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Assessing Risk: A Report on the Family Justice Council Annual Seminar

Louise Scott, a pupil at 4 Brick Court, reports on the Family Justice Council's recent conference on risk assessment in family proceedings

 Image of Louise Scott

Louise Scott, Pupil, 4 Brick Court

The highly successful London Family Justice Council's Seminar was held in April where 300 delegates who work in Family Justice attended. Delegates ranged from members of the judiciary, barristers, solicitors, magistrates clerks, CAFCASS, Guardians and representatives from the Ministry of Justice to name but a few. As this annual seminar was heavily oversubscribed I have attempted to highlight the key points of the talks during the day for the readers of Family Law Week.

The theme of the seminar was risk assessments and two eminent speakers attended to deliver lectures on the subject. Professor Don Grubin Professor of Forensic Psychiatry from Newcastle University discussed risk assessments, their usefulness and validity and Dr Gillian Mezey Reader and Consultant in Forensic Psychiatry from St George's University of London discussed risk assessments in the context of domestic violence.

What to make of risk assessments?
The three key points which Professor Grubin's made in his lecture were:

  1. Know your expert area better than the experts
  2. Challenge the meaning of risk
  3. Know what is behind the risk assessments

In Professor Grubin's experience the attitude in the USA was very different in respect of experts where lawyers would know the area of expertise as well as if not better than the expert and would cross examine much more vigorously having the knowledge from their own research to ask the right questions. Professor Grubin's suggestion for the UK family courts was for a single court appointed expert in cases with each party being able to have an expert to advise them on the court appointed expert's report and areas for cross examination. It was his opinion that lawyers should have a good enough understanding of expert areas to be able to cross examine effectively and this means keeping abreast of all the developments in a particular area and knowing the new research papers on the topic.

The meaning of risk was also discussed in quite a lot of detail. When experts talk about "high risk" do we as advocates question the meaning of high risk? Do we ask the witness to define low, medium, high and very high risk? Professor Grubin illustrated this with an excellent example of an airline which had a record of its aeroplanes crashing in 10% of flights. Everyone agreed that they would not take the risk to fly with that airline and declared that the risk was too high. However, if an expert tells the court that there is a 10% chance of an individual re-offending it is likely that we would class this as low risk. Professor Grubin made the very valid point that we must challenge standard stock phrases when talking about risk assessment to ensure that, for example, when we talk of low risk everyone involved in the process is using the same definition of "low risk." Risk assessment involves subjectiveness and is not a prediction. If there is an 80% chance of something happening that means that given the same set of circumstances X will happen 8 out of 10 times.

In particular he said that he was an experienced expert and had never been asked in the UK courts (as he was routinely asked in the US) about the instruments that he had used in his risk assessments and it would be the first question that he would ask if he was an advocate. What instruments have been used and are they valid? What is the data/evidence to back up that instrument? Does the "science" behind the risk assessment make it a valid assessment to be using? Professor Grubin commented that there certainly in the past have been instruments being used for risk assessments which are supported by studies which don't hold up to scrutiny. This may be because there was only a very small study carried out with small populations, poor sample size or that the results weren't as high as you would expert with anomalies in the results. We may think that if there was a question mark over validity that the expert would put that into their report, however very often this point is overlooked and is not dealt with in oral evidence.

Use of Polygraphs
Another interesting point which was raised was whether the use of polygraphs can help in the family courts. We were told that polygraphs have been used three times in the UK family courts and are now 80% reliable. Would you recommend a polygraph to a parent with a success rate of 80%? Professor Grubin has written an article in the British Journal of Psychiatry (2006) on polygraphs in the testing post sex offenders. Most interesting was the evidence we were shown at the seminar from studies by Heil et al (2003) on polygraphs where questions were asked about the likelihood of re offending. The studies found that when being polygraphed people disclosed much more information voluntarily on their likely re-offending behaviour than when they were not undertaking a polygraph. When convicted child molesters were asked whether they would sexually abuse relatives those responding "yes" went from 16% when not being polygraphed to 65% when polygraphed. The usefulness wasn't about the reliability of whether polygraphs could detect where people were lying or not but that people were much more likely to tell the truth when they were being polygraphed. The speakers thought that polygraphs would be particular useful in family cases where the issues revolved around "he said, she said" types of allegations.

Domestic Violence and Risk Assessments
Dr Mezey began her lecture by focusing on the definition of domestic violence reminding us all that domestic violence is not purely physical violence between couples but can also be sexual, financial or emotional abuse between adults who are or have been intimate partners or family members regardless of gender or sexuality. There are risks to both the physical and mental health of the victim of domestic violence and domestic violence can kill and is the largest cause of morbidity in women aged 19-44 with 2 women being killed each week in the UK by a current or former partner.

Being a victim of violence affects the ability to parent and Dr Mezey commented that it is very difficult to assess the competence of parents (both victims and perpetrators). What is known however and what those working in family justice are aware of is the effect which domestic violence has on children. Studies have shown that domestic violence affects a third of children on child protection registers and Dr Mezey showed the seminar many studies which have found that the effects of domestic violence on children to include (and are not limited to):

The Value of Risk Assessment in Domestic Violence cases
Risk assessing in case where there was domestic violence is important as it enabled information about known risk factors to be obtained in a sensitive manner in order that safety could be planned and managed.

There were many different risk assessments which could be used. Most screened through questioning for factors which included the frequency of violence, the type of violence, whether there was ever the use of a weapon, whether violence escalated during pregnancy and factors relevant to the perpetrator such as unemployment or alcohol use.

Dr Mezey said that it was important to work with victims as well as perpetrators to educate them to the risks of domestic violence on themselves and on their children.

Treatment for Perpetrators of Domestic Violence
Studies have found that group treatment programmes have had some success in reducing violence and are most helpful when perpetrators attend programmes which have been directed by the courts. Programmes will help where responsibility for the violence has been accepted and where treatment focus' on addressing the dynamics involved in violence in relationships and which help perpetrators to develop skills to deal with situations where they feel that they may be violent.

At the conclusion of the day, Dr Mezey asked the delegates how we chose our experts. What is it that makes us chose X over Y? Is it reputation? Do we have a list? Is it because an expert has been on a particular course? Some delegates said that the reputation of the proposed expert was a highly relevant factor, they knew that the expert would produce a good report, would be a good witness or be a good choice for their case. Often timescales and the availability of experts meant that an expert was chosen who could get the job done in time. Dr Mezey suggested that she wanted to work with the Royal College of Psychiatrists to produce an accredited list of experts as she was concerned that experts could go on a course and call themselves an expert which would give the impression of them being more experienced than they actually were.

She asked whether delegates would find such a list useful and the response was yes.

This was a truly informative and well organised event. My advice is to book early for next year's seminar as it is highly likely that the limited places available will fill quickly again.