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Undeniable Harms: Expert Evidence, Parental Capacity, and Cultural Bias in Child Protection Cases

by Heather Peterson


ntroduction

            Section 37(2) of the Child and Family Services Act (the “CFSA”) provides that, “in order to determine the best interests of the child, the judge or master may direct an investigation” into the matter.[1] In child protection cases, where a Child and Family Services (“CFS”) agency seeks to establish a permanent order of guardianship over a child, the investigation will take the form of a parental capacity assessment. Parental capacity assessments (“PCAs”) are a form of expert evidence used to help determine the ability of an individual to safely parent a child. In Manitoba, they are prepared by clinical psychologists at the request of the courts or CFS. PCAs are used as a rationale for either family reunification or “permanent severance of the parent-child relationship.”[2] 

PCAs purport to identify parental strengths and weaknesses as well as the needs of the child with the intent of trying to predict the probability of future harm.[3] Expert testimony is a controversial aspect of the law of evidence, and PCAs are rightfully critiqued for concerns about reliability and bias.[4] When expert evidence is influential in one of the most serious sanctions of society—whether a child becomes a permanent ward of the state—the applicability of that evidence must be robustly evaluated. PCAs are unique in that even when they are rejected by a trier of law, their conclusions have already been used to justify a child’s apprehension. Manitoba (Director of Child and Family Services) v MK and CJO is a distressing example of the need for culturally sensitive PCAs.[5] 


Background

            MK is about a child, M, who was apprehended at birth by order of CFS pursuant to section 17(1) of the CFSA.[6] M, like their[7] two older siblings, was deemed a “child in need of protection” and removed from their mother’s care. MK is the mother of all three children, and CJO, her husband, is the father of the middle and youngest children.[8] MK and CJO were newcomers to Canada, coming from Liberia and Nigeria, respectively; neither parent was proficient in English, and both spoke dialects that were rare enough that no interpreters were available in Winnipeg.[9] 

MK’s first child was apprehended due to her being charged with four counts of historic sexual assault on a child. These charges ultimately led to her being convicted of one count of sexual interference and one count of sexual assault, for which she was placed on two years of probation.[10] MK was compliant with her probation, and as of the time of writing, has not reoffended. Despite her lack of recidivism, MK’s second and third children were subsequently apprehended by CFS at birth; a parent with a conviction for sexual assault automatically triggers child protection concerns.[11] All three of MK’s children resided in the same foster home where the foster parents expressed the desire to adopt the children when CFS’ temporary order of guardianship expired.[12]

MK and CJO, very understandably, did not wish to see their children adopted by the foster family. Before the temporary order of guardianship expired, CJO asked if he could assume full care and control of the children if MK did not live with him. CFS and the trial judge, Dunlop J., thought this was a reasonable possibility, pending CJO’s participation in a PCA by a clinical psychologist.


CJO’s PCA

            CJO underwent a PCA by Dr. Enns. The PCA consisted of “cognitive and academic tests as well as observation and interview techniques.”[13] The PCA identified CJO as having limited verbal and written English language skills. Dr. Enns suggested that children in his sole care would be “physically, psychologically and linguistically” harmed.[14] Although Dr. Enns described CJO as “gentle, attentive, and loving”[15] when interacting with M, he found that CJO had a “low possibility” of achieving satisfactory and long-term parental care for his children.[16]

It is extremely important to emphasize that the PCA was conducted in English, and CJO was not offered an interpreter at any time. Dr. Enns did acknowledge that CJO’s poor English skills significantly affected the outcome of his PCA. But, instead of performing the assessment with an interpreter, Dr. Enns admitted to adjusting CJO’s scores “using [Dr. Enns’s] own intuition and without applying any scientific, systematic, mathematic or actuarial basis.”[17] Although PCAs are criticized for their basis in white, European norms,[18] Dr. Enns’s improvisation of CJO’s PCA was outrageous and unethical. Dunlop J. described Dr. Enns’s extrapolation of CJO’s scores as “completely off the cuff,”[19] rendering the overall process a failure of Dr. Enns’s professional obligations and CFS’s legal obligations to CJO and his children.[20]

            Triers of law may exclude evidence that is more prejudicial than probative.  Dunlop J. rightfully discounted Dr. Enns’s report in its entirety because it was so flawed as to be nearly useless. Unfortunately for MK and CJO, CFS had already accessed the PCA “and felt the findings were so damning to CJO that they wrote him off as a placement for M almost immediately.”[21] A biased PCA that leads to the severance of the child-family relationship contravenes both the CFSA and the principles of natural justice.[22]  It would have been reasonable for CJO to request a new PCA, prepared by a different practitioner with an interpreter but for a disappointing development in this case: CJO was in Canada by right of an expired student visa, and he was deported to Nigeria. With one parent previously deemed unfit, and the other deported, Dunlop J. very reluctantly granted a permanent order of guardianship over MK and CJO’s children, meaning they are eligible for adoption by their foster parents.[23]


Analysis

            The admissibility of expert testimony is determined using the two-part analysis from White Burgess Langille Inman v Abbott and Haliburton Co.[24] The first part of the test considers the expert testimony in the context of the four factors as contemplated in R v Mohan: “(1) necessity in assisting the trier of fact; (2) relevance; (3) a properly qualified expert; and (4) the absence of an exclusionary rule.”[25] The court’s order for a PCA of CJO meets all four Mohan factors; it was necessary to consider CJO’s ability to parent his children and this capacity was a primary focus of the case. Dr. Enns, despite his lack of judgment in this PCA, is a duly qualified clinical psychologist. Although there are very relevant concerns about the accuracy of the PCA, the evidence was not gathered illegally nor was it required to satisfy the general exclusionary rule for opinion evidence.[26] Therefore, no exclusionary rules are engaged.

            The second part of the White Burgess test is the “discretionary gatekeeping” stage where a trial judge must “undertake the cost-benefit balancing analysis” of the expert evidence.[27] CJO’s PCA fails at this stage of the test because of its flawed methodology and admitted bias.

MK was a complicated case, with an outcome that was unsatisfactory to most of the parties involved. Dunlop J. found that CFS failed in its legal responsibilities to CJO and failed to adhere to its own fundamental principles; CFS asserts that “the family is the basic unit of society, and its well-being should be supported and preserved” and that “families are entitled to services which respect their cultural and linguistic heritage.”[28] Although Dunlop J. discarded Dr. Enns’s PCA report, CFS accepted it as a rationale for the maintenance of the status quo, which was the three children remaining in foster care. MK was heard at the Manitoba Court of Appeal in October 2023 with a decision forthcoming.


Commentary

            Expert evidence used in child protection matters is fraught with controversy. PCAs are criticized for being expensive, taking a long time to prepare, and for being biased against persons of colour.[29] The psychometrics used to gather information about parents are based on white supremacy and skew negatively against Indigenous and Black families.[30] They do not consider the effects of colonial trauma on individuals, and they interpret the cultural norms of different groups in a prejudicial way.[31] Dr. Enns interpreted CJO’s quiet demeanour around M as a deficit in parenting when it was more likely that CJO was nervous, reserved, and struggled to express himself with his low English proficiency.[32] Additionally, PCAs are “not presently adapted” to the collectivistic approach to parenting and family that is present in many Indigenous and non-Western cultures.[33] 

            PCAs are increasing in frequency as an assessment tool in child protection matters. The ruling in Ewert v Canada found that risk assessments that do not consider cultural bias against Indigenous people are invalid.[34] On this basis, I submit that if a court uses expert evidence that aims to sever the parent-child relationship, it is integral to the principles of fundamental justice that the evidence be reasonably free of bias. This validity analysis could be easily placed within the second stage of the White Burgess test where a judge considers the probative cost-benefit analysis.


Conclusion

            Dissolving the bond between parent and child is one of the most intrusive uses of state power. Even when expert evidence purports to provide a firm rationale for the separation of parents and children, it must be rigorously analyzed to prevent the cultural and ethnic bias that has disproportionately affected Black and Indigenous families. 



[1] The Child and Family Services Act, CCSM, c C80, s 37(2) [CFSA].

[2] Nicholas Bala and Alan Leschied, “Court-ordered Assessments in Ontario Child Welfare Cases: Review and Recommendations for Reform” (2008) 24:1 Can J Fam L 11 at para 2.

[3] Nicholas Bala, Rachel Birnbaum & Carly Watt, “Addressing Controversies About Experts in Disputes Over Children” (2017) 30:1 Can J Fam L 71 at paras 1-2.

[4] David M Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed, (Toronto: Irwin Law Inc, 2020) at 234.

[5] Manitoba (Director of Child and Family Services) v MK and CJO, 2022 MBQB 175 [MK].

[6] CFSA, supra note 1, s 17(1).

[7] Identifying information of those involved with a child protection matter may not be published. We do not know the sex or gender of the children involved, so this paper shall refer to the children with the gender-neutral pronoun “they.” See generally CFSA, supra note 1, s 75(2).

[8] MK, supra note 5 at paras 1-2.

[9] Ibid at paras 8, 65.

[10] Ibid at para 16.

[11] CFSA, supra note 1, s 17(2)(b)(ii).

[12] Ibid, s 45(1); MK, supra note 5 at para 28.

[13] MK, supra note 5 at para 102.

[14] Ibid at para 104.

[15] Ibid at para 103.

[16] Ibid at para 73.

[17] Ibid at para 105.

[18] Peter W Choate & Amber McKenzie “Psychometrics in Parenting Capacity Assessments: A Problem for Aboriginal Parents” (2015) 10:2 First Peoples Child & Fam Rev 31 at 32.

[19] MK, supra note 5 at para 105.

[20] Ibid at para 111.

[21] Ibid at para 76.

[22] Ibid at para 148.

[23] Ibid at paras 148, 180.

[24] White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 at para 54 [White Burgess].

[25] R v Mohan, 1994 CanLII 80 (SCC) at 20 [Mohan].

[26] Supra note 4 at 234-235.

[27] Ibid at 252.

[28] CFSA, supra note 1, Preamble.

[29] Manitoba (Director of Child and Family Services) v HH and CG, 2016 MBQB 191.

[30] Paul Banahene Adjei and Eric Minka, “Black Parents Ask for a Second Look: Parenting Under ‘White’ Child Protection Rules in Canada” (2018) 94:3 Child & Youth Serv Rev 511 at 511.

[31] Supra note 18 at 38.

[32] MK, supra note 5 at para 111.

[33] Supra note 18 at 38.

[34] Ewert v Canada, 2018 SCC 30 at paras 87-89.

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