PROVING THINGS 159: A FORMULAIC APPROACH TO EVIDENCE WHICH LEADS TO CONFIRMATION BIAS: THE DANGERS OF PRO FORMA EVIDENCE GATHERING
This blog has looked, several times, at the way in which the family courts look at both expert and lay witness evidence. The judgments of the family courts contain many examples of issues that arise throughout civil litigation. We see this in the judgment of HHJ Greensmith in A (Child) (Rev 1)  EWFC B34.
The judge was considering an application by the local authority for a care and placement order of a 7 month old child. This application was supported by the child’s Guardian but opposed by the parents. The parents argued that they had recently taken steps to improve their own position and these had no been properly taken into account by the professionals who were assessing the situation. The judge found that the parents’ concerns were correct.
THE LOCAL AUTHORITY’S FORMULAIC APPROACH
The judgment opens with the judge’s criticism of the formulaic approach taken by the local authority and guardian.
“In this case, both the local authority and the guardian have relied on what are clearly proforma platforms to convey their attempts to conduct and relay their analyses. Unfortunately, the approach in this case has left the court wholly ill-equipped to conduct its own holistic and multi-faceted analysis of the options for the child. The analyses presented to the court lack essential ingredients; they are presented in a formulaic manner that undermine the process.”
FAILURE TO UPDATE THE EXPERT
The judge was critical of the failure to instruct the psychological expert to prepare an updated report.
“During cross-examination Ms Roberts was referred to the mother’s most recent drug test results and acknowledged that the mother’s position has improved over the last four months since she prepared her report in February. It is acknowledged that when the report was prepared the parents were sleeping rough whereas they have now secured accommodation. It is regrettable that up to date information has not been supplied to Ms Roberts prior to the hearing. The psychologist was expected to form a view based on reports she had just received and without the benefit of a follow up meeting with either parent. I understand Ms Roberts was trying to be helpful, but I do have sympathy with the parents who are putting forward a case of being pre-judged by professionals. A follow up report should have been requested in the light of the parents’ changes in circumstances so the psychologist could form her views from first hand assessments. The fact that the psychologist gave her opinion based on such limited information and without a further meeting with either parent somewhat undermined the value of the psychologist’s expressed opinion, in my view.”
THE SOCIAL WORKER
The judgment in relation to the evidence of the social worker contains the judge’s observation of an appearance of unprofessionalism and “confirmation bias”.
“The social worker was questioned on the amount of time she has with the parents before finalising her report dated 1 April 2019. She confirmed she would normally have 6 – 8 sessions with the parents to prepare an assessment, but for the purpose of this report that she only saw the parents together once. She had not visited the parents’ home despite their having lived there in excess of three months prior to the hearing. The social worker was unable to give a cogent account of the local authority’s plans for contact during the placement period. She accepted that such plans did not form part of the care plan and stumbled to find reference to them in her notes. Her final account left me of the view that she was formulating a contact plan in the witness box. This gave the appearance of unprofessionalism and I am sure did not inspire confidence in the parents that their contact with their child following the making of a placement order had not been considered by the local authority.
My concern regarding the way the local authority has approached this case is compounded by the social worker’s statement that the mother’s drug results, “Indicate maintained high use of substances, cocaine, amphetamines and cannabis” (my emphasis). When the statement was written, this assertion simply was not true; under cross-examination, the social worker admitted this. At best this is a careless misrepresentation of a significant fact. Being generous to the social worker, rather than forming the view that she has deliberately attempted to misrepresent, I would rather believe that it is an example of confirmation bias on the social worker’s part. In other words, when considering the evidence, she has seen only information that confirms her currently held belief and discounted evidence that does not.”
The Guardian was criticised for relying heavily on the views of the local authority and also for not really understanding the legal test that had to be applied (in circumstances where here report siad that she had considered this test).