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  • Part 1: Effective Record-Keeping for Child Protection Matters
    Written by: Telios Teaches, training provided by Telios Law PLLC

    In an era where ministries may face lawsuits based upon decades-old
    allegations of child abuse, effective child protection policies and
    documentation are paramount for organizations that work with children. This
    includes record-keeping practices in the child protection context that will
    ensure problems are tracked and all relevant evidence is preserved for
    future investigations, external reporting, or litigation.

    This two-part series discusses how ministries can gather, organize, and store
    documents for child safety. This first installment of the series explains the
    purposes and principles behind record-keeping in the child protection
    context 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 the
    child protection context. First, when allegations or suspicions arise against a
    member or employee of an organization, even ones that are not credible or
    ultimately unsubstantiated, the proper documentation of the allegations and
    the organization’s investigative response provides a record for handling
    matters in the future. For example, allegations against an employee may be
    determined to be unsubstantiated, but if allegations against the same person
    from a different alleged victim arise later, proper documentation of the
    former matter will be vital for discerning common elements and patterns of
    the alleged abuse in both matters. Conversely, an alleged victim may be a
    serial false reporter. For many reasons, keeping appropriate records is
    critically important.

    Second, keeping appropriate records helps an organization make personnel
    decisions and manage risk from a child protection perspective. When a
    member or employee is being considered for placement in a role in which he
    or she will have access to children, having records that might raise flags of
    that person’s unfitness to serve in that capacity will help to ensure that only
    the most vetted and trusted personnel will have access to children.

    Third, in the terrible event that a member or employee of the organization
    abuses children and is charged with crimes related to that abuse, the
    organization’s records may be one of the few sources of evidence to bring
    the offender to justice. It may also be the case that an innocent accused may
    be justly exonerated by an organization’s records. With the fair and correct
    administration of justice a priority, an organization will properly document all
    aspects of every child protection matter.

    Lastly, an organization may risk liability by failing to properly document how
    abuse allegations were handled and reported. Organizations can be liable for
    mishandling child protection matters and failing to properly respond to
    allegations. Another area of high risk is lawsuits from those accused who
    believed that they were defamed or that their file was otherwise mishandled.
    When an organization’s handling of an abuse matter is called into question, it
    will need to be prepared to defend its procedure. Such a defense requires
    being able to show through documented evidence what the organization
    knew, when it learned of the information, who was involved, and what the
    response was.

    The Rules of Evidence
    Documents and records being used to demonstrate the guilt of an offender
    or exonerate an organization from liability must be admissible as evidence
    before a tribunal under the rules of evidence in that legal jurisdiction..
    One of the greatest barriers to document admissibility under U.S. evidence
    rules is the so-called “hearsay rule,” which bars admission of evidence
    containing out-of-court statements being offered to prove the truth of those
    statements. However, one of the exceptions to the hearsay rule is the
    business 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 information
    transmitted by—someone with knowledge;
    2. the record was kept in the course of a regularly conducted activity of a
    business, 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 or
    another 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 the
    contents thereof.
    For example, under this rule, a party could not prove the
    contents of an abuse report, email, interview transcript, or other documents
    by simply offering correspondence or notes describing or quoting its
    contents. A party would need to have the original document.

    Another related rule, the so-called “demonstrative exhibit” rule, bars
    admission of tables, spreadsheets, graphs, charts, and other summaries of
    information unless the underlying documents from which the data in the
    summary was aggregated are produced to other parties in litigation.
    For example, a spreadsheet summary showing aggregated data related to abuse
    matters would likely not be admissible in court unless all of the
    correspondence, records, and reports on which the summary is based are
    available and can be provided to other parties in the case.

    An organization should be able to demonstrate how it went from “report,” or
    even “rumor,” to substantiating a claim of abuse or other employee
    misconduct. It should capture the actual evidence upon which it based its
    conclusion.

    These are just a few examples of how evidentiary rules might come into play
    either in the context of a criminal proceeding against an alleged offender or
    in a civil lawsuit against an organization for negligent handling of an abuse
    matter. In light of these evidentiary rules, child protection records must be
    gathered and stored in a manner that helps to ensure their greatest
    likelihood 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. We
    are grateful for this post.

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