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* CNZM MA LLB (Hon) LLD (Otago). Barrister and Solicitor, Chancellor University of Otago 1993 – 1998.
I little thought when I returned to this University to study law and first attended the F. W. Guest Memorial Lecture that 32 years later I would be the speaker. I remember Professor Guest’s photograph in the Faculty’s vestibule and staff speaking of him with great respect and warm regard. I acknowledge the privilege of contributing to this prestigious series.
My second appointment as counsel for the child was in 1977 for two boys aged seven and two. Their mother had left the family farm and the elder child and gone off with a neighbour, his four children and the toddler. The mother ’s lawyer called a child psychologist who gave unequivocal evidence that the younger child needed to be with his mother whatever the moral issues might be. In the event both children remained with their father but that was the first time I heard a witness who focused exclusively on the child’s psychological wellbeing. Since then I have observed the impact of such specialist evidence in many custody, access and care and protection cases, so when invited to deliver this lecture, I thought it could be useful to attempt an overview of the Family Court arena where the professions of law, psychiatry and psychology meet and sometimes clash.
For some time there has been vigorous debate about how psychologists and psychiatrists discharge their roles within the justice system generally.
I cite the February 2002 Editorial of the New Zealand Law Journal on the Ellis case:
Little psychological evidence stands up to serious scrutiny. Psychologists have managed to con the system for years with nonsense such as ‘offender profiling’ which has no scientific basis whatever…psychology completely lacks a general theory of human behaviour…. Almost no statements made by psychologists are backed up by the population data necessary to give the evidence probative value…. The mystical hold that psychologists seem to have over the legal system should be broken.
Parts of this editorial were cited in Professor Michael Corballis’s 2003 Listener article Memory and the Law[1] where he explains that psychology was established as a discipline in the late 19th century. After World War II there was a widespread need for improved services in mental health and in 1949 a conference in Boulder, Colorado established the “scientist-practitioner” model for the training of professional psychologists. But over the course of time scientists and practitioners have gone their separate ways and practitioners have come to greatly outnumber those responsible for developing the science of psychology. This has led to a serious erosion of scientific standards exercised by many practising psychologists. Thus:
If psychological expertise is to be invoked - and I think it must be - then it is imperative that it lean as far as possible towards the findings of psychological science…. Experience in clinical practice itself will not do - human interpretation of experience is notoriously prone to bias and superstition, and it is the scientists, not the clinicians, who are most likely to have the most comprehensive and up-to- date knowledge of the relevant areas of research…
[t]he law cannot really do without psychological expertise in cases involving psychological matters….The problem is not to eliminate psychological testimony, but rather to separate good psychology from bad psychology - or good science from bad science.
The first question is, what are the professional skills and qualifications of these interpreters of human experience?
Psychiatrists are specialist medical practitioners who treat mental illness and psychological disorders by prescribing drugs as well as applying psychotherapeutic, cognitive and psychological therapies. In New Zealand their six year medical degree from Otago or Auckland Universities is followed by five years specialist training leading to Fellowship of the Royal Australian and New Zealand College of Psychiatrists. The College and those equivalent overseas bodies recognised in New Zealand have Codes of Ethics and disciplinary provisions. Psychiatrists are registered as such with the New Zealand Medical Council under the Medical Practitioners Act 1995 and are subject to the Act’s disciplinary provisions.
Psychologists practise in many areas including health, industry and education. Scopes of Practice and Qualifications[2] were approved last month under the Health Practitioners Competence Assurance Act 2003 which comes into force on 18 September 2004.
The General Scope is defined thus:
[Registered] psychologists … render to individuals, groups, organisations or the public any psychological service involving the application of psychological knowledge, principles, methods and procedures of understanding, predicting, ameliorating or influencing behaviour, affect or cognition.
Clinical psychologists and educational psychologists are those who most frequently appear as expert witnesses in the Courts.
Much of clinical psychologists’ work is within the health and justice sectors. The Clinical Scope of Practice is defined thus:
Clinical Psychologists apply psychological knowledge and theory derived from research to the area of mental health and development, to assist children, young persons, adults and their families with emotional, mental, developmental or behavioural problems by using psychological assessment, formulation and diagnosis based on biological, social and psychological factors, and applying therapeutic interventions using a scientist-practitioner approach.
As to Qualifications:
To work within a clinical scope of practice, psychologists will have a minimum of a Masters degree majoring in psychology from an accredited educational organisation and an accredited Postgraduate Diploma in Clinical Psychology, or equivalent qualification.
Clinical psychologists’ training began in New Zealand at Canterbury University in 1961. Otago, Canterbury, Victoria, Massey, Waikato and Auckland Universities now provide the three year clinical programme.
Most of educational psychologists’ work is with children as individuals and in social contact with their peer group, the family and in the classroom.
The Educational Scope of Practice is as follows:
Educational Psychologists apply psychological knowledge and theory derived from research to the area of learning and development, to assist children, young persons, adults and their families regarding their learning, academic performance, behavioural, social and emotional development, by using psychological and educational assessments and applying interventions using systemic, ecological and developmental approaches.
As to Qualifications:
To work within an educational scope of practice, psychologists will have a minimum of a Masters degree majoring in psychology from an accredited educational organisation and an accredited Postgraduate Diploma in Educational Psychology, or equivalent qualification.
Educational psychologists are trained at Massey University. All psychological practice must be undertaken within an individual’s area and level of expertise and with due regard to ethical, legal and Psychologists Board-prescribed standards and eligibility for all three scopes of practice require a Board approved one year practicum or internship involving 1500 hours of supervised practice.
All practising clinical psychologists and educational psychologists must be registered under the Psychologists Act 1981 and subject to the disciplinary powers of the Psychologists Board. The New Zealand College of Clinical Psychologists, the Psychologists Board and the Psychological Society have adopted a joint Code of Ethics.
Psychotherapists also may appear as expert witnesses in the Family Court. While they are not governed by specific statute nor is there any restriction on holding oneself out as a psychotherapist, in practice most will have a University degree and post graduate qualifications. They are skilled in assessing and treating emotional distress. Both the New Zealand Association of Psychotherapists and the New Zealand Association of Child Psychotherapists have Codes of Ethics and disciplinary provisions.
Within the Court setting psychological and psychiatric testimony may be tendered on behalf of a party particularly when mental illness, psychological disorders or intellectual disability are in issue. If, however, the Court wishes to obtain specialist advice to assist it there is a legislative framework.
Historically, Courts have called for social workers’ reports for many years, for example under s 50 of the Child Welfare Act 1925 in divorce or dissolution of voidable marriage proceedings, then under s 29 of the Guardianship Act 1968 and s 41 of the Children and Young Persons Act 1974. In 1977 s 42A of the Children and Young Persons Act empowered the Magistrates Court to order a psychiatric examination of the child or young person before finding a charge or complaint proved or before making orders: the purpose being to identify a quasi- insanity defence or a need for psychiatric treatment.
The Family Courts Act 1980 created the Family Court which presently has jurisdiction under thirteen statutes.
Psychiatrists provide expert opinion in applications under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and both psychiatrists and psychologists do so under the Protection of Personal and Property Rights Act 1988. The principal statutes, however, under which evidence or reports from psychiatrists, psychologists and psychotherapists frequently contribute to the outcome are the Guardianship Act 1968 and the Children Young Persons and Their Families Act 1989.
The rationale for specialist involvement under the Guardianship Act arose from concerns that custody decisions reflected traditional assumptions and beliefs unsupported by research. Hearings largely focused on the adult combatants’ faults and were sometimes supplemented by an interview of the child by the Judge in Chambers. In response to those concerns s 29A of the Guardianship Act came into force in January 1981. It provides (inter alia):
(1) On any application for guardianship or custody (other than interim custody) or access the Court may request any person whom it considers qualified to do so to prepare a medical, psychiatric or psychological report on the child who is the subject of the application.(2) In deciding whether or not to request a report the Court shall, if the wishes of the parties are known to the Court or can be speedily ascertained, have regard to those wishes….
(7) Any party to the proceedings or any barrister or solicitor appointed to represent a child…may tender evidence on any matter referred to in any such report.
(8) The Court may if it thinks fit call the person making the report as a witness.
In 1991[3] s 29A was extended to applications under The Hague Convention on the Civil Aspects of International Child Abduction.
Sections 178 and 179 of the Children Young Persons and Their Families Act 1989 differ slightly from s 29A. Section 178 (1) provides:
If at any stage of any proceedings under Part II (or Part 3A) of this Act, it appears to the Court to be expedient that a medical, psychiatric or psychological report should be available to the Court in respect of any child or young person to whom the proceedings relate the Court may order the child or young person to attend for a medical, psychiatric, or psychological examination.
The Court may also order the child’s parent, guardian or caregiver to attend for a medical, psychiatric or psychological examination, subject to that person’s consent and explanation for any refusal. [4]
Psychiatric examinations are to be carried out by a psychiatrist and psychological examinations by a psychiatrist, a registered psychologist or by a person with equivalent overseas qualifications recognised by the appropriate New Zealand registering body.[5]
These provisions appear to restrict the Court to appointing only psychiatrists or registered psychologists as report writers. However, in LG v LG[6] , a 1991 case where a father disputed findings as to the probability of sexual abuse and sought disclosure to his own expert of the base data underlying the s 29A report, the Principal Family Court Judge sought a High Court ruling on various aspects of specialist reports. In addition to the parties the New Zealand Association of Psychotherapists, the New Zealand Association of Child Psychotherapists and the New Zealand Psychological Society were represented and Ms Sian Elias QC was amicus curiae.
After formulating guidelines as to the release of base data Thorp J observed that:
[A]s a matter of law the contention that s 29A, when read in the context of the Psychologists Act 1981 and the Children, Young Persons, and Their Families Act 1989, limits the persons qualified to make a psychological report under s 29A to persons registered under the Psychologists Act, is not sustainable.
His Honour noted further that it may be dangerous to recommend that disclosure of source data only be made to a reviewer operating in the same discipline or having the same qualifications and practical experience as the initial reporter. Essentially the Court should be slow to close off any source of knowledge which might assist it to determine the truth of the matters before it.
Accordingly, the Court may request s 29A and order s 178 reports from appropriately skilled psychotherapists.
The next question is how do these experts shed light on the truth?
One widely held view of the purpose of psychiatric and psychological reports is that they provide the basis of a predictive assessment through analysis of the past and the present and use scientifically established tools to make these determinations. Relevant skills[7] include knowledge of:
1. Normal individuals’ underlying needs, feelings and thoughts; 2. Various personality structures, typical defences against overwhelming anxieties, and common and abnormal stress reaction patterns; 3. The emotional development and needs of children; 4. Family relationships and systems and parenting skills; 5. Non-verbal communication and interactions; 6. Interview techniques to establish empathy and rapport, to draw out and verbalise feelings, to elicit relevant information and to explore relevant positive and negative factors.
Yet there is considerable scepticism as to whether or not psychological experts can predict the future for any individual. In his 1995 article The limits of s 29A reports in custody hearings[8] John Caldwell claims that in the USA a clear consensus view has emerged that psychologists enjoy no special expertise in predicting the future behaviour and development of child or parents and that any evaluation of parenting must be recognised as a subjective exercise. He observes that the most a psychologist can safely do is to report on the psychological functioning of parents and child at the time of making the report.[9] Recommendations involve making value judgements because of the lack of empirical data, the difficulty of assessing parenting skills (particularly when the family system is experiencing drastic change) and unconscious bias.[10] Caldwell also notes that psychologists are still useful to elucidate parents’ functional abilities and make comparisons. They have particular expertise in discovering the attitudes and feelings of the parties and of the child. They can interpret verbal expressions, encourage and articulate emotions that are difficult to express and convey the meanings of observed behavioural patterns. They can highlight relevant factors and provide information on attachments and personality traits.[11] Caldwell notes further that the s 29A report is but a piece of the jigsaw of evidence. The extent to which reliance can be placed on a report depends upon the qualifications, clinical experience and methodology actually used and the more scientific and precise the evidence the more it can be relied upon. A s 29A report therefore should be focused on precise scientific observations on the abilities, behaviour and feelings of the parents and child; the true, legitimate object of the report being to provide information not otherwise readily available to the Court.[12]
Caldwell’s comments apply equally to s 178 reports, although their focus is on care and protection.
How else can there be assurance the evidence of psychiatrists and psychologists is relevant and reliable in a setting where the parties’ emotions run high? I suggest there are four principal modes of control: 1. Practice and Protocols 2. Critiques 3. Discipline 4. Judicial Control Before discussing these concepts let me place them in context. The Ministry of Justice[13] advises that from 1 December 2003 until 31 May 2004 the Family Court has commissioned 748 specialist reports. 149 are s 178 and 95% of these are psychological as opposed to psychiatric or medical. 428 are new and 171 are updated s 29A reports. The Ministry estimates that 95% of these 599 will be psychological reports. So overall the Family Court calls for approximately 1500 reports each year.
There is a Court approved panel of report writers and the co-ordinator matches the requirements of the case with a suitably qualified expert. They will belong to the relevant professional body and subscribe to a code of ethics so that complaints can be appropriately addressed and disciplinary procedures invoked if necessary.
The Court supplies a standard referral letter, information sheet, the application, notice of defence, the Judge’s directions, selected affidavits and the approved brief.
Protocols have been issued by the Principal Family Court Judge since 1995. The third and current protocol is the Practice Note - Specialist Report Writers of 1 July 2001. Its terms were settled by the Department for Courts, the New Zealand Psychological Society and the New Zealand College of Clinical Psychologists.
Other protocols have been issued by the Royal Australian and New Zealand College of Psychiatrists in their Position Statement on the Role of the Psychiatric Consultant in Matters Relating to Custody and Access 1979 and by the New Zealand Psychological Society in their Guidelines to Psychologists Working in Family Courts.[14]
Other Guidelines include:
1. The report should specify the date of referral, the section of the Act under which it was made, specific issues to be addressed, record interviews and list written material reviewed. 2. Experts’ notes should be taken during interviews and should be retained. They may need to be disclosed to another expert the Court authorises to critique the report. 3. Recommended methodology includes interviews with each party, with the children, observation of the children with each parent, with brothers and sisters, significant other people or agencies, interviews and liaison with any pre-school or school. 4. Personal assessments of any individual should be balanced and supported by factual information or relevant observation. Reports should avoid pejorative language and emotive criticism. 5. The writer should separate facts from professional opinions and in expressing a professional opinion state whether it is based on evidence filed by the parties or gathered by the expert, psychological tests, mainstream professional opinion backed up by the specialist texts or literature or on the expert’s own observation and experience of similar situations. 6. It is not part of the role to act as mediator or conciliator but the report could indicate to counsel for the child or the Court possible approaches which might assist the achieving of resolution. 7. Article 12 of the United Nations Convention on the Rights of the Child requires that a child capable of forming his or her own views on matters affecting the child has the right to express them and be heard by the Court either directly or through a representative. Consideration needs to be given as to whether the child can properly express his or her wishes.
This is an appropriate juncture to discuss K v K,[15] the recent ground breaking decision of Heath and Venning JJ. On appeal in the Auckland High Court the first issue was whether the Family Court, when requesting a s 29A report, has jurisdiction to direct that any child interviews, on which a s 29A assessment is based, be recorded on videotape. The second issue was the terms on which that jurisdiction (if it exists), ought to be exercised.
The father, who doubted his children had made particular statements to the s 29A psychologist, appeared with a McKenzie Friend. Counsel also appeared for the mother, the children, NZLS Family Law Section, the New Zealand Psychologists Board, the New Zealand Psychological Society Inc, and the Union of Fathers Litigation Ltd. The Commissioner for Children and Relationship Services New Zealand filed submissions and counsel was appointed to assist the Court. In the judgment themes were developed reflecting public policy concerns on the practical application of s 29A. Their Honours examined the sections in historical detail. They compared and contrasted s 29 A with s 178 and held s 29A is designed to obtain expert assistance and is primarily directed to a s 23 “best interests” inquiry.
They point out that base data for s 178 reports may be videotaped under the Evidence (Videoing of Child Complainants) Regulations 1990 as these reports are designed to deal with questions of the “safety of the child” but ruled there is no power to direct the videotaping of s 29A reporter/child interviews.
They summarise their conclusions:[16] a) Section 29A of the Act enables the Family Court to obtain expert assistance from a medical practitioner, psychiatrist or psychologist on any issue on which a report is ‘necessary’ for the disposition of the guardianship, custody or access issue before the Court. A report can only be sought from a qualified person: ie an expert. b) The Court can only ‘request’ a report; it cannot ‘order ’ one. There is, therefore, no jurisdiction for the Court to impose terms as to the manner in which the report ought to be completed. c) The preferable course is for the Court to ensure questions are drafted with particularity and are capable of being answered through the provision of expert opinion. The brief ought to set out relevant facts and to provide questions for the report writer to answer. d) The report writer ought not to stray beyond the boundaries of the questions asked. Neither should the Court ask ‘catch all’ questions which, in effect, ask the report writer to provide such further information as he or she thinks fit. Recommendations should not be made on the ultimate issue for the Court’s consideration. However, it is appropriate and permissible for the report writer to draw to the attention of the Court any other issue arising during the course of his or her investigation. No comment should be given on such matters. When the Judge considers the fresh issue he or she can determine whether to issue a separate request to deal with any additional issues raised. e) It is inappropriate for the Court to use s 29A solely as a method of obtaining the wishes of the children involved. The wishes of the children should be ascertained by counsel for the children or through an interview of the children by the Judge. f) Good practice would see report writers complying with the Code prescribed in Schedule 4 to the High Court Rules 1985 to ensure that impartiality and independence are preserved.
K v K could be viewed as a further attempt to restrict report writers to a narrow scientific focus and constrain the human dimension of a report: possibly querying whether empathy and rapport are necessary adjuncts to the application of tests and measuring tools. But if a child were to volunteer that he or she really wanted to live with Mum or Dad should the psychologist be precluded from reporting this or is it another datum to be given no greater or lesser emphasis than any other? Essentially the position appears to be that a psychologist can assess whether a child can properly express his or her wishes, but since K v K it is clear that it is not for the report writer to ascertain or report on those wishes. The case has already generated much comment and affected practice.
Returning now, to the New Zealand Psychological Society’s Guidelines to Psychologists Working in Family Courts:
8. Another guideline indicates it is not appropriate for a s 29A report writer to sit in at the hearing to hear the various witnesses and then assist the Court by commenting on the evidence. Former Principal Family Court Judge Mahony has stated:[17]
It is the role of the Court not the report writer to hear the witnesses, evaluate the evidence and make findings and determinations. As to the report itself, it is not appropriate in the normal course, probably not ever appropriate, for the writer of the report to be making recommendations to the Court as to the orders it ought to make or ought not to make. The issues in any custody case are wider than those which a report writer is asked to consider or can consider, and there are other considerations than those which appropriately can be raised in the report.
The interaction between a report writer and counsel for the child warrants comment. The Acts state the report writer may be called by the Court as a witness.
In practice there is close liaison with the child’s counsel who in most cases leads the reporter’s evidence. If counsel for the child disagrees with some or all of the report and wishes to cross-examine the Court needs to be advised of this in advance.
In my view, it is preferable for counsel for the child to maintain a clearly independent stance. They are each highly influential as to the outcome and if they are perceived as a team they are very formidable. Parents who believe the Court system is biased against them will have their fears exponentially heightened if their child’s lawyer is presenting and therefore endorsing all the expert says. Possibly, counsel to assist the Court could lead the report writer ’s evidence, leaving counsel for the child clearly acting as the child’s advocate. This might also diffuse the ‘best interests’ focus of reports in favour of more dispassionate factual reportage and neutral interpretation of data. But no doubt Cost! is the riposte.
Critiques may bring into question the report writer ’s professional competence or ethics. Accordingly their use is strictly controlled by the Court.
• The commissioning of second opinions and the reporter proposed must be approved by the Court.
• All the report writer ’s data must be disclosed and the Court appointed report writer must co-operate with the second opinion report writer.
• The second opinion report writer may not re-interview children and probably not the parties.
• Section 29A report writers may be permitted to attend hearings during cross-examination of the second opinion report writer to assist any evidence they may themselves give later in cross examination.
The 1995 Guidelines for Second Opinion Expert Reports in the Family Court restate that psychologists are the Court’s witness. Despite the procedure being potentially adversarial and partisan, second opinion writers:
should maintain and adhere to the central philosophies of the Family Court, namely the best interests of the child, effective conflict resolution and the profession’s Codes of Ethics. Generally they should be respectful of colleagues, practise minimal intrusion on family members, especially children, retain a focus on the best interests of the child and work as collaboratively as possible to that end.
Given the inherent complexities and the existence of a paying client this counsel of perfection may be impossible to achieve. However, as K v K has affirmed, the Fourth Schedule to the High Court Rules, Code of Conduct for Expert Witnesses applies - in particular:
1. An expert witness has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise. and 2. An expert witness is not an advocate for the party who engages the witness.
In practice, critiques are expensive and may extend the duration of the hearing by days. Many hours can be spent on marginally relevant issues. They are a tool which seldom delivers as much as is hoped for. Skilful cross-examination may be more fruitful: psychologists and psychiatrists may be engaged to advise a party’s lawyer as to how best to discredit the report. However, judicial approval is required before the report can be shown to or discussed with another psychologist or psychiatrist.
Complaints relating to an alleged breach of professional ethics outside these matters should be referred to the Psychologists Board, the Medical Council or the Health and Disability Commissioner.
The Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumers Rights applies to psychiatrists and to psychologists as registered health professionals. All complaints received must first be sent to the Commissioner who may invoke his own disciplinary powers or refer the complaint back to the professional body.[18] If to the Psychologists Board, it will then convene a Complaints Assessment Committee (after 18 September 2004, a Professional Conduct Committee) which may recommend a hearing or that the complaint proceed no further. The Board can accept or reject those recommendations.[19] There are usually about five hearings each year.
Copies of reports may be made available by the Court, with judicial approval, to the relevant disciplinary body solely for the purpose of the complaint and then must be returned to the Court.
A leading case which defines the different jurisdictions of the Family Court and the disciplinary bodies is Haye v Psychologists Board.[20] This was a successful appeal from the Board’s findings of professional misconduct and conduct unbecoming in fulfilling three separate Family Court roles. In the first complaint the psychologist had critiqued a s 29A report for a father and the Board took the view the mother should have had an equal opportunity to present her opinions and the psychologist should have obtained her informed consent before gathering information about her.
The second concerned a s 29A report where a mother attacked the psychologist’s analysis of the father ’s parenting ability and her failure to investigate fully his alleged sexual abuse. The third complaint related to videotaping an access changeover without the mother ’s consent. The Board held the person who presented for assessment was as much the client as the Family Court itself.
Justice Chisholm, however, held that when a psychologist was appointed by the Family Court he or she owed a primary duty to the Family Court and was under no professional duty to the parents of the child and where a psychologist accepted instructions from one party he or she owes a professional duty to that party but not to any other.[21]
A very recent decision is G v NZ Psychologists Board,[22] an appeal against penalty. The psychologist had given evidence for the parents in care and protection proceedings that there was no risk to the child although the father had an historic interest in pornography. He admitted conduct unbecoming in that he had used inappropriate methodology, did not utilise independent sources, omitted to include risk factors of which he was aware and stated a conclusion inconsistent with his data.
In discipline cases there may be an overlap between the Family Court’s control of its processes and the professional body’s disciplinary regime. As stated in Haye, however, in exercising jurisdiction to discipline psychologists concerning their Family Court roles, the Board must avoid encroaching on the process of the Family Court and take into account the particular relationship which exists between the psychologist, the parties and the Court.
R v S[23] is an appeal decision by Priestley and Heath JJ from the Family Court which had permitted a mother to relocate a five year old boy to Australia.
The father claimed the s 29A report was tainted by references to an earlier jointly-commissioned report from another psychologist. The s 29A reporter had observed that under existing parenting styles the child, who had been in the primary care of his father, was at high risk of losing respect for him.
The High Court dismissed the appeal against relocation and Priestley J in particular reinforced established principles. He stated:
A Court faced with a (relocation) dispute must give close attention to the process. The brief given to a psychologist preparing a s 29A report, particularly in respect of young children, must specify critical issues. The s 29A report itself must be focused, non-partisan, and free from gratuitous comment on extraneous issues or matters solely within the province of the judge.[77]
He found no impropriety in the Court-appointed psychologist having conferred with the privately-commissioned psychologist as there was no evidence of having been influenced by her, and continued:
Issues involving children are determined by judges, not by psychologists. Psychologists, for their part, can expect their methodology and conclusions to be subjected to scrutiny in Court and must be able to defend them. It is not appropriate for s 29A report writers to stray outside their briefs and comment on legal matters.[99]
Psychologists, of course, are not infallible. Courts must guard against giving undue weight to their evidence. Certainly such reports should not be determinative. But in so many cases the raw data of a psychologist’s notes which lie behind the conclusions allow variable insights into a child’s relationship with parents.[103]
Nor was it necessary for the psychologist to ascertain this young child’s wishes as:
Young children very rarely express wishes. These can at best be inferred from the psychologist’s observations and the court’s own conclusions about the relationship between a young child and each parent.[106]
It may be noted that there is probably no conflict here with the K v K ruling; presumably it is for counsel for the child and the Judge to ascertain the express wishes of older children.
A v R[24] – a judgment of Judge Bisphan – concerned a 13 year old girl whose mother had moved to Auckland and a new partner in 1995. A s 29A report was filed but with the assistance of another psychologist it was agreed the child (then aged six) should live with the father. In 2001 the mother applied for custody as she believed the girl wanted to live with her and another s 29A report was requested from a third psychologist, Ms E.
In Ms E’s opinion there was an unresolved loss for the child by not having a full relationship with her mother; the father had failed to maintain the child’s relationship with her and there were disadvantages under his controlling yet permissive parenting style. She approved of the mother ’s responsive parenting style.
Judge Bisphan noted that Ms E clearly favoured the mother over the father: she had referred to the father ’s use of alcohol without assessing it and saw the child’s not wanting to shift to Auckland as reflecting the restricting nature of the father ’s relationship. While confirming a change of custody and shift to Auckland would cause disruption, fear and distress for the child, the psychologist believed the shift would reduce the likelihood of impaired emotional development and the psychological data suggested long term benefits for her.
The Judge disagreed. He said:
I do not see parental conflict as a central issue and I see the respondent and his parenting qualities in a better light…. Despite him providing virtually fulltime care for the child over the last nine years, during which time she has developed and achieved, there is little positive about him and what he has done for her in Ms E’s report. I found this surprising.[10]
The Judge further noted that the psychologist seemed to accept much of what the mother told her without balancing the father ’s version. For example, the prime reason for the mother ’s shifting to Auckland was her choice to follow her present partner to Auckland. She went leaving the child in the father ’s care resulting in the relationship between the child and the mother becoming fractured which in turn resulted in significant loss for the child.[25]
The Judge continued:
Ms E’s opinions must have weight attached to them but I find they are not decisive in this case. It is a matter of the weight to be given to them balancing all the other factors relevant to the child’s welfare.[13]
The Judge interviewed the girl in Chambers with her lawyer where she confirmed she did not wish to live with her mother. The Judge found that while her clear wishes were not decisive, to go against them could create emotional trauma:
What the applicant, supported by Ms E, is asking the Court to do is to change the certain, which may not be perfect, for the uncertain, a change from the concrete to the conjectural….[16]
Judge Bisphan thereupon ruled that she should remain in the care of the father, with access to the mother in Auckland or Christchurch. A robust judgment from a very experienced Family Court Judge.
In L v A[26] Baragwanath J issued two judgments in November and December 2003: the first as to principles and terms of a further brief to the s 29A report writer and the second as to the merits of the appeal. In both the Family and High Courts the main issue was whether serious inter-parental discord was an impermeable barrier to week about joint care for two boys aged eight and four.
In the Family Court the s 29A psychologist had reported the parents lived with an emotional intensity that created stress and difficulties and their communication was very fraught and volatile. Under cross examination she said:
… to be quite honest I sat at the end of this report and tore my hair out for a number of hours… it’s a very difficult situation…
[in] an… article I’ve been looking at… its [sic] suggested that half and half custody ends up with no custody at all, nobody… is aware of long term needs… research has indicated that the more parents feel negatively about each other the more stressful a shared parenting situation can become….[32]
Nevertheless the Family Court Judge directed the children should spend equal time in the care of each parent. With the support of counsel for the children the mother appealed.
Justice Baragwanath requested the psychologist to review the week about care arrangements put in place by the Family Court. She duly reported that in the interim she had become aware of new research by distinguished authors which supported a distinctly different conclusion and in practical terms the boys were enjoying the week about arrangements: there were no negative outcomes. In dismissing the appeal and confirming the week about orders Baragwanath J stressed the psychologist’s exemplary service to the Court in both her reports and in her oral evidence.
Confusion as to focus has arisen in inter-country custody disputes. Section 12 of the Guardianship Amendment Act 1991 governs those Hague Convention disputes where a child is in New Zealand having been removed from another contracting state in breach of a person’s rights of custody, and the child was habitually resident in that state immediately before the removal. A psychological report may be requested when grounds for refusing to order the return of the child are claimed under s 13, where there is a grave risk that the child’s return would expose the child to physical or psychological harm, or would otherwise place the child in an intolerable situation, or that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views.
In KS v LS,[27] a High Court appeal judgment, the mother had consented to orders in the Australian Court in 2001 but shortly afterwards brought the seven year old girl to New Zealand on a false passport. They were not located for several months.
The Family Court Judge had refused to order the child’s return because the mother had developed cancer and required treatment in Auckland over the next six months. In her s 29A report a child psychologist, Ms B, had identified four factors with a high probability of exposing the child to psychological trauma if she were to return to Australia.
In allowing the father ’s appeal and ordering the return of the child, Frater and Priestley JJ held that the opinion evidence of the psychologist on which the Family Court relied rested on factors which should not have been considered. Evidence suggesting the psychologist’s conclusion might have been suspect, had been given inadequate weight. Any factual finding that the child’s return constituted a grave risk of exposure to psychological harm and/or would otherwise place the child in an intolerable situation must have sound foundations.
The psychologist had made impermissible assumptions including the possible length of separation with the child’s primary caregiver and about how the Family Court of Australia might deal with the child’s interests. Her conclusion that the effect on the child of separation from a sick mother included the risk of depression was a matter of great weight but the father ’s agreement the child could stay with her mother until after treatment had been completed had not been taken into account. The High Court also held that to consider the allegations of violence was raising the spectre of risk in an impermissible way as these issues had been resolved by the consent orders in the Australian Court.
S v S[28] is another Hague Convention case. Three boys were abducted by the mother from the USA to New Zealand where she obtained ex parte interim custody and protection orders against the father. He sought an order returning the three children to the USA and the mother raised two of the s 13 discretionary defences.
The only relevant evidence came from Ms K, a child psychologist who had reported to the Family Court. She considered the boys would be at risk of emotional and social harm if they returned to the USA and assessed that the oldest boy, aged 11 (and very gifted) would be out of the control of both his parents and at risk of being alienated completely from his father.
The Family Court Judge’s reservations about the report included the psychologist’s methodology in obtaining information from the mother and children, the inappropriate “best interests” overlay and her conclusion the father had only a limited range of skills to handle the eldest child based solely on one brief long distance telephone call. The Judge ordered the return of the children to the USA. The mother appealed, strongly supported by counsel for the children.
Both Courts ruled the issue for the psychologist was not what was in the children’s best interests, but whether their return to the USA carried with it s 13 risks. The appropriate USA Court should determine custody and access unless it “cannot be trusted” to do so. In relation to child safety concerns in the USA there had been an incident between the father and the eldest boy who then made a 911 call. The boy himself was astonished at the level of and numbers of enforcement and emergency vehicles which made an immediate and powerful response.
Essentially the psychologist had overlooked the whole thrust of the Convention of returning the children to the country from which they had been abducted in order for the best interests assessment to be made there. Her view that the children should remain in New Zealand with their mother and should not be split had deflected her from a focused and balanced assessment of the s 13 (c) risk.
In dismissing the appeal Wild J indicated the s 13 ground for refusal if a sufficiently mature child objects to being returned could apply to an 11 year old, but this became irrelevant when the boy was offered a scholarship to a private school and the father agreed to his taking it up. But there is a postscript: the mother has now removed the boy from the private school because he was allegedly being bullied. Watch this space.
A recent very high profile case is K v G,[29] the Nelson custody dispute leading to Dr Nick Smith MP being held in contempt of Court. France and Gendall JJ’s May 2004 judgment dismissing the birth parents’ appeal noted the original Judge’s decision was based on compelling evidence not challenged or met by any counter-balancing expert opinion. They upheld the finding that the risk of removing the child from his psychological family outweighed the benefits of returning him to his biological parents and siblings.
As mentioned earlier, the Health Practitioners Competence Assurance Act 2003 comes into force in September and psychiatrists and psychologists must have their individual scopes of practice authorised by their registering authority. Other groups seeking to be included in the Act include psychotherapists, applied behaviour analysis practitioners and social workers.
Two new Acts conferring jurisdiction on the Family Court come into force on 1 September 2004. These are the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and the Criminal Procedure (Mentally Impaired Persons) Act 2003. Under the IDCCR Act the Court may order appropriate care and rehabilitation options for persons who have an intellectual disability and who are charged with or convicted of an offence. The CPMIP Act replaces Part 7 of the Criminal Justice Act and provides similar care options for persons unfit to stand trial or those acquitted on the grounds of insanity.
The Family Court will direct specialist assessors, that is, suitably qualified and experienced health or disability professionals designated as such by the Director-General of Health, to provide certificates as to the proposed care recipient’s mental impairment and/or intellectual disability and take part in ongoing assessments and planning. Psychiatrists and psychologists practising in the intellectual disability area will be exclusively the specialist assessors under these Acts.
The Family Court’s jurisdiction continues to widen and its volume of business will inevitably increase. There is new legislation pending and a new Principal Family Court Judge. It is timely to consider what he has to say on expert psychological evidence.
I quote from Principal Family Court Judge Peter Boshier ’s address of 21 April 2004 to the Auckland Family Courts Association:
Sometimes, we need data on cases before they can be resolved, and often we turn to psychologists to assist us. Clear focussed psychological reports are a powerful part of the Family Court’s processes. But perhaps we overuse psychologists. We may have unwittingly developed a culture wherein we dare not move without asking for a psychological opinion. This is hardly good litigation practice.
One of my fervent wishes is to re-establish social work reports under s29 of the Guardianship Act as potent weapons for assembling data in order to address welfare issues. In many cases, a good social worker ’s report will provide the data upon which good decisions can be based.
But because social work reports have become hard to obtain, we have become more and more reliant on psychologists to provide a panacea of answers on issues that are sometimes, of marginal relevance, or alternatively, they are really issues that a Court could otherwise fairly easily determine.…
I think we risk asking psychologists to provide too much information on too many issues. Some issues, and violence is a very good example, need to be heard and determined by a Judge, on the facts. I wonder how helpful it really is to ask for psychological opinion on likely risk. The Statute dictates that that is a Judicial function.
In short, psychological reports can be vital, but at other times they need not be. Unless we get the balance right, we create unacceptable delay in waiting for reports. My challenge is to be clear, focussed and confident in the tasks that we do. We should not be seeking psychological or psychiatric assistance unless it is demonstrably necessary to do so.
[1] New Zealand Listener September 13-19 2003 pp 32-34.
[2] See New Zealand Psychologists Board Website: http:www.regboards.co.nz/ psychologists/index.html [3] Guardianship Amendment Act 1991, s 36.
[4] Section 178 (2) (3) (4).
[5] Section 179.
[6] [1991] NZHC 2165; [1991] NZFLR 481.
[7] Family Law in New Zealand Lexis Nexis Looseleaf Service §6.119, service 85.
[9] Above, 189.
[10] Above, 189.
[11] Above, 191.
[12] Above, 192.
[13] email Robyn.Munro@justice.govt.nz [14] Published in Family Law in New Zealand Lexis Nexis Looseleaf Service §6.125 service 85.
[15] HC Auckland CIV 2003-404-6535, 11/6/2004.
[16] Above, [92].
[17] Family Law in New Zealand Lexis Nexis Looseleaf Service § 6.127 service 86, quoting D v D and Others D C Nelson 042/203/86, 21/9/88, Judge Mahony.
[18] Health and Disability Commissioner Act 1994, ss 36, 37, 38.
[19] Psychologists Act 1981, s 31. Also refer to New Zealand Psychologists Board Information Sheet - see website, supra.
[21] Above, 282.
[22] H C Wellington CIV-2003-485-2175, 5/4/04.
[23] H C Auckland CIV 2002-404-65, 26/7/03.
[24] FC Christchurch 009-1173-94, 16/12/03.
[25] Above, [11].
[26] HC Auckland CIV 2003-404-4849, 20/11/03. See also 12/12/03.
[28] HC Wellington CIV 2003-485-2072, 31/10/03.
[29] HC Wellington CIV 2003-485-1989, 11/5/04.
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