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Part 1: Effective Record-Keeping for Child Protection MattersWritten by: Telios Teaches, training provided by Telios Law PLLC
In an era where ministries may face lawsuits based upon decades-oldallegations of child abuse, effective child protection policies anddocumentation are paramount for organizations that work with children. Thisincludes record-keeping practices in the child protection context that willensure problems are tracked and all relevant evidence is preserved forfuture investigations, external reporting, or litigation.
This two-part series discusses how ministries can gather, organize, and storedocuments for child safety. This first installment of the series explains thepurposes and principles behind record-keeping in the child protectioncontext and discusses evidentiary issues that may be relevant.
Purposes and Principles Behind Maintaining Child Protection Files
Effective internal reporting and record-keeping are vitally important in thechild protection context. First, when allegations or suspicions arise against amember or employee of an organization, even ones that are not credible orultimately unsubstantiated, the proper documentation of the allegations andthe organization’s investigative response provides a record for handlingmatters in the future. For example, allegations against an employee may bedetermined to be unsubstantiated, but if allegations against the same personfrom a different alleged victim arise later, proper documentation of theformer matter will be vital for discerning common elements and patterns ofthe alleged abuse in both matters. Conversely, an alleged victim may be aserial false reporter. For many reasons, keeping appropriate records iscritically important.
Second, keeping appropriate records helps an organization make personneldecisions and manage risk from a child protection perspective. When amember or employee is being considered for placement in a role in which heor she will have access to children, having records that might raise flags ofthat person’s unfitness to serve in that capacity will help to ensure that onlythe most vetted and trusted personnel will have access to children.
Third, in the terrible event that a member or employee of the organizationabuses children and is charged with crimes related to that abuse, theorganization’s records may be one of the few sources of evidence to bringthe offender to justice. It may also be the case that an innocent accused maybe justly exonerated by an organization’s records. With the fair and correctadministration of justice a priority, an organization will properly document allaspects of every child protection matter.
Lastly, an organization may risk liability by failing to properly document howabuse allegations were handled and reported. Organizations can be liable formishandling child protection matters and failing to properly respond toallegations. Another area of high risk is lawsuits from those accused whobelieved that they were defamed or that their file was otherwise mishandled.When an organization’s handling of an abuse matter is called into question, itwill need to be prepared to defend its procedure. Such a defense requiresbeing able to show through documented evidence what the organizationknew, when it learned of the information, who was involved, and what theresponse was.
The Rules of EvidenceDocuments and records being used to demonstrate the guilt of an offenderor exonerate an organization from liability must be admissible as evidencebefore a tribunal under the rules of evidence in that legal jurisdiction..One of the greatest barriers to document admissibility under U.S. evidencerules is the so-called “hearsay rule,” which bars admission of evidencecontaining out-of-court statements being offered to prove the truth of thosestatements. However, one of the exceptions to the hearsay rule is thebusiness records exceptions, which allows admission of records of an act,event, condition, opinion, or diagnosis if:1. the record was made at or near the time by—or from informationtransmitted by—someone with knowledge;2. the record was kept in the course of a regularly conducted activity of abusiness, organization, occupation, or calling, whether or not for profit;3. making the record was a regular practice of that activity;4. all these conditions are shown by the testimony of the custodian oranother qualified witness.
Another rule of evidence that could exclude evidence is the so-called “best-evidence rule,” which requires an original version of a document to prove thecontents thereof.For example, under this rule, a party could not prove thecontents of an abuse report, email, interview transcript, or other documentsby simply offering correspondence or notes describing or quoting itscontents. A party would need to have the original document.
Another related rule, the so-called “demonstrative exhibit” rule, barsadmission of tables, spreadsheets, graphs, charts, and other summaries ofinformation unless the underlying documents from which the data in thesummary was aggregated are produced to other parties in litigation.For example, a spreadsheet summary showing aggregated data related to abusematters would likely not be admissible in court unless all of thecorrespondence, records, and reports on which the summary is based areavailable and can be provided to other parties in the case.
An organization should be able to demonstrate how it went from “report,” oreven “rumor,” to substantiating a claim of abuse or other employeemisconduct. It should capture the actual evidence upon which it based itsconclusion.
These are just a few examples of how evidentiary rules might come into playeither in the context of a criminal proceeding against an alleged offender orin a civil lawsuit against an organization for negligent handling of an abusematter. In light of these evidentiary rules, child protection records must begathered and stored in a manner that helps to ensure their greatestlikelihood of admissibility in a court of law, if that is ever needed.
This blog entry was first posted at https://teliosteaches.com/blog/part-1-effective-record-keeping-child-protection-matters. Permission granted to Plan to Protect® to repost. Weare grateful for this post.
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