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Protecting children from parents

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Category: Court Ordered Abuse
Created: Tuesday, 15 July 2008 22:36
Written by Patricia Merkin, Barrister

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.

Other articles by Barrister Patricia Merkin;

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.

In both neglect and murder cases, there is an element that is common to both; children suffered because adults did not treat them as would be expected. But what is expected? The expectation could reasonably be seen as the obligation to provide children with the necessities for life. These necessities in the neglect cases are quite simply food, and in the latter, the simple requirement to allow them to keep living. But why would a parent be so remiss to providing such necessities?

How then can this abuse by the ones that are supposed to be the source of sustenance and safety be explained? Basically, it appears quite evident that these children were not seen as persons in their own right, with no rights to food, safe surroundings and life itself. They were instead viewed as objects, despite the appearance of sentiments of love. The dynamic of domestic violence gives insight into why this is so.

Domestic violence is the dynamic where the symptoms are often mistaken for the problem itself. To analogise with the disease process, when a person has cancer, symptoms emerge that will indicate the underlying disease. No one doubts that weight loss, nausea, pain or dizziness are symptoms of the cancer, not the cancer itself. In the same way, when a person abuses another person, whether by physical force or verbal denigration, what this demonstrates is the symptoms of an underlying dynamic - the attempts by one person using tactics across a broad spectrum of behaviours to try and get the other person to do what they want, that is, the attempts to control the other person (PDF 351KB).

This very dynamic has deep ideological and value laden implications. Australian society has liberal values with assumptions that all persons are “equal”.

For example, in contract law parties are seen as making free choices to enter into contracts that are made on a supposed level playing field.

In personal relationships, couples are presumed to be in the relationship as equals. However, in the case of domestic violence, one party will not “see” the other person as equal in the relationship, thus the dominant person will use a variety of methods to impose their will and choices on the other. Despite the presumptions in contract law and personal relationships that there is a level playing field, the reality is that in many cases, it is not.

While it is without doubt that some women can be violent and abusive to males and other females, in personal relationships and due to the imbedded patriarchy of most cultures, it is more likely the victims of domestic violence tend to be women and perpetrators tend to be men.

This dynamic is dangerous because in the attempts to control and dominate the other person, the abuser ignores or refuses to see the other as equal to them and in doing so, will violate the victim’s rights to their own free choices. In effect, the other becomes a “thing” and things don’t have rights. The very act of coercion reveals the dynamic of inequality. This being so, the behaviours of the abuser will reveal both care and abuse, a factor that correlates with the observed cycle of domestic violence and child abuse. The abuser will both nurture and violate the other because victims are held in a relationship as possessions. Just as people take care of possessions, it is rational when one no longer cares for certain possessions, they will be disposed with.

Herein lies the danger. At some point, the “thing” will outlive its use and be dispose of because the “thing” was never seen as an equal. Hence, you see parents killing their children while having actually cared and showed “love and warmth” for them and you see parents neglecting the basic needs of children.

On a report of the Dalton story by Four Corners Liz Jackson stated that, “No one now denies that they cared for the children well”. Yet not long after that he killed both children. This is illustrative of a parent both caring for and disposing of what in his mind was “his property”, not persons.

This is reminiscent of times prior to the early 20th century where wives and children were seen in law as the property of the man. Although women in Western societies have been able to gradually remove themselves from this “ownership” by men and to assert their legal identity. However, legislative amendments in Family Law has prioritised “meaningful contact” and “rights” to have both parents involved in the children’s lives in a court where domestic violence and child abuse are core issues as to why the case is being litigated. Allegations of parental abuse “rarely results in the denial of parental contact”.

This in effect may relegate children back to an abusive parent as “property” by court orders, at great personal costs to vulnerable children who need protection, not “meaningful contact” with a dangerous parent.

At best, domestic violence is a serious failure in parenting by example. At worst it kills. If the cycle of violence is to be seriously challenged in Australia, then it must be seriously challenged at all levels of state, especially in the court where its core business is child abuse and domestic violence.

It is pertinent to note that in previous child abuse and deaths children were killed by a parent after having been through the Courts. In effect, what this means is that these children bore unimaginable human costs because the courts did not detect or pay heed to the warning flags. That murder and abuse occur in society is tragic enough; that it happen on federal or state orders is entirely unacceptable. In the neglect cases in Canberra and the Dalton case in 2007, the parents’ biological connection and entailing rights were privileged over the right of protection for the children.

The biological connection is so heavily emphasised that Federal and State Courts seem to have lost the ability to discern between dangers versus the benefits of “contact” with the biological parents that may or have actually harmed their partners and seriously neglected and harmed their own children. Inquires will be pointless and meaningless unless there are changes. A legislative change that mandates and prioritises the protection of children in cases where there is evidence of domestic violence or neglect in the family of origin is a start.

In the past, I predicted that there would be further abuse and deaths of children on court ordered parental care. Nothing changed after the Dalton case. Will anything change now after these latest deaths? If the present government’s intent to nationalise the child protection scheme does not address the judicial discretion that privileges biological ties over the evidence that children need protection, the death toll will continue
Source : https://www.onlineopinion.com.au/view.asp?article=7623&page=0

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