When facing legal and ethical challenges, there are a variety of strategies that will help service providers manage the situation.
Here are some other situations that could raise similar legal and ethical challenges:
- A client or former client calls to tell you she has already left the jurisdiction with her child in contravention of a custody order.
- A new client describes serious abuse against herself and her child and tells you she wants to know if she can go to another province with her child to live with her parents.
- A woman tells you that she has just come to your jurisdiction from another one, with her children, because of fears for her safety and that of her children, and wants you to assist her in starting a court proceeding for custody.
These are tricky situations to handle.
A number of legal and ethical issues arise in any situation where you are working with a woman who indicates she is considering breaching, interfering with, not following or avoiding a court order or who gives you information that indicates she may have already done so. While lawyers have Rules of Professional Conduct to turn to for guidance, women’s advocates do not have any such guidelines.
In her very interesting paper entitled “Going Underground: The Ethics of Advising a Battered Woman Fleeing an Abusive Relationship,” Leigh Goodmark makes the point that:
ethical issues involve not only the lawyer’s duties to the client who goes underground and to third parties involved with the client, but also whether the lawyer can in good conscience counsel the client that the legal system provides her with a viable alternative to keep herself and her children safe.
She concludes her paper with these thoughts:
For each client, then, the lawyer has a duty to counsel the client about what she can expect from the system, to help her understand the pros and cons of working within the system, and, if she chooses to experience the system, to ensure that the system does her no harm while, if possible, using that experience with the system to make it more hospitable to the next battered women who seeks its protection.
While service providers are not providing advice to or counselling clients, I think Goodmark analyzes well both the ethical dilemma and the moral solution in a way that can be applied to family court support work.
Even with her words in mind, there is no one definitive answer to any of the situations posed above, because what you do will depend on a host of factors, including the specific circumstances of the client’s situation. However, the following tips should help head you in the right direction.
Remember your role
Remember that your primary role is to support women through the court process, to give them information about the law and court process, to assist them with safety planning, and to assist them in gathering evidence of abuse for use in their family court proceeding. You are not a lawyer, and your role does not include providing legal advice.
You cannot break the law yourself, nor can you advise someone else to break the law.
In any such situation, it is very important that you involve your supervisor at the earliest opportunity. You should not be trying to decide what to do on your own.
Your supervisor can help you think through your responsibilities and obligations and ensure that your response to the woman is supportive and legal. In an extremely complicated or serious situation, your supervisor may feel a legal opinion would be helpful.
Communicating with your client
You have a critical role to play with a woman who may be considering any of the above actions.
Of course, you will offer her emotional support and, where appropriate, connect her with other community services. You need to ensure her immediate emotional and physical safety needs are met before you take matters any further.
You need to discuss with her what the possible consequences of different actions can be. You can do this in a non-judgmental and supportive way, but you must also be clear: the courts do not like people who violate orders; in particular, courts do not like parents who interfere with the court-ordered relationship between children and their other parent.
Any parent who removes a child from the court’s jurisdiction without the permission of the court or of the other parent faces the possibility that the other parent will bring an emergency motion for the return of the child. The parent who initially removed the child will have an uphill battle convincing the court that she was justified in doing so, and will have to provide significant evidence about her concerns for the safety of the child.
A parent who defies a court order for access can face a motion brought by the other parent for enforcement of that order and could also face a finding of contempt of court by the judge.
Applications for custody and access must be initiated in the jurisdiction where the children are habitually resident (i.e. where they lived when the family was intact), except in cases where the mother can establish an extremely high level of safety concerns for the children (not generally for the mother).
It is not your responsibility to prevent a woman from making whatever choice she feels she needs to make to protect herself or her children from harm. You need to be clear in your discussions about this; letting her know that you are simply informing her about the possible consequences of different options she may be considering and that you will support her to the extent your mandate permits regardless of what decision she makes.
In these kinds of cases, it is very important that you assist the woman in meeting with a lawyer as soon as possible. You can provide her with a 2-hour certificate, set up a meeting for her with family court duty counsel, help her make an application for legal aid if she believes she may qualify or, if she can pay for a lawyer herself, provide her with information about family law lawyers in your community.
It is important to remember that women in crisis do not always hear what we think we are telling them. You may need to repeat some of the information outlined above, perhaps finding different ways to say it. You may want to ask her to repeat back to you her understanding of what you have said to make sure she is taking in the information.
You need to be very careful about how to phrase and frame what you say to minimize the possibility that your client could interpret what you say as encouraging her to breach or ignore a court order or as giving permission for her to do so.
It may be appropriate for the woman to contact child protection authorities if she has serious concerns for the well-being of the children. You can assist her in doing so by providing her with information about your community child protection authority and perhaps initiating the first contact.
Sometimes, what you don’t know can’t hurt you. Be careful how much information you ask your client to provide. Especially if you are dealing with a woman over the phone who has told you she has already breached a court order, refrain from asking her for details about where she is, what the order says, what her plans are and so on. If you don’t know who or where she is, the terms of the order she is breaching or what she plans to do, you will not have any useful information in the event you are subpoenaed and required to testify.
Your duty to report
Depending on what information the woman shares with you, you may have a duty to report to child protection authorities. This could have a positive impact: your call may provide the corroboration that child protection officials need to find the woman’s story credible.
As with all your records and files, you should ensure that your records contain only the basic information you need to provide services to this woman.
You need to record basic identifying information about the woman, as well as information she shares about the abuse she has experienced. Your files will also contain basic information about her court case.
You should record any information you provide to her about consequences of different choices she could make, but you can do this in a general way. For example:
“Discussed options for dealing with an unfavourable custody and access outcome and possible consequences of those options.”
“Informed client that breaching a court order can have serious consequences including loss of custody or contempt of court finding.”
“Caller indicated she had left jurisdiction to avoid allowing court-ordered access because of concerns for child’s safety. Informed caller of possible consequences of such action. Caller ended call without providing information about identity or location.”
You do not need to and should not record detailed information about plans for the future that the woman is contemplating. These are not directly relevant to the support you are mandated to provide and, like all of us, her plans will likely change frequently over time. Especially at the point of and shortly after separation, she is likely considering many possibilities, which do not need to be recorded by you.
Remember: if it is not there, you cannot be required to turn it over to anyone.