Dissenting opinions really matter

Imagine being in a case conference and not feeling that the assembled group has considered all of the needed information. Imagine as well, that you are a junior in the room. What typically happens, is that the junior will keep quiet. They may try to explain their concerns to a trusted colleague later but their ideas are lost to the group.

The aviation industry has considered this problem as contributing to airline accidents. They have been working at creating an environment where all in the cockpit feel comfortable speaking up. The risks for a plane are a bit more obvious - if the error occurs it might crash killing many. But it is in the analysis of prior accidents that it has become clear that speaking up can save lives.

Professor Eileen Munro of the London School of Economics has pointed out in earlier writing that we should learn from other industries who have taken time to dissect how to prevent disaster. She believes that there are lessons to be learned. I agree.

For too long, however, we have relied upon the courage of a dissenting member of the group to speak up rather than encourage dissenting opinions. When that occurs, we tend to see group think - this is where the group coalesces around the opinion of the majority. In particular, the group tends to conform to the opinions of the more powerful members. This leads to errors in thinking and decision making because it assumes that the powerful member or the group has it right.

The group may, however, in seeking consensus, also filter out data that contradicts the group or power member opinions. Thus, they become selective in what data they consider rejecting data that strays from the group opinion. It leads to conformational thinking as opposed to critical thinking.

Serious case reviews and similar reviews of death and injury in child protection cases has identified this concern.

The minority opinion can often contain insights or perspectives that have not been given much consideration or analysis. These opinions can open up new perspectives or link previously unlinked data. They can also act as a way to ensure various options are considered.

It shouldn't take courage. Rather, it should be encouraged. The group leader should seek the conflicting opinions. The challenge is that it takes time - typically in short supply in high demand, high caseload environments. Yet failing to do so places people at risk.

For the minority opinion holder, there is also the use of language. Certain terms and words catch the group's attention more than others. Indicating that you have serious concerns, serious reservations, you are quite uncomfortable with the direction being taken, you think that the plan is unsafe,  are all terms that can garner the group's attention. How we say it matters as much as what we say.

By encouraging this approach, we can reduce harm to children and families.  In a previous blog I spoke about the B.C. Supreme  Court decision that held social workers liable for their decisions to place children in the care of an abusive father. The judge's decision illustrates that contradictory data did exist. This might be an example of how group think occurred and dissenting opinions were either squashed or not voiced. There are many other examples.

But it is up to managing leaders to create an environment where various points of view are welcomed. When a dissenting opinion occurs, how can it be seen as needed and explored? Management can act in a way that sees the opinion as needed or do the opposite. Thus, the quality of the supervisory environment serves to encourage or discourage the voicing of minority ideas. Otherwise, it can be very lonely to be the "other voice".

BC Child Welfare is found to have caused injury to children through misfeasance

Imagine, if you will, that child protection authorities get it so wrong that the children are placed in the care of the abusive parent with the active support of child protection. Imagine that, as a result, the children having been sexually abused but not believed. Imagine that the youngest will be sexually abused by the father while the child is in the care of child protection. Imagine, as well, that the misfeasance is led by a supervisor who develops a closed mind on the case. If imaging this and more seems possible, then you can well imagine the case of J.P., her three children and the father, B.G.

A decision on this case has been issued by The Honourable Mr. Justice Walker of the British Columbia Supreme Court. He lays out the cause of action this way:

The plaintiffs’ claims are framed in negligence, breach of fiduciary duty, and misfeasance in public office (“misfeasance”). The essence of those claims is that the Director and her agents failed to assess and investigate the reports of sexual abuse; wrongly apprehended the children and then misled judicial authorities during a subsequent apprehension proceeding; and, permitted B.G. unsupervised access to the children despite a supervised access order of this Court, with the result that the youngest child was sexually abused by B.G. The plaintiffs further allege that what gave rise to this misconduct was an unreasonable and unyielding belief on the part of the Director, one wholly unsupported by the available information, that J.P. had mental health issues and was unfit to parent, and that B.G. was the parent best capable of caring for the children. 

Justice Walker will find that the child protection authorities are indeed guilty. In particular, he will be highly critical of the supervisor whom he determines developed a fixed view, based on uninvestigated and false allegations which he would expect staff to also accept. Justice Walker further notes that the behaviour of the supervisor adversely impacted the police investigation.

Justice Walker states:

...The children described sexual touching, including digital touching of genitalia and the anus, oral copulation, and partial penile penetration by their father. B.G. denied all of the allegations. 

[14] The Director failed to assess and investigate the report of sexual abuse of the three older children as well as required by the standard of care….

social workers involved in the case disregarded evidence supporting the sexual abuse allegations and failed to ensure that the Director carried out her own assessment and investigation 

Justice Walker goes on to describe how child protection developed a view that the allegations of abuse were fabricated and related to a mental illness suffered by the mother - a conclusion that Justice Walker concludes had no merit to it. Further, Justice Walker, in measured language of the court, makes it clear that child protection misled courts and lied about information. 

By February 2010, nearly all of the social workers involved with the case had determined that the children should be returned to the care of their father, and they actively supported B.G.’s claim for sole custody. 

The decision goes on to note:

[24] Until mid-December 2011, the Director continued to deny the veracity of the sexual abuse allegations. On December 14, 2011, however, during the First Trial, the Director admitted in a written statement that was handed to the Court shortly thereafter that it was possible that the children had been sexually abused by their father. The Director continued, however, to support B.G.’s claim for sole custody and guardianship. 

[25] Suddenly, and following her appointment of new trial counsel, the Director reversed her position on March 29, 2012, after some 64 days of trial. She withdrew her protection concerns about J.P. and advised the Court that the children should be returned to their mother. The trial of the issues between J.P. and B.G., including the allegations of sexual and physical abuse, continued and concluded in May 2012. I found that B.G. had sexually and physically abused his three eldest children and physically abused J.P., and ordered that sole guardianship and custody go to J.P. I also ordered that B.G. be denied access to his children. 

Justice Walker concludes:

[35] I have determined that the infant plaintiffs have established the liability of the Province for negligence and breach of fiduciary duty owed to them. The plaintiffs, including J.P., have also proven the misfeasance claim. I have determined that the Director and certain Ministry social workers acted well outside of their statutory mandate and the duty to protect children. The nature of their tortious conduct varies depending on the individual. It ranges from intentional misconduct, bad faith, reckless disregard for their obligation to protect children, breach of the applicable standard of care to unreasonably supporting the custodial interests of the children’s father even if it meant he sexually abused them. 

[36] Fault for the ongoing failure of the Director and her agents to carry out their obligations to act in the best interests of the children and to protect them from harm is not attributed solely to a single Ministry employee. The Director had many opportunities to carry out a proper assessment and investigation of the reports of sexual abuse and to assess the information and evidence provided to her on an ongoing basis, including during the Apprehension Proceeding. Different employees are at fault for different and not necessarily mutually exclusive reasons depending on the point in time. 

[37] A key feature of the Director’s conduct in this case is that she and many of her agents approached the case in front of them with a closed mind, having concluded at a very early stage, before the children were interviewed, that there was no merit to the sexual abuse allegations and that J.P. had fabricated them and had coached her children to make their disclosures. The Director’s focus turned away from the best interests of the children and on to J.P. As I previously noted, until the 64th day of the First Trial, the Director’s steadfast position was that the sexual abuse allegations were groundless and that J.P. was unfit to parent because she was suffering from mental illness or instability that posed a risk of emotional harm to the children. J.P.’s persistence in her claim that her children had been sexually abused by their father was held against her by the Director because she thought the manner in which J.P. continued to act on her belief caused and would continue to cause emotional harm to the children. The Director supported B.G.’s claim for custody of the children at an early stage in the case, and then unreasonably and aggressively stuck to that plan until March 29, 2012, to the detriment of the children. 

In the end, Justice Walker will hold child protection liable and will also determine at paragraph 1086 that "Immunity afforded by the CFCSA to good faith discretionary decisions is not afforded to the Director and social workers in this case." In essence, Justice Walker determines that child protection did not act in good faith.

This case has the risks of the specific social workers being targeted (as happened in the United Kingdom with the Baby Peter case) and the real issues of systemic problems in child protection not getting discussed. In my research of hundreds of cases where things have gone wrong, there are some strong themes that we see in this case. Yes, it appears that the social workers here did not do their job well, but it is the fact that many practice issues seen here are not unique to this case. Therefore, one must conclude that there are some fundamental issues with how child protection is done that we see these issues repeat across cases and across jurisdictions both within Canada and elsewhere in the western work.

Here are some of the themes in this case and others:

1.     Hostile divorce matters are often not well managed in child protection. Many times, they are not seen as a child protection issue. In this case, child protection did get involved but then, without proper investigation, took sides.

2.     Not understanding domestic violence – the mother, who was passionate about trying to get people to hear her concerns, was labeled mentally ill (partially at the instigation of the father). Yet, in domestic violence cases, it is often the more “hysterical” party who is telling the truth. It is the calm, cool one who is often the perpetrator. It takes skilled investigation to sort through this.

3.   Mental health issues need professional assessment – child protection workers do not possess the advanced training, in most cases, to determine the presence or absence of a mental illness. Experts in the field need to be brought in (not done in this case). Even then, the presence of mental illness does not preclude a parent being appropriately concerned; does not determine parental capacity; and does not make the other parent more capable.

4.   Group think – in this case, a unified view of the case was developed, led, it seems, by the supervisor. There did not appear to be room for dissension which is one of the most important voices in case management. It is dissension that often leads to critical thinking.

5.    Ethical practice means being willing to go against the group or the leader. There were some hints that others may have been open to seeing the problems in the case management. Justice Walker talks about deception, lying and misleading courts. Here is an example why child protection workers need to be licensed professional social workers who can be held accountable for ethical practice. I do not know if these individuals were, but it does show how having child protection worker behavior linked to a code of ethical practice is important.

6.    The best interest of the children was lost. They were not properly assessed or heard which means that their voice was not at the forefront. Other cases have shown that the voice of the child needs to be central to the case. 

7.    Using selective data and filtering out competing information – good case management means being open to competing data. This does not occur when workers believe that they know it. It is an imperative that each new piece of data be seen as adding to, detracting or altering present understandings – but which is it?

8.    Interagency communication adds to good case management. Justice Walker noted “The Director delayed in delivering documents requested by another branch of government…” It has been shown time and again that information held and not shared diminishes effective case management.

The leadership was deficient - it did not appear to offer balance, critical review as well as an instance on continual data gathering and review.

This case matters because it shows how poor practice gets compounded as the case goes along, ideas become fixed and unchallenged, children get lost and are harmed.

The BC Representative for Children and Youth has called for the case to receive a full inquiry. This is the kind of case that should because there are many systemic issues to be considered. These children have been damaged, and likely will suffer life long impacts. How we can avoid such harm from bad practice needs to be understood. These are common errors of reasoning that front line practitioners need to better understand.

The case can be found at http://www.courts.gov.bc.ca/jdb-txt/SC/15/12/2015BCSC1216.htm

August 8 2015

Since I wrote this post, three important things have occurred:

1. The Minister has appointed an independent officer, former senior government official, Bob Plecas, to investigate this case.

2. The Representative for Children and Youth, Mary-Ellen Turpel-Lafond, has been bypassed to conduct the investigation even though it would fall within her jurisdiction. She has issued a press release saying she may yet use her powers to investigate and thus, will not work with Plecas. She has powers to take evidence under oath which Plecas does not. It is curious that the government has by-passed the Representative. 

3. The BC Government has appealed the decision which the mother has called cruel.

Attachment parenting, resilience but sometimes things go very wrong

There are some very good resources to help parents offer their children good parenting. Virtually every parent I have ever met, even abusive ones, have loved their children even if they didn't know how to love them well. But what leads children who have had good parenting into trouble?

Resources:

Dr. Sears website for attachment parenting

Dr. Michael Unger's resiliency project

Dr. Gabor Mate's website

Justice Clarence Thomas' dissent in the gay marriage decision sends a dangerous message

One might rightly wonder what the US Supreme Court decision on gay marriage might have to do with some issues in child protection. The obvious will be around the legal definition of marriage and thus the legal definition of family. Decisions around parenting, guardianship, adoption, divorce, custody and access as well as child support will all have impacts. Although, as we have seen in Canada, legalization of a union between two people of the same gender has not led to disastrous results in those legal and social police areas.

I am, however, rather disturbed with Justice Thomas' comments in his dissent where he fails, in my view, to understand the impact of trauma. He states:

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

In this, he essentially states that a person can be subject to mass trauma created by the state and still hold  onto their human dignity. This is wrong and I believe that history and science of trauma would support that. The whole purpose of mass incarceration, genocide, stripping people of rights is to remove their sense of worth - their dignity. Certainly some, those with particular resilience, are able to sustain when given ways to heal. But most will be forever impacted by the trauma and their dignity will indeed be fractured.

When we suggest in a justice system otherwise, as Justice Thomas has done, then we remove part of the consideration of the impact of trauma on the victims. That also removes their dignity as it will take vindication that comes with people knowing the truth of the trauma and the effects of it.

Here in Canada, for generations, we have denied that the mass trauma of taking First Nations children away from their families and putting them in abusive Residential  Schools. Through the publication of the recent Truth and Reconciliation Commission Report, we have seen how the dignity of First Nations peoples were destroyed as part of this cultural genocide. That is real. It is by honouring the truth, that dignity can be found again in the person, the community and the culture.

Justice Thomas' statements must be challenged because of the message that they send to justice systems about trauma. I anticipate (or at least hope) that he meant something different but his words are the record.

Paige is a distressing story

The story of how a British Columbia First Nations girl was let down by child protection authorities has been documented in a report by the province's Representative for Children and Youth. It is a hard read. Page after page, you are left wondering how social workers decided to make the decisions they did - leaving this vulnerable child in care situations that were clearly risky; believing that interventions would work when there was little evidence that they would; failing to see the child. As the report notes on p.5, "Professional standards of care were not upheld in how Paige was treated."

This is a child who was subject to maltreatment throughout her life - from infancy to early adulthood when she would die. In some ways, looking back, you can see that she was destined to die early given the amount of maltreatment in her life. She experienced a number of adverse life experiences (ACEs). The ACE research project shows convincingly, that people who experience three or more of these events, have a dramatically higher rate of illness, addiction, mental illness and early death. Based on what is written in the report, her score may have well been in the range of 6.

It didn't have to be that way. Early intervention could have made a difference in terms of both the quality of her life and its duration. She need not have ended up in the Downtown Eastside of Vancouver - one of the most social disadvantaged communities in Canada.

Having researched hundreds of reports like Paige, I am struck by the similarities of repeating problems including (but certainly not limited to):

• being too optimistic that change will occur thus minimizing or not seeing the ongoing and growing risk factors;
• failing to see that repeated efforts at change are not making a difference;
• not putting the needs of the child as the most significant priority;
• failing to coordinate information available from a variety of sources;
• failing to look for the permanent solution believing that being with biological parents was somehow preferable; 
• creating instability through multiple moves and placements;
• failing to follow up on case plans;
• having poor case supervision;
• not really knowing the file;
• not completing needed risk assessments;
• not understanding the nature of addiction.

The Representative's report states on p. 6:

This is a child who should have been permanently removed from her mother’s care at an early age. She was the subject of no less than 30 child protection reports during her 19 years, involving allegations of domestic violence, neglect and abandonment. Her mother was actively using alcohol and drugs and there were no signs of that behaviour abating. Paige was repeatedly returned to her mother by the Ministry of Children and Family Development (MCFD) despite glaring and unavoidable evidence that this was not a healthy, nurturing or safe environment for any child and wasn’t ever likely to be.

As a result, Paige’s life was a case study in chaos. By the time she was 16, she had moved no less than 40 times, between residences with her mother, foster homes, temporary placements and shelters. After her mother moved them to the DTES in September 2009, Paige lived with her in toxic environments and moved another 50 times, living in various homeless shelters, safe houses, youth detox centres, couch-surfing scenarios, foster homes and a number of Single Room Occupancy (SRO) hotels.

As I noted, I have read quite literally hundreds of these reports from Canada, Australia, the USA, England, Ireland, Scotland --- the themes are painfully consistent. So why is that?

Often we think of systemic problems - poor resourcing, over worked social workers, funding problems, weak supervision of front line managers. These are all true. As a profession, however, we must start to look at the quality of care that we are providing. Ultimately, we are responsible for what we do with a client.

We also need to look at the education social workers receive. How well are we preparing students for the real world challenges of managing cases like Paige? We also need to look at politicians for honest leadership that is backed up with funding, resources and the sense that child protection is a priority as opposed to a service to keep the sad stories in check. Political leadership also recognizes that there are problems which child protection cannot solve - poverty, crime in communities and so on.

As a society, we need to have a longer attention span to these issues. Stories like page hit the headlines, people shake their heads and wonder how such a tragedy could occur, politicians nod and speak of change and then……… nothing. The story fades while the media seeks out the next big tragedy to talk about. The themes are telling about tragedy not about actual real change. When society really pays attention, things might change because then the politicians can expect to be held accountable.

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