State of Israel
Ministry of Justice
Report of the Committee for Examining the Legal Aspects of Parental Responsibility during Divorce
Complimentary Report of the 2008 Intermediate Report
Submitted to the Minister of Justice, Professor Yaakov Neeman
Elul 5771 (September 2011)
[Brief Recommendations Regarding Appointing a Parental Competence Specialist]
On April 2008 the Committee submitted to the Minister of Justice a report summarizing the first part of its discussions: “The Committee for Examining the Legal Aspects of Parental Responsibility during Divorce, Stage 1 – Intermediate Report” (hereinafter: “the Intermediate Report”). In the Intermediate Report the Committee recommended to amend the chapter regarding “parents and their minor children” in the Legal Competence and Guardianship Act 1962 (hereinafter: “the Act Proposal”, appendix 2 of this report). The amendment is intended to settle a new normative agreement of parents-children relationship, including during divorce, based on the perception of Parental Responsibility in the UN Convention for Children’s Rights 1989.
In the second stage of the Committee’s discussions, which lasted a lot longer than expected, the Committee’s members disagreed regarding a suggestion to update the rules according to which the court should decide in disputes between parents regarding the manner in which they’ll realize their Parental Responsibility, and settle an agreement in the absence of parental consent regarding Parental Responsibility’s realization in the child’s best interest.
2.5 Using Specialists in Family Courts
Based on the information learned by the Committee from the surveys conducted by its members in the second stage of its work: Dr. Aliza Ring, Ms. Anat Inbar, Prof. Shahar Golan, Dr. Roy Eldor and the psychology and psychiatry specialists who gave the Committee their opinion verbally and in writing. The Committee wishes to thank Dr. Mordehai Shery, Ms. Hadara Bar, Dr. Gavriel Vail, Dr. Avigail Golomb, Prof. Sol Driman, Dr. David Yagil and Dr. Marganit Karmon for their contribution and assistance to its work, the research material and the comparative information presented before the Committee revealed some issues which the Committee believes need organizing.
The first issue the Committee dealt with is how to correctly use the input of specialists and professionals assisting courts, in order to give the child’s best interest the appropriate place in the judicial process. For this end, courts tend to maximally use the tools at their service, and give substantial weight to the specialists and professionals’ opinions. Usually this approach is fitting and proper, however the Committee has been exposed to a lot of information indicating that in many cases, the exposure to specialists and professionals is not beneficial and may even harm the child.
Dr. Avigail Golomb’s Survey (brief)
One should remember that we do not examine the parent’s personality in vacuum but in light of the question whether he/she fits a certain child. In other words: I very much object the term “Parental Competence” outside the context of putting a child out for adoption, where Parental Non-Competence is really an issue. In almost all other cases we deal with Parental Fitness of a parent to a child, in certain time and conditions.
In all the literature I have not found a good diagnosis of Parental Competence and certainly not of Parental Fitness, although in many places such questionnaires and diagnoses were attempted. All the appropriate literature emphasizes that only broad examination, using multiple tools, yields a possibility of probable prediction. Therefore, the tests are one of possible tools, but have no meaning by themselves, just as one cannot determine recommendations based on a clinical examination of the parent alone, without knowing the child.
Dr. Marganit Karmon’s Survey (brief)
The issue of Parental Competence is sometimes used as a technique for abusing the system. Sometimes the stronger party uses it as a goading tool against the partner. It is indeed a good tool, but also a pricy one, which sometimes lacks reliability or validity. In order to illustrate this issue, in almost every visit to the aiding unit, except extremely exceptional cases, a narrow examination of about 4 hours (by a psychiatrist in the aiding unit) will allow for the same conclusions reached at the end of the day after the long process of Parental Competence evaluation. Very rare are the cases in which there is an actual problem of Parental Competence. For example, cases in which one of the parents is mentally ill.
For these reasons and since the Parental Competence is being abused as a tool by stronger parties against the weaker parties, it is unequivocally recommended that access to specialists will be through the aiding units. It is vital and essential that the court will not decide on its own to appoint specialists.
A dispute regarding the content of the parental plan should never be referred to a specialist. The specialist does not have better tools than the psychiatrist in the aiding unit for settling Parental Responsibility’s arrangements. It may be that the social worker’s tools are more suitable for this issue. Parental Competence examination may be appropriate when the aiding unit’s inspection shows that the partners, one of them or both, are so disturbed that he/she needs a professional reference. In these cases, Parental Competence examination may forward the process.
Another important issue is evaluating children by specialists. Many times, the children are being used as a goading tool, and inspections of children are a classic example of abusing children. When dealing with evaluating children, one needs to consult with a psychiatric specialist. Here too, the aiding unit should sort the cases referred to the specialist. It is less threatening for teenagers to meet with the aiding unit than with a psychiatrist and it doesn’t add costs to the parties themselves.
Dr. David Yagil’s Survey (brief)
When dealing with a normative family – a family in which both parents functioned as normative parents, and the cause for divorce is not related to their Parental Functioning, but to other issues – I cannot find any benefit in any psychological tests for the parents in order to examine what is known as “Parental Competence” (whether these are projectional psycho-diagnostic tests or objective ones). In normative cases, it is important to assume that until the dispute irrupted, no party had any claims against the other party regarding the issue of Parental Functioning.
The specialists who appeared before the Committee emphasized that referring the cases to the appropriate professional authority – social worker, aiding unit or specialist – should be done cautiously, and that one should avoid referring to a complex and “intrusive” process, which is usually also expensive and prolonged, before considering the possibility of using a less complex and “intrusive” authority. So, for example, sometimes specialists are appointed in cases in which there is no real issue of Parental Competence of either parent. In situations in which the dispute focuses only on distribution of the time the child will spend with each parent, the specialist does not have better tools to resolve the dispute than a social worker. In many cases a few hours’ meeting in the aiding unit will lead to the same conclusion as after long examination and psychological tests by a specialist for the court. The Committee heard that there are cases in which the debaters use the specialist’s opinion as a goading tool of one parent against the other, or as means to prolong the judicial procedure, in cases in which a party recognizes that the procedure is not progressing according to his/her wishes. In such cases, the children are the main sufferers from the exposure to a prolonged and “intrusive” inspection process. In light of all the above mentioned, the Committee believes it is highly important to identify in advance the cases in which appointing specialists will be effective and efficient and the cases in which a social worker of the aiding unit will be of better use.
The Committee has heard about many advantages of the aiding unit. These advantages derive first of all from its ability to promote focused dialogue between the parents, under cover of the court, in order to solve the dispute consensually. The aiding unit includes, in addition to the social workers, mental health specialists that can assist in cases requiring such assistance. The aiding unit’s work is being done relatively quickly and without direct cost to the parties themselves. The referral to the aiding unit is also less labeling for young children or adolescents than independent referral to a mental health specialist. The Committee formed an impression that the aiding unit can be used to examine the need to refer to a specialist, as determined in its explicit roles in article 5(a) of the Family Court Act and article 2(a) of the Religious Court Act. Referring the parties to the aiding unit, in order to examine whether the case requires appointing a specialist, will reduce the number of cases in which a specialist’s opinion might harm more that benefit. In addition, identifying the cases in which appointing a specialist does not benefit professionally and the same inputs can be received using a social worker’s report.
The information revealed before the Committee shows that the cases in which the use of a specialist is effective are cases in which one of the parents or the children suffers from a mental illness which harms, or might harm, the possibility of realizing the Parental Responsibility, or cases in which the dispute level is extremely high and does not allow any dialogue between the parents regarding realizing their Parental Responsibility. In all other cases the Committee believes that the need for appointing a specialist should be truly examined, whether the expected benefit from the appointment outweighs the harm of exposure to the specialist’s examination procedure.
The information presented before the Committee shows that an opinion on behalf of only one parent does not benefit the court, and being partial it even twists the family’s situation report. In order to form an appropriate opinion one needs the parent’s cooperation and therefore appointing a specialist should be done fore and foremost only by the court, but only in cases in which there is an actual justification for its appointment. In light of the damages which may be inflicted upon the children as a result of the exposure to the prolonged and intrusive procedure of specialist’s examination, the Committee recommends that an opinion on behalf of a parent will not be submitted without pre-approval of the court. In addition, in cases in which the court believes it has all the information needed to make a decision, it should have the legal authority to prevent the proceeding’s prolonging by appointing a specialist on behalf of a parent. Therefore the Committee recommends that before making a decision to appoint a specialist, the court will be required to a writing recommendation of the aiding unit or a social worker’s report regarding the need to appoint a specialist.
An additional issue brought before the Committee is the lack of uniformity in the work of different specialists. The Committee heard that some specialists insist on conducting interviews with the whole family, nucleus and extended, and on receiving information from relevant factors in the education, welfare and health systems. But some specialists do not insist on hearing all the factors influencing the child’s life. The Committee attributes great importance to promoting the uniformity of specialists’ work and to creating transparency in their work, in order to allow the courts to critically examine the specialists’ opinions submitted. Therefore the Committee recommends that the opinions will explicitly specify both the unique examination and diagnosis tools used and the sources upon which they rely, including the nucleus and extended family and relevant factors in the education, welfare and health systems.
The Committee has also heard different opinions regarding the types of tests used by psychologists in evaluating Parental Ability. It was also exposed to the heated dispute in the psychological profession regarding the reliability and compatibility of the tests in diagnosing Parental Ability. The specialists’ testimonies and the research material published in scientific journals in the field presented to the Committee, show that sometimes the specialists tend to deduce conclusions regarding Parental Ability based primarily on psycho-diagnostic tests, which are not a suitable tool for this end. In light of the above mentioned the Committee believes that the professional factors should lay down standards for using psychological tests for predicting and assessing Parental Ability in a careful and reliable manner.
The specialists who have testified before the Committee pointed out that they lack a training program regarding conducting psychological opinions for courts, and as a direct result we see gaps between different specialists in the way they conduct their opinion. In contrast, legal social workers must go through a training program and continuing education program in order to be appointed by the Minister of Welfare for their duty. The Committee attributes great importance to creating a training program by the professional factors which will lay down standards and create greater uniformity in the specialists’ work in courts.
Finally, the Committee has heard much of the heavy load that social workers deal with, and as a result of it, in many cases, the court orders to conduct a survey in very early stages of the procedure, in order not to delay the discussion later on having to wait for the survey. Therefore the Committee recommends that the court will order to conduct a survey only after having a discussion with the parties in which it found that the survey is indeed necessary for consolidating the parental agreement or after the aiding unit has recommended it. All that, in order to relieve the heavy load laid upon the social workers, by conducting surveys only in cases in which the need for it is real. In order to overcome the concern from delaying court’s discussions due to waiting for surveys, after the court has decided it is required, the Committee recommends that the order in which the surveys be conducted will be determined according to the date of opening the procedure in court and not according to the date of court’s decision to conduct the survey. Therefore the court will not have concerns that the survey will be delayed due to the later date in which the court has instructed its preparation.
After many deliberations of the Committee regarding these issues, the Committee has first consolidated suggestions for regulating by law the tools the Family Courts and the Religious Courts have for determining the child’s best interest and the Parental Responsibility Agreement according to article 9 of the law’s proposal (hereinafter p. 33), which will be presented in the next clause. Second, guidelines for appointing a specialist in court as detailed in article 2.7.
The testimonies before the Committee show that specialists are sometimes appointed in cases in which the parents are normative and there is no issue of Parental Ability. In these cases, the specialist’s tools are not better than those of the judge and the social worker in order to make a decision and settle a Parental Ability Agreement. On the other hand, the referral to a specialist may inflict harm to the debaters and their children. Such harm may derive from the exposure to multiple examinations which may be unpleasant for the parents and children, from the high financial cost of the opinion, and also from the prolonging of the legal proceedings. In addition, the Committee was shown that sometime specialist’s opinions are used as a goading tool by one parent against the other.
For these reasons the Committee wishes to emphasize the circumstances in which appointing a specialists may be effective and efficient: when one of the parents or the children suffers from a mental illness which truly threatens or may threaten the realization of Parental Responsibility or when the dispute’s intensity is so high it does not allow a dialogue between the parents regarding realizing their Parental Responsibility. In other cases the Committee recommends to carefully examine the need to appoint a specialist, due to the doubt that the benefit from his/her opinion to the establishment of parental arrangement might be over-shadowed by the potential harm to children and parents inflicted by the actual examination process of the specialist.
Psycho-diagnostic tests should be carefully and rationally used while forming an opinion.
The specialists’ testimonies heard before the Committee and the research material published in scientific journals presented to the Committee, show that there is a dispute regarding the reliability and validity of some of the psychological tests frequently used to evaluate Parental Ability and Fitness. Likewise, sometimes there is a tendency among specialists to base their opinions on psycho-diagnostic tests, which are not a suitable and valid tool for this end. Therefore the Committee recommends that relying on psycho-diagnostic tests will be done only under careful consideration while specifying the limitations of the tool being used. In particular, a practice according to which the specialist uses the tests as the only or the main tool is not desirable.