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• Section 29a Psychologist Reports
• Psychologists’ Other Tasks
• Reports From Social Workers

12. Report writers

SECTION 29A PSYCHOLOGIST REPORTS

704 SINCE 1981, PSYCHOLOGISTS HAVE WRITTEN assessment reports on children for the Family Court, under section 29A of the Guardianship Act 1968 (custody and access proceedings), and more recently under section 178 of the Children, Young Persons, and Their Families Act 1989 (care and protection proceedings). New psychologists have been taken on, but others have been doing this work for more than 20 years.

705 Some report writers are clinical psychologists, some, educational psychologists, and a few are psychotherapists. The Court also occasionally gets reports from psychiatrists. Most of these professionals maintain their own practices while working on reports. Some also provide specialised counselling through the Court.

706 A number of people, in their submissions, expressed the view that the interviewing and investigation by report writers of them did not equal what was offered to the other party, and thus failed to give them fair opportunities to demonstrate their own parenting ability. They complained about interview sequence, timing and location, a failure to speak with people the parties nominated and bias in the written report.

707 Some complaints arise from misunderstanding the process, and might be avoided if parties were offered better information before assessment began. Report writers themselves could also give explanations at initial interviews.

708 Other complaints must be addressed by better Court management and complaint procedures.

Report writers’ difficulties

709 Many psychologists working in the Family Court feel under extreme pressure. Consultation made us aware of their concerns, which include the following:

• They experience the Family Court as too adversarial, and failing to use a team approach to solving family problems. A team approach would entail psychologist, counsel for the child, and parties’ lawyers working conscientiously together to resolve matters, with helpful input from Family Court co-ordinators and judges.

• Report writers are increasingly at risk of dissatisfied Family Court litigants filing complaints about them with the Psychologists Board. Such complaints are stressful and time-consuming, and psychologists must protect themselves by carrying substantial insurance. They feel the Family Court does not support them in confronting such complaints.

• The work that psychologists undertake is subject to a burgeoning number of critiques authorised by the Court but carried out by independent psychologists retained by one party.

• When giving evidence, they feel they are increasingly subject to aggressive cross-examination that is often not properly controlled by the Court. They understand their opinions must be tested and critiqued, but object to belligerent and repetitious questioning that is rude and disrespectful.

• Counsel for the child is advised not to share information about the child with the report writer on the basis that to do so might undermine the report’s independence.

710 The Family Court risks losing the expertise of these people. At the same time, newly qualified clinical psychologists are being advised not to enter the field. It is crucial to remedy these problems and support report writers. It is also important to re-state and reinforce the teamwork approach. There are many ways to operate as a team without compromising a properly conducted adversarial hearing.

Practice note 16 on report writers

711 In consultation with the Department for Courts, the New Zealand Psychological Society, and the New Zealand College of Clinical Psychologists, the Principal Family Court Judge settled a practice note to take effect from 1 July 2001.[209] It covers the criteria and process for selecting specialist report writers; review of the lists of specialist report writers and their administration; appointments for individual cases; case management; and complaints.

712 Each Family Court is required to keep a list of report writers available for individual assignments. The registrar will, from time to time, convene a panel to consider applications for inclusion on the list. This panel comprises the Family Court co-ordinator, two experienced report writers, a counsel for the child, a Family Court judge, a tangata whenua representative and the registrar as convenor. Applicants must submit an application form nominating their area of expertise and the Courts where they would like to be on a list. The panel enquires into and interviews each applicant.

713 Selection criteria are comprehensive: the person must be a registered psychologist with a current practising certificate, and a current member of the New Zealand Psychological Society or the New Zealand College of Clinical Psychologists. He or she must have five years clinical experience or the equivalent, including a minimum of three years in child and family work. He or she must show evidence of competence in several areas involving children, parents, and family systems, and must also demonstrate cultural awareness.

714 The Court, in consultation with counsel for the child and the parties, will draw up a brief whenever a report writer is appointed to a case.

715 The psychologists we consulted were concerned about the breadth of these briefs. They say the Court used to ask them to highlight issues characterising the conflict, or areas of potential harm for the child, as well as the nature of the child’s attachments. They are qualified to comment on psychological issues, but often find themselves addressing factual and practical circumstances, which might have to be mentioned as background but should also be proved by independent evidence.

716 Psychologists are concerned that, rather than providing psychological information to be considered along with other aspects of the situation, they are being asked to advise on specific care arrangements.

717 Briefs should be designed to draw on the expertise of psychologists. They risk breaching professional ethics should they comment on any other matters.

718 Psychologists also feel that, although reports still form a basis for discussions about settlement, some of the conciliatory focus has been lost by the new types of brief requested.

719 They are concerned about suggestions they not confer with counsel for the child: that if counsel gives them information it can threaten the independence and objectivity of their reports. They believe that being able to discuss the case with counsel for the child, to receive pointers as where to direct their enquiries, and to be able to discuss issues with another professional in the case, are all valuable to the team approach and should not be lost.

720 In our view, information that counsel for the child gives the psychologist is no different from information supplied by parents or school, and whomever else the psychologist consults. It forms background information on which the psychologist can set up clinical observations. It is insulting to suggest the psychologist’s independence might be compromised by this kind of discussion with counsel for the child.

721 Unfortunately, when lawyers for the parties have complained about such information-sharing, sometimes the Court has disallowed it. This seems inappropriate and unfounded. Counsel is acting on the child’s behalf and should be allowed to pass on information so it can be taken into account.

Critiques of written reports

722 Report writers are expert witnesses the Court calls to give evidence. A Family Court report writer must comply with stringent criteria as to qualifications, expertise and experience.

723 The expert evidence of report writers is understood to be independent and non-partisan, because it is obtained by the Court and not by a party to the dispute.

724 Parties have an opportunity to challenge a report writer’s evidence by bringing evidence that contradicts the conclusions, or by cross-examining the report writer.

725 The Court does not permit the child to be interviewed by other “experts”, and an expert engaged by either party is unlikely to have an opportunity to interview, or comment on, the other party. The only expert allowed to interview and observe parent and child, together and singly, is the Court-appointed expert.

726 The practice has evolved (since about 1990)[210] of one party asking for the section 29A psychologist’s report and the report writer’s case notes to be released to a psychologist they have retained to prepare a critique. The Court must agree before this can happen.

727 The critique writer will then prepare a report on the report writer’s processes. The critiquer does not meet either party or their children, or observe them interacting. Consequently, the critiquer cannot comment on the psychologist’s conclusions or on the child/parent relationship, but only criticise the process by which the report writer reached his or her opinions.

728 One must question the value of allowing such a critique to be part of the evidence, rather than being merely the basis for cross-examining the report writer.

729 We suggest that the Court review the management of such professional critiques, and, in most cases, permit access to the report and case notes as a basis for cross-examination only, rather than as new evidence, which has little probative value.

730 If the Court wishes to make decisions in the child’s interests, it would be preferable to have the critiquer describe the defects in the report before the hearing so that the report writer has the opportunity to make further enquiries and observations should some aspect have been overlooked or mismanaged.

731 The Court should not accept evidence from a critiquer on the outcome of the case, because a critique writer does not have sufficient grounds for such an opinion.

Complaints about psychologists

732 Professional organisations have appropriate supervisory and disciplinary powers over the practice standards of members. Family Court report writers and counsellors who are registered psychologists are subject to the New Zealand Psychological Society code of ethics, and the disciplinary procedures of the Psychologists Board constituted under the Psychologists Act 1981. This discussion examines current procedures.

733 The Health Practitioners Competence Assurance Bill amends these procedures by providing that complaints about psychologists will be made to the Health and Disability Commissioner. The Commissioner may then deal with the complaint, or, if fitness to practice or appropriate conduct is in question, refer it to the relevant professional body. The Bill does not specifically address complaints about the work of professionals contracted to the Family Court. Further consideration must be given to the interface between the Family Court’s role and the procedures the new Bill sets up. Our criticisms of current procedures also apply to those proposed by the Bill.

734 The Family Court has stringent criteria for appointing report writers. There will, nevertheless, be some occasions when a complaint is warranted. Complaints about Court assessments have, however, become fertile ground for harassment by disaffected parties to custody disputes.

735 Practice note 16, covering the appointment and case management of report writers, includes a section on complaints.

736 When they are appointed, report writers must inform the Court of any past complaints against them, and the region’s administrative judge must be informed if a report writer is the subject of a complaint. The Family Court does not have jurisdiction to hear complaints against report writers once a case has ended. Any complaint at that stage must be referred to the Psychologists Board.

737 When the Court receives a complaint about a report writer while a case is in progress, it is referred to the presiding judge, and the complainant is asked to put the complaint in writing. Practice note 16 states:

Matters of criticism or complaint regarding the investigation, interviews, preparation and content of reports, resulting for example in lack of balance, bias in favour for or against a party, failure to give due weight to one or other factor, should be addressed to the [c]ourt. The [c]ourt will deal with this either before hearing or in the course of a hearing, for example, by way of cross-examination, submission, critique or evidence called on behalf of the complainant party.

738 Where a complaint falls outside these parameters, it is referred to the Psychologists Board, or the Health and Disability Commissioner but only if it is unrelated to the case at hand, and concerns, for instance, sexual misconduct in another context.

739 Many parties will not complain during proceedings for fear it will prejudice their case, or because they prefer to have their complaint dealt with by the Psychologists Board rather than the Family Court. This is unfortunate because there is a difference in the way each organisation approaches a complaint.

740 A complaint is made in writing to the Psychologists Board secretary.[211] It is referred to the Health and Disability Commissioner who may refer it back, should it concern professional issues outside the health and disability code. When a complaint comes back to the Psychologists Board it is referred to a Complaints Assessment Committee (CAC), which considers whether to conduct a formal hearing. During hearings, the Psychologists Board must observe principles of natural justice, but may hear evidence not normally admissible in a Court. If findings are made against the psychologist, the Psychologists Board has the power to de-register, suspend, fine or censor. Appeals are made to the High Court within 28 days of notice of a decision.

741 The CAC cannot investigate a complaint related to a Family Court case until proceedings are completed. If the complaint goes to the Psychologists Board while proceedings are on foot, the Board does not refer it back to the Family Court but waits until the case is concluded by the Court.

742 The Psychologists Board has informed us that of the 17 complaints it is currently managing, 10, or 59 per cent, are Family Court-related, and that this category usually accounts for 55 to 65 per cent of the complaints it processes.

743 The complaint process is a long one. Even if the CAC decides against a full disciplinary hearing and the matter is dropped, the psychologist will have been subjected to weeks of stress. If the process culminates in a full disciplinary hearing, the duration from initial complaint notification to final ruling can be as much as two years.

744 Psychologists have no serious concerns with the way the Family Court handles complaints. Once the case has ended, though, the Court no longer has jurisdiction over complaints.

745 Psychologists are concerned with the following aspects of the Psychologists Board complaint procedures:

• Complaints Assessment Committee and Board members do not necessarily have clinical experience, or experience with children and the Family Court.

• The Psychologists Board imposes inappropriate and unrealistic standards of practice; for example, not recognising the value of observation by an experienced clinician; requiring equal time to be spent with each parent, and then with each parent with the children; requiring the same questions to be asked of each party; relying too much on standard psychological testing, rather than clinical observation.

• Some Psychologists Board members are psychologists who critique reports prepared for the Family Court, and this creates a conflict of interest.

746 The Psychologists Board will not deal with a complaint while a case is still before the Court. But a party is not bound to complain while the matter is proceeding and can reserve his or her complaint for the Psychologists Board once the matter is clear of the Court process.

A better complaints procedure

747 It might be preferable if the Psychologists Board were to refuse to handle complaints arising from psychologists’ court work where it was not challenged or complained of during the proceeding. Requiring the complainant to make the complaint known to the Court during the progress of the case would give the Court an opportunity to deal with it in context. It would allow the Court to remedy any failure on the part of the psychologist that was affecting the quality of evidence or the interests of the child. It would also allow the Court to assess the shortcomings or otherwise of the report writer. This would be a more satisfactory outcome for everyone involved.

748 The findings of the Court as part of its complaint process could provide material for any subsequent investigation by the CAC or, eventually, the Psychologists Board.

749 Further protocols for such a process would require negotiation between the Psychologists Board and the Family Court. The process would also depend on specific notification to complainants or potential complainants. Protocols would be needed for the handling of complaints by the Family Court, to maintain confidence in the Court system and its integrity, and to form a proper basis for any future enquiry by the Psychologists Board.

750 If the psychologist were to be challenged by cross-examination, or by alternate evidence presented during the hearing, the judge would have to include in his or her judgment an exposition of the competing evidence, and specific rulings on the acceptability of the report writer’s assessment methodology and procedures.

751 The process employed between the Court and the Psychologists Board would operate similarly to the Human Rights Commission’s procedure for harassment complaints. Where an institution has its own complaint procedure, that procedure is followed. But if the institution has no such procedures, or does not follow them correctly, then the Human Rights Commission carries out an enquiry and makes findings.

752 The Family Court could employ similar processes for dealing with complaints about report writers. So long as these were properly followed, the Psychologists Board ought, in normal circumstances, to accept the Court’s findings as a final resolution of the complaint. Only in exceptional circumstances would the Board revisit the circumstances of a complaint about the behaviour of a psychologist in the Court context.

753 If this suggestion for dealing with complaints against psychologists were to be pursued, further negotiations would be needed with the Psychologists Board. Judges would need training to ensure judgments recorded adequately psychological evidence and challenges to it, and findings in respect of that evidence.

754 The proposals outlined here could apply to the procedures set out in the Health Practitioners Competence Assurance Bill, but they would need to be expressly recognised in legislation. The Family Court would have its own complaint process, which, normally, would be adequate; only in exceptional circumstances would the matter be referred to the Health and Disability Commissioner.

PSYCHOLOGISTS’ OTHER TASKS

755 During proceedings, a section 29A psychologist’s report is often requested with a view to gathering information that might help parties agree. Report information can reassure one party with misgivings about the other, or offer a reality check for one who has been maintaining an untenable position regardless of the interests of the child or the practicalities of the situation. Some parties will use the report as a guide for arrangements that meet the child’s needs.

756 Because the report writer has expertise as well as knowledge of the family, his or her input in discussions can be valuable in bringing about a settlement. To this end, report writers have sometimes been invited to a mediation conference with the judge, to give advice on arrangements that would be in the child’s best interests. Such input might also be valuable in a round-table meeting organised by, for instance, counsel for the child.

757 Conflict can, however, arise at this point in the psychologist’s role. A psychologist asked to prepare a section 29A report is an expert witness engaged by the Court to give evidence at a hearing. If the psychologist is involved in settlement discussions merely to confirm information provided in his or her report, there will be no conflict. If, however, the psychologist goes beyond that information-giving role to become a facilitator, or to offer an opinion on an arrangement, it might compromise the psychologist’s perceived independence in the hearing. Stepping outside the assessment role poses a risk for the report writer.

758 Psychologists, and others qualified to act as Family Court report writers, do have experience and expertise that might well be valuable in settling disputes. The Family Court could employ them as facilitators in a role quite separate from their report writing function; for example, they could provide useful information, expertise and reality checking at a mediation. They could be available as specialist counsellors where skilled intervention is required; such situations would include those involving high-conflict litigants, and those that have reached an impasse. Skilled intervention may be more productive than fast tracking the matter to a defended court hearing.

759 Were the Court to use psychologists for tasks other than report writing, the two roles would have to be clearly differentiated; one psychologist could not be a facilitator and a report writer for the same parties in the same case.[212]

Recommendations

It should be made clear that counsel for the child can confer with a report writer and give him or her background information without compromising the report writer’s independence.

Courts should review the way they manage critiques of written reports.

Procedures for complaints about Family Court psychologists should be reviewed in consultation with the Psychologists Board, with a view to the Family Court dealing with any complaints about work done for the Court.

The Family Court should use psychologists as facilitators and counsellors, but clearly differentiate these roles from report writing.

REPORTS FROM SOCIAL WORKERS

760 Sometimes the Court seeks input from Child, Youth and Family Services social workers in proceedings other than those brought under the Children, Young Persons, and Their Families Act 1989 (CYPF Act).

761 The circumstances in which social workers are brought in include the following:

• The Family Court might, during guardianship proceedings, become aware of matters requiring intervention under the Act; for example, extreme conflict, sexual abuse or physical harm.

• The Court needs information that CYFS holds about a family.

• The Court wants a social worker’s report under section 29 of the Guardianship Act 1968, usually in a custody and access dispute.

762 Preliminary Paper 47 discussed these circumstances in detail,[213] along with the Department for Courts and CYFS protocol. The protocol[214] sets out a process for the Court to refer matters to the Department[215] and the care and protection co-ordinator,[216] and for a social worker report.²¹⁷ It includes a procedure for responding to requests for information, and a response timeframe. Where a referral is made under section 15 of the CYPF Act, CYFS must prioritise the case as “critical to be responded to on the same day”, or “low urgency within 28 days”, or “no further action”. The Court must receive a brief written report as soon as possible. A referral made under section 19 of the CYPF Act requires the care and protection co-ordinator to inform the Court of the intended action within seven days, and report back within 28 days.

763 The protocol identifies two types of section 29 social worker reports under the Guardianship Act 1968. The first is a limited report on what the Department already knows. Because it is limited and specific, it might be provided within one working day. A general report is a fuller assessment, and must address specific issues the Court identifies. It is expected to take six weeks to prepare.

764 It is our understanding that response to the protocol varies, but that it works best where there is good liaison between the local Court and the CYFS branch.

765 There remain areas where the Family Court might benefit from social work assistance but which are not covered explicitly by legislation and therefore not subject to the protocol; for example, urgent assessment reports where applications are made without notice or with time abridged. Sometimes on these occasions the Court appoints counsel to assist, when a social worker might be more appropriate.

766 In guardianship matters, a report from a social worker might sometimes be more appropriate than one from a psychologist.

767 Most Family Courts no longer request section 29 social worker reports from departmental social workers because it is difficult to get them promptly. However, the psychologists available to prepare section 29A psychologist reports are very busy, and it would relieve pressure on them and the Court if some of the work were to be done by social workers.

768 Where risk to a child is raised under section 16B of the Guardianship Act 1968, the obvious person to investigate urgently and report to the Court is a qualified social worker. The Guardianship Act provides for social worker reports under section 29 but these are rarely, if ever, obtained because they cannot be provided quickly enough. Counsel for the child is sometimes asked to provide such a report. This is completely inappropriate as counsel is not qualified to assess risk.

769 Our preliminary paper suggested the Family Court contract private social workers to do this work. If it were to do so, it would have to pay for their reports in the same way it pays for section 29A psychologists’ reports.

770 We are aware that some Family Courts have commissioned reports from private social workers in guardianship matters, but the legislation does not allow for it. A report under section 29 of the Guardianship Act can only be obtained from a CYFS social worker; reports requested under section 29A are medical, psychiatric or psychological.

771 The legislation would have to be amended if reports were to be obtained from private social workers. If this were done, we would expect qualified social workers in private practice to be interested in undertaking this Family Court work.

772 We would prefer CYFS social workers to be available for the work. They have access to departmental records, and powers to obtain information under sections 59 to 66 of the CYPF Act unavailable to a private social worker.

773 We suspect that different funding arrangements might improve the situation. When the Family Court requests reports from CYFS, it does not pay for them because the work is funded by CYFS itself. The Family Court is currently having this work done by psychologists and counsel for the child, both of whom are paid by the Court.

774 Therefore, if CYFS were to be paid for guardianship reports from the Family Court budget, it would make little impact on the Court’s budget.

775 At the same time, having the Court pay for these reports might enable CYFS to employ social workers specifically to undertake the work. It would be sensible to investigate this option, and cost it, in relation to Family Court and CYFS budgets.

776 The alternative is that CYFS receive a specific budget allocation for Family Court guardianship reports in each district.

Recommendations

The Family Court must have access to social worker reports when required.

Methods of funding the preparation of these reports must be investigated, including the possibility of the Family Court paying CYFS for the work.

If CYFS is unable to provide the Family Court with social worker assistance, the legislation should be changed so the Court can obtain reports from privately contracted social workers.