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Monday, April 8, 2013

Child protection must present an unbiased view

A recent judgment in Nova Scotia raises some crucial issues for social workers and their lawyers who are presenting applications in court. The Honourable Justice Mona M. Lynch in the case of Ministry of Community Services v. F.B. noted some significant concerns with the bias of the presentation to court by the Ministry. She noted that the mother in this case was a difficult client. At paragraph 41, Justice Lynch notes:

There is no doubt that the mother was a difficult client to deal with, however, a parents failure to cooperate with the MCS does not equate to their child being in need of protective services

This matters a great deal. Difficult clients are hard to manage. They can seem to be "unworkable" when they are simply feeling powerless against the greater force of child protection. Justice Lynch appears to take the position that difficult should not be used as the basis for determining whether a child is in need of protection.

Justice Lynch goes on to make a much more crucial point - how invested should workers be in the outcome of the case. At paragraph 47, she states:

Witnesses for the MCS should not be personally invested in the outcome of a proceeding.   The proceeding is about the best interests of children, not who wins or loses. 

When a worker has been putting many hours into a case, has formulated a case plan and has aimed at succeeding with that plan, it is natural to want to achieve what one has set out to achieve. Being invested in that plan may hinder the view that one has to a case. Research has shown that this can create a information bias filtering out new information that contradicts the case plan. This is known as confirmation bias. Justice Lynch became concerned as she notes later in that same paragraph:

The court expects balance.  The court expects that the witnesses from the MCS provide evidence of both the good and the bad that they have witnessed.  The court expects that they will just relay the facts without attempting to colour the evidence in a negative light.  Sadly in this case, with few exceptions, the witnesses who work for the MCS were not impartial or unbiased.  They appeared to be so invested in the outcome of the case that it has affected the weight the court can give their evidence.  They appeared unable to say something positive about the mother even when there were positive things to say.   The evidence of many of the access facilitators can be given little weight.  This is unfortunate because the access facilitators spent the most time with the mother and the children of all of the witnesses.  

In essence, the bias was such that the credibility of the evidence was in question. If a case has merits, then it does not need workers to filter out data that may not support their preferred position. What this case shows is that when a judge becomes concerned that the data has been selected to support a position as opposed to offering the court the data it needs to weigh the merits, then the usefulness of the child protection witnesses wanes.

It is rare that a parent is totally without merit. By putting both the strengths and the weaknesses before the court, the judge can then weigh the balance. If the worker feels that they must do that ahead of time, then the worker is beginning to take the place of the court. That is dangerous.

Justice Lynch's comments are a good reminder that courts are ultimately responsible for determining the best interests of the child when child protection takes matters before them.

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