Protecting children from parents

The adaptation of Jane’ Austen’s Mansfield Park (1999) by Patricia Rozema has some interesting commentary pertinent to the crux of this article. Mansfield Park is Austen’s tale of Fanny Price, who is basically given away to rich relatives by her poor family, an occurrence Rozema states happened quite frequently in those days. She says, “I think that people were somehow less connected to their biological origins back them”.

This would seem to indicate that people are somehow more connected to their biological origins these days or that poverty-forced parting of children is no longer as prevalent in western countries. Given the child abuse cases that have emerged recently, there is good evidence that it when it comes to parental rights, the biological connection is powerful.

Take for example, the recent child abuse case in Canberra. It is reported that the child protection authorities tried three years ago to remove the children, but the Court was not convinced by the evidence which was presented.

This in effect means that any harm to the children has resulted after a court decision that may have prioritised the biological origin of the children rather than their needs for protection. This priority is also seen regularly in the Family Court when a protective parent attempts to alert (PDF 84KB) the courts to “red flags” that may indicate that the child or children need protection from the other parent. There continues to be case after case where one parent cannot protect children from the other accused parent, irrespective of how many “reds flags” can be raised.

Although the Family Court is a jurisdiction where the standard applied is supposed to be “on the balance of probabilities” when it comes to serious allegations, the standard is dramatically increased. Unless the serious allegations can proved, and that means that the evidence must approach the strictest end of the spectrum or, “beyond reasonable doubt”, then the accusing parent is delegated as the dangerous one to the child instead.

The question of the protection of the children is now not from any abuse fears raised, but on the dangers to the children by the accusing parent in not promoting the “meaningful contact” with the accused parent. How can they, when there have raised such serious allegations against the other parent?

What must be understood though is that the evidence for types of abuse, in particular sexual abuse, is by its very nature extremely difficult to obtain. At best there will be “red flags” that with an increasing cumulative effect could be held to warrant a precautionary approach to child contact, but this is not happening in the Family Court and apparently is also not happening in the Children’s Court.

In the Family Court it has resulted in what Charles Pragnell has identified as Perverse Reversal of Child Custody (2006). This is that for lack of “convincing” proof, children may be and have been handed over into the care of a parent that may have significantly harmed them. This is no way indicates that “red flags” weren’t or aren’t present. To the contrary, some of the worst cases had very obvious “red flags” that were not heeded by judges, for example, the presence of domestic violence (PDF 533KB). It is reported that “… Almost a quarter of children we see for sexual abuse come from chaotic and abusive families with a high incidence of domestic violence. We know this is an understatement.”

In April 2004, one of these cases where domestic violence was in evidence resulted in the deaths of the Dalton children. At that time the chief of the Family Court Dianna Bryant stated “There was nothing to indicate this would happen". However, the grandmother went before the court and gave testimony to the fact that the police (not the mother), had taken out a Domestic Violence Protection Order, the police had attempted to place the mother and infants in a refuge, and that the father had guns and a history of psychiatric problems.

All to no avail; the judge allowed the children to go to the father who later killed them. Since this tragic case, nothing has been changed to promote the protection of children in the Family Court where there are “red flags” and same it seems would seem to apply in the State Courts. Instead, novel and spurious “syndromes” have been invented to demonise protective parents with appalling human costs to children who need protection.

Cases in Family Court are typically portrayed as couples who merely need to stop fighting and should just “sit down together to work out what is best for their children, rather than fighting it out in the courts.” Describing couples in court as “warring parents” brushes aside the critical fact that abusive behavior between the parents was the cause, not the effect, of that “fight" or “war”.

As a discretionary jurisdiction that is supposed to be informed by the experts, it consistently grants access and residency to violent parents. Unless the victim can present overwhelmingly convincing evidence that a parent has engaged in the most obvious forms of domestic violence, the violence is minimised or ignored entirely and the biological connection to the abusive parent is prioritised.