What you don’t know can hurt you

Judges in family court cannot make appropriate decisions in cases involving family violence if evidence of that violence is not presented to them. Seems obvious, doesn’t it? And yet, too often that evidence does not make its way into court documents and proceedings.

One of the reasons for this is that many of those leaving violent relationships don’t want to tell anyone about what has happened to them. This is especially true in terms of disclosing to a lawyer. Lawyers can seem intimidating to their clients, especially at the start of the relationship before any trust has built up. Sharing information about something as intimate as family violence is very difficult in these situations. Clients may be embarrassed, feel a sense of shame or blame themselves for their partner’s behaviour. They may worry that the lawyer won’t believe them or will judge them. Fear is a big factor: fear of retribution by the abuser, fear that the lawyer will call the police or child protection authority, fear that they will lose what control they have over their lives.

Don’t ask, don’t tell

It appears that a lot of lawyers leave it to their clients to bring up family violence. In a survey of family law lawyers and judges conducted by the Department of Justice in 2016, only two-thirds of respondents indicated that they often screen their clients for family violence. Of those who screen, 80 percent rarely or never use a standard tool.

This information did not come as a surprise to me. After all, almost nothing is taught in law schools about the violence that goes on in at least a third of families in this country. There are few professional development opportunities for lawyers who want to learn more. (Luke’s Place Support and Resource Centre, where I work, has an online course for Ontario lawyers to increase their knowledge and skills when representing clients leaving abusive relationships.)

Many of the women I work with tell me their lawyer has never asked them anything about violence in their relationship. Some tell me that when they bring it up, their lawyer brushes it off or tells them the court does not need to know about it.

Time to ask some questions

In 2017, the Department of Justice contracted with Luke’s Place to undertake research into family violence screening tools for family law practitioners. Working with our academic partners and a national working group of professionals that included lawyers, health care practitioners, mediators and violence against women workers, we assembled and analyzed 84 screening tools used in a number of fields primarily in Canada and the United States.

We also conducted a review of both academic and non-academic literature in this area and interviewed lawyers to find out what they knew and thought about the use of screening tools to identify family violence.

All the research showed that, when properly used, screening tools increase the rate of accurate disclosures of family violence. In other words, when survivors of family violence are asked, they answer.

Screening tools alone are not enough

The research also clearly established that if screening tools are to be effective, those who use them need to receive training: general training about family violence as well as training about how to use the screening tool.

Lawyers who use a screening tool need to pay attention to contextual cues as well as their client’s verbal or written responses to the questions. They should be able to provide some immediate follow-up support and refer their client to appropriate community resources to assist with safety planning and ongoing support.

Screening needs to happen throughout the case, because new family violence issues may arise over time. Where possible, the tool should be culturally relevant, although we found a significant dearth of such tools.

Recommendations

Because so few lawyers use a standardized tool, our report recommends that provincial and territorial law societies, the bodies that govern lawyers, implement a requirement that all family law lawyers use a universal family violence screening tool. Standardized training should be implemented at the same time.

We have recommended a two-step approach to screening: a short tool (just six questions) to be used with all new family law clients and a longer tool (59 questions) to be used to follow up when any red flags emerge from the first tool.

Just getting started

Implementing mandatory universal screening for family violence by family law lawyers will be an enormous cultural shift within the profession.  It will take time, and the research we have done is just the first step. We were able to identify some best practices and make a number of recommendations, many of which open the door to further work that needs to be done.

For instance, how will lawyers be compensated for the additional time needed to conduct screening? Culturally appropriate tools need to be developed. A pilot study should be undertaken to test our recommendations about what the screening tool should look like as well as the proposed training.

The full report, including all of our recommendations and the questions we have proposed for use in a two-step screening tool, will be available on the Department of Justice website, we hope by the end of the summer. Stay tuned for the link.

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