The Expert witness in child protection - putting limits on

The role of expert witness can be quite powerful in courts. They can have a strong impact on how judges see information and they get an opportunity to frame the data. In child protection, they complete assessments such as parenting capacity (PCA), addiction, mental health and cognitive and risk.

Courts in Canada, have addressed the position of the expert witness in a leading case. The Supreme Court of Canada (SCC) in the case of Mohan noted that an expert must meet certain criteria. The United States has considered this in two leading cases, Frye and Daubert. 

In R. v. Mohan, the SCC identified four criteria for the admissibility of evidence:

• It must be relevant 
• necessary to assist the trier of fact
• should not trigger any exclusionary rule
• must be given be a properly qualified expert 

Careful readers will note similarity between the Daubert conclusions and Mohan.

Writing for the court which held this unanimously, then Justice Sopinka stated:

Expert evidence, to be necessary, must likely be outside the experience and knowledge of a judge or jury and must be assessed in light of its potential to distort the fact‑finding process. Necessity should not be judged by too strict a standard. The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions. Experts, however, must not be permitted to usurp the functions of the trier of fact causing a trial to degenerate to a contest of experts.

In a just released decision, the SCC has gone further. Writing for a unanimous SCC decision, Justice Cromwell wrote:

The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance. (White Burgess Langlille Inman v Abbott and Haliburton Co., 2015 SCC 23)

This takes the role of expert further by insisting that the expert has an obligation to the court and the court is charged with ensuring that the expert fulfills that duty. For those who have made a living as “hired guns”, this decision is dangerous news. The highest Canadian court has made it clear that the expert has a primary duty and that duty is to the court.

The SCC goes on adopting an Ontario case, Abbe, stating:

As stated in Abbey, the test for admissibility of expert evidence is now two-fold.

First, the threshold: Mohan factors: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. At this point, the expert should also be able to acknowledge that she understands that she has a primary duty to the court to give fair, objective, and non-partisan evidence, and that she is willing and able to fulfill that role. Absent a challenge from the opposing party, an affirmative answer to this question will generally be sufficient to establish this threshold requirement.

Second step: The person challenging the ex-[pert (which will be rare) must show that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty.  It is not enough to simply allege that the expert has a relationship, interest, or connection to the litigation or to a party. A simple economic concern will likely not be enough, given the realities of modern litigation. However, if there is a concern such as : where the expert has a direct financial interest in the outcome of the litigation; a familial relationship with one of the parties; where the expert will likely incur professional liability is her opinion is not accepted by the court; or where the expert assumes the role of an advocate for a party, then this concern may be made out. The onus then shifts back to the side calling that expert to show why the concerns are not legitimate. (emphasis added.

This really does challenge the notion of the expert as an advocate for one side. The court is really challenging that role.

Experts need to be challenged in my view. I have appeared as an expert in about 150 cases. Thus, I speak from direct experience. An expert must bring to the court data, and an ability to interpret data, that the court is not in a position to do. In assessment work, an expert must also be able to address the standard against which clinical judgment has been made. How has the expert determined that the parent is or is not capable of meeting the needs of the child? Thus, the expert must be able to articulate the basis of the conclusions.

A colleague and I looked at the PCA process and concluded that the standard was poorly outlined. We argued a parent needs to be only good enough. If there is not an articulated standard, then the assessor is able to make one up. Most assessors are from in a privileged position in society by virtue of education, social class and perhaps quite often culture, race and gender. In other words, their social location is quite different from the client in the child protection system. In the absence of a standard, the assessor will draw from their own social location (whether consciously or not) to determine whether a parent should raise their children.

What these court decisions mean is that an expert in child protection should be challenged to determine if they have a clear and articulated understanding of the standards against which they have judged a parent. If they cannot, then I would argue that they have not met the criteria of an expert and should be challenged. Indeed, the court should, not accept someone who cannot do this. It is not a good use of scarce court time.

Reference:

Choate, P. W & Engström, S. (2014). The ”good enough” parent: Implications for child protection. Child Care in Practice, Vol. 20 (No. 4) 368–382

Social workers need more support, says expert

The following article appeared in the Saskatoon Star Phoenix following my presentation at the Prairie Child Welfare Consortium Symposium

BY BETTY ANN ADAM, THE STARPHOENIX OCTOBER 2, 2014 4:46 AM

Lessons learned from inquiries into foster child deaths usually don't get discussed with front line social workers, an expert in child protection says.

"Inquiries keep talking about the same practise problems ... We're not having enough conversation with front-line social workers about what the inquiries are telling us," said Peter Choate, a social work professor at Calgary's Mount Royal University who has studied almost 1,000 deaths of children in care in Canada, the U.K., New Zealand, Australia and the United States.

Inadequate case assessments, training and supervision are common themes emerging from the inquiries, Choate said.

Good case plans depend upon thorough assessments that include people who are too often "invisible" - the child and new adults in the child's life, he said.

Too often children at risk are not actually seen or talked to by social workers. New boyfriends or other adults who are in the picture are ignored.

Social workers need to be willing to question information they receive and they need to be able to talk with supervisors about what they've gathered, Choate said.

"How do we get our social workers and child protection workers to be more reflective about the information they need and how to gather that information and what to do with that information? What are the barriers to getting good assessments?" Choate said in an interview Wednesday, at the opening of a threeday conference for social workers and policy-makers from across Western Canada.

The inquiries show that supervisors who discuss findings and decisions made with the front-line social workers yield better results, he said.

"If the assessment's been done well and the family's really been listened to in the assessment process, then outcomes are better."

Social workers' skills can't be taken for granted. Newly graduated professionals still need years of supervision and experience, in addition to specialized training in things like addictions, mental health, sexual assault, physical and emotional abuse, child development and risk.

Child death inquiries must create conversations between the public, families, child protection agencies and government about learning how to do a better job, he said.

"If they're about shame and blame, nothing useful comes from them because people take cover, they don't want their case to be the next one in the newspaper.

"It's tough work. Turnovers are high. If we pay for enough social workers, provide them with good supervision and support and give them the opportunity to do the job well, then our turnovers will go down," Choate said.

The funding problem is acute in federally funded First Nations child welfare authorities, which are said to receive about 22 per cent less funding than provincially funded agencies. "You have a moral, ethical question of why would you be funding First Nations child welfare at a lower rate," Choate said.

"If we want to make the apology that (Prime Minister Stephen) Harper made about the tragedy of residential schools, then you have to be willing to make that apology real, to fund the work necessary to repair that, which is partially through funding the child welfare resources available to First Nations communities."

The funding disparity is the basis of a discrimination complaint against the Government of Canada that was brought to the Canadian Human Rights Commission by the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations.

A tribunal has been hearing evidence on the matter since early 2013. Final arguments will be heard Oct. 20 to 24 in Ottawa.

badam@thestarphoenix.com

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