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

The invisible man

People of a certain age might recall of fictional character, The Invisible Man. Well, it turns out that there is such a character in child protection as well. And he may be the more dangerous person.

I have been involved in assessment cases where I have become aware that the mother I am assessing is in a new relationship. When I have raised this, I have been told that the new man isn't important because he is not a legal guardian. Yet, there have been cases where the "invisible" man was dangerous. I think of Baby Peter and Victoria Climbie in the UK as examples as examples where the new but invisible or unassessed men presented real risks.

The NSPCC in the UK has just released a brief summary of their review of the hidden men. What is important is that they note the positive and negative role that men can play in the lives of children. When a child may be at risk with the mother, for example, the father may, if properly assessed, constitute another placement option.

But, when there are concerns, it is vital that the man come out of the shadows. How might this happen is complicated by privacy legislation. Professionals working with the man may be reluctant to disclose to child protection when there is an absence of clear understanding about the nature of the relationship he has with children and the risks he may pose. The professional may feel that they lack a mandated reporting situation as they may have only limited knowledge.

Equally, a women entering a new relationship may have many needs that are being met that she does not wish to place at risk. He may provide a sense of being cared for or loved. He may also bring needed financial resources. Keeping track of collateral sources of information (other family, the children, biological fathers, schools) may result in disclosure that there is new male in the picture.


The new relationship needs to be assessed. It should not be seen as automatically bad or good. Rather, it should be understood. What might the man bring that could support or detract from the safety and care of the children?

Basic social work tools such as genograms, encomaps along with being inquisitive can allow information to come forward. The big deal is getting to know and assess current partners, former partners who may still be involved with the children as well as biological fathers. What can they bring or do the children need protection?

The study results can be found at this link

Giving room for disabled or deaf children to talk about abuse

A very interesting study has been released in the UK. Deaf and Disabled Children talk about Child Protection opens up an understanding of important barriers to these children being able to disclose child abuse. This is a vital issue as the risk of a child in this population being abused is much greater than other children. They can be a vulnerable population. The report notes in the Executive Summary:

The abuse of deaf and disabled children is underreported and often hidden and a range of myths and stereotypes surround the abuse they experience. These perpetuate the silence around such abuse and present barriers to help seeking, timely recognition and effective response.

What was most disturbing is that the children in the study spoke about trying to let people know that they were being abused. Yet, the problems were seen as being related to the disability.

As well as making clear disclosures, participants attempted to communicate their distress and seek help through challenging internalising and externalising behaviours and attempted suicides. However, these expressions of distress were often assumed to be related to the child’s impairment rather than an indication of abuse. While some children’s behaviour communicated distress, others became skilled at maintaining a silence about their experience over many years. Where disclosures were made, these were not always handled in a sensitive and supportive manner by adults, leaving children feeling disbelieved and disempowered. With regard to professional responses to disclosures of abuse, deaf and disabled people particularly valued continuity of support over a long period.  

When thinking about abuse, there is good evidence that populations who are particularly vulnerable may be targeted by abusers who then ingratiate themselves into the lives of the children. They also prey upon the communication weaknesses that the child may have to solidify the secrecy that these abusers typically seek. As one participant said on p.16 of the report:

I had to keep it as a secret. I didn’t know whom to trust to tell about what

happened to me... Jamila 6FC

What this research really opens up is our need to ask why is behaviour occurring and look beyond the obvious possibilities. We need to be willing to see abuse as one of the possible causes. This is not to now suggest a narrowing of considerations to abuse but rather an expansion of thinking to include abuse as an area to be explored.

Perhaps one of the most potent tools for disclosure of abuse is a healthy, supportive relationship with an adult who goes to lengths to listen - both to behaviour as well as other forms of communication. But also an adult who wonders why is something happening - why the distress? why the behaviours? why the anxiety? and so on. A good is seen on p. 14 of the report:

One participant whose abuse began at age eight attempted suicide at around age nine. She was admitted as a psychiatric in-patient, assessed and treated but at no time felt she was given an opportunity to disclose her

abuse. She explained:

… when I first started showing signs of mental illness I think someone should have sat down and asked me why ‘cause it’s not a normal thing for an 8 year old to do. Sara 1FA

 This lovely quote reminds us that we should ask what is normative at a stage of development. Just because someone has a disability does not mean that they will be abnormal in most aspects of development.

Like all children who disclose, these children also need to be believed. Too often that has not been the case. Increasingly we are seeing evidence that children have not been seen as truthful when telling about abuse. Inquiries in Canada, Australia and the UK are all coming up with indications that disclosures are not being given the credibility they require. On p. 17 of the report, this quote illustrates the point:

In some cases the abuse was compounded by the response to a disclosure, being perceived as punitive by the child. For example, one deaf woman who disclosed to her parish priest was dismayed when she was castigated by the priest and sent on a religious retreat. She explained:

… the priest told me that I shouldn’t tell stories like that and he must’ve spoke to

my father who was big in the Catholic society there and the priest came to my

house and said to my parents that I was, erm, a liar and I was telling stories and

they took me to a retreat to repent. Wendy 8FA

As the Adverse Childhood Experiences study has shown, abuse has long term implications. This is true of this population as well but they will add that impact on top of the impact of the disability.

The report has a number of recommendations that are worth reviewing. For me, in addition to hearing the child, I am impressed with the identification of how practitioners across various disciplines have a role. Inter disciplinary practice matters greatly. 

Grandparents caring for children

Child protection can often think about kinship care as an alternative to placing children in foster care. Kinship placements are seen as having many benefits such as ongoing connection with family, commitment from family to make it work, sustaining contact between parents and children, but reunification with biological parents may be less likely (Farmer & Moyers, 2008, p. 16).  Kinship care may be grandparents, aunts, uncles or more distant family members. However, there is a cost to such placements.

Research published this week by Doley, Bell, Watt & Simpson looked at the impact on grandparents who assume care of their grandchildren. Children who come into their care with behavioural problems (emotional, hyperactivity for example) present the kinds of challenges that diminish satisfaction. 

This work reminds us that we must ensure kinship carers are supported in the role. This can mean respite, specific interventions for the children, supported visits between children and their parents (thus taking the grandparents out of that role) as well as monetary supports. A summary of the research noted

A negative relationship was also found between the availability of social support for grandparents and reported feelings of stress, anxiousness and depression. The authors of the research comment that such a relationship 'is especially profound in light of evidence that custodial grandparents commonly report social isolation and peer alienation associated with acting as a parent to their grandchild'.

Not all grandparents are up to the role. Many will take it one because they don't want to see their grandchildren go into foster homes so they will try to step up to the demands. Yet, they may not really be able to do so. There can be a number of challenges including money, health and the emotional position they may have to their own stage of life. We may be robbing them of their retirement. There will also be grandparents who are keen for the role and well up to it with many who will struggle but are deeply committed to the role. Each case should be assessed.

We need to careful to not make the assumption that grandparents should do it. It may not be the best option for children. It may not be the best option for grandparents. But it may be. Case management should consider both sides of the equation - grandparent and grandchild.

There is a further dimension that needs to be considered which is the nature of the relationship between the grandparents and the parents. If it is not good, the children may be caught in the middle of an already tense family dynamic. That can impact case management.

In essence, this form of placement should receive the same careful consideration as might other options.

References:

Doyle, R, Bell,R.  Watt,B &  Simpson, H. ( 2015) Grandparents raising grandchildren: investigating factors associated with distress among custodial grandparent. Journal of Family Studies, 2015; 1 DOI:10.1080/13229400.2015.1015215

Farmer, E. & Moyers, S. (2008). Kinship care: Fostering effective family and friends placement. London: Jessica Kingsley Publishers.

Thinking Fentanyl and Harm Reduction

An interesting way to talk about Fentanyl - This Calgary Herald article puts harm reduction out front.

Should parents with disabilities be allowed to keep their kids

A ruling in the US state of Massachusetts has raised the debate on whether parents with disabilities should be allowed to keep their children. Today Parent writes about a mother who won a 2 year battle to have custody of her baby who was apprehended by child protection soon after birth. This is an important decision when considered as part of the larger discussion about how people with disabilities are treated in our society.

This mother has what is called, "mild intellectual disability." Such a person would have a number of functional strengths along with some deficits. Yet, as the article notes, the odds are heavily stacked against persons with disabilities:

An estimated 4.1 million parents have disabilities in the United States — roughly 6.2 percent of all parents with children under 18, according to the National Council on Disability. Removal rates for children whose parents have an intellectual disability can be 40 to 80 percent, the council estimates.

I am of the view that disabilities require their own form of assessment for parental capacity. Key issues that must be addressed include:

• Does the parent have the ability to see the child for who he/she is?
• Does the parent also recognize that the child has needs that will change with age?
• Can the parent identify current needs and respond?
• If there are limits to the above, what supports are in place or could be put in place that would help with the deficits?  In this case, the parents of the mother made home and support available? 
• How, in fact, does the parent manage day to day requirements for self and the child?

There are, no doubt, other questions. There is a need for an environmental scan that will put the mother and child into a context where supports can be seen. Gaps would also be seen that could then be explored for supports.

This mother's mild intellectual disability is also part of the discussion. Disability exists on a continuum from quite mild to quite severe. Disability is not a one size fits all issue. Intellectual disabilities are getting better attention when child protection issues are considered. One disability that needs better attention is Fetal Alcohol Spectrum Disorder. Despite the word spectrum, it is often thought of as one disorder that comes in one form - disastrous. But it too has a spectrum.

Too much of the FASD and other disability literature has been written about the more profound forms of disorders. Let us begin to assess each parent for what they might be able to do and how that can work well enough for the child with the right supports in place.

Certainly not every parent is going to be able to do it - but many can and should be allowed.

To borrow a social work concept, let's consider the parent ecologically - individual strengths, immediate supports, external supports (such as parent coaching) and systemic supports such as health nurses and financial supports. Very few of us manage on our own.

The other aspect of the Massachusetts case is the role of kinship care. This has become almost a mantra in child protection to find kinship supports. So let's start there when working with persons with disability. Many have been using kinship, other informal and formal supports for most of their lives. Why would we not allow that as part of entering parenting as opposed to thinking that such a parent is going to go it alone.

Jail Time for Social Workers?

UK Prime Minister David Cameron is raising the notion of social workers facing jail time, perhaps up to five years, for failing to protect children from sexual abuse. A summary of the proposal is covered by  Community Care. One can easily see why this idea has come forward in the UK. Recently, there have been very high profile cases in which social workers failed to protect children from large scale abuses. A serious care review in Oxfordshire has shown that workers had knowledge that would have allowed them to protect girls.

There has also been the recent case of Rochdale where there have been multiple victims. But the story of sexual abuse in the UK has been a relentless story in the media. There is the recent conviction of former rock star Gary Glitter for sexual abuse several years ago. The Jimmy Savile case in the UK has shown a profound pattern of sexual abuse over many years with hundreds of victims. Savile, a former BBC pop music icon had access to children in many places.

In Australia, a Royal Commission continues to hear story after story of those in authority who failed to act to protect children when the information was available that something was wrong. There too, the stories seem relentless.

In the UK, the public must be weary of the ongoing media coverage of how children have not been protected by child protection - Victoria Climbie, Daniel Pelka, Baby Peter, Khyra Ishaq - and these are only the recent ones. Confidence in the ability of child protection to do their job can only be fragile given these stories. They must be asking what's wrong?

It is in this environment that Cameron raises the idea that social workers could face jail time for being wilfully blind to the risks that children are facing. It could be an idea that can gain public traction easily. Yet, is it the right thing?

Such as approach fails to ask some very key questions:

1. There are many other professionals involved such as police, doctors, health care, teachers - how will they be held accountable?
2. There are questions of caseloads - what can a worker be expected to do with caseloads of 20-30 oe even higher?
3. There is leadership - what is the role of supervisors, managers and community leaders?
4. There is training - have front line workers been given the training needed to see what is going on. Sexual abuse is a specialized area but front line workers are generalists.
5. Inter agency coordination is essential but it remains one of the key areas of difficulty.

The approach also fails to recognize how often these investigations are inconclusive. Very few cases go sexual abuse have physical evidence. It takes quite skilled investigators to work through these cases. Are we putting such skilled workers in place?

There is also the consideration that this may act to drive social workers away from child protection which is possibly the most complex and challenging form of social work. The turnover rates are high meaning that seasoned, skilled workers with this sort of specialized knowledge are not plentiful.

I can well see why Cameron (who may also be facing an election soon) can find this proposal appealing. It may not be the best way to go, however. But his concern is valid while the solution may not be.