Let me clear up a legal factor that seems to be cloudy
to some readers who in their frustration with child protection agencies in Canada,
spout “I thought we were innocent until proven to be guilty.” That axiom continues to be true in criminal
proceedings. Child protection proceedings however, are not criminal in nature. Rather
they are civil proceedings and that means that the standard of proof is a
balance of probability. You may still dislike that.
That balance of probability proviso when harnessed to child
protection’s remarkable degree of legal authority over children disturbs and
even angers many parents beset by CP case workers. In every Canadian
jurisdiction there is now comprehensive child protection legislation. If that
were not enough, the common law has given courts inherent jurisdiction over
children who are in danger, and this jurisdiction is called parens patriae. The
summary truth is that in Canada
the natural parental custody and even court ordered guardianship is superceded
by child protection or child welfare orders.
British Columbia's
legislation is entitled Child, Family
and Community Services Act. This legislation provides for an inexhaustible
range of reasons for intervention for children in family situations where
protection is deemed necessary. Many reasons provide an understandable and even
welcome rationale for child protective custody. We become nervous about
Ministry involvement in other cases. If a child displays anxiety, depression,
withdrawal, or self-destructive or aggressive behaviour, a parent may be
assessed as inflicting emotional harm. If a parent questions and resists a
certain course of medical treatment for a child, that can be deemed as
deprivation of necessary health care. And as we have noted in the Paul and
Zabeth Bayne case, unexplained injuries to a child defend the Ministry’s intervention.
Good Samaritanism is turned on its ear by the requirement to
report a suspicion that a child may be in need of protection. No, let’s say
that Good Samaritanism is enforced under penalty of law to report. It is
mandatory for school teachers, neighbours, relatives, medical professionals,
you, who observe bruises or injuries that can’t be adequately explained, or
hear a child’s statement about being abused or harmed, or notice a child
persistent uncleanliness, sickness or drowsiness, to report this.
Social workers who receive such reports then initiate investigation
of the reported information. When such exploration results in a decision to intervene,
British Columbia’s unique legislative
feature is to personify the child protective actions as those of the regional
Director. So in all cases, the legal documentation cites the names of parents
and children and this opposing senior public servant, who is himself or herself rarely
or never personally involved in the individual cases and never actually appears
in court. Therefore, by the formal reference to the Director what is meant is
the child protection team or social workers supervising that file. Therefore, Director
Bruce McNeill has taken a lot of heat from many of us with respect to the
Baynes when in actuality, he may or may not have had input into certain actions
by MCFD. On the other hand, we do know that there has been correspondence exchanged between team
members and Mr. McNeill and that he has been apprised of the Bayne case ever
since 2007. Sooo! The Director's application for a continuing care order for the Bayne children was founded upon a supposed high percentage balance of probability that they shook one of their children. Judge Crabtree ruled that they did not shake the child. Yet he ruled a further 3-month temporary care order based upon his guesstimated 10% risk probability, leaving a 90% PROBABLY NOT factor. What kind of lame legal judgement is that?
Conclusion: therefore the rule of law, the Charter of rights and freedoms and numerous other protective mechanisms for Canadians are usurped by bureaucracy. As we are discussing here after reading this blog, who would allow such legislation to be passed?
ReplyDeleteSexual abuse, forcible containment, severe and outrageous mistreatment and other atrocities can and do happen and drastic intervention is required but a messy or dirty or depressed child etc is not reason to move against families. Neither is the neighbors saying that they think the children are too thin, or that they've heard arguing or the child told the teacher someone was mean to them. That is my value system speaking. I, however, am not allowed to think different from the MCFD worker they/ I happen to be dealing with.
Most workers emanate superiority. They have the answers - the right answers that is. Real caring and constructive help can turn around children and families but arrogance is plainly self serving. Socially, and financially, it is exceedingly more cost effective to set up mechanisms - even when they are costly - to help children in their own family homes than in foster care. How about the family who was being pressured to give up rights to their child because of medical costs - not accusations- but they went to the press in BC within the last year. The result was compassion intervened in the form a service club which offered support to this family as required AND they could still keep their sick child in their family. This sounds like a two tiered system.
When conquerors went around the world, they imposed their idea of living standards on the populous. Schools, home, etc. all reflecting values that were not the values of the natives were imposed because that is all part of the idea of conquering. It has ever been thus; Greeks, Romans, Chinese, every European kingdom and thousands of tribal groups all have done the same. Everyone must think and behave a certain way.
However, who exactly was the conqueror of all protective legislation for the citizens of Canada? Who, in other words, wrote and passed the Child, Family and Community Services Act? What kind of superior minds govern the masses of Canada? Who has decided what is the ideal value? Not wonder the native population is so overwhelmed with our stinking arrogance. No wonder the federal gov't has made some apologies.
There will be lawsuits in the future, there always are when the gov't screws up, and it has screwed up big time here, probably moreso than any time in history. So, once again, the taxpayer will be on the hook for the stupidity and cruelty of a handful.
ReplyDeleteWhen my Law prof described the difference between the criminal standard (beyond a reasonable doubt) and the civil standard (balance of probabilities), he used the example of the Fat Pig Saloon, a temporary bar set up in August 2009 for Abbotsford's Agri-Fair, where a father left his 4 yr old and 2 month old in his locked van.
ReplyDelete(http://www.ctvbc.ctv.ca/servlet/an/local/CTVNews/20090801/BC_abbotsford_car_kids_090801/20090801/?hub=BritishColumbiaHome).
My prof said that the father wasn't criminally charged, because the police didn't have the evidence necessary (such as a time stamp on a receipt, as would have been available in a non-temporary bar) to lay criminal charges.
However, the "balance of probabilities" allows the courts to say that there is at least a 50-50 chance that these kids could be harmed in their father's care.
9:01 PM Alison -- great example.
ReplyDeleteThank you for this informative and detailed information, Ron.It clarifies a lot. I wonder why, tho, you call it spouting when readers talk about being innocent until proven guilty. That's what we hear all the time in Canadian schools, news and politics. We believe and trust it to be true.
Some places it is illegal to lock a child or an animal in a vehicle unattended in heat. Most places it is illegal to drive after a certain level of blood alcohol. Stuff happens in these kind of breaches of sanity.
It seems a simple matter to charge the man with criminal negligence. Wouldn't it be fair to say that it's simply easier to use the civil standard because the burden of proof doesn't exist for the authorities. The burden transfers to the accused to prove innocence. This is an overworked method. Repeatedly it happens that nailing down phantoms is easier.
It seems simple to demonstrate that the children were in his care; he was heard at the bar saying his children were in his care and they were in a very sad state when discovered. He told people. The children's conditions proved his own testimony.
Certainly, had the children died, the court would have proven the children died while in his care. That is manslaughter. Instead of manslaughter since they haven't died, prove that dad was criminally negligent in leaving them. Give him a sentence. Get him help growing up if he wants it and he will have the chance to claim or reclaim his responsibilities, his common sense and his future.
Even in our judicial system, however, there is a distinct lack of common sense. The Baynes family court sessions are more than ample evidence to support that charge.
Well, we know who Big Brother is! Having it "mandatory" for teachers, etc. to be nosey parkers and report families(and usually without knowing the entire story, just mere speculation) to Big Brother is eerily echoing Nazi Germany where neighbours, family members,friends, etc.(everybody) was encouraged to inform on everyone else.Very chilling indeed.Welcome to the New World Order!
ReplyDeleteAnon 5:46: Teachers are no different than anyone else in society. All are required by law to report a situation of abuse. Whether the abuse be against a child, adult, animal, or any other crime you can think of - including white collar.
ReplyDeleteSo, no, "Big Brother" doesn't require teachers to do anymore than anyone else - including you.
But maybe you are right - if I see a kid getting whacked in the head, I shouldn't report the offender as I am clearly supporting a 1984-type system.
Or maybe, post your name, and if I ever come across you in a situation where you are being robbed at gun-point, or beaten in the park, or your home is being invaded I can ignore it because I know you don't want people snitching to the government. Because these laws aren't intended to protect you. Obviously.
Well 5:46 AM in Thornhill, I am pretty certain that we are not dealing with Big Brother or Naziism, but rather a service system that could use some nuancing.
ReplyDeleteAnd Anon 1:28 AM, please don't get hung up on the verb "spout" - It wasn't a synonym for 'rant' or anything like that. I could have used another word. It was the first word that came to mind when trying to express that it is the most common reaction many of us have to an unjust result to argue innocence until proven to be guilty.
ReplyDeleteAnon at May 21, 2011 7:56 AM,
ReplyDeleteI don't fancy your idea that anyone who objects to invasions of privacy and lack of due process deserves to be a victim of crime.
And, Anon at May 21, 2011 7:56 AM, the poster above who objects to the intrusion of nosey parkers and Big Brother, wasn't talking about people who call child protective services hotlines because they see someone whack a kid on the face. He or she is objecting to all the people who will call MCFD and other child protective services agencies and make 1) reports based on such things as a kid "looked sad" or didn't bring lunch (so what if the kid forgot it) or the kid had a bruise (kids play, stuff happens), and 2) make false reports, just to be vicious and malicious (and this happens ALL the time).
So please don't distort things by suggesting that the people criticized by the poster who objects to Big Brother and nosey parkers are just nice concerned citizens who are helping save kids from real, and terrible, abuse.
I am anon 7:56. Didn't say "deserves to be a victim of crime" did I? Don't put "words in my mouth" please and thank you. Unfortunately, I can understand your response in such a manner as sarcasm often comes across as literal on the internet - so please accept my apologies. I had hoped my sarcasm was so over the top it would be obvious.
ReplyDeleteI concede that the folk who I responded to was, as you suggested, probably speaking to much more vague concerns as you suggest and not whacks to the face observed - but what if a child clearly discloses that to a teacher or anyone?
Anon at 10:23 am,
ReplyDeleteOur society has become so obsessed with abuse, thanks to all the talk shows, books, celebrities, and so on (many of whom have made an absolute fortune from their "work" in this area).
We as a society are obsessed with abuse, and too many of us see it everywhere.
However, a very, very small percentage of cases of child protection are as a result of children "clearly" disclosing abuse. Too many of these child protection cases involve nosey parkers and mandated reporters, not to mention those in the industry who make their living "protecting" children (e.g., "experts" such as Charles Smith, formerly a doctor and highly regarded forensic pediatrician who put innocent parents in jail with his outrageously fraudulent and false testimony).
Seems how more children are abused IN foster care, than by biological parents, it should be clear that if we wiped out the child protection system as it currently stands, we'd be ahead of the game.
If people really wanted to lessen child abuse, they'd abolish child protection as it now stands.
No government or child protection agency will ever wipe out abuse; all governments and child protection agencies have done is vastly increase corruption in government and society as a whole, as well as increase the stress on families.
Thinking that a government can wipe out abuse, is wishful thinking, at beast. But before a parent is subjected to what a wise judge in the USA terms the equivalent of the death penalty(i.e., termination of parental rights), they should have the benefit of due process and the guarantee that their rights will be upheld to the highest degree. That doesn't happen now, not even close.
If a person truly cares about child protection, they should start doing something about all the children who are abused by the government, in so called "care." How harmful, and hurtful, do you think it is for a child to be torn from their family, especially by cops and social workers, say, at their birthday party? THAT's child abuse, as far as I am concerned. And it should be punished severely, because it is performed by those who have held themselves out to be child protectors, have great power, and get paid by the taxpayer.
The matter of "abuse" is far too subjective. The problem is social workers moving the goalposts to lower the threshold of what constitutes "abuse."
ReplyDeleteParents leave their children (and dogs) in cars alone all the time. Passers by cannot know the reason or how long the child (too young to talk) was in the car.
This is a perfect example of a valid reason to call... (wait for it) the POLICE, NOT social services. Despite being a Provincial resource, MCFD does not have a hope in hell of responding quickly enough to a real-time concern which would fit the CFCSA wording of 'imminent threat of harm' that would justify an immediate removal.
Police, Fire or Ambulance respond quickly, then refer the matter to MCFD to 'investigate.' This so-called investigation typically takes "a long time" such as several weeks if not months. This process does not serve children or families either.
I asked my social worker what her definition of abuse was, and I was astounded when she gave an example of a messy house.
Spanking is not considered abuse. However, it CAN be, if it is repeated too often, is applied with too much force, the age of the child is too young or too old, etc. etc. In other words, there are a variety of circumstances and sources of information that need to be queried to ensure that the legal definition of "abuse" is met.
I don't see why MCFD can't be scrapped and local police services simply include social workers on staff. If police perform wrongful removals, they are easier to sue and otherwise hold accountable.
ReplyDeleteThe savings in reduced foster care usage would allow more social workers to be hired. The numbers of homes would not be reduced, only the times in care would drop. Social worker unions would love to see an increase in membership.
The Health Ministry can take over the aspect of mental health and social assistance services.
The current incarnation of child protective services is such an incredible blight and insult on an othewise civilized society.
In listening to Kari Simpson's (of RoadKill Radio fame) take her longstanding dislike of MCFD through handling of thousands of parent's cases, (paraphrased) she characterized the Ministry as an unspeakably evil entity.
ReplyDeleteWe are not just the occassional mistake or over-reaction such as in the Baynes case, but a through and through, high volume of intentional acts of premeditated evil enacted by multitudes of individuals who know EXACTLY what they are doing, why it is wrong, and the consequences to them if they were not protected by law.
MCFD KNOWS they are not "protecting" children, they are just making jobs for themselves.
In my very limited experience in dealing with affairs of MCFD, I have no other choice but to agree.
We are left with no other solution but to get to a point where all out war will be the only solution that will cure this evil. The current situation is easily on par with the old residential school system and the scandal the Catholic church is dealing with in abusing children.
Labelling MCFD's foibles as being correctable by "nuancing" I assume is a stab at sarcasm.
In the meantime, children should be made aware of their rights and that they can sue MCFD at any time until they turn 19.