Psychological assessments without control? A silent weapon against parents and children

Guardianship proceedings are one of the most sensitive areas of justice. It does not only decide on papers, deadlines and procedural proposals. It makes decisions about children, parents, family ties, trust, fear, loyalty and the future of entire families. That is why a simple rule should apply: the more sensitive the matter, the higher the demand for expertise, impartiality and procedural purity. However, practice shows that psychological reports, statements and "expert" materials that are not expert opinions, are not processed by an expert, do not arise on the basis of a court assignment and are often based only on one-sided information are sometimes included in these proceedings. Still, they can be heavy ammunition in the courtroom. And therein lies their danger.

Psychological language has extraordinary power in custody proceedings. When words like "emotional attachment," "secure relationship," "emotional regulation," "parental rejection," "traumatization," "loyalty conflict," or "stable caregiver" appear in a document, it doesn't feel like an ordinary claim by one of the parties. It looks professional. The judge, the OSPOD and the other parent are suddenly against a text masquerading as science. But scientific-sounding language does not mean scientific procedure. And a psychological formulation does not yet mean an expert conclusion.

An expert is appointed in court proceedings according to legal rules. It has a defined task, responsibility, procedural status, the opportunity to be heard, the obligation to answer questions from the court and participants. Its conclusion can be challenged, supplemented, confronted, and a review opinion can be requested. A private psychological report, on the other hand, often arises from the initiative of one parent, from his background, from his narrative, for his purpose and in his procedural interest. That in itself may not be illegal. However, it is dangerous when such a document actually starts to function as a quasi-expert opinion in the proceedings.

At such a moment there is a quiet distortion of justice. Although a private document is not formally designated as an expert opinion, it actually begins to influence the view of the child, the parents and the family situation. The report is not peer-reviewed, does not pass cross-examination, does not have to contain a standardized diagnosis, does not have to consider both parents, does not have to work with alternative hypotheses, but it still gets into the file and takes on a life of its own. It travels between the court, OSPOD, lawyers, sometimes even experts. A one-sided psychological picture begins to look like an objective reality.

A typical problem is one-sidedness. One parent brings a child to a psychologist. The other parent doesn't know about it, isn't invited, isn't investigated, can't react, can't tell his own version, can't draw attention to the context of the conflict. The psychologist then observes the child in an environment that may already be burdened by the long-term influence of one parent, conflict, fear, loyalty or a learned narrative. If such a meeting leads to a categorical conclusion about the child's relationship with the other parent, it is not a matter of professional certainty. This is a risky shortcut.

Context is everything in custody disputes. A child may reject a parent for many reasons. He may have an authentic negative experience. She may be tired of the conflict. He may fear losing the favor of a caring parent. He can repeat his vocabulary. It can protect the weaker parent. He may be in a loyal conflict. He may want peace, so he says what he thinks will end the pressure from the adults. Without a comprehensive examination of the family system, it is impossible to responsibly draw conclusions that may harm parental rights.

And here comes the crux of the problem: private psychological reports can be used as a psychological label in custody proceedings. In one sentence, the parent is portrayed as a burden, a threat, a source of stress, or a person the child does not want to be with. Then he no longer fights with the evidence, but with the image. Once a parent is put in the "problem" drawer, it's very hard to get out. Each of his procedural proposals is then perceived as a conflict. Every complaint as pressure. Each resistance as a confirmation of the previous sticker. This is judicially dangerous.

The situation when such a message is not made available to the participant in time is particularly alarming. If the parent learns about the psychological report after the fact, from another file, or months later, while the document was already in the court file, this is a serious adversarial problem. A fair trial is not just about the participant being able to speak. He stands on the fact that he knows what to defend against. Concealed or delayed access to psychological evidence in a custody case is a procedural mine.

A specific case that can be used as a cautionary example shows just this risk. The psychological report was not an expert report. It was not processed by an expert registered in the list of experts. It was entered into the guardianship file and stated itself that it was to serve as a basis for the court's decision. It was based on observation, an individual interview with the children and an analysis of a selected document, not on a comprehensive expert assessment of both parents and the entire family system. The authorities subsequently claimed that the report was not the basis of the decision. But the very existence of such a contradiction shows how dangerous these documents are: formally, their importance is downplayed, but in fact they can influence the atmosphere of the proceedings and the view of parents.

Of course, it cannot be stated in general terms that every psychologist outside the expert list is unprofessional. That would be unfair and factually incorrect. Many psychologists do quality therapeutic or counseling work. The problem is elsewhere. Therapy is not expert testimony. A counseling interview is not a forensic examination. Intimate contact with the child is not an objective reconstruction of the family conflict. And a report prepared at the request of one party must not be mistaken for impartial court evidence.

Guardianship justice needs to be much stricter in this regard. If an expert assessment is needed, an expert should be appointed. If a private psychological report is submitted, it must be clearly labeled as private evidence and not as expert opinion. The court must examine who ordered it, what basis it was based on, whether the other parent was invited, whether valid methods were used, whether the conclusions are not speculative and whether the other party was given a real opportunity to express themselves. Without it, guardianship proceedings become a space where one side can deliver a "professional-sounding" text and thereby change the focus of the entire dispute.

The most dangerous thing is when courts and public authorities hide behind the formula: "it's not an expert opinion". Yes, that's why you need to be careful. This is precisely why such a document cannot be used as expert evidence. That is why its conclusions cannot be allowed to act in the file without strict procedural treatment. If the document is not an expert opinion, it must not have expert effect.

Children must not be the subject of parents' psychological strategies. Parental rights must not be destroyed by private messages that have not been thoroughly vetted. And the court must not allow technical language to become a substitute for evidence. Custody proceedings are not about one parent winning over the other. This is about protecting the child and maintaining a fair trial. Where psychology rules without rules, the risk of judicial arbitrariness begins.

Source:

1. The Constitutional Court of the Czech Republic.III. ÚS 2396/19 – Expert opinion and its evaluation by the court in proceedings on the entrustment of minors to the alternate care of parents. 29/10/2019. Available from:MeziSoudy.cz– III. US 2396/19

2. The Constitutional Court of the Czech Republic.III. ÚS 299/06 – On the evaluation of evidence by an expert opinion by a court in criminal proceedings. Available from:MeziSoudy.cz– III. US 299/06

3. Ministry of the Interior of the Czech Republic.Evaluation of expert opinion. Available from:MVČR – Evaluation of expert opinion

4. Adikia.Ten quality expert opinions. 21/04/2013. Available from:Adikia – Ten quality expert opinions

5. Lawyer's Journal.The adversarial principle in criminal proceedings – European context and Czech reflection. 20/03/2019. Available from:Advocacy journal - The principle of adversarial justice in criminal proceedings