Family violence screening by Family Law lawyers

This article:

• Introduces family violence as a key factor to consider when consulting with family law clients;
• Explains what screening is;
• Discusses why it is important for family law lawyers to screen for family violence;
• Provides suggestions when screening for family violence in daily family law practice; and,
• Describes how you can help with a Justice Canada research project on family violence screening tools.

Family law lawyers are most often engaged by clients when families are experiencing great change, distress, or upheaval in their lives. Multiple factors may contribute to or exacerbate the client’s situation. The presence of certain circumstances, such as family violence, may be difficult for family law lawyers to detect.

Family violence has been defined as any of the, “various forms of abuse, mistreatment or neglect that adults or children may experience in their intimate, family or dependent relationships”. Family violence may occur in different family relationships, such as between current and previously intimate partners (whether married, separated, divorced or common-law, dating partners and other intimate partners) and as perpetrated against children by a parent, a sibling, or another family member.^Footnote1

Family law clients, or their children, may not immediately disclose their experience with family violence due to fear or embarrassment. They may discount their experience because they do not recognize the different ways in which family violence may occur, for example: as sexual, physical, or emotional abuse; as threats or actions involving others, animals, finances or property; or as patterns of coercive and controlling behaviour.

As described in the 2013 report by the Federal Provincial Territorial  (FPT) Ad Hoc Working Group on Family Violence, “Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems” (Making the Links)^Footnote2, various family law programs such as mediation screen applicants for indicators of family violence, and with good reasons.  It can play a role in determining the best interests of the child for the purposes of custody and access or parenting arrangements in family law matters; it can be critical in assessing whether a child is in need of protection^Footnote3, or whether a client needs a protection order or referral to other services for safety reasons. It can be a factor in determining whether a client is an appropriate candidate for mediation, collaborative law or other forms of alternative dispute resolution (ADR). It is also important in determining other support professionals that a lawyer might recommend to a client, such as those specializing in health care or mental health services.

Family violence is a relevant and important factor for lawyers to consider when assisting family law clients as they navigate the family justice system. One way a family law lawyer can ensure due diligence in discovering if family violence is a factor in their client’s case is through the use of screening tools.

Screening for family violence is a process family law lawyers can use when working with new and returning clients.

Some forms of family violence are clearly criminal in nature and would be taken into consideration in the context of family or child protection proceedings. In contrast, family members may experience other forms of family violence that are potentially relevant in the context of family law, but do not necessarily constitute a criminal offence. Examples include economic or financial abuse, such as acting without consent in a way that financially benefits one person at the expense of another, or psychological or emotional abuse, involving the use of words or actions to control, coerce, isolate, intimidate, deride or dehumanize a partner. The presence of these kinds of family violence has been determined to be one of the most important predictors of physical and sexual violence in relationships. In 2009, a study showed that 19% of women who reported experiencing emotional or financial abuse by a current spouse also reported being a victim of physical or sexual assault by this same spouse. In comparison, only 2% of women who did not experience emotional or financial abuse reported being a victim of physical or sexual assault by their spouse.^Footnote4

The fact that family violence can take many forms speaks to the challenge of identifying it as one of the relevant circumstances in your client’s case and the importance of training and tools for lawyers to assist them in identifying and responding to the issue.  It also highlights the need to gather as much information as possible about the family violence your client is experiencing, such as its context, nature, severity, frequency, and its impact on victims.

As the profession’s knowledge about family violence expands, practitioners and academics are developing and using specialized tools to screen family law clients for the presence of family violence. The term “screening” is often used interchangeably with “threat assessment” and “risk assessment”, but these terms actually have different meanings. Screening refers to the first stage of assessment that a case will usually go through. It permits the lawyer to detect, identify and recognize the presence or absence of common indicators of family violence. Where the presence of family violence is detected, screening allows the lawyer to note the, “type, frequency, pattern, impact, timing, and severity of domestic and family violence”^Footnote5 This is the key information that may prove to be important evidence which supports your client’s family law case, as well as in criminal or child protection proceedings, and can be important in making key decisions on any file.

In contrast, a threat assessment is a process used in law enforcement, corrections, or victim supports to assess the risk of violence a suspect poses to a complainant, and the potential impact of different interventions on the safety of the complainant including development of a safety plan. A risk assessment then is a process used to evaluate individuals in order to, “(a) characterize the risk that they will commit acts of violence and (b) develop interventions to manage or reduce that risk ….”^Footnote6 Risk assessments generally require specialized training and resources, and are used for cases deemed “high” or “medium” risk.

Screening tools often use prescribed questions or forms that require training but do not necessarily require highly specialized knowledge of family violence by the individuals using them. Tools may also be designed to identify specific types of abuse. Using a variety of screening tools that together address a wider range of types of abuse can help when determining the best responses to the presence of particular types of abuse.

Here are some good examples of checklists family lawyers can consider as starting points for screening:

• The Saskatchewan Family Law Practice Checklist developed by the Law Society of Saskatchewan.^Footnote7
• The Best Practices for Representing Clients in Family Violence Cases developed by Justice Canada.^Footnote8
• Is Your Client Safe? A Lawyer’s Guide to Family Violence by the Legal Services Society of British Columbia in collaboration with the Ending Violence Association of British Columbia.^Footnote9
• Practice Guides for Family Court Decision-making in Domestic Abuse-related Child Custody Matters by the Battered Women’s Justice Project.^Footnote10

Family law lawyers screen for family violence because it helps them better serve their clients.

When family law lawyers screen for family violence, they are informing themselves of the full context of their client’s experiences. If the screening process identifies the presence of family violence, this information permits lawyers to better consider the impact the situation may be having on the family, especially if there are any children. This knowledge allows the lawyer to begin to ascertain whether specific relief, services or interventions may be appropriate in the circumstances^Footnote11, whether the relief is required immediately and/or over the longer term, and whether the situation narrows or widens the range of any potential legal remedies which may exist beyond the family law dispute. The information gleaned from screening can also inform what additional evidence might be appropriate to provide to the court, giving judges the details they may need to arrive at meaningful decisions.

From the client’s perspective, screening demonstrates to clients that their experiences are being taken seriously. In particular, it does this by letting victims know that they are encouraged to disclose their situation. Screening also allows for the provision of immediate assistance and referrals and has the potential to help prevent the escalation of violence. ^Footnote12,^Footnote13

Training helps lawyers better understand key concepts such as the different types of family violence and the different ways in which they might manifest in a person’s life. A trained lawyer can better determine when a situation needs immediate or urgent attention, and how to get the required services to provide that attention. A trained lawyer would also recognize the limits of the screening process.

Suggestions when screening family law clients for family violence^Footnote14

• Explain to clients that your intake process includes asking questions about many different aspects of their relationship with their spouse, to get a full picture of the relationship. Sharing this information at the outset will engage the client in decision-making about how they wish to proceed. It also helps define the lawyer-client relationship as one where the client can establish and retain their own sense of power. For victims, this would stand in stark contrast to the power imbalance often found in abusive relationships.
• Follow a structured approach:  Following a plan allows lawyers to methodically guide the client through the screening process and allows the lawyer to screen competently and with confidence.
• Screen clients individually in a private setting: A good plan ensures screening is conducted in a manner and setting that promotes, rather than compromises, the client’s safety, privacy and confidentiality. Where possible, screen clients away from other family or community members; some victims may not respond frankly to these types of questions posed to them in their presence.
• Have resources available for the client, such as a list of available supportive services that the lawyer is prepared to refer the client to, if necessary.
• Recognize that each client will respond to the screening process in their own way. It is just as important to acknowledge that a client’s response to questions about their private lives will likely be shaped by different aspects of their lives, such as their spirituality, or their cultural or linguistic expression or identity. Victims’ responses are also shaped by their experience of abuse, with a range of response patterns that have been identified in research.
• Screening should be repeated over time. Regularly screening clients throughout the lawyer-client relationship allows lawyers to see changes in the client’s situation. Clients are given another opportunity to reflect on their situation from another perspective. Since disclosure may not be immediate, ongoing screening ensures victims have additional opportunities to share their experience. Knowing that some victims may not immediately recognize abuse in their lives, ongoing screening could also potentially allow a client to acknowledge for the first time that they are a victim of abuse.

You can help contribute to research on the use of screening tools by family lawyers

The Research and Statistics Division of the Department of Justice Canada, with the cooperation of the CBA and other interested professionals, is undertaking a research project on behalf of the department’s Family, Children and Youth Section. The purpose of the project is to compile an inventory of family violence screening tools currently being used by family law lawyers, and to gather information on how, and how often, these tools are being used. No individuals will be identified in the report.

If you use a screening tool in your practice or are aware of tools that are being used, please contact the researchers by email at rsd.drs@justice.gc.ca by January 15th, 2017.