Custody and Access Assessments in BC: Insufficient Guidelines & Inconsistent Reports

What is a Section 15 Report? Section 15 reports are child custody and access assessments examine each parents’ parenting ability/capacity and the nature and quality of the relationship with the children, as well as what is happening in the lives of the kids. This report may be used by the Court to make a decision about custody and access. (See below for the current legislation in force and new legislation that will be coming into force).  The evaluator interviews parents, the children (if old enough) and others provided as collateral contacts by the parents. The assessor should also review any documents the parents have available, such as court documents, developmental and other assessments and reports for the children and parents (if available) and any other pertinent documents, such as child protection investigations and police reports. Observations of the children with both parents is also an important part of the process. Some evaluators (psychologists) may test parents using psychological assessment tools, such as personality testing. There is little, if any, evidence-based research that validates the use of assessment tools in custody and access family law cases. Here and here discuss research that has examined this.     All of this information is used to form an expert opinion and recommendations from the evaluator of the best interests of the child, which is the paramount consideration of Sec. 15 reports.   *** Disclosure. As a forensic social worker I provide Sec. 15 reports and critiques to the court in BC. I have been involved in the report Troubling Assessments: Custody and Access Reports and their Equality Implications for BC Women.   ********************************** West Coast LEAF News Alert July 24, 2012 New study by West Coast LEAF Troubling Assessments: Custody and Access Reports and their Equality Implications for BC Women

Imagine leaving a marriage after years of physical and emotional abuse, only to have a psychologist disbelieve your story and recommend custody of your kids to your ex. Imagine inviting a stranger into your home during one of the most stressful and difficult times in your life, in order for them to assess your parenting skills. Imagine being in court without a lawyer and trying to cross-examine a psychologist on their assessment of your mental health, or having a custody assessor criticize you for your cultural traditions. These are some of the experiences women shared with West Coast LEAF regarding their experiences going through custody and access assessments in family law cases. West Coast LEAF has published a new study on what are commonly referred to as 'Section 15 reports' conducted by psychologists and other professionals in contentious custody battles. The study finds that there are no consistent standards for how Section 15 reports should be prepared, and no mandatory training for some of the assessors. The result is inconsistency, a perception of bias in some reports, and a common over-reliance by the courts on reports that may not take adequate account of important issues, including violence against women and children. Other issues that arose throughout our research and consultations include the costs of the reports, confidentiality, language barriers, the effects of cultural differences, and the lack of legal aid to assist parties to navigate these difficult cases.  West Coast LEAF hopes that this study will encourage the BC government and the BC College of Psychologists to implement specific standardized training and specific binding objectives for assessors on the dynamics of family violence and cultural sensitivity. To find out more about this issue in BC and the necessary steps West Coast LEAF proposes to alleviate it, see our full report, Troubling Assessments: Custody and Access Reports and their Equality Implications for BC Women.

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Media & Information

Current legislation

Family Relations Act; Sec. 15: Expert witnesses in family matters

15  (1) In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who

(a) has had no previous connection with the parties to the proceeding or to whom each party consents, and

(b) is a family counsellor, social worker or other person approved by the court for the purpose.

(2) A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs.

(3) A person must not report to a court the result of an investigation under subsection (1) unless, at least 30 days before the report is to be given to the court, the person serves a copy of the report on every party to the proceeding.

(4) If satisfied that circumstances warrant, the court may grant an exemption from subsection (3).

Comments posted to JP Boyd's Family Law Resource blog:

Blog post: Section 15 Reports

Anonymous 13 February, 2011 21:42

A s.15 was recently ordered for my daughters father and I. I am trying to educate myself on what to expect. I have found lots of tips, advice and opinions on the matter but no where have I found any clear guidelines/rules/rights of/for the parents. could you please direct me to such resources?

Answer:

John-Paul Boyd14 February, 2011 06:31

I don't believe that any such resource exists. There are cases where the court talks about the obligations of the person preparing the report in terms of fair, scientific processes (the College of Psychologists has ethical guidelines for assessors as well), but there's no independent statement of parents' rights and responsibilities that I'm aware of.

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Bias Against Abused Mothers in Child Custody Cases: Report

New study finds systemic problems in parental capacity assessments discriminate against women.

By Katie Hyslop, Today, TheTyee.ca 

Excerpt:

Often a useful tool for getting a third-party, outsider's view of parenting abilities, the report found they could also be biased against and dangerous for vulnerable women with abusive ex-partners. 

While there are specific guidelines to follow for family counsellors and social workers regarding family violence and the use of these reports, psychologists in B.C. have no such criteria. In addition, judges often take assessors' advice at face value, and limited access to legal aid in B.C. prevents many women from challenging assessments they view as biased.

Kasari Govender, West Coast LEAF executive director: "The key is the systemic concerns we have: the lack of training for some assessors on the dynamics of violence, specifically violence against women and violence within intimate relationships, (and) cultural diversity and judging parental ability across cultural divides and the problems that can arise there."

But it shouldn't just be up to lawyers to fight against individual reports, said forensic social worker Tracey Young, who is also quoted in the report. There should be province-wide oversight of reports to ensure parents -- both male and female -- are treated fairly by these assessments.

"There really is nobody monitoring or keeping track of this," said Young, who worked in child welfare from 2002 to 2009. 

"I think that was one of the really important parts that came out of the report, is I think that there's not consistency across the board, there's no set of practice guidelines for whichever clinicians are doing this."

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Another comment from JP Boyd's Family Law Resource blog:

Anonymous14 April, 2011 12:23

We just went through this process and I was incredibly disappointed by it. We have 60/40 right now (60 for me, 40 for his dad). The report said it should be 50/50, however, The psychologist had no due diligence. My ex would say something and he'd take it as gospel. Didn't ask me, didn't ask our doctor. He spend a total of 45 minutes observing me and my son in which time there was a 911 call across the street. This resulted in my son and I standing on the side walk looking at the firetruck with neighbours for at least 20 mins of the 45 he was there. He saw my ex and our son twice. The report was bias beyond what I thought was even possible, all because he didn't check his facts. It is riddled with half truths. How do I start the process of challenging it? We are hoping to stay out of court.

New Legislation - gradually in effect over the next 6 to 12 months

Family Law Act (2011). Sec. 211: Orders respecting reports

 

211  (1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:

(a) the needs of a child in relation to a family law dispute;

(b) the views of a child in relation to a family law dispute;

(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

(2) A person appointed under subsection (1)

(a) must be a family justice counsellor, a social worker or another person approved by the court, and

(b) unless each party consents, must not have had any previous connection with the parties.

(3) An application under this section may be made without notice to any other person.

(4) A person who carries out an assessment under this section must

(a) prepare a report respecting the results of the assessment,

(b) unless the court orders otherwise, give a copy of the report to each party, and

(c) give a copy of the report to the court.

(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.