Judge Thomas Crabtree is an active gentleman with more than enough responsibility. He has cases pending upon which he must adjudicate and he has his new duties as Chief Justice of British Columbia. Somewhere during his work days over these next several weeks he is allocating hours to read through the 237 pages of transcript generated over the twenty-two days in court when the case between the Director of Family and Child Services and Zabeth and Paul Bayne was heard. He has himself expressed his cognizance of the urgency of this outcome for all who are involved and that means he will deliver his ruling as soon as he can. He did provide an estimated window of eight to twelve weeks. That puts us into 2011.
The Director's application for a Continuing Care Order for all three of the Bayne children is the causative legal action that finally brought this family to the Provincial Court. The application should be denied. The Baynes' three children were born October 18, 2004; June 12, 2005; and August 3, 2007 respectively and they have not lived with their parents for over three years because the Director removed them and kept them. This application should be denied because the quality of its supportive evidence is deficient. That deficiency is articulated for the Judge in the Baynes' Final Submission in refutation of the Finn Jensen closing summary. It should serve to underscore the impressions his Honour himself deduced as he listened in court hour after hour. Impressions that the Baynes are not baby abusers, that circumstantially incriminating information should no longer be used to punish these parents in the name of protecting the children, that the disparity between Ministry and Bayne resources to argue this case has not resulted in a conclusive victory for MCFD.
And yes, this case is crucial. The urgency of the ruling and the outcome to which Judge Crabtree alluded, for all who are involved, is not something we have thought much about. Its importance for Paul and Zabeth is patently obvious. Each day that they wake they face yet again the reality of their loss and the Director and his cast want to see this continue as a life sentence. The urgency of the outcome for the Ministry is not customarily considered but it should be. The Director can ill afford to lose another judgement because the publicity depreciates his reputation and this case has already garnered national and local televised news coverage and it will again. Reputation is invaluable and notoriety is to be shunned. What mystifies me is the modulation from sincere conscientious concern for the safety of children to the aggressive anti-Bayne/parent commitment that characterizes the evidence put forward during this hearing. Further, Minister of Children Mary Polak doesn't want to face media questions about the case handling of one of her regional offices. It is not an enviable aspect of her job. She was already stick handling her way at a news conference yesterday with regard to the young girl left with her dead mother's body at a Cultus Lake home. Her Ministry has not been forthcoming with information about that case, at least not nearly soon enough to satisfy Mary Ellen Turpel-Lafond, the Children's and Youth Advocate who already went public with her disapproval and this week subpoena'd the information. Thanks to a reader today for supplying this Times Colonist link to Turpel-Lafond's statements.
So very much depends upon a Judge's discernment right now.
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| Paul and Zabeth outside Chilliwack Courthouse |
And yes, this case is crucial. The urgency of the ruling and the outcome to which Judge Crabtree alluded, for all who are involved, is not something we have thought much about. Its importance for Paul and Zabeth is patently obvious. Each day that they wake they face yet again the reality of their loss and the Director and his cast want to see this continue as a life sentence. The urgency of the outcome for the Ministry is not customarily considered but it should be. The Director can ill afford to lose another judgement because the publicity depreciates his reputation and this case has already garnered national and local televised news coverage and it will again. Reputation is invaluable and notoriety is to be shunned. What mystifies me is the modulation from sincere conscientious concern for the safety of children to the aggressive anti-Bayne/parent commitment that characterizes the evidence put forward during this hearing. Further, Minister of Children Mary Polak doesn't want to face media questions about the case handling of one of her regional offices. It is not an enviable aspect of her job. She was already stick handling her way at a news conference yesterday with regard to the young girl left with her dead mother's body at a Cultus Lake home. Her Ministry has not been forthcoming with information about that case, at least not nearly soon enough to satisfy Mary Ellen Turpel-Lafond, the Children's and Youth Advocate who already went public with her disapproval and this week subpoena'd the information. Thanks to a reader today for supplying this Times Colonist link to Turpel-Lafond's statements.
So very much depends upon a Judge's discernment right now.
An earlier blog post, Part 238 July 3, 2010 entitled 'The Importance of the Bayne Ruling' also spoke to the significance of the outcome but anticipated it much sooner than it will come. The delays of the court case have been lengthy.
It would appear a universal question that reads "what is the reason for the delay" needs to be asked of all MCFD matters.
ReplyDeleteI think this case has actually garnered international attention, as I recall reading at least one article in a US publication, by a US author, a woman. The Baynes would probably remember the article / author - I think it may have been around Christmas time that the article came out, though I could be wrong.
ReplyDeleteAnd according to one CPS watcher in the UK, the results of this case, though not binding in the UK, will be persuasive.
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PERSUASIVE PRECEDENT:
"Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (or persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, State courts versus Federal courts in the United States), and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc.
In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues.
Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court."
http://en.wikipedia.org/wiki/Precedent
Here is the article, showing that this case has garnered international attention:
ReplyDelete"Child Protection stole Christmas from families around the world with SBS accusations
(by Christina England, December 2009)
Christmas time is a time for families and a time for children but sadly many families this year faced a Christmas without their children because child protection agencies and paediatricians misdiagnosed very real conditions, opting instead to accuse parents of shaking their babies.
As a result many families could not join in the seasons festivities with the children they love, they could not buy them presents or prepare their Christmas stockings and some were left with no idea where their children were or even who they were with.
One such family is Zabeth and Paul Baynes, their children were removed from their care on October 22, 2007 after they say they were falsely accused of Shaken Baby Syndrome..."
The article is well worth reading in its entirety, as it examines, in a very straightforward manner, the facts of the case:
http://www.americanchronicle.com/articles/view/134552
I am grateful to the contributors who updated us on adoption practices. It seems that there has been quite a change in thinking over the last few years.I think we used to regard adoption as an important service to children and we did not like to see financial barriers erected. Also we thought that if kept as a government service, there was protection from racketeering and exploitation. In general we were proud of our standards. The other thing is that it was a "feel good" part of a job that was sometimes stressful.
ReplyDeleteI suppose that there are different ways of looking at it. The current trend is to contract out much of the work, especially any work requiring training and skills. It looks as if the government no longer funds adoption services, but the private societies charge fees and so the service is now paid for by adoption applicants. There are pros and cons to each model. Is adoption an important child welfare service and should it be free. As a government service the cost was absorbed in the overall cost of services and paid by the taxpayer. Is adoption a privilege and people should be prepared to pay as much for a child as for other expensive items in life? No absolutes here and it is largely a matter of values.
I have seen many problems with contracting out services. Child welfare services used to be contracted out to the children's aid societies. They tended to be much better staffed and better paid than government services. It seemed to me that when other services are contracted out they go on far longer than necessary and service drags on past any useful outcome. There is no limit on what a "non-profit" society can pay its CEO and so on. Also there have been many instances where contracting out proved to be more expensive than direct government service.
When I went from being a district supervisor to working for a children's aid society, I thought there was a lot of time wastage. They did a lot of things for foster children that the foster parents would have been quite happy to do. Simple decisions became a laborious process. Work expanded to fill time available and so on. Thanks again for bringing me up-to-date and making me rethink things.
Ron; here is another case history from my book;all identities changed. I have cut this down considerably from my book text. I originally wrote it to illustrate gathering and presentation of evidence.
ReplyDeleteElvis was an eleven year old boy, whose mother was a heavy binge drinker. He had a sister aged fifteen. His father lived in another province and they had lost touch. When his mother disappeared for days at a time on a binge, Elvis used to stay with his paternal grandmother, but she had died a few months before and his father did not come to the funeral.
I met Elvis when the school principal asked me to come to the school. He had been stealing food from younger children in the lunch room. Elvis told me that he and his mother had been staying in a motel with a man called Bert. They and others had been drinking heavily and his mother had left after a violent quarrel. Bert had to get out of the motel. He had no breakfast and he did not know where his mother was and he had nowhere to go. I arranged to place him in a receiving home after school. I went to the motel and interviewed Bert, waking him up at about 2.pm. During the interview other men in the room slept on. Bert did not know where mother was and could not take any responsibility for Elvis. On a tip from Bert I found Mum in detox all ill, shaky and contrite. She was vowing to enter a residential treatment programme for alcoholism as soon as she got out.
At the court presentation hearing she had a lawyer and was now in total denial about her problems. Fortunately the court report had enough hard facts in it to convince her lawyer that there was no point defending her case and the lawyer advised her not to try to deceive the court. Moreover, the lawyer offered to renegotiate residential treatment for her. Bert came to the hearing. I included him because technically I apprehended Elvis from his custody. Besides I wanted him as a witness.
What happened next? Elvis soon tired of a regular lifestyle and as soon as his mother got a place to stay, he ran away and went back to her. The older sister was staying with the family of a school friend and they were willing to keep her. She too got tired of a regular life and went back to live with Mum. I ran into "Bert" a year or so ago. He told me that the girl had become a prostitute and Elvis died of a drug overdose before he was thirty.
This case illustrates how hard it is to do anything for neglected children unless you can get them young. Most kids who are left in such situations are so damaged that they are very hard to help. Of course if they are placed in foster care, then you blame it on the foster care system and not on the parent or because social workers ignored compelling evidence.
Amazing how Mary Ellen Turpel-Lafond can make things happen when she wants to. Wish she would start acting as quickly on the Bayne case and others like it.
ReplyDelete------------------------------------------------
"B.C.’s child advocate has issued a legal order that compels a senior government official to give evidence regarding the disturbing case of a 15-year-old disabled girl who was left with Mary Ellen Turpel-Lafondher mom’s decomposing corpse for nine days.
, B.C.’s representative for children and youth, said she sent the order to a “senior official in the region who would have been responsible for services to the child” this week.
The order stated the official must legally attend her Victoria office Tuesday and provide documents and evidence under oath."
Read more: http://www.theprovince.com/health/Senior+official+subpoenaed+after+disabled+teen+left+alone+with+mother+corpse+nine+days/3845287/story.html#ixzz15hYdf8Qd
Imagine that - being forced to testify, under oath. This should be very interesting.
At this stage, and after this length of time, you do NOT want to rush this type of ruling.
ReplyDeleteI would regard it as a positive sign the judge is communicating clearly that a comprehensive ruling will required 3 months. If the judge makes a mistake as he rules in favour of the Baynes, MCFD will capitalize on it, and all this time, effort and patience could be for naught.
I am of the opinion that on the surface, it appears Mr. Finn Jensen has made a fool of himself in his 3-day 340-page final argument. However, the man is not a moron or a fool, he is well versed in his understanding of the CFCSA, and he is not to be taken lightly. Do not rush the ruling.
Given the size of the holes in MCFD's argument, the length of the summation is a very strange strategy to adopt. The volume of material means more holes to identify and use against them. I am convinced there is something else behind this strategy because MCFD is very well aware they don't have a case.
The point is very clear that the points Finn does NOT speak to by omission, breaks his case merely by mentioning each point. For example: the RCMP, Finns letter recommending returning the boys for no evidence, the phrase "munchausen's by proxy", one appropriate spanking in one year, the bogus anonymous collateral for the CRA, labelling Baden's intake relevant to this case, claiming the Hoffman's testimoney is relevant, the original radiologist that didn't testify, not mentioning the late date of the femur bone break, Anderson writing his report before seeing the X-Rays, not mentioning the 1-month delay in diagnosis clouding accurate injury diagnosis, omitting the fact the Baynes lived with their two boys for months after Bethany was removed, gluteric aciduria revealed by foster parent, blindness, cerebral palsy, three years of trouble-free supervision reports, enduring family and community unity, extensive community support, anti-MCFD publicity -- the list really is endless.
Would not addressing this or that point in a summation mean an avenue of appeal by MCFD? This is a question Mr. Christie and the Judge would no doubt be asking themselves.
Are there any bones that could be thrown to MCFD to appease them so their loss would not be a complete embarrassment? I don't see how MCFD can escape unscathed, and the organization does not accept defeat easily.
While having the matter resolved before Christmas might be a great holiday gift, this might fall into the category of "be careful what you wish for."
My wish for the season is instead, be patient, continue praying and have faith.
"Imagine that - being forced to testify, under oath. This should be very interesting. "
ReplyDeleteYes indeed. MCFD staffers are normally immune from examinations for discovery. They hate having to answer embarrassing questions and having a public record of it.
I will be interested in the questions asked. How inquisitive would RCY be allowed?
My read is Polak is playing at being shocked there is the thought the child has been abused to a level that would require reporting to RCY. After all, the parent died accidently, not the child, so 'what's the problem?' Children are abandoned by their parents all the time. The mom really did address the needs of her child, intervention would not have improved matters.
One can imagine all the excuses MCFD can make to explain themselves.
I agree that Polak is using this case to garner points, attempting (and quite successfully) to portray herself as the true protector of children. If she were really doing her job, the Baynes and all the other cases similar to the Baynes wouldn't be so desperate. She's a politician, as far as I am concerned. Still, it will be interesting to see what sort of questions and answers are asked and given at the examination for discovery, if that is what it is.
ReplyDeleteAnd I wonder, does the questioning under oath of the ministry employees have the same legal implications and power as an examination for discovery, or is this some kind of quasi-judicial exercise?