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

Psychological testing in child welfare assessments

I have become rather fascinated with the degree to which psychological testing has become the norm with assessments done for child welfare - child protection authorities in North America. In my research, it has become quite apparent that they have also become very common in England. I rather like the way on justice summed up the concern.

In my judgment, the principal issue for the judge was the mother’s parenting skills. If the judge was (exceptionally) minded to rely on the results of the personality tests, he had first to assess their validity, both generally and for the purpose of this case. The qualifications to the test results properly made by Mr Hunt in his evidence, to my mind, demonstrate that personality testing of this kind cannot be used to resolve issues such as parenting skills unless they are validated by other evidence. Lord Justice Arden, para 67

England and Wales Court of Appeal (Civil Division) Decisions [2004] EWCA Civ 1029

While I also use them in my assessment work, I am often astounded to see how often they add little to the assessment data. Indeed, there are many times when I see results on assessment measures that, when put into a clinical context, have less meaning.

Yet, there are also cases where the data has opened up an important new area of inquiry.

Many people who come for assessment in child welfare cases are so afraid of the implications of assessments that they yield "fake good" profiles. This occurs so often that it might be considered part of the child protection profile. And why not? There is a lot at stake for a parent in these assessments.

My greater concern is that many of these tools have not been validated on the very people that we seek to assess. The child protection population in Canada, is heavily skewed towards Aboriginal populations. Their presence within the norming population of the assessment measures is either absent or minimal. The same is true of many other population groups.

Soem might argue that there is some Aboriginal presence in some of the tests. Perhaps so - but consider that saying a Navaho has been included in the norming and therefore Aboriginals are included is like saying because a a Latino group in the the USA was included that all people from South America are now normed. The Aboriginal peoples of North America are as diverse as any other peoples around the world.

Canada, like many other parts of the world, are becoming even more culturally diverse. Migration around the world has increased. We see many in the child protection who come from elsewhere. English is not their native language. Many assessment measures do not reflect either their language or the context in which they understand such things as parenting dynamics.

Translations of assessment measures may not take into account the nuances of both language and context. A very simple example is the word blueberry. In Quebec it is bluete and in France it is myrtille.  But more importantly, measures present question in a socio-cultural context that immigrants and refugees may not appreciate.

There is very little effort that I am aware of in which norming of assessment measures have been done specifically on child protection populations.

Thus, any assessment of a parent in child protection that relies heavily on psychological testing should be suspect. Efforts must be taken to place results in context and have some degree of consistency between what has been found on these measures and other data sources. If that cannot be achieved then the psychological testing should be approached with a very high degree of caution. Psychological testing is but one piece of the puzzle and it does not always act as the way to fit the pieces together.



Questions that needs answering in each case: why were these tests used? In what way did they pertain to this case? were these assessment measures appropriate to the questions before the assessors? why are these measures valid with this client? what was done to determine if the results are valid? were the results reviewed with the client? how did the assessor deal with things that the client did not see as valid? There are no doubt other questions but these act as a good way to determine how much weight should be given to an assessment report that includes assessment measures.

Providing services to parents - which services matter

While the court decision is Canadian, there are some principles in it that will apply to virtually any jurisdiction that gives family preservation or reunification a priority. The Honourable Madam Justice C.S. Phillips of the Court of Queen's Bench (Alberta) has indicated that services provided to a family must focus on what is needed to increase the probability of parenting successfully. Thus, it is not the provision of services that matter but the actual purpose of those services. She states in para. 86:

It is important to remember, therefore, that it is not the number of services that are provided but the quality of the services and their "fit" in relation to the needs of the family that are critical.

This decision is a reminder that "cookie cutter" case plans can be challenged. It is clear that this decision helps us to see how case plans need to be catered to the demands of the particular case. A core question becomes, "What will possibly make a difference to the needs of this family to better parent these children?"

In her decision, Justice Phillips also looked at expert evidence. One thing that struck me was her concern with assessments that had been prepared long before trial. The implication seems obvious that the more dated they are the more they should be viewed cautiously. Yet, in many jurisdictions, the legal process can move slowly with trails being booked some months away. Must then CPS be constantly seeking to update assessments, including Parenting Capacity Assessments, as trails loom closer? Must CPS then amend case plans to reflect changing circumstances as seen in revised assessments? Decisions need to made in the lives of children expeditiously but that often is not the case as the courts plod along with their process. The rights of parents to be heard can be at odds with the right of the child to permanency in their lives. Brown and Ward (2012) have made a cogent case for case planning to be done with the child's needs in mind which have more urgent developmental requirements. The longer that a child experiences instability, the harder it will be for the child to do well over time.

Courts need to make their decisions faster. To help the courts, case managers also need to get their case plans right reducing the room for appeals of permanent guardianship orders. Good case plans have, in most cases, tried to provide the interventions that will make a difference in the ability of the parent to parent to meet the specific needs of their children.

References:

Brown, R. & Ward, H. (2012). Decision-making within a child's timeframe: An overview of current research evidence for family justice professionals concerning child development and the impact of maltreatment: Working paper 16. London: Childhood Wellbeing Research Centre.

RS v Alberta (Child, Youth and Family Enhancement Act, Director), 2012 ABQB 715

Assessing parent in drug manufacturing cases

Two colleagues and I have just published an article on assessing parents for child welfare in drug manufacturing cases.

Abstract

Child protection services frequently become involved with families engaging in substance abuse, and addiction, with a growing presence of drug manufacturing as an important component of the case. Assessors are called upon to consider how this impacts parenting capacity. However, while there are many protocols for assessing substance abuse and dependency, little attention has been paid to how to consider drug manufacturing and parenting capacity. The authors suggest a protocol that will guide assessors on determining the level of risk for children and the impact drug manufacturing may be having on parenting.

The article is published in the Michigan Child Welfare Law Journal in the Spring 2012 issue. It can be found at this link

Reference:

Choate, P., Harland, D. & McKenzie, A. (2012). Assessing parents for child protection in drug manufacturing cases. Michigan Child Welfare Law Journal, 14 (3), 10-19.

Child protection expert witness reports

A study done through the University of Central Lancashire in the UK, published in February 2012, should serve as a valuable guide on some important ways to think about the quality of expert reports for the courts. While this is focused on experiences in the British courts, there is much guidance relevant to multiple jurisdictions on major problems with reports tendered as evidence to guide judges.  These reports can have a powerful effect on proceedings.

This research looked at 126 reports in the family courts. They looked at the crucial issues of the qualifications of the assessors, the extent to which the conclusions could be linked to the data in the report,  the types of methods used for the assessment and their relevance to the questions to be assessed, the type of language used - amongst other issues.

One interesting area that arose is the notion of experts who do not maintain a clinical practice but are essentially running a business as only supplying expert witness reports. The thought here is that the expert has become an expert on being an expert and may, therefore, become less connected to current treatments and interventions.

The report also notes three very concerning trends that can be seen in most jurisdictions:

1. an over reliance on psychometrics;
2. the use of outdated assessment measures; and
3. the use of measures that are not relevant to the questions to be considered by the assessor.

Courts and other consumers of assessment reports should be very concerned about this. In particular, there should be concern with the use of tests that are not relevant. One area that the study did not raise, but which merits consideration, is the use of measures that have not been normed on the population being assessed.

Another disturbing area that the study identifies is experts rendering opinions in areas for which they are not properly qualified.

One further area of comment is for the assessor to provide opinions but also to consider alternatives. Opinions should also be connected to generally accepted theory and other evidence based practice. This should be shown in the report.

This study is worth a review by both those providing expert opinions but also by those who use them. Experts should be aware of this study as it may well serve as an interesting basis for cross examination by a party not served favourably by an expert report.

Reference:

Ireland, J.l. (2012). Evaluating expert witness psychological reports: Exploring quality. University of Central Lancashire. Downloaded 2012/03/19 from http://www.uclan.ac.uk/news/files/FINALVERSIONFEB2012.pdf