The Expert Witness as cultural oppressor

This blog is a guest blog by Peter W Choate, PhD (Associate Professor, Social Work, Mount Royal University, Calgary, Canada – pchoate@mtroyal.ca)

Peter’s work involves sustained critical discussions of the roles of parental capacity assessments and expert witnesses in the machinations that result in the disproportionate representation of Indigenous Canadian children in the Canadian child welfare system. Here, he discusses the powerful role of the ‘expert witness’ in court proceedings.

 

Today I made an appearance downtown

I am an expert witness because I say I am

And I said, ‘Gentleman..and I use the word loosely…

I will testify for you

I’m a gun for hire, I’m a saint, I’m a liar

Because there are no facts, there is no truth

Just a data to be manipulated

I can get any result you like

What’s it worth to ya?

The Garden of Allah Lyrics – Don Henly. Glenn Frey, Eagles

These words from the America band, The Eagles, is a stark reminder of the power of expert witnesses in courts. In the realm of child protection, mental health experts perform a variety of assessments that influence decisions about the future of children. This work can be in the area of addictions, mental health, domestic violence often wrapped up in the Parenting Capacity Assessment (PCA). A wander through the decisions and research literature in many Euro-centric countries shows that the PCA is a frequently used tool to guide courts in determining the best interests of the child (Choate, 2009).

The major components of the PCA include a data gathering process which sees a review of various records such as those of child protection, medical, mental health, school, criminal processes. Genograms and ecomaps are typical mapping tools. Psychometrics are used that look at personality, parenting attitudes, beliefs and behaviours. Specialized questionnaires might also be used to assess domestic violence, criminal propensity, addiction, and risk for child abuse (Choate & McKenzie, 2015). The goal is to determine if the parent is ‘good enough’ to care for their children (Choate & Engstrom, 2014). Curtis (2009) shows that PCAs have serious limitations that are often not considered. Choate and Lindstrom (2018; 2017) show that Indigenous people are disadvantaged in these assessments.

In Canada, Indigenous peoples have more contact with child protection than any other population group.  Nationally, 52% of children in care are Indigenous despite representing just 7.7% of the children aged 0-14. In Alberta, 69% of children in care are Indigenous. The over representation of Indigenous children involved with child intervention can be seen not only in Canada but also the United States, Australia and New Zealand. This is an artifact of the colonial processes that have marginalized Indigenous peoples. In Canada, this has included the destruction of family systems through residential schools, mass removals of children who were then placed in mainly white homes and the ongoing removal of Indigenous children for reasons of neglect that are directly related to colonialism. The neglect is most often connected to poverty, resource deprivation and social policies that deprive Indigenous communities of the power to manage their own child protection needs.

When an assessor is asked to consider the needs of an Indigenous family, the assessor will use Euro-centric approaches, theories, methods and practices that have never been developed within Indigenous cultures or ways of knowing. This is a major deficit for Indigenous peoples but one that social work sustains. Consider the following:

  • Family systems theory – a review of the literature shows that family systems are largely built upon “nuclear” systems or systems that use definitions of extended family to determine who is family. As shown in a project in which elders from the Blackfoot peoples’ participated, they do not construct the notion of family in linear or biologically determined ways. Thus, tools like a genogram force Indigenous people to build a picture of the family from non-cultural understandings.
  • Attachment theory – this uses dyadic understandings of the nurturance, development and social grounding of bringing a child into places of safety and connection. Attachment is no doubt important for all children, but Indigenous understandings use multiple caregiving connections, not dyadic (Choate et al., 2018).
  • Moral development – using the example of Maslow, we see that children are drawn up the Hierarchy of Needs towards self-actualization. Developed with the Blackfoot peoples of Southern Alberta, the notion of the hierarchy is misunderstood by Maslow. Rather, they would tend not to use a hierarchy but rather series of circular interconnections. Elders have told us that Maslow basically got it wrong.
  • Strength theory tries to look at where these lie and how they can be enhanced. Yet, if the programs and care plans are not drawn from Indigenous ways of knowing, then the strengths will be missed (such as the role of ceremony, elder knowledge and communal caregiving) and families are then often referred to services drawing from Euro-centric understandings.

When social workers appear in court to present evidence, they do so drawn from their education, training and knowledge. The real question becomes whether the evidence being presented is valid. Courts have various criteria for the acceptance of expert evidence. Canada has set a four-point test as a result of a Supreme Court of Canada decision, R. v Mohan:

  • It must be relevant,
  • must be needed to assist the trier of fact,
  • should not trigger any exclusionary rules, and
  • must be given by a properly qualified expert

Assessments can be relevant and essential for the court. It is really the fourth item – a properly qualified expert.  The test might be considered from the vantage point of possessing specialized knowledge in the areas of child development, child abuse and neglect, mental health, substance abuse, domestic violence and parenting. Experts also typically have education in social work, psychology or related disciplines. This education typically does not include significant knowledge in Indigenous childcaring or cultural systems. In research we have recently completed (Choate, St-Denis & MacLaurin, In review) we have shown that social work is well behind the curve in the inclusion of Indigenous knowledge in their education.

The Truth and Reconciliation Commission (2015) has specifically called upon social work to stop its cultural genocide through child intervention. Courts must start to demand that expert evidence not be considered valid without specific knowledge of Indigenous cultural child rearing. If that is not brought into our education, then we sustain colonialism but worse, we continue to create real harm that is being repeated from generation to generation. Social work has a direct role in the genocide of Indigenous peoples by carrying out the policies of governments that are focused upon assimilation rather than preservation of Indigenous cultures and peoples.

Image credit: Phil Roeder

References

Choate, P. (2009). Parenting Capacity Assessments in child protection cases. The Forensic Examiner, Spring, 52-60.

Choate, P. and Engstrom, S. (2014). The “Good Enough” parent: Implications for child protection. Child Care in Practice, 20 (4),368-382. https://doi.org/10.1080/13575279.2014.915794

Choate, P., Kohler, T., Cloete, F., CrazyBull, B., Lindstrom, D., &Tatoulis, P. (2018). Rethinking Racine v Woodsfrom a decolonizing perspective:Challenging applicability of attachment theory to Indigenous families involved with child protection. CanadianJournal ofLaw and Society. Accepted.

Choate, P. &Lindstrom, G. (2018). Inappropriate application of Parenting CapacityAssessments in the child protection system. In D. Badry, H.M. Montgomery, D. Kikulwe, M. Bennett and D. Fuchs (Eds). Imaging child welfare in the spirit of reconciliation(pp. 93-115). Regina, SK: University of Regina Press.

Choate, P. and Lindstrom, G. (2017). Parenting Capacity Assessment as a Colonial strategy.Canadian Family Law Quarterly, 37, 41-59.

Choate, P. and McKenzie, A. (2015). Psychometrics in Parenting Capacity Assessments: A problem for Aboriginal parents. First Peoples Child and Family Review, 10(2), 31-43. http://journals.sfu.ca/fpcfr/index.php/FPCFR/article/view/249

Curtis, C. (2009). Limits of parenting capacity assessments in child protection cases. Canadian Family Law Quarterly, 28, 1-23.

Truth and Reconciliation Canada. (2015). Honouring the truth, reconciling for the future: Summary of the final report of the Truth and Reconciliation Commission of Canada.Winnipeg: Truth and Reconciliation Commission of Canada.

 

 

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