ONE PROTOCOL FOR OBJECTIVE ASSESSMENT OF PARENTING CAPACITY IN CHILD CUSTODY AND PROTECTION CASES

6th World Congress on Family Law

Sydney 2013

Dr Don Tustin, Adelaide Psychological Services

Reasons to assess parenting capacity

Parenting capacity is assessed for four reasons:• Child custody between disputing parents, in family law

courts• Child protection when mal-treatment occurs, in child &

youth courts• Identify suitability of an adoptive parent• Identify topics where therapy is warranted

Australian Child Custody legislation• Australian custody legislation was amended 2006

introducing a rebuttable presumption that adults are capable parents who can participate in equal shared parenting.

• Ended an era of assigning custody to one better parent.• Criterion is best interests of child:

1. to be safe from physical and psychological harm,

2. to have a meaningful relationship with both parents

3. plus 13 detailed topics• Disputed cases are heard in Family Law Courts

Child Protection

Child Protection cases are heard in Child & Youth Courts• Based on state legislation in Australia• Criterion is minimal adequate parenting, similar

between states • Types of order and resources vary between states of

Australia

Assessment Procedures in Australia

Family Law Courts (for child custody):• a single expert Family Consultant is appointed to provide

a broad assessment of family functioning• compares relative abilities of parents• legislation guides topics to consider• assessments are confidential, including from therapists

Child & Youth Courts (for child protection):• rely on assessments by state Child Protection staff• assess minimal parenting ability against legal standards• reports may be confidential even from parent concerned

Recent Changes in Australia• Family Law Courts now hear complex cases where protection

issues are raised in 40% of custody cases• Some Family Law Courts have introduced intervention

programs (Magellan & Columbus)• Only 15% of mandatory notifications require removal of child,

many other cases may benefit from therapy• Treatment reports can be provided to family law courts

describing outcome of voluntary therapy • Child protection approaches commonly remove children while

parents are rehabilitated then re-unify families. Australian children are in out-of-home care for a mean of 600 days while parental rehabilitation occurs.

• Complaints that some assessments of parenting capacity are not scientifically informed or objective

Council of Australian Governments

COAG in 2009 adopted a National Framework to Protect Australia’s Children:

• identified levels of family intervention to fund

Sought a common objective assessment to address modifiable risk factors for child abuse & neglect identified as:

• domestic violence• parental mental illness & substance abuse• social isolation & poverty• behavioural disorder & disability in a child• past trauma of a parent

Seek an efficient assessment protocol.

COAG proposed Levels of Intervention for Parenting Categories

1. Adequate parents access Universal community supports

2. Vulnerable families access Voluntary focused early intervention while family is intact, & monitor progress

3. High risk parents – Remove child during rehabilitation then re-unify family

4. Unfit parents – Permanent removal of parenting rights

There is need for clear criteria & assessments to distinguish levels of parenting & interventions.

Courts can encourage therapy for vulnerable families by issuing interim orders

Guidelines for Assessment of Parental Capacity

Aim of guidelines is to encourage objective reporting of relevant facts, & to avoid becoming an advocate for one party• Association of Family & Conciliation Courts in USA

provides guidelines for four services by mental health

professionals: (broad family assessments, brief focused

specialised assessments, parenting coordination, focused therapy)• Family Justice Council of UK – Practice Directions separating

assessments for parents & children

Multi-method Assessment

Professional standards recommend multiple methods of assessment to maintain impartiality of assessors.

Comprehensive assessments using multiple methods take 25 hours in USA.

Now two phases of assessment are recommended:• broad screen, to separate adequate parents from others• focused assessment, giving detail about specific risk

factors, leading to appropriate intervention

Information gathering methods

Commentators recommend multiple methods to assess vulnerable families:

1. Interviews using structured checklists for critical topics

2. Observations of key parent-child interactions related to critical factors

3. Collateral source information

4. Validated psychological tests where relevant and available

Psychological ResearchPsychological research identifies six domains relevant to good parenting

in custody and protection cases:

1. Practical issues: stability & suitability of housing, proximity of parents

2. Parent-centred: parent’s ability to manage budget, own emotions, substance use, being organised, self absorption, over/under-protective, parent’s age

3. Co-parenting capacity: communication & collaboration, avoid alienation, allow contacts, extended family support, couple conflict

4. Child-centred: behavioural/developmental disorders, temperament, special needs, child carer issues

5. Parent-child interactions: parenting style, protect child, warmth, responsiveness/attachment, teaching, positive discipline practices, set limits & correct, harsh/disengaged parenting

6. New parental relationshipsUp to 47 specific topics have been identified.

Parenting Stress Index PSI

PSI is a test that functions as a screen to identify characteristics that require further attention

• PSI has sub-scales to assess parental risk factors (depression, competence, attachment, support from spouse, health, role restrictions & social isolation)

• PSI has sub-scales to assess child characteristics (adaptable, demanding, distractable/hyperactive, moods, acceptability & reinforces parents)

• PSI identifies topics for intervention• Data on sensitivity and specificity of assessments are

limited

Framework

One assessment framework can provide both:• broad comprehensive screen, followed by • focused assessments that examine specific risk factors

in depth, leading to appropriate intervention

• Cost effective• Professionals operate within their areas of expertise• Coordinated by family law courts• Courts monitor the evidentiary basis for opinions

Levels of Objectivity in AssessmentAssessment tools vary in degree of objectivity:

1. Unstructured - informed personal opinion of an expert, usually based on interview, anecdotal incidents & brief observations

2. Structured checklists have set items scored in a standard way, allowing measurement of reliability of results between assessors, with same instrument used to assess both parents

3. Actuarial tools provide data about validity of predictions and error rates

Actuarial tools aim to meet forensic standards of evidence by measuring both:

Sensitivity -high hit-rate to identify children at risk where intervention is required, &

Specificity - low false-alarm rate by identifying low risk families to prevent unnecessary removal of safe children

Effective Therapy

Effective interventions are available for specific risk factors.

Broad family interventions:• Parent-Child Interaction Therapy• Triple P, positive parenting program• Incredible Years programme• Circle of Security• Re-parenting, reflect on child-rearing provided by own

parents

Topics for Focused Assessment & Intervention

Topics proposed for Focused Assessment & Intervention:

1. Parent’s ability to be organised to meet own needs

2. Difficulty in co-parenting: high conflict couples, domestic violence, need for supervised visits, long absent parent

3. Parent’s marked emotional instability: mental health, substance abuse

4. Child’s temperament: behaviour, developmental disorders, health

5. Child neglect

6. Specific forms of child abuse: sexual abuse, harsh discipline, emotional abuse

7. Alienating behaviours, child unwilling to visit a parent

8. Child’s capacity to express a custody preference

9. Cultural issues

10. Proposed re-location

11. Sexual orientation of a parent

Treatment Reports

Parents may participate in voluntary therapy to address assessed shortcomings in parenting• Courts facilitate by making an interim order followed by a

final order• Therapists provide treatment reports to court• Treatment reports need to meet forensic standards of

evidence, which may be higher than clinical standards

ConclusionOne framework for objective assessment of parenting capacity in child custody and protection cases can be achieved by:• use both a broad screen and focused assessments• promoting therapy for vulnerable families to reduce risk factors• increasing collaboration between solicitors and psychologists

on assessment of parental capacity

It is timely:• to develop professional guidelines for objective assessment

of parenting capacity• for family law courts to monitor whether expert opinions are

supported by evidence that is convincing & objective