Evidencing better child protection practice: why representations of domestic violence matter

Abstract

Lawyers and child protection workers are actively engaged in the process of constructing and representing domestic violence and risk through the processes of collecting, documenting and presenting evidence. These processes frequently reflect the application of dominant gendered stereotypes commonly perpetuated within patriarchal societies through institutional practices. Such practices commonly include: constructing mothers who parent in the context of domestic violence as failing to protect their children, rendering invisible domestically violent men by collecting limited evidence about their perpetration patterns and fathering practices and decontextualising survivors’ mental distress and/or problematic substance misuse. Drawing on feminist theory and using the example of legal practice in the Queensland statutory child welfare department, this Comment argues that hegemonic gendered representations frequently disadvantage women mothering in the context of domestic violence. The Comment illuminates how domestic violence informed capacity-building activities catalysed practice improvements particularly in relation to how evidence is collected, documented and presented.

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Evidencing better child protection practice: why
representations of domestic violence matter
Tracey De Simone & Susan Heward-Belle
To cite this article: Tracey De Simone & Susan Heward-Belle (2020): Evidencing better child
protection practice: why representations of domestic violence matter, Current Issues in Criminal
Justice, DOI: 10.1080/10345329.2020.1840957
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Evidencing better child protection practice: why
representations of domestic violence matter
Tracey De Simone
a
*and Susan Heward-Belle
b
*
a
Department of Child Safety, Youth and Women, Brisbane, Queensland, Australia;
b
Social Work and Policy
Studies, The University of Sydney, Australia
ABSTRACT
Lawyers and child protection workers are actively engaged in the
process of constructing and representing domestic violence and risk
through the processes of collecting, documenting and presenting
evidence. These processes frequently reflect the application of
dominant gendered stereotypes commonly perpetuated within
patriarchal societies through institutional practices. Such practices
commonly include: constructing mothers who parent in the context
of domestic violence as failing to protect their children, rendering
invisible domestically violent men by collecting limited evidence
about their perpetration patterns and fathering practices and
decontextualising survivors’mental distress and/or problematic
substance misuse. Drawing on feminist theory and using the
example of legal practice in the Queensland statutory child welfare
department, this Comment argues that hegemonic gendered
representations frequently disadvantage women mothering in the
context of domestic violence. The Comment illuminates how
domestic violence informed capacity-building activities catalysed
practice improvements particularly in relation to how evidence is
collected, documented and presented.
KEYWORDS
child protection; domestic
and family violence;
evidence.
Introduction
Violence against women is one of the most common manifestations of human rights
abuse in Australia (AHRC, 2012) with one in three Australian women who had a
current or former partner experiencing physical, sexual and/or psychological violence
from that partner (Mouzos & Makkai, 2004). Exposure to domestic and family violence
(DFV) is also a common experience for many Australian children with one in nine wit-
nessing violence towards their mother perpetrated by a male partner (ABS, 2017). Con-
cerns about the potential for childhood exposure to adversely impact children’s
development resulted in the institutional practice of reporting families to statutory
child protection services although the effectiveness of this practice is contested
(Stanley & Humphreys, 2015). Contemporary legal and institutional responses have
been problematised in feminist critiques which argue that the child protection system
© 2020 Sydney Institute of Criminology
CONTACT Susan Heward-Belle susan.hewardbelle@sydney.edu.au Education and Social Work Building,
The University of Sydney, NSW 2006, Australia
*These authors contributed equally to this work.
CURRENT ISSUES IN CRIMINAL JUSTICE
https://doi.org/10.1080/10345329.2020.1840957

has not delivered appropriate, proportionate or timely responses to the needs of women
survivors and their children (Hesse-Biber, 2007; Waugh & Bonner, 2002).
This Comment reports on data and our observations of changes within the insti-
tutional responses to families experiencing DFV who have been reported to the Depart-
ment of Child Safety, Youth and Women (Child Safety) in Queensland. It reports on the
rationale and process of embarking on practice change that occurred in the context of a
‘cultural tsunami’or period of sustained capacity building. This Comment begins with a
discussion of how childhood exposure to DFV became framed as a child protection
concern. It then turns to a review of how the child protection and family law systems
operate in Queensland when allegations of childhood exposure to DFV exist. It then
identifies common and pervasive problems identified in this field of practice before
describing key aspects of the ‘cultural tsunami’that catalysed practice changes in Queens-
land, particularly in the way that evidence is collected and represented by child protec-
tion workers and Departmental lawyers. The paper will conclude with the presentation of
three fictitious case examples which illustrate changes in the way that evidence about
domestic violence and risk is collected, documented and presented. The ideas presented
in this paper also have relevance to the criminal justice context.
Framing childhood exposure as a child protection concern
Childhood exposure to domestic violence was first framed as a child protection concern
in the 1980s, when feminist activists in women’s refuges drew attention to the deleterious
impact on children (Morley & Mullender, 1994). Hitherto, children had been largely ren-
dered ‘invisible’and their experiences hidden (Edleson, 1999). Since then an expanding
body of research has found that exposure to domestic violence can have long-term,
adverse impacts on development resulting in mental health issues, behavioural problems
and learning difficulties for many children and young people (Campo, 2015; Holt,
Buckley, & Whelan, 2008; Kitzmann, Gaylord, Holt, & Kenny, 2003). Children who
experience domestic violence are also at increased risk of experiencing other forms of
intra-familial and extra-familial violence (Finkelhor, Ormrod, & Turner, 2007).
This framing, although contested at the timeby many, has resulted in the widespread prac-
tice of reporting exposed children to statutory childprotection services (CPS)in most Anglo-
phone, colonised countries (Strega, 2009). In three Australian states, nearly 71,000 children
were reported to CPS due to concerns relating to DFV between2010 and 2014 (Humphreys
& Healey, 2017) accounting for about 16% of all child maltreatment reports. However, the
authors argue that this is a conservative estimate given the methodological challenges includ-
ing legislative differences and the variations in child protection agencies’data management
systemsthat make it difficult to adequately ascertain the proportion of childprotection cases
that include domestic violence as a riskfactor. Studies that have adopted a qualitative desk file
survey method have found DFV to be a riskfactor innearly 50%of child protection caseloads
(Cross, Mathews, Tonmyr, Scott, & Ouimet, 2012).
The Queensland context
In Australia, state and territory governments are responsible for administering legislation
concerned with ensuring the safety and wellbeing of children and young people deemed
2T. DE SIMONE AND S. HEWARD-BELLE

to be at risk of harm. In Queensland, The Child Protection Act (1999) (the Act) is the rel-
evant legislation conferring power to the Department of Child Safety, Youth and Women
(Child Safety) to intervene in the lives of families when concerns exist for children and
young people.
Under the Act, harm to a child is any ‘detrimental effect of a significant nature on the
child’s physical, psychological or emotional wellbeing’. The Act deems it to be immaterial
how the harm is caused and identifies that harm can be caused by ‘physical, psychological
or emotional abuse or neglect or sexual abuse or exploitation, occurring either through a
single act, omission or circumstance or through a series of acts, omissions or circum-
stances’. This construction of harm is sufficiently wide to encompass the experiences
of children who experience DFV.
The Act identifies that a child deemed to be:
in need of protection is a child who has suffered significant harm, is suffering significant
harm, or is at unacceptable risk of suffering significant harm and, does not have a parent
able and willing to protect the child from the harm. (Child Protection Act, Qld s 10, 1999)
Of particular relevance to this Comment is how the construction of being ‘able and
willing to protect a child’in the context of domestic violence frequently results in
gender-biased assessments and judgements that place more weight on the responses of
victims/survivors than on the actions of men who perpetrate domestic violence. These
assessments have also been criticised as decontextualising women survivors’lived experi-
ences of domestic violence (Humphreys & Thiara, 2003a). For example, women’s mental
health issues and/or substance misuse arising out of the experiences of living with
chronic trauma are often not well contextualised in official documentations, further stig-
matising women as ‘mad, bad or sad’thus relegating them to the ranks of the ‘unfit
mother’(Weare, 2017).
A significant proportion of reported matters will proceed to the Children’s Court
where child protection decisions are made on the basis of evidence presented to the
courts. From March 2019 to March 2020, there were 10,991 child protection orders
made in Queensland (Queensland Government, 2020).
In matters before the Children’s Court, the main evidence presented by Child Safety is
in the form of a child protection assessment that focusses on determining risk, safety and
protective factors conducted by Child Safety workers who usually hold qualifications in
social work, psychology or another social science.
All evidence and, in this case, the child protection assessment, involves making
choices about how it is presented. These choices are usually made by a solicitor if they
are drafting or settling the material. Taking instructions from a client or, in this case,
a child safety officer, and how a case has evolved is never a straight verbatim exercise.
The role of the in-house lawyer is to collect, document and present evidence for
presentation in court. In preparing evidence for court, choices are made about what is
included—what is relevant and admissible to the case; what is excluded as irrelevant;
what language is used and more generally how the child protection assessment of the
child safety officer is constructed for the court.
The construction of the child’s and family’s‘narrative’is important. Child safety
workers and lawyers hold much power in this process to influence outcomes for children
and their families in the present generation and beyond. The ‘narrative’in one
CURRENT ISSUES IN CRIMINAL JUSTICE 3

jurisdiction easily becomes the family’s story in another jurisdiction. For example, Child
Safety documents are regularly subpoenaed and used in other courts. Many parties in the
family law courts subpoena and then use the information from Child Safety to inform
and provide the basis for the litigation and they often inform the court’sfindings and
orders. As well, domestic violence courts in Queensland can request information from
Child Safety when an applicant seeks to name a child in a DFV protection order and
the magistrate believes that there may be information on the Child Safety file which
may inform the magistrate in their deliberations (Domestic and Family Violence Protec-
tion Act, Qld s 55, 2012).
This means that what child protection workers and lawyers write and how they write it
is very important, not only in relation to the outcome for the client or the family in the
primary case, but also in taking a longer-term view of the family and how that infor-
mation or assessment document may impact on their future cases in other jurisdictions.
How child safety officers and lawyers understand and conceptualise DFV, including their
awareness of the tactics of power and coercive control deployed by perpetrators (Pence &
Paymar, 1993; Stark, 2007), the myriad ways that survivors engage in ‘small daily acts of
resistance’(Wade, 1997) and the ways in which gender-based power relations are
expressed in the domestic arena and public arena (Hunnicutt, 2009) shape how child pro-
tection workers and lawyers collect and present evidence and create the all-important
‘narrative’that follows a family across time and space.
Problematising institutional responses
The implications of reporting mean that many children and their families are brought
into the purview of key institutions that make up the contemporary child protection
system (for example, law, police and corrections, social work and health including psy-
chology and psychiatry). Critiques of the child protection system pivot on gender-biased
institutional responses. Three patterns are evident across institutional responses that are
relevant to the way in which domestic violence is represented in evidence in child welfare
matters: 1) the construction of women survivors as ‘bad mothers’responsible for men’s
violence, 2) the rendering of violent men as invisible and 3) the decontextualisation of
parental mental health issues and/or problematic substance misuse from DFV.
A growing body of evidence documents the considerable challenges experienced by
women and children who become subjects of the statutory child protection system
(Douglas & Walsh, 2010; Hester, 2012; Keeling & van Wormer, 2012; Laing, 2010).
Once ‘in the system’, mothering commonly becomes subjected to the deficit gaze of
the state where technocratic risk assessment procedures increasingly construct
mothers as ‘failing to protect’their children (Strega, Krane, Lapierre, Richardson, &
Carlton, 2013). At the same time, the fathering of men who perpetrate domestic violence
is often rendered invisible, and fathers are frequently not held accountable for the cascad-
ing harm they cause (Bancroft, Silverman, & Ritchie, 2012; Heward-Belle, 2016). The
over-responsibilisation of mothers and under-responsibilisation of fathers comprise
two sides of the same sexist coin, and this understanding is pervasive.
Once ‘in the system’, survivors and their children are also vulnerable to distinctive cul-
tural practices that prescribe the ways in which organisations respond to social problems
(Hester, 2012). Mackinnon (1987) argues that with respect to the law, these cultural
4T. DE SIMONE AND S. HEWARD-BELLE

practices are rooted within a patriarchal system where women are judged by male stan-
dards of femininity, including social constructions of what it means to be a ‘good mother’
(Heward-Belle, 2017). Many Aboriginal and Torres Strait Islander women and women
from culturally and linguistically diverse backgrounds experience the intersecting
impact of compounding oppression arising from institutionalised racism and sexism
(Zufferey & Buchanan, 2020) whereby they are also subjected to white constructions
of femininity and mothering.
Scourfield (2003) argues that statutory CPS culture and governing discourse indivi-
dualises ‘failures’in parenting and engages in mother-blaming practices, defined by
Strega (2007) as practices ‘holding mothers responsible for any difficulties associated
with the protection and care of their children, even when those difficulties are caused
by another individual or by socio-economic conditions’(p. 69). When women experience
mental distress and/or engage in problematic substance misuse in the context of repeated
victimisation, the statutory CPS response is often to compartmentalise these issues as
separate to DFV. Many perpetrators of domestic violence routinely use ‘substance
abuse coercion’and/or ‘mental health coercion’(Warshaw & Tinnon, 2018) as further
tactics of coercive control. Yet, evidence to that effect is rarely collected, and the inter-
locking complexities of survivors’experiences are frequently documented in a decontex-
tualised fashion (Humphreys & Thiara, 2003a). Women’s complex lived experiences
become fragmented and seen through the prism of the ‘bad’or ‘mad’or ‘victimised’
mother. Evidence is rarely documented to demonstrate the myriad ways she resists vio-
lence, protects her children and displays resilience amidst great adversity (Coates &
Wade, 2004).
In the case of DFV, institutional oppression comes into stark relief in circumstances
where legal orders are imposed which remove children from the care of their mothers for
reasons directly attributable to male violence (Cramp & Zufferey, 2020). In the Australian
context, this constitutes a significant and expanding number of children. In 2015–16,
55,600 children were placed in out-of-home-care for reasons directly connected with
DFV (AIHW, 2017).
Numerous qualitative studies have explored women survivors’experiences of navi-
gating the legal and social service system, finding that they overwhelmingly report
negative experiences, including being: blamed for their own victimisation; accused of
being complicit in the abuse of children who are exposed to domestic violence;
coerced into leaving their violent partners through threats to remove children from
their mothers’care; and held responsible for children’s behaviour problems resulting
from experiencing domestic violence (Douglas & Walsh, 2010; Moulding, Buchanan,
&Wendt,2015).
Leaving may seem like a solution, however there are multiple barriers to leaving,
which include: lack of adequate housing and income support; extended family and cul-
tural practices; fears of escalation of violence and homicide; and the high probability of
family law orders which may require children to have extensive contact with abusive
fathers. The dominant response to women by statutory authorities has been to
demand that they separate from violent fathers and/or partners in order to keep their
children (Kaspiew, Horsfall, & Qu, 2017).
As a result of the above factors, leaving may not be an option available to many
women, and this reality may bring them into contact with statutory CPS. Many
CURRENT ISSUES IN CRIMINAL JUSTICE 5

women survivors describe experiencing a response that leaves them feeling that it is not
safe nor supportive to turn to the statutory child protection system. Dumbrill and
Maiter’s(1997) study found that survivors’perceptions of statutory CPS included:
being aware of, and frightened of the power of individual workers and their agency; feeling
that one of their main parenting tasks was to protect their child(ren) from the worker/
agency; feeling little or no control over the process or outcome of interventions; feeling
that they were engaged in an encounter with ‘absolute power’, which was for Indigenous
clients connected with historical, social and political oppression. (p. 74)
Hunnicutt (2009) and Bumiller (2008) argue from a post-structural perspective that
women survivors of DFV are subjected to tactics of power and control in pre-modern
and post-modern ways. They are subjected to pre-modern power exemplified in the
brutal, corporeal acts of violence perpetrated against them by men in the private
sphere. In the post-modern state, they are subjected to governmentality (Foucault,
1977) and oppression by diffuse means by state actors employed by state institutions
including the law, statutory CPS and psychiatry to carry out ‘official state duties’.
A cultural tsunami
Between 2015 and 2020, a ‘cultural tsunami’has gained momentum in Child Safety and
its partner agencies as a result of a number of capacity-building initiatives coalesced in
Child Safety, which aimed to address many of the aforementioned critiques of statutory
responses to families experiencing DFV. These initiatives included the roll out of a large-
scale domestic violence informed training program, participation in a suite of multi-state
action research projects and the establishment of the Office of the Child and Family
Official Solicitor (OCFOS). The confluence of these activities provided a fertile context
for workforce development, which we describe below.
Driving practice change through action research
A suite of research projects led by Humphreys with a team of researchers and practitioners
across multiple Australian states was conducted. Nominated child protection workers and
in-house lawyers participated in some or all of the following research projects:
.The PATRICIA Project (Humphreys & Healey, 2017)
.The Invisible Practices: Working With Fathers Who Use Violence Project (Healey,
Humphreys, Tsantefski, Heward-Belle, & Mandel, 2018)
.The STACY Project (Safe & Together Addressing Complexity) (forthcoming)
Although each project had unique research questions and slightly different method-
ologies, they shared a common purpose, which was to simultaneously investigate and
build the capacity of the workforce to better recognise DFV and respond to families
where DFV is occurring. Each project adopted an action research method and
similar structure, which included partnering with the Safe & Together Institute
1
who
1
The Safe & Together Institute is a model developed by David Mandel in the United States. The model is described as a
suite of tools and interventions to assist child welfare professionals to become ‘domestic violence informed’.
6T. DE SIMONE AND S. HEWARD-BELLE

provided capacity-building activities including domestic violence informed training
and coaching, which occurred through the establishment of multi-disciplinary commu-
nities of practice.
It is beyond the scope of this paper to report the extensive findings of each complex
research project, and indeed, a corpus of peer-reviewed research papers and industry
reports have been published and are available on the ANROWS website (2020).
Instead, key findings pertinent to driving change in relation to the way that evidence
is collected, documented and presented by child protection workers and lawyers in
Queensland is highlighted below.
The PATRICIA Project—representations of domestic violence
A key finding of particular relevance to this Comment was that professionals frequently
fail to ‘tell it like it is’(Coates & Wade, 2004) when representing domestic violence. The
case reading component of the PATRICIA project which involved using the Safe &
Together Institute domestic violence informed case reading tool (Safe & Together Insti-
tute, 2017) to analyse 20 randomly selected statutory child protection files from NSW,
Queensland, South Australia, Victoria and Western Australia found that file documents
used in court proceedings frequently framed domestic violence as ‘fights between
parents’,‘parental conflict’or ‘mutual combat’which had the effect of mutualising
responsibility for domestic violence (Humphreys, Healey, & Mandel, 2018). Moreover,
domestic violence was framed as the outcome of a ‘dysfunctional relationship’commonly
represented in the phrase, ‘the relationship is characterised by domestic violence’.
Other research has found this framing to be common in evidence presented to the
Children’s Court and family law courts (Humphreys & Thiara, 2003b; Laing, 2017).
Coates and Wade (2007) argue that mutualising responsibility is a common discursive
practice that misrepresents the unilateral choice made by the perpetrator to use vio-
lence and control against their partner. This misrepresentation leads to mitigating
the perpetrator’s responsibility for violence and blaming and pathologising the
victim for it.
The INVISIBLE PRACTICES Project—representations of responsibility
A key finding from the survey component of the Invisible Practices Study (Heward-Belle,
Humphreys, Healey, Tsantefski, & Toivonin, 2019) which included data collected from
232 frontline workers and team leaders across a range of organisations across Queens-
land and three other Australian states was that professionals variously engaged in
work with perpetrators of domestic violence. There was a wide range of practices
located on a continuum from ‘invisible’to ‘highly visible’, and many professionals did
not believe that it was their remit to engage in practices with domestically violent
fathers. Data illustrated that many professionals continue to use language that constructs
survivors as responsible for ensuring children’s safety and wellbeing, whilst continuing to
render domestically violent fathers invisible. Many participants identified the need to
improve practice so that men who use violence and control are engaged in assessment
processes, that evidence about their pattern of perpetration is collected and that they
are held to account for violence and abuse.
CURRENT ISSUES IN CRIMINAL JUSTICE 7

Data from Queensland child protection workers illustrated that practice changes are
occurring, particularly in the way that workers understand DFV and in relation to the
focus of their engagement. The following quote demonstrates this shift in orientation:
[O]ur Department is in the process of change; historically we have placed too much respon-
sibility on the mum, the adult victim, to create safety. For example, we would encourage
mum and the children to leave the family home instead of encouraging dad, the perpetrator
of the violence, to remove himself from the family home in order to create safety. By focus-
ing too much on mum and the children a lot of times the perpetrator was overlooked and
not held accountable for their behaviours. Upon reflection, this is very dangerous as simply
removing a mum and children does not implement safety as we know that the adult victim
and children are most at risk after a separation. This practice also does not push for change
in the perpetrator’s thinking and behaviours into the future and although they may not
return to a relationship with the adult victim it is highly likely that if they start a new
relationship the cycle of violence will resume in that relationship. (Child Protection
Worker, Heward-Belle et al., 2019)
This change in orientation has significance for the collection of evidence, as workers
identified being more engaged in purposeful conversations with perpetrators whereby
they were asking questions about: their pattern of violence and coercive control, its
impact on their partners, children and family functioning, their beliefs about fathering
and the extent to which they fulfil their responsibilities as a father.
The STACY Project—representations of parental substance misuse and mental
health issues
The qualitative interview component of the STACY Project involved conducting semi-
structured in-depth interviews with 28 practitioners who provided interventions to
clients living with domestic violence, problematic substance misuse and/or mental
health issues in Queensland, NSW and Victoria. A key finding pertained to the siloed
service system that rendered the intersections between substance misuse, DFV and
mental health issues invisible. Of particular relevance for this Comment is the way in
which the siloed service system resulted in decontextualised representations of women
survivors who experienced mental health distress and/or who used substances. Many
participants described collecting evidence about women’s mental health and/or sub-
stance use history in a way that was disconnected from her lived experiences of DFV.
This lack of integration frequently enabled perpetrators to influence the narrative sur-
rounding the victim. The focus on the victim’s‘problems’reified from the violence
and coercive control that she was experiencing, the failure to attend to the perpetrator’s
patterns of violence and control, rather than a single incident-based approach were key
themes identified in the study.
Driving practice change through domestic violence informed training, coaching
and practice tools
Change began to occur when Child Safety partnered with the Safe & Together Institute to
implement a trial program called ‘Walking with Dads’(Meyer, Hine, McDermott, &
Eggins, 2019). This trial was a part of the reforms from the Queensland Government
8T. DE SIMONE AND S. HEWARD-BELLE

reform package Supporting Families: Changing Futures—Advancing Queensland’s child
protection and family support reforms (Queensland Government, 2016) as well as the
domestic and family violence reforms as a result of the Not Now Not Ever: Putting an
End to Domestic and Family Violence in Queensland report (Taskforce on Domestic
and Family Violence, 2015).
The four-year Walking with Dads trial began in 2016, and the Safe & Together™
Model became the primary reference tool for work by Child Safety staff. The trial
aimed to:
.Intervene with fathers to achieve safety, wellbeing and belonging for families and
children
.Promote a DFV informed approach to child protection practice
.Improve the inclusion and quality of work with fathers in child protection work in
general
.Meet the needs of Aboriginal and/or Torres Strait Islander children and families
(Meyer et al., 2019).
Child Safety worked closely with the Safe & Together Institute to train over 1000 of its
staffacross the state starting in 2015–16 and continuing into the present day.
The Safe and Together™Model is described as a suite of tools and interventions to
assist child welfare professionals to become ‘domestic violence informed’. The model
operates on the basis that children should be central to any child protection intervention
and that it is in their best interests to be kept ‘safe and together’with a non-offending
parent or survivor of domestic violence. The model centres on three fundamental
principles:
(1) keeping the child Safe and Together™with the non-offending parent;
(2) partnering with the non-offending parent as a default position;
(3) intervening with the perpetrator to reduce risk and harm to the child. (Healey et al.,
2018, p. 34)
The model talks about shifting or ‘pivoting’the practitioner’s attention away from
assessing the protective parent as the source of the risk or safety concerns and to
instead focus on the actions or behaviour of the perpetrator as the source of risk to
the child/ren and functioning of the family. The model advocates for better evidence col-
lection and documentation of the behaviour and patterns of the perpetrator which sup-
ports better safety planning with the non-offending parent and their support systems as
well as better partnership with the non-offending parent to highlight their strengths and
protective capacities.
The Safe & Together™model advocates for child welfare agencies to be domestic vio-
lence informed or to use practices and policies which are consistent and collaborative
throughout the whole legal and social service system and which assist non-offending
parents and their children rather than practices which increase risk and harm to the
non-offending parent and child survivors and make it harder for them to access
support (Humphreys & Healey, 2017, p. 33).
CURRENT ISSUES IN CRIMINAL JUSTICE 9

Driving practice change through enhanced legal representation
The Office of the Child and Family Official Solicitor (OCFOS) was established within
Child Safety in July 2016 to enhance the legal advice and representation provided to
Child Safety staff. Similar to other states in Australia, the OCFOS role involves providing
legal advice and representing Child Safety in some applications to a court. It was estab-
lished in response to recommendations arising from the report of the Queensland Child
Protection Commission of Inquiry (Queensland Child Protection Commission of
Inquiry, 2013, p. 483).
In-house lawyers participated in the Safe & Together™Model training with the child
protection practitioners, which enabled the development of a shared understanding and
common language. It became clear that the Safe & Together™Model was applicable
beyond child protection assessments and could be tailored to other legal aspects of
child protection work.
OCFOS engaged the Safe & Together Institute to develop and deliver a training
module for lawyers, which was delivered to lawyers from OCFOS, Legal Aid Queensland,
the Office of the Public Guardian and the Director of Child Protection Litigation (an
independent authority which applies for child protection orders) in April 2019. The
ability to train several teams with different roles across the child protection jurisdiction
was important, as it meant that the lawyers had a shared understanding of perpetrator
accountability and what pivoting to the perpetrator meant. It also gave a shared under-
standing of why survivors and their children should not be held responsible for the par-
enting choices of a perpetrator.
The training has led to some other creative methods of assisting Child Safety staffto
partner with the non-offending parent. For example, OCFOS lawyers regularly apply for
or apply to vary, domestic violence protection orders simultaneously with the child pro-
tection ‘assessment’order applications (Domestic and Family Violence Protection Act,
QLD s 43, 2012). Queensland’sDomestic and Family Violence Protection Act 2012
(Qld), allows a Children’s Court to make or vary a domestic violence order when it is
hearing a child protection proceeding.
Other assistance has been provided to child protection practitioners to advocate with
parole boards about parole conditions and police to tailor bail conditions that enhance
the safety of the non-offending parent and children. Another important area of
support offered by lawyers is the ability to redact evidence that may place a parent at
risk. This is of course subject to judicial oversight and is usually restricted to identifying
information such as addresses and school names which may indicate where a parent and
child are living when in refuge.
In some instances, the above interventions have created enough safety to keep the chil-
dren with the non-offending parent and to avoid Child Safety taking any action to
remove the children from her care. The most important impact on the lawyers has been
the consideration of how evidence is presented to a court in a child protection proceeding.
Observations on changes to the way evidence is presented
The training and ongoing conversation about the Safe & Together™Model in OCFOS
has supported our lawyers to think more broadly about how they present evidence in
child protection cases. The following case examples developed by De Simone illustrate
10 T. DE SIMONE AND S. HEWARD-BELLE

the way that evidence was presented before and after the cultural changes occurred. For
ethical reasons, the case studies are composites of real-life Child Safety cases. They are
fictitious, yet accurate representations of the way that domestic violence and risk was pre-
sented to the court and changes that have occurred in child safety cases. They are based
on De Simone’s legal practice experience and a recent review of cases being litigated in
Queensland. These examples are also being used to train legal staffto provide a domestic
violence informed response.
Mother blaming and poor partner selection
Case example 1
Thecaseexamplebelowdetailsacommonrepresentationofachildprotectionworker’sper-
ceptions of a survivor’s capacity to provide good enough parenting to her newborn baby:
Jackson, a newborn baby, is at significant risk of harm due to his mother’s mental ill-health, significant history of drug
misuse and her involvement in domestically violent relationships. It is recommended that Jackson be placed in
alternative care as he is considered to be at an unacceptable risk of harm in her care, due to the aforementioned
issues associated with her lifestyle choices. Despite being a victim of repeated assaults, the mother appears
reluctant to leave the relationship. The mother has a history of Borderline Personality Disorder and has been in a
series of abusive and violent relationships.
This case study illustrates how the underlying cause for concerns about Jackson’s well-
being is represented to be the mother’s‘choice’of partner rather than the abusive beha-
viours of the person using violence and control. This implies that her poor choices
resulted in her victimisation and that she is solely responsible for ensuring Jackson’s
safety, welfare and wellbeing.
Mutualising responsibility for domestic violence and decontextualising
substance misuse and mental distress from DFV
Case example 2
This case example depicts how domestic violence is commonly represented as conflict in
an intimate partner relationship for which both parties are equally responsible. More-
over, it demonstrates how women’s lived experiences of substance misuse and/or
mental distress are frequently reified from the context of victimisation that can precipi-
tate, predispose and/or perpetuate the continuation of these issues:
It is my assessment that the father and mother’s relationship is characterised by domestic violence with overlaying
mental health concerns and substance misuse. The incidences between the mother and father have occurred in the
presence of the child.
The mother’s intimate relationships with others, have at times resulted in the mother being physically injured or
placed at risk of harm. It is my assessment that the children have suffered cumulative emotional harm as a result of
ongoing exposure to escalating domestic violence between the mother and the father. This violence has continued
to escalate, with the two most recent incidents involving the use of a gun.
Both parents have issues with drug dependence and it is my assessment that both parents have exposed the
child to drugs, drug paraphernalia and people using drugs.
Future risk of harm
The risk of physical harm related to the mother’s history and cycle of getting involved in relationships that are violent.
Currently the mother advises that she is not in a relationship, however based on her past patterns, child protection
concerns remain for the child. Furthermore, there is a risk of physical harm as a result of the mother’s substance
misuse.
CURRENT ISSUES IN CRIMINAL JUSTICE 11

The risk of emotional harm relates to the child being a witness to domestic violence between the mother and the
father, and the concern that this will continue in the future. This includes verbal abuse, emotional abuse, physical
abuse and wilful property damage. Furthermore, there is a risk of emotional harm as a result of the mother’s
substance misuse.
Should the child return to the care of the mother now, it is my assessment that there is a possibility of the child
experiencing emotional and physical harm due to the mother’s history of substance misuse and her demonstrated
pattern of engaging in unhealthy and unsafe relationships.
Describing the relationship history as being ‘characterised by domestic violence’passively
situates the behaviour as a product of the relationship, rather than being a parenting or
behaviour choice of the perpetrator. Alternatively, it could be seen as an interpersonal
relationship problem that women participate in. Framing domestic violence in this way
has been problematised previously in the literature review. Child protection assessments
that are written in this way support the idea that when a relationship ends, so too will the
violence, despite substantial evidence to the contrary (Humphreys et al., 2018), and they
reify the mother’s complex lived experiences of DFV from mental distress and substance use.
Alternative framing: pivoting to the perpetrator and partnering with
the survivor whilst maintaining a focus on child safety
Case example 3
Drawing on key learnings from successive capacity-building activities including partici-
pating in action research projects, training and coaching opportunities, the example
below depicts how evidence of domestic violence and risk can be alternately represented.
It is my assessment that the child would be at an unacceptable risk of physical and emotional harm without further
departmental intervention due to the following:
(1) A history of and current domestic violence perpetrated by the father against the mother. Over this time, the
father has made a parenting choice to engage in a pattern of coercive control and violent behaviour towards the
mother, including behaviour associated with a high risk of lethality. This has included:
(a) Physical abuse including strangulation—on three occasions the father has put his hands around the
mother’s neck and squeezed so hard that she couldn’t breathe. He left bruises on her neck and she lost
consciousness on two occasions.
(b) Control over finances—the father withdraws all of the mother’s money from her bank account
(c) Control over who the mother sees and speaks to and where she goes;
(d) Control over the mother’s mobile phone—he goes through it and questions her. If the mother talks on her
phone the father follows her, questions her and accuses her of cheating on him;
(e) Social isolation—the mother no longer has family or friends for support;
(f) The father upsets and provokes the mother until she is emotionally uncontained—screaming and crying
and then he calls the police saying he is worried for his and the child’s safety;
(g) The father has raped the mother several times;
(h) The father controls the child’s care and routine (he baths the child, dresses him and puts him to bed). This
interferes with the mother’s attachment and bonding with the child and is used by the father to
demonstrate the mother’s inability to parent to authorities.
There has been an increase in the intensity, frequency and severity of the father’s use of violence, coercion and
control towards the mother which continues to impact on the family functioning by creating instability for child
and mother, negatively affecting the mother’s mental health and a poor child-mother relationship due to
father’s undermining of the mother’sparenting.
Despite the mother’s best efforts to separate from the relationship, and work to get the child returned to her care,
the father was still able to capitalise on times when she was vulnerable and re-enter her life which resulted in the
child being significantly harmed. Should the mother and the father resume their relationship, which history would
indicate is more than likely given the significance of the father’s violence and control, the child would be at an
unacceptable risk of emotional and physical harm.
12 T. DE SIMONE AND S. HEWARD-BELLE

Despite the mother’s ongoing efforts to protect the child and promote the child’s wellbeing through (a) reporting
the sexual abuse; (b) accepting referrals to domestic violence and rape support services; (c) engaging in psychological
supports; and (d) consenting to the child going to day care and a referral to child counselling, the father’s continued
coercive control and violence is likely to continue to compromise the child’s safety, belonging and wellbeing.
Child Safety continues to partner with the mother and have made multiple attempts to assist her to relocate with
the child to promote the safety of her and her child, however due to the father’s coercive control towards the mother,
these attempts have not been successful.
This representation of domestic violence and risk conveys observed changes in the
way that many practitioners in Child Safety are now representing DFV and risk in evi-
dence and other forms of documentation. This case example illustrates how key learnings
from the Safe & Together Institute domestic violence informed child welfare practice are
being applied in Queensland. In particular, it demonstrates casework based upon a per-
petrator patterned based approach that relies upon the collection of evidence that pivots
on an understanding of the modus operandi of the perpetrator, rather than one that
pivots on scrutinising the responses of victims/survivors. This alternate approach has
the potential to deliver better outcomes to survivors of domestic violence and their chil-
dren, which are based upon the establishment of a partnership between survivors and
professionals. This type of practice shift also has the potential to invite domestically
violent men to change their behaviours and for the legal and social service system to
hold them to account for criminal behaviours. Ultimately, utilising a domestic violence
informed child welfare response also has the potential to better safeguard children and
young people, who as the research evidence attests have better outcomes when they
remain safe and together with their non-offending parent.
Discussion
This paper highlights the importance of the approach taken to the collection, documen-
tation and presentation of evidence. Child protection workers and legal actors are
engaged in a process of constructing and representing violence, which is contingent
upon their understanding of the operations of power in the private and public arenas,
as well as the dynamics of DFV and how these dynamics may encourage problematic sub-
stance misuse or mental health issues. Moreover, accurate representations must also
attend to the myriad ways that women and children resist, protect and care for one
another despite the suffocating environment that the perpetrator tries to establish and
maintain within the family.
The ‘failure to protect’discourse remains stubbornly persistent (Humphreys & Absler,
2011) in statutory CPS, despite decades of scholarly research and attention illuminating
its existence. We argue that its persistence is unsurprising given the enduring dominance
of the patriarchal regimes of power, for it is within patriarchy that this discourse is firmly
rooted. This is not to say that individual child protection workers or judicial officers con-
sciously commit acts of oppressive sexism, instead we agree with the following descrip-
tion of the operation of patriarchy, as it pertains to institutional practices:
[I]t is individuals in specific positions within institutions who must realise these abstract
concepts locally through discursive actions in writing and face-to-face conversation.
These individuals are not mindless automatons or puppets of the state, but social agents
whose discursive actions variously reflect or depart from institutional policies. Individuals
CURRENT ISSUES IN CRIMINAL JUSTICE 13

must freshly justify their use of institutional power in each case by linking their actions to
institutional ideologies, policies, or objectives. This is true even when administrative power
is used for the greater social good as in the arrest and incarceration of dangerous criminals
or the protection of abused children. (Coates & Wade, 2007, p. 520)
We argue that increasing child protection workers’and legal actors’knowledge of
domestic and family violence is not sufficient to redress sexist institutional practices.
As these pervasive practices are structural in nature rather than the result of poor pro-
fessional practices (Collins, 1990; Fish, McKenzie, & MacDonald, 2009; Humphreys &
Absler, 2011), professionals must engage in critically reflexive practices that encourages
them to interrogate their own taken-for-granted hegemonic assumptions about gender,
other aspects of identity and domestic violence. Critical reflection also requires pro-
fessionals to consider how interlocking systems of oppression such as sexism, racism,
ableism and homophobia may be embedded within legislation and policies that establish
the organisational and practice context. This is essential because the tactics of power and
control commonly deployed by men in the private domain can be mirrored by pro-
fessionals in the public domain through the deployment of sexist and racist institutional
practices, resulting in circumstances that can decrease safety and compound trauma for
survivors (Heward-Belle et al., 2019).
Conclusion
Through the presentation of data derived from successive Australian research projects
and composite case studies, this Comment has discussed how child protection workers
and legal actors in Queensland, Australia attempted to redress gender-blind practice
through participation in a number of domestic violence informed capacity-building
activities. The paper has implications for practitioners, researchers and policy actors
engaged in work with families at the intersections of domestic violence, family law
and child protection. It identifies how change occurred in statutory child protection ser-
vices in Queensland, Australia.
Of course, this same discussion and reflection could be equally applied to other legal
jurisdictions. There is direct and obvious applicability to the family law jurisdiction
where allegations of DFV are regularly presented to a court. However, it would also be
interesting to adopt the Safe & Together™Model principles in a criminal law prosecution.
The principles could be applied to taking statements from victims/non-offending parents.
A statement could reflect the impact of a perpetrator’s behaviour on the children and
family dynamics. This would assist a sentencing judge who may be minded to make a dom-
estic violence protection order on sentencing an offender, for example. As well, the impact
on the non-offending parent and the family dynamics may be relevant to a victim impact
statement and provide a good foundation for sentencing submissions. Conversely, a
woman who kills her violent partner would benefit from this type of collection, documen-
tation and presentation of evidence in her defence (Douglas, McGlad, Tarrant, & Tolmie,
2020). Other offences where women are charged but have been coerced and controlled
such as social security fraud are also worthy of consideration to this approach.
Multiple drivers including participation in domestic violence informed action
research, training and coaching, as well as through the establishment of a specialist
legal division catalysed practice improvements, particularly in relation to the collection
14 T. DE SIMONE AND S. HEWARD-BELLE

and representation of domestic violence as evidence. This is an area of legal practice
where there is limited Australian academic or practice-oriented literature available.
Disclosure statement
No potential conflict of interest was reported by the authors.
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