Part 1: Effective Record-Keeping for Child Protection Matters

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.¹

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.² 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.³ 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.

More to Come!

In the next segment of this series, we will recommend and discuss practical steps that ministries can implement to improve their record-keeping for child protection matters.

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¹ Rule 803(6) of the Federal Rules of Evidence. All 50 states have adopted rules of evidence that are patterned on the Federal Rules of Evidence and contain virtually the same provisions with minor variations.

² See Rule 1002 of the Federal Rules of Evidence (“An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise”)..

³ See Rule 1006 of the Federal Rules of Evidence (“The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court”).

Featured Image by Rebecca Sidebotham.