What You Don’t Know Can Hurt You: The importance of family violence screening tools for family law practitioners
There is no universal family violence (FV) screening tool/procedure designed for family law practitioners (FLPs) in Canada at this time. Individual lawyers, some of whom have received specialized training about FV, and many of whom have not, bring their own approaches to assessing whether or not a client has been subjected to (or has engaged in) abuse within their intimate relationship.
As this research shows, the use of family violence screening tools (FVSTs) is much more common in other fields (particularly the health care and family law mediation fields). Use of such tools assists clients/patients in sharing with professionals important and relevant information about abuse in their relationship -- information many survivors of abuse are reluctant to share on their own initiative. It is important to draw on the experience and knowledge of the sectors that routinely use such screening tools.
FLPs are often the first point of contact for those entering the family justice system. They need to be aware of any abuse history as early in the lawyer-client relationship as possible so that decisions made reflect the best interests of the children, the legal rights of the parties and the safety of FV survivors.
The importance of maintaining a safety focus cannot be overstated. As discussed below, Ontario’s Domestic Violence Death Review Committee consistently finds (2003-2016) that a history of domestic violence and pending or recent separation are the first and second highest risk factors for lethality in domestic homicides.
FLPs who are trained in the use and interpretation of a tested screening tool, as well as in how to understand its limitations, will be able to more quickly and accurately identify the presence of FV. With this information, the lawyer is in a better position to discuss appropriate process and outcome options with their client, give legal advice, take instructions, collect evidence and make referrals for corollary services where appropriate. The lawyer will know, early in the professional relationship with the client, whether there are safety concerns that require immediate attention.
This research report recommends the adoption of universal FV screening by FLPs. To support this recommendation, it begins by presenting a definition of FV, then examines common family dynamics where violence is present and the impact of trauma on a family court litigant. Exploration of the relationship between FV and family court and a discussion of the importance of screening in the family law context further supports the recommendations.
The report also provides an overview of the methodology used to identify and analyze FVSTs, identifies the differences between risk assessment and screening tools, and provides a list and summary of each of the FVSTs included in the review as well as an analysis of commonalities in structure, format, content, delivery, frequency of use and results/outcomes across the FVSTs, analyzed at two levels:
- across FVSTs used by FLPs, and
- between FVSTs used by FLPs and those used in other sectors.
Research gaps in and differences between regions and populations served are noted. In particular, a research gap exists on the topic of screening within Indigenous communities.
Best practices are identified for developing, administering and using FVSTs across populations, sectors and specific to FLPs.
The report ends with recommendations to assist the Department of Justice, provincial and territorial law societies and others in implementing universal FV screening for FLPs. These recommendations speak to the need for:
- The development of a common tool that can be adapted for use with diverse clients
- Mandatory training for lawyers before they use the tool
- A two-step screening process
- Legal aid funding to compensate lawyers for the additional time required to implement the tool
- A pilot study to test various models as well as ongoing research to explore specific elements of FVSTs in this context
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