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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, 24 Jul 2012, TheTyee.ca

Mother holding child

Increasingly, women who claim spousal abuse are labeled ‘alienating’. Photo: Shutterstock.

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When a woman flees an abusive relationship, we expect the justice system will protect her and her children.

But a new report finds in some British Columbian child custody cases allegations of spousal abuse are used to paint the mother as mentally ill or an "alienating" parent, and instead recommend visitation, or even custody, for the abusive parent.

"Troubling Assessments: Custody and Access Reports and their Equality Implications for BC Women" is a new report released today by West Coast LEAF, a women's legal education and advocacy organization. The report looks at what are known under the Family Relations Act as Section 15 reports: parental capacity assessments conducted during child custody and access cases.

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.

"West Coast LEAF believes that women's equality is not served by the regime governing custody and access reports as it currently stands," reads the report.

"A rights-respecting system of family law -- one that promotes best outcomes for children and families -- must invest in women's equality. Addressing these concerns and implementing reforms will bring us one step closer to this critical goal."

'Alienating mothers'

Women have been contacting West Coast LEAF for years hoping they could help them with bad Section 15 reports. In the last two years the organization began researching the issue.

They interviewed judges, lawyers, psychologists and social workers, and held forums with women who've undergone Section 15 assessments as part of their own child custody battles. The result is this report.

The report doesn’t deal in numbers -- either the number of women affected by bad assessments or the cost of the changes to the family law system they request. But Kasari Govender, West Coast LEAF executive director, said the issue isn't the numbers but the fact the assessments are so easily misused.

"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."

Assessments are often used at the request of one parent in the hopes of discrediting the other, although judges often request them too. In British Columbia there are no common accepted guidelines or professional qualifications for conducting these assessments. However BC Supreme Court usually requires a psychologist conduct the assessments, while the lower courts use family justice counsellors.

Family justice counsellors and social workers must adhere to specific professional guidelines for completing Section 15 assessments, including taking family violence into account. But there are no such guidelines or specifications for psychologists.

Allan Wade, a therapist and internationally renowned expert on inter-personal violence, said he's seen a range of Section 15 assessments, from the very good to very bad.

"I've seen a number of cases over the years where the reports are so prejudiced and so incompetent that they're extremely harmful," he told The Tyee.

For example, Wade said he's seeing an increase in assessors labelling mothers who allege spousal abuse as "alienating."

"There are women in B.C. who want to report abuse to the authorities who are told by their lawyers 'Don't report the abuse. If you do, you'll lose your kids,' because they'll be called alienating mothers," said Wade, who is quoted in the West Coast LEAF report.

While some reports show their biases -- one example given to The Tyee was an assessor who continually makes negative remarks about parents who live in subsidized housing -- Wade said the bigger issue is the use of psychological personality tests for parents and children.

For example, when tests such as the Minnesota Multiphasic Personality Inventory (MMPI-2) are given to people under chronic stress, like victims of abuse or individuals in chronic pain, Wade said research has shown results are skewed.

"Unless the person giving the test understands that and accounts for that in their interpretation, they're at risk of wrongly attributing a mental illness to the victim, and I've seen that happen in a number of cases," he said.

"Many of the assessment devices that are used routinely in psychology are not particularly suited to addressing problems with violence."

Lost in translation

Psychological tests and Section 15 assessments also discriminate against women from different cultural backgrounds or for whom English is not their first language. The report found some psychologists refuse to offer psychological tests in languages other than English over fears it would skew the results. Translators are sometimes used instead to translate the questions and answers for the women.

The report alleges mothers have been judged harshly for their differing parenting styles, citing a mother who read her daughter stories in Farsi, and a South-Asian mother who couldn't afford a two-bedroom apartment, so she shared a bed with her young child. Normal practices in their home country, but used to paint them as bad parents in Canada.

There is little recourse for women who don't want to be assessed or want to challenge an assessment. Wade said informed consent is the right of parents, male or female, who are subject to a parental capacity assessment. But that right isn't recognized in B.C.

"In one case a woman consulted me because she was having a Section 15 report done, and she wanted to know what she should know in advance," he recalled.

"(I) provided her with a list of questions and she tried to ask the professional, and the person said 'Look, I don't have to answer your questions, I have a court order.' Then she had every reason to believe she wouldn't be safe because of the professional presentation of the (assessor)."

Access to lawyers to challenge assessments can also be difficult. In B.C. a single mother with one child must make less than $2,050 per month to qualify for legal aid. But a salary of $25,000 doesn’t leave enough discretionary spending to hire a lawyer to fight the report, either. Thus the report calls for increases to the limits for legal aid, too.

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."

Psychologists underrepresented in report

While West Coast LEAF maintains the report is meant to highlight problems with the justice system overall, there is plenty of criticism for the lack of guidelines for psychologists. Although they sent out questionnaires to 15 psychologists randomly selected from the B.C. Psychological Association's website, only three responded.

Attempts to reach the B.C. College of Psychologists were difficult, too, with both sides saying miscommunication led to the college not participating in the report. The report's release was subsequently delayed by one week to provide the college time to review the findings.

But in a statement emailed to The Tyee, a spokesperson for the college said ultimately the two organizations respectfully agreed to disagree on the findings.

"The report does not comprehensively examine the existing nature and the quality of the education and training required of registered psychologists in British Columbia, the professional standards relevant to the preparation of Section 15 reports by registered psychologists, and the accessibility and efficacy of the College complaints process," read the statement.

"In addition, while the report provides insight into the experiences of some participants in custody and access proceedings, it does not provide a systematic analysis of the issues raised."

Both parties have agreed to keep lines of communication open and vowed to continue working on solving the issues outlined in the report.

In the meantime, the days of the Family Relations Act are numbered. With the new Family Law Act replacing the previous legislation over the next six months to a year, it's an ideal time to make changes to the laws surrounding parental assessments.

The new section outlining rules for parental capacity assessments, Section 211, isn't much different than Section 15. But there's still time to make changes, and in an emailed statement to The Tyee, B.C. Attorney General Shirley Bond said she would take the report's recommendations into consideration.

"As with any report that we receive, we will take the time to review their findings," read the statement.

"We will take the report’s recommendations under consideration as we move forward with implementation of the new Family Law Act."

Govender is hopeful government will adopt the report's recommendations regardless of the time or financial costs to government.

"I think it's really significant not to get caught up in looking at changes in family law in only the short-term costs, because we know that where better outcomes happen for children and for families, that that will ultimately save the system significant amounts of money," says Govender.  [Tyee]

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