Findings of unacceptable risk – A comment on Webb et al.'s analysis of child sexual abuse allegations in the Family Court of Australia

Abstract

Webb et al. (2021) have written an important study of the outcomes of cases in the Family Court of Australia in which child sexual abuse has been alleged. In 90 per cent of the fully

Allegations of child sexual abuse in the Family Court of Australia: Response to Parkinson

“…Parkinson focussed primarily on two of our key findings: (a) that the child was deemed to be at an unacceptable risk of harm in only 12 per cent of the fully contested cases; and (b) that in only 14 per cent of the fully contested cases were the allegations coded as being believed. At the outset, Parkinson (2021, p. 344) responded to our data by suggesting that: “[t]he Family Court is the ‘too hard basket’ of the child protection system and so the low level of findings of unacceptable risk is not necessarily indicative of systemic failure.”…”

“…Parkinson's (2021, p. 344) second major claim is that “[t]ypically, these cases involve children under 7 years old.” His point here, again developed further in the body of his paper, is that the younger the child, the greater the chance that elements of uncertainty will be introduced into any analysis of what happened or what is likely to happen. Though not formally stated by Parkinson, we wonder whether there might also be an inference embedded in this argument—that where the evidence is uncertain, the balance of probabilities issue is better resolved in favour of the innocence of the alleged perpetrator; and that this in turn would normally lead to a conclusion that it would be inappropriate to suggest the existence of unacceptable risk.…”

“…Finally, whether or not most allegations made by separated parents have first come to the attention of state authorities, it seems axiomatic that, as Parkinson (2021, p. 348) puts it, “[t]he fully contested cases are those which remain after the uncontestable cases are weeded out.” As Parkinson notes, they may decide not to proceed as a result of prior legal advice given to either the alleging parent or the alleged perpetrator; or via recommendations made after various forms of independent or forensic investigations; or via pre‐trial parenting agreements made between the disputants.…”

“…In turning his attention to the place of forensic investigations in these child sexual abuse cases, Parkinson (2021, p. 350) notes that “[t]he courts have no independent investigatory capacity.” The reasons why the family law system does not have an investigative arm and the problems generated by this omission have been well canvassed 6 . We suspect, however, that most parents in dispute in cases such as these would be surprised to learn that this is the case.…”

“…Under the heading, “Beyond the Binary of Truth and Falsehood,” Parkinson refers to O'Donohue et al (2018), a paper we cited. His aim was to “unpack the basis on which O'Donohue et al felt able to conclude from their analysis of many other studies that a large majority of allegations of child sexual abuse are likely to be true” (Parkinson, 2021, p. 346).…”