Failure to Protect: Children as the Spoils of War
No amount of child welfare reform will improve the system without legal reform.
Last year, I wrote an article entitled Failure to Protect: Institutional Oppression as a Social Norm in Child Welfare Services. In that article, I examined from my perspective as a child protection social worker how the failure of child welfare agencies to adequately protect children was directly related to the role of family courts in our child welfare system. Having put more critical thought into that article, I have rewritten it here to simplify and further expand on why the adversarial method used in our family courts is inadequate and dangerous to the children it is supposed to protect.
The Adversarial Method: Procedural Warfare
By assuming a level playing field, the adversarial method employed in child welfare cases and divorce proceedings disproportionately impacts children from marginalized families. This approach reinforces existing inequalities, favours conflict over resolution and increases financial and emotional stress.
Here’s how this system impacts the children of marginalized parents in both contexts:
The Adversarial Method in Context
When child welfare agencies take action against parents and families for alleged neglect or abuse, the adversarial system positions it as a contest between the agency and the parents, with a judge deciding if children should stay in their homes.
When parents separate and seek court assistance, the adversarial approach sets opposing spouses against one another. It requires them to submit conflicting arguments regarding custody, finances, and property division, leaving the resolutions to a judge or mediator.
In both situations, the adversarial system assumes that the parties are equal. However, this notion is both misleading and detrimental. In truth, parents—particularly those from minority backgrounds or with disabilities—often lack the means to compete on an even footing, resulting in unfair outcomes that can have dire consequences.
How the Adversarial Method Reinforces Inequality
In a context defined by facts shown as a 'snapshot in time" that omits the historical context of oppression, violence, and inadequate support, marginalized parents struggle with insufficient financial and social safety nets. This makes it difficult for them to make compelling arguments or to engage in prolonged legal disputes, putting them at a considerable disadvantage. For instance, in child welfare cases, agency lawyers wield legal tools such as motions to strike and summary judgments, which parties lacking strong representation may not comprehend or know how to utilize effectively. This discrepancy arises from an adversarial system that emphasizes winning legal arguments based solely on facts, frequently devoid of context, and entangled in complex legal procedures rather than focusing on resolutions that would benefit all parties involved, especially marginalized parents and children.
Harms to Parents and Children in Both Settings
Financial Inequality
For parents burdened by past oppression and domestic violence, court fees and high attorney costs make it difficult to obtain quality representation. This situation often compels them to depend on overwhelmed legal aid lawyers or to represent themselves. Conversely, government agencies employ experienced in-house attorneys focusing on child welfare cases. At the same time, wealthier spouses in divorce proceedings can hire skilled lawyers, expert witnesses, forensic accountants, or private investigators, creating an uneven advantage.
Structural Violence and Systemic Bias
In child welfare cases, the historical context of oppression and marginalization is frequently ignored, and poverty-related issues like inadequate housing and food insecurity are often misidentified as parental neglect. This mischaracterization leads to unnecessary child removals, causing harm to both children and families. Moreover, it puts additional strain on an already overburdened and under-resourced foster care system, worsening the inherent challenges of placements. Marginalized groups, including Indigenous, racialized, and disabled parents, who face significant barriers and have limited access to the courts, are disproportionately affected and disadvantaged.
Inadequate Focus on Children’s Best Interests
In child welfare, children from marginalized families are more frequently removed from their homes instead of their parents receiving the necessary resources to tackle underlying problems. In divorce proceedings, the adversarial approach prioritizes “winning” custody, assets, and finances over cooperative co-parenting solutions, often resulting in children being the biggest victims.
Emotional and Psychological Harm
In both child welfare and divorce cases, children might have to choose sides, testify against their parents, cope with long periods of uncertainty regarding where they will live, or experience the loss of crucial attachment bonds. Adversarial systems promote lengthy disputes, heightening stress for both parents and children while significantly worsening the psychological and emotional trauma associated with separation and conflict. The distress inflicted on children can hinder their academic engagement and healthy development and, in extreme cases, lead to chronic illnesses and mental health problems. Compounding this issue, the adversarial approach creates a win/lose mentality that pits family members against each other, often damaging essential attachments and support systems necessary for development, resulting in the loss of vital relationships.
Lengthy and Unpredictable Processes
Extended legal disputes leave families and children in a state of uncertainty, creating instability for everyone involved. Children who are placed in foster care or moved between homes while courts are making decisions experience disruptions in their education, social lives, and emotional health. Additionally, for children in foster care, there is an increased risk of harm from exposure to predatory individuals within the system. Even though there are guidelines for how long children should remain in foster care while awaiting a final legal decision, these guidelines are often overlooked. This represents a significant issue for many children and youth who are inappropriately placed.
Erosion of Trust and Agency
Marginalized parents navigating adversarial processes in child welfare and divorce cases frequently feel voiceless and powerless. Their concerns often get overshadowed by legal procedures and institutional authority. This exclusion and inadequate response to their needs exacerbate mistrust in courts, agencies, and social systems, making it more challenging for parents and families to obtain the required support.
Consequences for Marginalized Parents and Their Children
The impact on children from marginalized parents, such as BIPOC, disabled individuals, and single parents, is severe. In child welfare cases, the risk of family separation and disruption of attachments rises, often linked to historical oppression and poverty rather than actual abuse. Consequently, our family court system, particularly its adversarial approach, contributes to the ongoing cycle of generational oppression and trauma. For instance, in Canada, Indigenous children are taken into foster care at disproportionate rates, and Indigenous parents, particularly mothers, face higher incarceration levels.
Financial Inequality
Parents who are financially struggling due to historical oppression and domestic violence find court fees and high lawyer costs prohibitively expensive, making quality legal representation unattainable. Consequently, they often have to depend on overwhelmed legal aid attorneys or represent themselves. In contrast, government agencies employ experienced in-house lawyers specializing in child welfare cases. Meanwhile, wealthier spouses can hire skilled attorneys, expert witnesses, forensic accountants, or private investigators in divorce proceedings, creating an unjust advantage in their favour.
Structural Violence and Systemic Bias
In child welfare cases, the historical context of oppression and marginalization is often ignored, and challenges related to poverty, such as inadequate housing or food insecurity, are frequently misinterpreted as parental neglect. This mischaracterization results in unnecessary child removals, which not only harms children and families but also places additional strain on an already burdened and under-resourced foster care system, perpetuating the complications arising from placement issues. Furthermore, marginalized groups—like Indigenous, racialized, or disabled parents—face significant barriers and limited access to courts, leading to their disproportionate targeting of the disadvantaged.
Inadequate Focus on Children’s Best Interests
In child welfare, children from marginalized families are often taken from their homes instead of their families receiving the necessary resources to tackle underlying problems.
Emotional and Psychological Harm
In both child welfare and divorce cases, children often feel compelled to take sides, testify against their parents, experience prolonged uncertainty regarding their living arrangements, or suffer the loss of critical attachment relationships. An adversarial system fosters extended disputes, which heightens stress for both parents and children and significantly worsens the psychological and emotional injuries linked to separation and conflict. The distress inflicted on children can hinder their academic involvement and healthy development or, in severe circumstances, lead to chronic illnesses and mental health challenges. Compounding this issue, adversarial methods' win/lose nature sets family members against each other in conflict, often damaging developmentally crucial attachments and support systems, which can leave vital relationships irreparably harmed.
Lengthy and Unpredictable Processes
Extended legal disputes keep families and children in a state of uncertainty, creating instability for all involved. When children are placed in foster care or moved between homes during court proceedings, their education, social activities, and emotional health are disrupted. Moreover, children in foster care risk being harmed by exposure to predatory situations within the system. While there are guidelines about the maximum duration children should remain in foster care before a final legal outcome, these guidelines are often overlooked. This is a significant issue for many children who are placed inappropriately youth.
Erosion of Trust and Agency
Marginalized parents involved in contentious child welfare and divorce proceedings frequently feel voiceless and disempowered as their concerns get eclipsed by legal processes and institutional power. This lack of inclusion and failure to address needs appropriately deepens mistrust in courts, agencies, and social systems, complicating the ability of parents and families to access the support they require.
Alternatives to the Adversarial Method
Separation and divorce can be highly stressful life changes, even in the best situations. Instead of concentrating on conflict, collaborative family law and mediation grounded in professional, child-focused methods that prioritize co-parenting and family preservation may provide better support for families during these challenging times. In child welfare cases, addressing poverty-related issues through housing support, food security programs, and counseling—as opposed to punitive actions like terminating parental rights or removing children—could alleviate pressure on the placement system, safeguard vital parent-child connections, and minimize harm children.
Restorative Justice
Restorative and adversarial justice systems have markedly distinct methodologies for handling child welfare cases. The adversarial model emphasizes conflict, accountability, and legal discourse, whereas the restorative model prioritizes collaboration, healing, and the preservation of family units.
Legal and Systemic Reforms
It is imperative to guarantee that economically disadvantaged families have access to high-quality legal representation. An assessment of poverty and legal aid thresholds should be revised to accurately reflect the prevailing cost of living, taking into particular consideration the additional expenses associated with disability. Moreover, it is essential to ensure that all courts are fully accessible while providing training for lawyers and judges to comprehend the obstacles to justice posed by disability and trauma. The enforcement of accessibility laws should be prioritized, along with the provision of substantial legal remedies for any failure to accommodate disabled individuals, as well as for biases and discrimination rooted in ableism within legal proceedings. Furthermore, it is crucial to delineate and codify the distinctions between poverty and neglect within child welfare statutes. Training for judges, lawyers, and social workers aimed at fostering trauma-informed practices and the recognition and mitigation of biases against marginalized or historically oppressed individuals and groups is of utmost importance.
Conclusion
The adversarial approach frequently inflicts harm upon low-income families and children within the realms of child welfare and divorce proceedings, as it exacerbates existing inequalities, prolongs conflicts, and erodes emotional and financial stability. Transitioning from adversarial methodologies to collaborative, restorative, and supportive systems can safeguard familial bonds, mitigate trauma, alleviate pressure on the placement system, and prioritize the best interests of children above institutional and systemic biases.