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
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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
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
1.
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 Research
Psychological 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 relationships
Up 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 Assessment
Assessment 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,
3.
4.
5.
6.
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
7.
8.
9.
10.
11.
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
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
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