Episode 2 of 7: SUGGESTED IMPROVEMENTS TO B.C.'S CHILD PROTECTION
Ron Unruh's Preface: This is the second post in a multi-post presentation on Improvements for BC Child Protection. The content derives from a ten-page document prepared by Ray Ferris for members of the B.C. legislative assembly. The segments for this blog are prepared with his permission. Ray has written many articles on this blog for the past decade. Ray Ferris retired after a career that included significant years with the MCFD. He has written a book entitled 'The Art of Child Protection.' You can order Mr. Ferris' book entitled 'the Art of Child Protection' by contacting the author directly at email@example.com.
Written by Ray Ferris. First the problems and then the suggested solutions.
CURRENT PROBLEMS WITH B.C. CHILD PROTECTION
Today, Problem #2 of 4 Child & Family & Community Services Act is Routinely Ignored
Many of the important clauses in the Child & Family And Community Services Act (CF&CSA) are routinely ignored, which deprives parents and children of their rights to due process. Two very important sections of the Act are, (1) the right to receive ten days written notice of protection hearings, stating the evidence to be presented and (2) the right to full disclosure that can be very specific. When due process is denied to unfit parents, it can easily be denied to cases where the director has weak or insufficient evidence.
Citation of Case Examples of Problem 2.
Case 1.The Bayne case once more illustrates everything that can go wrong. Apart from the court action rendering them bankrupt, just about everything in the CF&CSA was ignored. The case was heard before Judge Thomas Crabtree who was promoted to provincial chief judge during the course of the case. The case was heard during 22 days spread over three years. The Baynes had three children, two boys and a girl. The second boy was born fifteen weeks premature and was in the special care nursery for a long time. The younger child was a girl born six weeks premature and was very fragile. The children were apprehended when the girl got a bump on her head and suffered a brain bleed. The boys were placed with the maternal grandparents and the parents moved into the basement because they had sold their house to pay legal fees.
When the girl was discharged from hospital she was placed in a foster home. As they had no money for a lawyer, the Baynes were getting desperate and decided to go public. Their case was aired on the CBC Go Public programme. The director's response was swift and brutal. Social workers accompanied by armed police burst into the home in the middle of a birthday party and dragged the terrified children out. For the next three years the parents were allowed very limited access and only under stringent supervision. It was not until they had been in care for three-and-a-half years that access was allowed in the family home. The judge took four months to render his judgement. Mrs. Bayne had another child before the judgement was delivered who was apprehended at birth. She was allowed to breast feed the child while in the special care nursery, but was banned from expressing breast milk in spite of the pleadings of the Child and Youth advocate.
When the judge finally rendered his verdict he made an order that was beyond his power and had to retract it and issue another order. He also deleted a lot of his previous comments in the new order, now here is a serious problem. Neither defence counsel nor prosecution noticed the judge's error. It took me five minutes to look it up and notify them. Judge Crabtree took four months to consider his verdict and could not take the extra five minutes to check the Act.
Note that the intention of the Act is that protection hearings are commenced within 45 days and that young children should not be in care for more than one year and only on three-month orders. There are good reasons for this and yet by constantly adjourning in interim custody prosecutor and judge were able to keep the children in temporary care for nearly four years. The children still suffer from anxiety disorders. Also in all that time the parents were never once served the required notices of hearing and only found out from the CYR advocate that a continuing care order was being sought. Neither was there ever the timely disclosure required under the Act. In fairness to the director, the defence counsels never advised the Baynes of these rights and the judge never asked for proof of service.
Case 2. A single mother who was fairly simple had her baby removed, largely it seemed that the social worker did not like the reputation of her boyfriend. There appeared to be no real evidence of neglect and the risk was mostly presumed. The mother had a legal aid lawyer who had a doctoral law degree. She was the junior in a firm where all the lawyers were doctors of jurisprudence. The mother told me that she had never received any written notifications. When asked about disclosure, she said that the social worker had told her that she had all the disclosure she was going to get at the presentation hearing. I modelled a letter for her how to instruct her lawyer to demand disclosure under section 64 and told her to be sure to put it in writing, preferably by Canada Post. Three days later she forwarded the letter from her lawyer to the director requesting disclosure. It was beautifully written and the work of a good lawyer. I use it as my model. She never did get disclosure, but the child was soon after returned under supervision with a condition she not associate with her boyfriend,
Case 3. This was a case of an Asian woman with poor English speech. Her 12-year-old daughter had been removed due to allegations against her husband. Although he voluntarily removed himself from the home the director would not place the girl with the mother, because she preferred to stay in the foster home. Mother reported that her lawyer was reluctant to make an unwilling girl come home, Of course she and her husband had received no notices and no disclosure, In other words they had been denied due process, The lawyer was reluctant to make an issue of it because he did not want to seem adversarial. I sent a mail to the mother modelling instructions to her lawyer. She sent him a letter that also instructed him to write the request by surface mail. She told me that he followed her instructions, but told her to get another lawyer; He admitted he had no choice except to follow her instructions.
Case 4. A woman had married a divorced man with two children aged ten and twelve. The problem was that he divorced his wife because of her alcoholism. He had custody but she had court ordered access overnight, the boys did not want to see her because she was always intoxicated and unpleasant when they visited, They were trying to get the court to cancel the access. They had been going to their local child protection office to try to get a social worker to take some action on the grounds of risk to the children, The social worker was an older man who had years as a protection supervisor, but had retired and come back on contract. They found him evasive and asked me to go with them to see him. He was indeed evasive. He agreed that the children were at risk and should not have to see their mother, but could not see that he had any responsibility. I pointed out that he had a responsibility under the Act to assist the parent to protect his own child. He told me was just my interpretation, so I took out the Act and read the exact wording in Section 2 (b) (c) (d). He said he was not a lawyer, I suggested he could give an expert opinion to the court, but he said they did not take sides between parents, but did not agree he should take the side of the child.
I next turned to the lawyer. I discovered that the mother had an extensive police record for drunk and disorderly conduct. I asked the parents to get the lawyer to file the police record. They said he had told them that the police would not release it because it would invade her privacy. I wrote the father telling him to instruct his lawyer to subpoena the records. He did it and filed them with the court. The judge suspended access for six months to give the mother a chance to sober up. This could have been done a year earlier.
Case 5. A grandfather approached me because his son had a child apprehended for rather weak reasons. He had gone to court with his son who was given very little opportunity to speak and the judge just seemed to heed only the social worker. A date for a protection hearing had yet to be set, so of course I was careful to remind him of the right to notification and his rights to disclosure. As the case was in its early stages I thought it best to nip it in the bud. I discovered that he could find $15,000 for a retainer so I referred him to a top family lawyer. The lawyer would take their case but needed to negotiate a date, so I told him to tell his son to ask for a two-week adjournment so that counsel could be present. He did this and on learning who the lawyer would be, the social worker suggested a return under supervision to which the father agreed.
Case 6. A man came to me because his child had been removed and he was having difficulty getting to a protection hearing, He did have an experienced criminal lawyer representing him, but the focus became way off track. He had had an all day hearing, but I could not figure what had gone on so he sent me a transcript of the hearing. The social worker had graduated with a BSW degree in April and has been given caseload responsibilities in a one-worker office the following month; I presume she must have had some occasional supervision. It seemed that the director did not object a great deal to the father getting the child back, but first wanted to obtain certain medical, school and psychological reports. The father would not give permission to release them and the worker was seeking an order from the judge to release them, but the judge was reluctant to ride roughshod over the father's wishes. The transcript sent to me was the third hearing on the topic. As soon as I read it, I knew that there was something wrong, so I checked my Act and indeed there was no need for any of these hearings. The director had the authority anyway under interim custody. If the social worker, her supervisor, either lawyer or the judge had bothered to read the Act, a whole lot of time and money could have been spared. I could not find out which office was involved because the new government directory is much more secretive now. However, I was able to look up the prosecuting counsel and I wrote him and pointed all this out to him He gave me a very courteous reply thanking me for drawing it to his attention.
PS, This reminded me of my first supervisory job in Smithers in 1959. I supervised a one-worker office at Burns Lake 160 KM to the East. I travelled there every two weeks and spent one and a half days there. I insisted on being present at all protection hearings and I was able to fend off most disasters.
Tomorrow, Problem #3 WEAKNESSES OF THE CFCS ACT