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

Relationship Between Family Violence and Family Court

Lawyers report that FV is an issue in 21.7% of their cases on average and judges say that it is an issue in 25.3% of the cases coming in front of them (Bertrand, Paetsch, Boyd, & Bala, 2016).

Because of its long-term impact, the prevalence of post-separation abuse and the trauma experienced by many survivors, FV must be understood and acknowledged throughout the family court process. In particular, coercive controlling violence needs to be identified. Whether or not violence within the family proves determinative to all of the legal issues at play, its presence will affect the parties, their children and others more peripheral to the situation (Araji, 2012)

Particularly when there are children, the court needs to know about violence within the family to make appropriate orders about child-related decision-making by the parents, where the children will live, how the parents will exchange and communicate about the children, and what supports may be necessary for the family (Cross, 2016; Zeoli et al., 2013).

Safety concerns, both present and future, cannot be addressed if the court does not know about past and ongoing abuse (Abshoff & Lanthier, 2008; Araji, 2012; Croll, 2015; Coy et al., 2015; Dalton, 2013).

Why Screening is Important for Family Law Practitioners

Many FV survivors do not readily disclose their history of abuse to anyone, particularly people they do not know, including lawyers (Bingham, Beldin, & Dendinger, 2014; Cattaneo, Stuewig, Goodman, Kaltman & Dutton, 2007).

A survivor may feel shame, be afraid she will not be believed or that there will be reprisals by the abuser, be in denial about the seriousness of the abuse, not realize it has any relevance to her family law case, still care about her partner or be afraid that disclosing abuse will lead to the involvement of child protection authorities (Cross, 2016).

The use of an appropriate screening tool can help create an atmosphere that feels safer for disclosure, particularly when the practitioner introduces the tool by explaining that s/he uses it with all clients and that the client is free to answer the questions in any way that is comfortable for them (Decker et al., 2017).

Information collected using a screening tool can assist a FLP in many ways. S/he can identify safety concerns and refer the client to appropriate resources for safety planning. The lawyer can consider what abuse-specific legal options to present to the client and can implement a trauma-informed approach to working with the client. Knowing about abuse may affect what process the lawyer considers; in particular, whether it is mediation, other forms of dispute resolution, or litigation that is more appropriate.

If the tool identifies the client as a perpetrator of abuse, this information can also be very important to the lawyer in determining the appropriate course of action, advising the client with respect to their behaviour and, if necessary, putting safety mechanisms in place.Footnote 3

Differences Between Risk Assessment and Screening Tools

Both risk assessment and screening are important components of a systemic response to FV; however, they are quite different from one another and should not be blurred into one entity. The analysis in this report is focused on screening tools.

Risk assessment is a (mostly) objective examination of both static factors (i.e., fixed and unchangeable, such as demographic information and childhood history) and dynamic factors (i.e., factors that can change and influence risk, such as substance abuse) that are present in a family violence situation to assist in determining what is likely to happen in the future. It has been defined as a decision-making process through which we gather information about people to determine the best course of action by estimating, identifying, qualifying, or quantifying risk (Nicholls, Pritchard, Reeves & Hilterman, 2013; Northcott, 2013). A comprehensive risk assessment will review factors related to both the perpetrator and the victim as well as external variables that may have an impact on the two people. Once key risk factors have been identified, a plan (often called a safety plan) can be developed to minimize the likelihood of further violence.

The safety plan may seek to control certain behaviours of the abuser (e.g., conditions that he remain away from his partner/former partner) as well as containing steps the victim can take to protect herself from further violence by the abuser (e.g., changing the locks on the house). It may include a plan for what survivors will do during new acts of violence, a plan for leaving the relationship, for staying safe after exiting the relationship, and for keeping children safe (Sudderth, 2017).

There are many risk assessment tools in use in Canada at this time (see Millar, Code & Ha, 2013). Some are focused on lethality only; others look at recidivism on the part of the abuser; others are focused on general abuse and violence. Many, but not all, are used within the criminal law system. Some require professionals to receive formal training in how to use the tool. Likewise, there are many different approaches to safety planning.

Screening for FV is quite different. Screening is intended to allow the professional (e.g., a doctor, nurse, lawyer, or mediator) dealing with an individual (or, in the case of mediation, a former couple) to gather information to determine if there is a history of FV. As Todahl & Walters (2011) explain:

IPV [intimate partner violence] universal screening and assessment, in particular, is a procedure that involves directly questioning -- in writing and orally -- every adult client, regardless of the presenting issue(s), about current and previous IPV victimization (p. 375).

This information can then be used by the professional to choose an appropriate response and course of action for the client as well as to make appropriate referrals to other services and supports.

In the mediation context, the identification of FV through the use of a screening tool allows the parties to consider and decide whether or not they wish to mediate, which is especially important for the person who has been the victim of the abuse. It also enables the mediator to craft an approach that will be safer and will level the playing field as much as possible by reducing any power imbalance between the two parties; or the mediator may, based on this information, decide that mediation is not appropriate (Davis, 2006). As well, the identification of FV through the use of a screening tool creates an opportunity for the professional to discuss safety planning with the survivor and to ensure she is aware of support services in the community (Ellis & Stuckless, 2006)Footnote 4. The mediator can also use the findings from the screening to discuss counselling and other supports with the abuser.

By using a FVST in the family law context, a lawyer might learn that the client is being stalked after having left the abuser. The lawyer could then suggest that the client seek a restraining order or contact the police about possible criminal charges (Kerr & Jaffe, 1999). Depending on the nature of the FV that is identified, the lawyer may suggest that joint custody is not appropriate (Shaffer, 2004). Further, if the family is co-engaged with criminal, child protection and/or immigration proceedings, the information about FV gathered by the FLP through use of a screening tool can assist in those contexts as well (Mosher, 2015).Footnote 5