One Protocol for Objective Assessment of Parenting Capacity in Child Custody and Protection Cases

1. 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

2. 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

3. 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: • to be safe from physical and psychological harm, • to have a meaningful relationship with both parents • plus 13 detailed topics • Disputed cases are heard in Family Law Courts

4. ChildProtection 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

5. 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

6. 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

7. 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.

8. COAG proposed Levels of Intervention for Parenting Categories • Adequate parents access Universal community supports • Vulnerable families access Voluntary focused early intervention while family is intact, & monitor progress • High risk parents – Remove child during rehabilitation then re-unify family • 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

9. 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 fourservices 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

10. 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

11. Information gathering methods Commentators recommend multiple methods to assess vulnerable families: • Interviews using structured checklists for critical topics • Observations of key parent-child interactions related to critical factors • Collateral source information • Validated psychological tests where relevant and available

12. Psychological Research Psychological research identifies six domains relevant to good parenting in custody and protection cases: • Practical issues: stability & suitability of housing, proximity of parents • Parent-centred: parent’s ability to manage budget, own emotions, substance use, being organised, self absorption, over/under-protective, parent’s age • Co-parenting capacity: communication &collaboration, avoid alienation, allow contacts, extended family support, couple conflict • Child-centred:behavioural/developmental disorders, temperament, special needs, child carer issues • Parent-child interactions: parenting style, protect child, warmth, responsiveness/attachment, teaching, positive discipline practices, set limits & correct, harsh/disengaged parenting • New parental relationships Up to 47 specific topics have been identified.

13. 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

14. Framework One assessment framework can provide both: • broad comprehensive screen, followed by • focusedassessments 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

15. Levels of Objectivity in Assessment Assessment tools vary in degree of objectivity: • Unstructured - informed personal opinion of an expert, usually based on interview, anecdotal incidents & brief observations • 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 • 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

16. 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

17. Topics for Focused Assessment & Intervention Topics proposed for Focused Assessment & Intervention: • Parent’s ability to be organised to meet own needs • Difficulty in co-parenting: high conflict couples, domestic violence, need for supervised visits, long absent parent • Parent’s marked emotional instability: mental health, substance abuse • Child’s temperament: behaviour, developmental disorders, health • Child neglect • Specific forms of child abuse: sexual abuse, harsh discipline, emotional abuse • Alienating behaviours, child unwilling to visit a parent • Child’s capacity to express a custody preference • Cultural issues • Proposed re-location • Sexual orientation of a parent

18. 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

19. Conclusion One 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