What You Don’t Know Can Hurt You: The importance of family violence screening tools for family law practitioners

Discussion

Practice Setting

FVST Content

The majority of the analyzed tools were developed for use in the health care sector. This practice setting may influence the overall structure of the tools and the prevalence of certain questions in the tools that were analyzed. For example, only 14 tools (16%) contained questions relating to relationship decision-making. None of these tools   originated from the health care sector (they were primarily from the family law and mediation sectors). Relationship decision-making may be more relevant in the family law context where the framework for making decisions that relate to children of the relationship must be established. This points to the influence of context and setting on the content of FVSTs. Because the relationship decision-making question was not prevalent, this theme does not appear in the provided list of common questions despite its relevance for family law.

Another factor affecting content has to do with the period of time during which the services of a FLP are sought. Family law lawyers are met with at the time of separation, when research indicates that abusive behaviours tend to escalate (Ellis, 2016; Zeoli et al., 2013). The screening tool must reflect the possibility that some abusive activities may amplify in their severity in the near future. Beyond this, separation also represents an opportunity to determine the remedies to be sought, both legally and by way of appropriate referrals to supportive service networks. The practitioner’s choices in both these regards have to be informed by an adequate understanding of the interviewee’s experiences.

Only 20% of the tools reviewed asked the interviewee whether their partner engaged in stalking behaviours or in other ways invaded their privacy. However, stalking and other forms of harassment commonly occur following the termination of an abusive relationship (Edwards & Gidycz, 2014; Showalter, 2016) and can be an indication that more serious violence could soon occur. “Victims of stalking can experience serious psychological harm that can have long-lasting effects and limit their daily activities” (Statistics Canada, 2018, p. 5). Given this, any new or previous stalking behaviours are important for practitioners to consider when determining the legal course of action (i.e., whether to seek a restraining order).

Seventeen percent of the reviewed tools asked whether the interviewee’s partner had ever taken or threatened to take their children.Footnote 18 While these questions did not appear very frequently in the tools, the threats may previously have been used to coerce the interviewee to stay with the abusive partner, i.e., a threat to take the children if the interviewee ever left them. This information is important to the family law lawyer given that separation has now occurred, because legal options may be available to help prevent child abduction from occurring, and because it indicates the willingness of the abuser to use the children to engage in indirect abuse towards the interviewee (which is relevant to custody and access matters). 

Though this paper has differentiated between screening and risk assessment, questions should be included in the screening tool that assess for the risk of child abduction. Neilson (2017) notes that prevention is important because of the expense and uncertainty associated with trying to obtain the return of children who have been abducted. Screening tools should inquire about a history of abduction/threats of abduction as a form of abuse, but perhaps could also include a sub-list of risk-assessment questions to be asked if the interviewee responds affirmatively to the primary questions on abduction. A list of risk-assessment questions is available in Neilson’s Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (2017, Chapter 16.6.2). Where the screen and risk assessment indicate a probability of abduction, legal options include bringing an emergency motion for sole custody (noting that the threshold for an “emergency” is high), requesting an order that the abuser hand over the children’s passports and other identity documents, and/or requesting an order that the abuser not remove the children from the jurisdiction (non-removal order).Footnote 19

While including these questions in a FVST can provide valuable information to the FLP, these insights can only be gained if the practitioner adequately understands the dynamics of abuse. Practitioners should receive training on the topic of family violence so that they are able to recognize the implications of these historical patterns.

Common Phrasing of Questions Referenced Above
  1. When you look back over time, how were decisions made in your [marriage/relationship]?
  2. Has [insert name/the other party] ever followed you, made repeated phone calls to you, or examined your phone records?Footnote 20
  3. Has [the other party/your partner] ever threatened to take or have your children taken away from you or threatened to never let you see them again?

FVST Structure

Research has identified a common operational concern among health care providers to be the lack of follow-up visits after an initial meeting during which screening was conducted (Williams, Halstead, Salani, & Koermer, 2016). This may be less of an issue in the lawyer-client relationship where more frequent interactions take place throughout the duration of the case if the lawyer is retained for its entirety. This could allow the initial screen to be relatively short (particularly compared with the outliers to the mean in the analyzed tools that had 70 questions or more), given the lawyer will have opportunities to conduct additional screening as the relationship progresses and trust is built. These lawyers may not wish to use a tool that takes a significant amount of time to administer whether their fee is being paid by a legal aid service or directly by the client.

Given that the lawyers will meet the interviewee at the time of separation, the screening tool’s structure and administration should also take into account the effects of trauma and fear on the interviewee’s willingness to disclose. These effects may drive the legal issues that the client chooses to share with the lawyer, which can then create tension with a screening tool that seeks to direct the conversation along particular lines.

Training is necessary so that FLPs can effectively administer FVSTs in a way that takes into account those factors that are particularly relevant to the family law context.

Training on the effects of trauma generally, and the particular impact of trauma on demeanour and disclosure patterns, should be a requirement along with training in methods for supporting and interviewing people experiencing the effects of trauma. If there is a history of physical abuse involving head injuries and potential brain trauma (strangulation, struck on the head, head banged against walls/furniture), the interviewee’s ability to convey information in a linear sequence may be affected. Family law practitioners should receive training in the effect of this form of trauma on disclosure patterns. This training is necessary to promote effective screening and will also improve the lawyer’s ability to represent the abuse survivor and work with them in the subsequent family court proceedings (if proceedings are initiated).

Gaps in Existing Screening Tools and Approaches

FVSTs should reflect the diversity of the populations with which they are used.

FV occurs in all cultural groups (Htun & Weldon, 2012; Raj & Silverman, 2002; Vanderende, Yount, Dynes, & Sibley, 2012).Footnote 21 Asay, DeFrain, Metzger and Moyeret state that FV is a core social issue in every country around the world (Garcia-Moreno et al., 2006).

This report does not suggest that particular cultures are more tolerant of violence or condone violence (Neilson, 2017).Footnote 22 While all women experience many of the same or similar forms of violence, intimidation, isolation, and control by their abusive partners, some women may also experience discrimination and violence from society and face additional challenges in leaving an abusive relationship (Vanderende et al., 2012). As Pedersen, Malcoe, and Pulkingham (2013) explain, although women’s experiences of violence cut across socioeconomic, racial, ethnic, and other cultural divides, social inequalities exist. They may be more vulnerable due to a lack of resources and options for leaving (Madden, Scott, Sholapur, & Bhandari, 2016). Furthermore, the abusive partner may use specific tactics and forms of abuse related to the particular cultural situation.

Research conducted by Wrangle and colleagues (2008) on screening among Spanish-speaking Latina women indicates that with this population, questions focusing on psychological and emotional abuse had a higher sensitivity than physical abuse questions. The authors note that:

[d]ifferences in perception of IPV, such as lower intolerance of certain forms of IPV, may result in a difference in screening efficacy for the same screening questions among ethnic groups (Wrangle et al., 2008).

To be effective, FVSTs need to reflect cultural realities and differences, and need to bring an intersectional understanding of the ways in which multiple forces can work together and interact to reinforce conditions of inequality and social exclusion (Murshid & Bowen, 2018). Tools for identifying FV in the histories of Indigenous women should be created “by experts in collaboration with elders and others who understand the applicable Indigenous cultures” (Neilson, 2017, 20.3.3).

Neilson notes that the effect of historical practices targeting Indigenous communities in Canada (such as residential schools) combines with the effect of exposure to violence where the relationship is abusive, resulting in high rates of trauma and post-traumatic stress disorder (2017). Additional barriers to disclosure can exist and are listed in Chapter 20.3.2 of Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (Neilson, 2017).

In spite of the necessity for cultural and regional sensitivity, the research team could not locate any tools that were specifically written to reflect the realities of Indigenous, rural, or other regional or cultural circumstances. The concern that questions should be tailored to the population was also expressed in the informational interviews conducted by the research team. We note the existence of the Alberta Council of Women’s Shelters’ risk assessment tool, which was developed with sensitivity to the experiences of First Nations women (Alberta Council of Women’s Shelters, 2012).

Further research should be conducted on diverse cultural and regional considerations and how these considerations should impact the wording and format of FVSTs.

Emerging Realities

The face of family court is changing rapidly across Canada. Unrepresented parties have become the norm rather than the exception (Government of Canada, Department of Justice, n.d.).

In response, lawyers are increasingly offering unbundled legal services, where they accept a retainer from a client for specific legal issues rather than for the entire case (Murphy, Wilson, & Wong, 2012). Legal coaching is also emerging, with lawyers accepting a fee to provide behind-the-scenes, off-the-record guidance to litigants to assist them in presenting their case effectively in court (Gershbain, 2017; National Self Represented Litigants Project, n.d.).

As of 2018, paralegals are permitted to provide some legal services in family court in Ontario (Robinson, 2017).

Any plans for introducing and promoting a universal FVST for FLPs will have to take these new realities into account to ensure that individuals who are not fully represented still encounter screening and have access to the supports that can flow from that.

Distinguishing FV Screening in Family Law from Screening in Other Sectors

There is much for the legal profession to learn from screening that occurs in both health care and mediation, since both these sectors have been engaged in screening (in some cases universal screening) for some time. There is no universal FV screening for FLPs, and it appears few lawyers engage in any formal process or use a formal tool.

However, there are also important differences between the purpose of screening in different professions and in the environment in which a screening tool can be used.

In the health care context, screening for FV can allow the practitioner to identify possible long-term health impacts that they might not otherwise have reasons to look for; it increases the likelihood that patterns of abuse over time can be tracked; it can, in the case of sexual abuse, ensure that proper testing for pregnancy, HIV/AIDS and STIs is done; it can assist the practitioner in making appropriate referrals for counselling and other support; and, it may even help to prevent more serious harm in the future. Regardless of the screening result, the practitioner will be providing services to the patient.

Another difference between family law and health care is that because most health care in Canada is funded by the government, the time it takes to screen is at no direct cost to the practitioner or the patient.

In the context of mediation, FV screening allows the mediator to assess the appropriateness of mediation for both parties (including whether or not mediation can be fair to both of them) and to consider any relevant safety factors. Furthermore, screening looks at the tactics of abuse, the longevity and intensity of abuse, the ways in which the two parties interact with one another, levels of fear experienced by abuse survivors and the ability and willingness of both parties to participate fully and authentically in the mediation process.

In mediation, the same individual generally conducts the screening with both parties. The mediator may decline to provide mediation based on their conclusions post-screen and may make recommendations to the parties for alternative processes; or the parties (in particular, the abuse survivor) may decide against participating in mediation. The mediator may engage in some safety planning with the parties or may refer them to community resources for this and other support (i.e., counselling).

As noted previously in this report, screening has been an entrenched practice in professional mediation services for some time (in most parts of the country) with mediators required to use particular tools after completing mandatory training, and to engage in regular update training.

FLPs tend to engage in less formal screening.  Some lawyers use tools that they have found or created themselves, but most rely on “gut instincts” or on voluntary disclosures to learn about violence their clients have experienced. Because few lawyers have had formal education or training on the topics of domestic violence and/or screening, they may miss important red flags, rely on inaccurate stereotypes about who is a victim of FV, not understand that many FV survivors do not self-disclose, be unfamiliar with how a survivor would present herself, and not know the appropriate language to use to solicit accurate responses about FV.

The family law setting is very different from both health care and mediation settings. Lawyers cannot expect to conduct lengthy screenings when their clients are working with limited funds or are receiving legal aid assistance. The lawyer will also be using the screening tool with their client only, so will not be able to hear alternative perspectives from the other party (unlike in mediation where the mediator assesses both parties).

The primary purpose of FV screening in the family law context is to enable the lawyer to identify related legal issues and provide effective legal advice/services to their client. Information gathered during screening will, in all likelihood, become part of the evidence that the lawyer needs to prepare pleadings and other court documents. The time needed to gather this information should be taken into account when legal aid services consider the provision of funding for a certain number of hours.

Screening should also allow lawyers to identify immediate and longer-term safety issues and to make appropriate referrals for their clients to community services that can assist them with safety planning and can provide other support in areas such as counselling and housing.

The Importance of Training

Screening tools should only be used by FLPs who have completed a standardized training.

This training, whether delivered in-person or online, should cover the following topics: