mother present and the therapist taking the lead in conducting the interview.  The child was repeatedly asked leading questions by the therapist and was unable to provide any contextual details, or to say what occurred before or after the alleged abuse.  At one point in the interview the child says to his mother:  "You told me it was Daddy who did that."  Later he says:  "He didn't do anything else, right Momma?"  Throughout the interview the mother is clearly reinforced by the therapist as the source of goodness and the father as the problem, though the child accurately states that the father is a stranger since the boy had not seen him for almost eight months.

Justice Benotto rejected the allegations of abuse, and ordered a schedule of access, starting with short visits progressing towards overnight visitation.  The judge believed that the child had been coached by the mother into making the "disclosures."  The judge was also highly critical of the child's therapist, who testified at trial and recommended no access, despite the fact that she never met the father or any members of his family.  The therapist had told the mother that there was no need for a court-ordered independent assessment, since nothing would be added to her (the therapist's) opinions.  The judge criticized the therapist for her "lack of objectivity" and "fundamental misunderstanding...of the respective roles of therapist, investigator and assessor."

In a few cases of the most obvious and serious professional bias and incompetence (as discussed in Section 3.2), professionals may be held civilly liable for their conduct.  More commonly, their involvement does not entail liability, but it causes needless anguish and expense to the family.

It would appear that most professionals who work with abuse cases are sensitive and aware of their complexity.  There are cases where professionals may have a legitimate difference of opinion about whether abuse occurred.  Further, depending on their professional role, some professionals have a legitimate role of support or even advocacy for an accusing parent or child.  However, there are some professionals who may have their own psychological or political "agendas," who become inappropriately "enmeshed" in their clients' lives, professionally or personally.

5.4.2 Are the Resources for Supervised Access Adequate?

Information from the literature review, which unfortunately is based on studies primarily from other countries, indicates that the resources for supervised access/visitation do not match the need for the services.  According to an American study by Pearson and Thoennes (1998), most visitation supervision is provided by child welfare agency caseworkers, who lack the time to supervise visits as ordered by the courts.  Agency supervisors called for a need for supervised visitation in non-office settings and during evenings and weekends.  Judges said they need more supervised visitation resources.  Two-thirds of visitation program administrators cited lack of funding as a major problem.

Key informants were asked if they thought current supervised access centres were adequate, and only two out of fourteen 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 (i.e., 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 resources.

5.4.3 Should Supervised Access Workers Provide Assessment and Treatment Services?

While there is agreement in the literature about the need for assessment and treatment services, there is debate on who should be providing these services.  According to the Pearson and Thoennes (1998) study, the majority of judges and court administrators (86 percent) indicated that it was "very important" or "somewhat important" that the supervisor advise the court on the validity of the allegations that led to the referral.  This helps the court determine suitable custody and visitation arrangements.  Visitation supervisors also said they would like to play a more active role by providing feedback about the families to the court (80 percent) and by modelling positive parenting behaviour (60 percent).  Program directors, expressed the following concerns about visitation supervisors taking an evaluative role:

  1. whether supervisors are qualified to make recommendations about custody and visitation to the courts;
  2. fear that they would lose their perceived neutrality and thereby reduce their ability to deal effectively with both parents; and
  3. issues regarding liability.

Similar concerns have been raised in England and Wales (Furniss, 1998), where debates have begun over the need for centre evaluations, increased formalization, and increased training and qualifications for staff versus increased supervision for voluntary organizations.  It is recognized that risk assessment is more the responsibility of professionals working with the families than untrained volunteers.

5.4.4 Increased Costs to Process Cases Involving Allegations of Abuse

Given the complexity of cases involving allegations of abuse in the context of parental separation, it is not surprising that these cases may be very expensive to process.  Many factors contribute to increased costs for all involved, such as:

Litigation involving allegations of abuse is very expensive and many parents lack the resources to retain experts.  If court-appointed assessors or state-paid investigators lack knowledge or skill, or are biased, this may be seriously and perhaps irreversibly prejudicial to the parent and child whose case has been improperly assessed.

If the resources for supervised access are not available and the non-custodial parent cannot afford to pay user fees, contact between an alleged abuser and the child may not be possible.

5.5 Education and Training Issues

5.5.1 Dynamics and Characteristics of Founded and False Allegations of Child Abuse

One study reported that the rate of sexual abuse allegations in families with custody and access disputes was less than two percent (Thoennes and Tjaden 1990).  However, it also found that this rate was six times greater than the reported incidence of child sexual abuse in the general population.  The authors suggest that child sexual abuse may occur more often in the context of marital breakdown for several reasons.  First, the abuse itself may create the marital stress that leads to the breakdown, or the discovery of the abuse may cause the marriage breakdown.  Second, the separation may create more opportunities for abuse than were present in the intact family.  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).

As noted above, several reasons are posited for unfounded allegations following parental separation.  According to Green (1991), some actions could be misinterpreted and result in a false allegation.  These include misinterpreting normal care-taking practices; misinterpreting normal sexual behaviours in children; misinterpreting common psychological symptoms due to parental separation; and misinterpreting physical signs and symptoms in the child.  Penfold (1997) lists other conditions that could cause, or influence, an unfounded allegation of sexual abuse.  These include a young child's immature social and communication skills; the presence of other types of family violence; abuse being attributed to the wrong person, or the psychopathology of the child or the parent.  Other conditions include the influence of media exposure about sexual abuse on the parent making the allegation; the level of hostility and mistrust between the parents; the child's exposure to pornographic material; the child witnessing adult or animal sexuality; use of leading and coercive interview techniques on the child; excessive interviewing; and poor documentation.

The information in this paper indicates that most cases involving unfounded allegations of abuse are due to honest mistakes and poor communication rather than deliberate lies or manipulation.  Parents need information about the effects of parental separation on children and training to improve communication to help reduce the number of unfounded allegations and help children cope better with their situations.

5.5.2 Lack of Training for Professionals Involved in Investigating Cases of Alleged Abuse

Understanding and knowledge about allegations of child abuse in the context of parental separation is a developing field.  Little research has been conducted, and much of the information published by the media is biased and reports on atypical cases.

The very limited information we have from the key informants is that most (six out of seven child welfare workers and police officers) said their organization did not provide specific training on the dynamics involved with allegations of child abuse in situations of parental separation.  Key informants suggested more education of assessors, mediators, child welfare workers, shelter workers, police, lawyers and judges, as well as parents.  They also called for an improvement in the quality of the investigative process, including proper interviewing techniques, and handling cases more expeditiously.

There is a clear need for applied child development and psychological research to help police, child protection workers, assessors and other mental health professionals more effectively distinguish founded from false allegations.  Judges and lawyers also need more educational material and programs dealing with these extremely challenging cases.