Child protection and family law… Joining the dots

1. Introduction

Concerns about child abuse and neglect in the context of separated families highlight the intersection between two different legal systems in Australia. Child protection concerns are dealt with by state and territory systems that are authorised to intervene when children are at risk of harm in the care of their families. However, allegations about safety, abuse and neglect are also commonly raised in the context of disputes between separated parents about the care of their children. Such disputes are dealt with in the federal family law system and are private law disputes for which the parents are responsible. When allegations of child abuse and/or neglect are raised in cases where the parents are separated, it is possible for both the child protection system and the federal family law system to become involved. Recent research has highlighted the prevalence of concerns about child safety, abuse and neglect in post-separation parenting disputes (Kaspiew et al., 2009) and there is increasing recognition of the need for more effective responses in this area (Australian Law Reform Commission & NSW Law Reform Commission [ALRC/NSWLRC], 2010; Chisholm, 2009; Family Law Council [FLC], 2002, 2009) with the interactions between child protection systems and the family law system giving rise to significant concern at a range of levels.

Recent empirical evidence has established that child protection concerns are likely to be pertinent to a significant number of families who use the family law system. It is clear that families with complex problems form the core client-base across family dispute resolution services, lawyers and courts (FLC, 2002; Kaspiew et al., 2009). Most separated parents manage to sort out their parenting arrangements with minimal use of services and lawyers. However, those that rely heavily on the family relationship service system, courts and lawyers tend to be affected by issues relating to family violence, child safety concerns and issues related to mental illness and substance addiction (Kaspiew et al., 2009; see pp. 232-233).

Family violence has been a major contributor to the massive growth in child abuse reports that statutory child protection systems across Australia have experienced in the past decade. Along with parental mental illness and substance misuse, family violence is recognised as the key characteristic of families about whom notifications are made (Allen Consulting Group, 2003). This is particularly the case now that family violence is included within the mandatory reporting obligations in three jurisdictions: New South Wales, Northern Territory, and Tasmania (see Higgins, Bromfield, Richardson, Holzer, & Berlyn, 2010).

Research evidence suggests that often this pre-separation inter-parental violence continues - or is even exacerbated - by the relationship separation (see Braaf & Sneddon, 2007; Kaye, Stubbs, & Tolmie, 2003).

Child protection concerns may arise in two main ways in separated families:

1. where the child is alleged to be currently at risk from spending time in either parent's household, through exposure to child abuse, neglect or family violence; and/or
2. where concerns have arisen about the treatment of the child (child abuse, neglect, exposure to family violence) by either or both parents prior to separation and this history is argued to be relevant to post-separation parenting arrangements.

The Australian Institute of Family Studies (AIFS) Evaluation of the 2006 Family Law Reforms has demonstrated that a history of either physical hurt prior to separation or emotional abuse before during or after separation is common among separated parents (Kaspiew et al., 2009, Table 2.2). For example, the 2008 study of 10,000 separated parents showed that 26% of mothers reported being physically hurt and 39% reported emotional abuse, with the remaining 35% reporting no violence (Kaspiew et al., 2009). Among fathers, 17% reported physical hurt, 36% reported emotional abuse, and 47% reported no violence.

Research shows that there is considerable overlap between the experience of family/domestic violence and children's experiences of other direct forms of abuse and neglect (Higgins, 2004; Hughes, Parkinson, & Vargo, 1989).¹ In one US study of families involved in the child protection system, approximately 45% of female caregivers had experienced partner violence in their lifetime, and nearly 30% in the past 12 months, which is around twice the rate of the general population, despite the definition of intimate partner violence excluding sexual and psychological abuse (Hazen, Connelly, Kelleher, Landsverk, & Barth, 2007).

In the context of high levels of inter-spousal violence, a key concern for separating parents is the safety of the child in the care of the other parent. Significant minorities of both mothers and fathers in the AIFS study of 10,000 separated parents in 2008, said that they had safety concerns associated with ongoing contact with the other parent (Kaspiew et al., 2009, Table 2.4). A greater proportion of mothers had concerns (for themselves: 3.6%; their child: 9.1%; or both themselves and their child: 8.4%) compared with fathers (for themselves: 1.6%; their child: 12.3%; or both themselves and their child: 2.6%). This is consistent with recent research by Cashmore and Parkinson (2009) showing that concerns about the safety of quite young children (including child abuse concerns) are a major issue driving inter-parental conflict. Similarly, in their report on shared care, Cashmore et al. (2010) found that those with concerns about the safety of their child(ren) were more likely to report negative outcomes for their children and to consider that arrangements - whether shared or not - were working poorly. The AIFS evaluation also showed that these families where there was a reported history of violence or the presence of ongoing safety concerns were much more likely to use formal services - family dispute resolution (FDR), lawyers and courts - than families without these concerns (see Kaspiew et al., 2009, p. 232).

This paper examines how the child protection and federal family law systems operate, so that their intersection may be better understood by those working in each system. In addition, the paper outlines recent research findings and policy recommendations that are intended to address some of the difficulties highlighted by the Family Law Council (FLC, 2002) and subsequent research (e.g., Higgins, 2010; Higgins & Kaspiew, 2008).² The paper begins by discussing evidence of the extent to which issues that may give rise to child protection concerns are evident among separating families. It then describes how the child protection and family law systems operate. Areas of overlap are identified, together with mechanisms for dealing with them. Finally, recent developments in policy recommendations are discussed.

Authors

Daryl Higgins is the Deputy Director (Research) at the Australian Institute of Family Studies, and Principal Advisor to the National Child Protection Clearinghouse.

Rae Kaspiew is a Senior Research Fellow at the Australian Institute of Family Studies and was the lead author of the evaluation of the 2006 family law reforms.

Acknowledgements

The authors are grateful to Professor Patrick Parkinson and Dr Sharon Vincent for their very helpful and insightful comments and suggestions on the paper.

Footnotes

1. Through a range of different studies based on parents’ perceptions of children’s experiences, as well as adults retrospectively reporting on their own childhood experiences, Higgins and colleagues demonstrated that witnessing family violence is significantly associated with other forms of child maltreatment. For example, in one study, witnessing family violence was highly correlated with all other forms of child maltreatment, including: sexual abuse (r = .24), physical abuse (r = .45), psychological maltreatment (r = .47) and for neglect (r = .47) (Higgins & McCabe, 2000).

2. Some of the key issues raised by the FLC (2002) included: many child abuse concerns raised in family law proceedings not being investigated by the state/territory child protection authorities; the importance of coordination and timely investigation of concerns; the importance of concerns being addressed in one court proceeding—either Family Court or Children’s Court, but not both (the “One Court” principle); and their call for the establishment of a federal child protection service to investigate child abuse concerns.