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  • Writer's pictureTrish Guise

Trauma-Informed Justice: Addressing Post-Separation Abuse in Family Law

Separation doesn't silence abuse; it just changes its tune.



Woman sitting on couch with pillow talking to a therapist

Logic would dictate that once a person leaves an abusive situation, they would be free from abuse. Sadly, studies show that in 40-80% of cases abuse continues post-separation and often escalates (Spearman, Hardesty & Campbell, 2022). Post-separation abuse is coercive and controlling behavior that persists after separation with the intent to gain, regain or maintain control over an ex-partner.


This behavior often includes continual harassment, stalking, financial control, manipulation of legal processes and using the children as weapons of control (Young, Wangmann & Douglas, 2023). Continual abuse despite separation only serves to inflict more emotional and psychological pain upon the victim and impeded their progress towards autonomy in their life after separation (Hulley, Wager, Gomersall, Bailey, Kirkman, Gibbs & Jones, 2023).


person with pen pointing to a place on paper

The prevalence of post-separation abuse has great implications for family law professionals. Working with domestic abuse victim-survivors necessitates empathy and recognition of the victim-survivor's traumatic experience, both of which are important to trauma-informed lawyering.


Effective legal representation in cases involving domestic abuse commands a thorough understanding of the complicated dynamics involved, as well as knowledge of trauma-informed therapy principles, which includes acknowledging the legal system's ability for aggravating trauma. Effective legal representation also includes proceeding with caution when referring their clients to settlement processes or co-parenting when those remedies may not be appropriate given the power differential between the parties (Fischel-Wolovick, 2020)

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What do victim-survivors say they need?

My experiences within private practice and the results from my master’s thesis research study all agree with bounty of research studies that illustrate the need victim-survivors have for trauma-informed lawyering including:

  • Understanding and recognizing post-separation abuse and trauma.

  • Understanding and recognizing trauma responses in their clients.

  • Recognizing the significant effects post-separation abuse has on their clients and their children.

  • Striving to create a safe environment for their clients during legal proceedings and in their daily life.


Look for future posts where I will share my study's results and explore in depth what victim-survivors say they need and want from their legal representatives.


man on computer while two women talk while sitting at a table

Understanding Trauma

Before delving into the specific use of trauma-informed care in family law, it is necessary to first understand the nature of trauma. Trauma, in all forms, has a tremendous impact on people, affecting their thoughts, feelings, and actions. From the psychological scars of domestic violence to the long-term effects of divorce on children, the judicial system is usually a battleground where these wounds manifest and are often exacerbated.


Prominent psychiatrist Judith Herman, emphasizes the long-lasting psychological effects trauma has on victims, viewing it as a severe infringement on a person’s sense of safety and trust. The complex nature of traumatic experiences and the ensuing processes of healing and recovery are explored in her key work in Trauma and Recovery (1992)and her subsequent works.


Gabor Maté, a well-known trauma physician and author, emphasizes the interconnectedness between trauma and physical and mental health.

Maté argues that trauma is not characterized simply by individual occurrences but may also show as persistent or patterned stressors (characteristic of post-separation abuse and coercive control) which have a dramatic impact on a person's capacity to function (Mate, 2022. The Myth of Normal: Trauma, Illness and Healing in a Toxic Culture).


smiling man showing a document to a woman

The Role of Trauma-Informed Care in Family Law


Despite extensive research demonstrating that this behavior destabilizes the mother-child relationship the legal industry has failed to recognize how these acts contribute to the traumatization of victim-survivors, including children (Katz, 2022).


Secondary traumatization, or revictimization, is a type of institutional betrayal that occurs when a victim-survivor expects validation and protection but alternatively experiences victim-blaming mentalities, neglect or downplaying of their victimization (Smith & Freyd, 2014).


Scholars have long argued the potentiality of the judicial system to re-victimize. Herman (2005b) contends that "if one sets out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law" where victims frequently encounter skepticism and experience a loss of agency (Herman, 2005.p. 574).


woman with concerned expression talking to another woman

Steps Towards Being Trauma-Informed


1.    Recognize how pervasive trauma is.

The first step is to recognize that trauma is widespread and can manifest itself in unexpected ways. Every client, witness, or even opposing party may be burdened by trauma, and family law practitioners must be aware of this.

 

2.    Show compassion and empathy.

Empathy and compassion are emphasized in trauma-informed care. As human stories unfold in courtrooms, understanding the effect of trauma is crucial for developing a compassionate and client-centered strategy in family law.

 

3.    Break the cycle of re-traumatization

People might be re-traumatized by legal proceedings. Through aggressive questioning and confrontational surroundings, family law can unintentionally exacerbate underlying trauma. Trauma-informed care aims to break this cycle by creating a healing environment.


Core Principles of Trauma-Informed Care


infographic on the core principals of trauma-informed care

Safety and Security

Family law professionals would be wise to establish a sense of safety and trust for the client as many victim-survivors of coercive control, post-separation abuse and trauma have experienced abuses of power in their relationships and will be hesitant to trust. Victim-survivors need to feel physically and emotionally safe before they are able to openly communicate and trust.  


Tips to consider:

  • Provide a welcoming, less threatening office environment.

  • Ensure plenty of space for comfort & privacy.

  • Promote your firm’s inclusivity & accessibility that represent under-served communities (Indigenous, Immigrant & Refugee & 2SLGBTQ+ communities).


Trustworthiness and Transparency

Trust is the foundation of all legal relationships. Trauma-informed treatment promotes openness by informing clients about legal procedures, prospective outcomes, and the logic behind legal methods. Being clear about goals and expectations of care are critical.


Tips to consider:

  • Practice informed consent.

  • Demonstrate predictable expectations.

  • Provide clear information about services.

  • Have well-defined roles & clear boundaries.

  • Be transparent, consistent & predictable.


Peer Support and Mutual Self-Help

Foster relationships and support among trauma survivors. People who have had similar experiences gather to share their tales, provide emotional support, and aid in the healing from trauma. This is an important mechanism for developing trust, safety, and agency.


Tips to consider:

  • Promote relationships & support for trauma survivors.

  • Use your own recovery story strategically.

  • Offer new ideas and solutions.


Collaboration and Mutuality

It is critical to be conscious of the underlying power imbalance in the client-service provider interaction and to work hard to flatten the hierarchy. Interpersonal trauma must be healed in a situation where interpersonal connections are not stressful. A non-directive, non-hierarchical collaborative method restores people's voices, encouraging active engagement in their own care.


Tips to consider:

  • Doing ‘with’ NOT ‘Doing to’.

  • Allow time for client to ask questions.

  • Encourage client to follow-up at any time.

  • Collaborate with professionals.

  • Review key take-away points with client.


gray haired woman leaning forward listening attentively to another woman

Empowerment: Voice and Choice

This premise begins with recognizing a client's existing strengths and talents, as well as how those tools assisted them in surviving their trauma. This involves admitting that getting assistance takes bravery and strength. A trauma-informed organization focuses on enhancing current strengths, skills, and tools with the objective of increasing these resources to support continued positive growth. The ultimate purpose of this technique is to increase a person's resources and support network. It is critical to empower clients by incorporating them in decision-making processes and respecting their preferences. The role of agency in the healing process is recognized by trauma-informed treatment honoring the views and experiences of patients and staff while promoting their strengths and resilience.


Tips to consider:

  • Acknowledge that your client is the expert in their life.

  • Frame coping strategies as adapting and/or surviving.

  • Collaborate with client in determining goals.

  • Keep client informed throughout the process.

  • Provide choices.


Cultural Historical and Gender Biases

As a commitment to effacing cultural biases The Law Society of Alberta has mandated Indigenous Cultural Competency Education for all lawyers in their commitment to the 2015 Truth and Reconciliation Commission Calls to Action. Further action needs to be taken to address systemic and individual biases based on gender identity, ethnicity, sexual orientation, age and religion. Biases and misperceptions regarding post-separation abuse, trauma, trauma responses and coercive control continue to revictimize victim-survivors and need to be addressed.  

 

Tips to consider:

  • Understanding what trauma and trauma healing mean in a cultural context.

  • Being aware & actively challenging your biases.

  • Advocate for accommodations & cultural healing considerations.




woman looking at her phone standing in office hallway

Practical Applications in Family Law Practices

1.    Education for Legal Professionals

It is critical to educate legal professionals about trauma-informed concepts. Workshops, seminars, and continuing education can help to raise understanding and sensitivity to trauma-related concerns. Look for more on this topic in future posts.

 

2.    Creating Trauma-informed legal spaces

Designing legal spaces that prioritize safety and comfort contributes to a trauma-informed practice. Simple modifications like comfortable seats and private consulting rooms can be impactful. The intent is to create a less intimidating environment so as not to heighten a victim-survivors stress response.


3.    Screening for Trauma

Integrating trauma screening into the first client intake process helps family law experts recognize possible trauma and modify their approach accordingly.  In Canada, the Divorce Act, RSC 1985, c 3 (2nd Supp) indicates a lawyer’s requirement to screen for family violence. The problem is that some family lawyers do not know what to do with the information the screening provides. This will be discussed in a future blog post.  Look for more on this topic in future posts.


Issues and Opportunities

Implementing trauma-informed principles into a family law practice will require a converted strategy to overcome the myriad of impediments one may encounter. Below are some hurdles to overcome and issues that may need attending.


Trauma Recognition

Issue: 

Trauma can be difficult to identify as it manifests in many different ways. This difficulty is compounded when a legal practitioner is not well versed in trauma (Justice Canada, 2023)).


Opportunities: 

Educating legal practitioners on identification factors of trauma and how to foster that encourages clients to be candid about their disclosure. This can be done through continuing education workshops. Ideally, at some point in the future, this education will be provided to law school students.


Legal Processes

Issue: 

Separation, divorce and the legal processes associated with them are inherently adversarial and have great potential to retraumatize clients. Victim-survivors often feel betrayed by ‘the system’ when they feel they haven’t received adequate advocacy.


Opportunities:

Clients who continue to experience post-separation abuse may become traumatized when expected to partake in some alternate dispute resolutions if certain protective measures are not taken.  Consideration should be given to


Client Agency & Autonomy:

Issue: 

Preserving the agency of clients is critical, particularly for those who have been disempowered through their traumatic experiences.


Opportunities: 

Empathy, validation, strong advocacy and transparency are what victim-survivors tend to value and need the most. Satisfying those needs may increase your client’s ability to emotional regulate and make the best decisions for them and their children.


Secondary or Vicarious Trauma for Professionals:

Issue: 

Legal professionals are human and are susceptible to secondary trauma as a result of being exposed to their client’s traumatic experiences.


Opportunities: 

Promoting a culture of wellness, support and self-care within your firm.


Conclusion

Family law professionals possess the capacity to foster empathy, acknowledge the widespread occurrence of trauma, and employ trauma-informed principles to establish a judicial system that advances healing, justice, and the overall welfare of all individuals concerned. A shared responsibility and the formation of a trauma-informed legal practice has the potential to inspire a legal system that is more empathetic for subsequent generations.


Stay tuned for my upcoming posts on what survivors really want from their lawyers and advocates.



















 

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