Thursday, December 16, 2010

NUMBER 400 & CHRISTMAS 3 / Part 400 / For Love and For Justice / Zabeth and Paul Bayne

We are only nine days from Christmas morning. This is the 400th daily GPS blog post advocating on behalf of Paul and Zabeth Bayne. Over 151,000 look-sees to the GPS site have been recorded. This is the third Christmas that the three Bayne children have not lived in the Paul and Zabeth Bayne family home. Paul and Zabeth made a request many weeks ago in court, for an unsupervised time with the children in the family home over Christmas. Judge Crabtree requested that the Baynes and the Director process this request. If that proved to be an unsuccessful approach, the Baynes could return to Judge Crabtree to mediate a settlement. That's where the request sits.

What could we possibly expect different from this outcome?

It would be an impossibility upon principle alone for the Director to grant to Paul and Zabeth Bayne an unsupervised overnight and Christmas morning with their children when he has a case pending a ruling for the permanent appropriation of these children based upon his conviction that the parents are a risk to their children.

It will require a Judge's ruling to make this significant concession to parents upon whose capability and credibility as parents he has yet to formally and publicly rule with regard to the Director's application for continuing custody of their three children. If Judge Crabtree grants this unsupervised visitation this Christmas, several things can be said. It will be a signal of his opinion of the Baynes if he grants the unsupervised visitation application. It must be viewed this way. It would be the unkindest tease that I have ever witnessed to grant this request if ultimately he removes the Baynes' custodial rights. Judge Crabtree is now Chief Justice of British Columbia. His judgements carry large implications and influential example for future court decisions by himself and other justices. If he decides not the grant the Baynes' request, it should not be perceived as a ruling against them, but rather as an appropriate decision given the unfinished status of the current court case. A concession now may be deemed premature and might even be challenged on that basis.

Even if the Bayne request is denied, these children will have an exhilarating Christmas celebration with mommy and daddy because these parents will not allow the real distress in their family relationship to cloud their joy or diminish the children's pleasure in the hours the family spends together.


  1. I am not the Anonymous who wrote yesterday. The following are my remarks on the blog comments yesterday.

    1. Mr. Ferris gave a good description of what compliant resolution and other bodies that parents wrongly believe could help if they have a complaint. These processes are merely a decoration of fairness and serve to wear and tear distressed parents. They do not have the mandate and the power to overrule MCFD's decision.

    That said, I still encourage parents to jump these useless hoops just to register their complaints and dissatisfaction. Otherwise, MCFD could tell the public that they have achieved a no complaint record. But don't hold your breathe anything meaningful could be accomplished.

    One point I would like to add is that SW have even more power than a provincial court judge as evident by their statutory power to re-remove children even when the court orders a return to parents. If they don't like the court's decision, they could remove the children again without new evidence and without any repercussion to themselves. Even judges cannot cannot put a leash on these dogs. They are the most powerful bureaucrats in the entire government. Do not underestimate their destructive power.

    2. The analogy of "child protection" and Nazi-like graffiti is brilliant. It allows people who do not have a clear view of what MCFD does to see how destructive their activities are. I totally agree that "child protection" is an reincarnation of the residential school system attempting to assimilate parenting culture and indoctrinate an ideology that government should set child raising standards to families. You are absolutely right that people are gullible to to undue government interventions and fail to discern the real motives of "child protection".

    3. Ron, I am unsure whether the Anon at December 15, 2010 8:50 PM really means “child protection (government in general) wants to destroy family by assimilation to achieve the same objective” i.e. world domination. My interpretation is child protection achieves domination over families/parents, inadvertently or not, destroy families in the process. Anon, correct me if I am wrong.

    4. Ron, people quoting the Bible are fully aware that bloggers of various background and motives are reading. I believe that they quote the Bible mainly for your Christian readers, yourself included. If you don't believe that there is no spiritual contest, you are fighting this underhanded. I suggest that you heed the advice of Ephesians 4:27. Do not lay down your spiritual arms.

    You believe that sensible, reasonable observations of failures and shortcomings and weakness in the system, followed with plausible suggestions and recommendations and improvements will put you in a better position to advocate changes. I can tell you that government prefers status quo, it is reactionary in political term. Any suggestions that reduce their power and budget will be viewed negatively. Be mindful that government is strongly influenced, if not directly controlled by, special interests in the "child protection" industry. Our opinions as citizens are often ignored, dismissed and rendered unimportant or inappropriate.

    You will be very disappointed if you think that balanced views are more acceptable.

    Lastly, Crabtree is still a provincial court judge. Technically, his decision carries no more weight than other provincial court decisions.

  2. Exactly! I don't think Judge Crabtree will allow it. Not until his decision is made legally will it happen. Politics and all that. I hope that I am proved wrong. My best wishes for the Baynes.

  3. To Anon 10:08 AM
    I may or may not respond to some other things you say, but first, if all you can say to me after your entire comment, is "You will be very disappointed if you think that balanced views are more acceptable," tell me, have you a better approach do you recommend?

  4. Anon 10:08 AM wrote:

    "One point I would like to add is that SW have even more power than a provincial court judge as evident by their statutory power to re-remove children even when the court orders a return to parents. If they don't like the court's decision, they could remove the children again without new evidence and without any repercussion to themselves. Even judges cannot cannot put a leash on these dogs."

    I'm not a lawyer, but I just took a "Legal Skills for Social Workers" course taught by a lawyer who practices in Family Law. I really doubt the courts would have the patience to tolerate such a disregard for a judges' opinion. I might email my prof to see what she thinks a judge would say to the social worker in such an example. I don't think it would be pleasant.

  5. Thanks Alison. Do that for us please!

  6. Re: "Balanced Views"

    Trying to do this is like trying to pretend that there is fairness to begin with, which there is not. I can understand Ron's desire to not look like some crazed anti-governement fanatic or whatever. I think we can say what we need to say without resorting to analogies and whatnot that may seem over the top to some. As long as we give examples, for example, of Nazi-like behavior, it probably isn't even necessary to say "This is Nazi-like behavior." If people can't figure that out, then they probably won't get the Nazi analogy to begin with.

    One of the most difficult things about fighting child protection, or the industry or ideology of child protection, is the way we speak or write about it. There is a lot to be said for not sounding over the top, although I understand and sympathize 100% with those who do want to vent. They, more than any other victim, deserve to be able to vent, and too often are shut down, scorned, ridiculed, and so on.

    But I have also noticed that some have a way of communicating which is not as effective as it could be. I think that part of this is due to their understandable anger and confusion, which affects every aspect of their lives, including how they think and write.

    If we can do anything to help them express themselves in a way that enables their message to be broadcast to a wider audience, then that is very helpful. I believe Ron does this, and extraordinarily well, though I can see the frustration that child protection victims feel when he won't permit certain statements or language.

    This blog is remarkable because it goes a long way toward bridging the gulf between styles of criticism of child protection. Credibility is the key, but it's hard to appear credible when what you are saying is so incredible - and what is more incredible than having your children stolen, by the government, for no reason. However, once enough people hear the truth, over and over, the incredible will be credible. Then things will really begin to change. So, it's important to just keep trying, and exposing the injustice.

  7. To Anon 5:23 PM,
    thanks for the commendation for my blog efforts, and you summarize precisely my interpretation of the issues. I too am 100% in sympathy with and supportive of parents who have been mistreated by MCFD, and understand their anger well, and I believe that if I can express their stories in ways that communicate so readers don't turn us off, then I will continue.

  8. Ron; I want to respond to above comments. First of all I consider myself to be a moderate voice, but when faced with the egregious behaviour of the ministry staff on this and many other cases, there is no way to have a moderate voice. We must have protection services, but they cannot become the shambles that we see today. I do not want to go back to the days of the workhouse and children as young as seven working long hours in mines and factories, only to die young. Orphanages were a step up from the workhouse and foster homes were a step up from the orphanage.
    Secondly, there is a fair amount of truth in the statement that social workers have more power than provincial court judges. They do not have more power in statute, bute laissez-faire judges do not hold them accountable. Just look at the Bayne case. This case tramples on the guidelines of the act. Not only does the judge allow them to abandon the principle in the act that young children should not be in temporary care for more than one year, he colludes with the transgression by stretching the horrible drag by another three months. Probably the judges see themselves as being powerless to speed things up without risking being appealed. They should do what they think is in the best interests of the children. The director usually holds the whip hand. Social workers can manipulate the situation ad nauseam. They can keep on adjourning on one pretext or another,or they can make sure the case never goes before the same judge twice and judges co-operate by avoiding being seized with the case. Look at the G case which I wrote about. Judge A orders a one hour hearing next week to argue interim custody. Judge B appears and refuses to hear it because he does not want to be seized. Next court hearing comes up nine months later and the ministry withdraws complaint. Three children in care nine months with no evidence presented. They had no evidence in the first place. Judge acquiesces and asks no questions.
    As I said on a prcvious blog, the MCF cannot get away with all those abuses of authority without having a lot of accomplices. Judges among them. The effect is indeed as if social workers have more power than judges. The only protection for the public is to have social workers who work within a strong ethical framework.
    I rmember a case I had. I had apprehended a child whose young mother had many endangering behaviours. I asked for a three month order and I placed the child with an elder sister. The mother was welcome to live in the home and could completely look after her child, but she could not remove him. My plan was later to continue the arrangement on a three month supervisory order. She opposed my request and we looked for a hearing date and we would take one day. Could not find a hearing date for three months, so the judge ordered interim custody ane we did it on an interim order. Of course I was aware that there was no chance of settling the case under three months, but the whole family thought I had a good plan and supported it. I doubted whether a judge would disagree. Sure I had total control without having to show evidence, but it was not my fault we could not get an immediate hearing.
    After three months, the mother was in an addictions recovery programmme was taking vocational training and had a decent boy friend. All over and done with in less than six months and the mother never deprived of caring for her own child, while the child was safe. Compare this with the Baynes. Dragged out for three years, saw their kids four hours a week and not allowed to say or do anything without permission. Never be afraid to use authority, but be very much afraid of abusing it.
    Tomorrow I want to write about non-oppressive social work and all the other philosophies and concepts that have absorbed the social work schools over the last fifty years. Watch out for it Alison. Maybe I am one of those who practised oppressive social work every now and then. Look at the above story. Do not put me on a pedestal. "If gold rust, what shall then iron do?"

  9. I did ask my prof, and her reply follows:

    "I totally disagree with the comment from the anonymous reader. Without new evidence supporting the removal, the child would be returned again with unflattering comments from the judge. MCFD would also open themselves up to civil liability. In short, a judge would not tolerate such an act. I also note that in my 15 years of practice in the Fraser region, I have never seen such an act. I have seen “re-removals” after a return, but only in cases of fresh evidence."

    However, as Ray already noted, above, the situation can be manipulated. Further, as other commenters have pointed out in the past, one must have a lot of money to sue for civil liability.

    Looking forward to Ray's comments tomorrow on anti-oppressive practice frameworks.

  10. 1/2 Typical Presentation Hearing Transcript

    For Alison, here is a transcript of a typical Presentation Hearing oral judgment for a decision in favour of the Director to keep children in care indefinitely. I thought I put it up some time ago but I can't find it.

    In this case, there was zero evidence, the judge mentions only that the Director needed to meet a prima facie case and matters alleged by the Director have a very low threshold under the statute.

    What this means is at this stage the social worker can say anything, and doesn't have to worry about proving it until at the very minimum, a year down the road. During this time, "services" offerred address the allegations in advance of this issues being verified, then the Director usually succeeds in beating down the parents by getting them to do anything to get their children back to avoid trial. during this time the social worker "creates" evidence in the form of a parental capacity assessment, more psychologist and doctor assessments, and counselling reports by psychologists. If parents hold out until the trial, the Director can withdraw from proceedings to avoid consequences, and claim "services" did the trick. If that fails, then we have the rare situations as with the Baynes case.

    Judges are all different. Some do have empathy. Others are overworked and don't want to be seized. Some judges always side with the Ministry. Some judges are afraid of the Ministry. Some are heady with power and use it against the parents, but not MCFD. You want more supervised acccess? Pay for it yourself.

    There is a social dynamic that works against parents, especially in smaller cities, where Judges, court clerks, attending sheriffs, counter staff, MCFD counsel and even parents counsel see each other on a very regular basis. It becomes a "them" (parents) versus "us." The children are never seen, and are deliberately kept out of sight even if they are old enough to be seen, so it is hard for anyone involved to emotionally connect with the damage they are doing to the kids because the only information presented is the damage [alleged, of course] being done to the children by the parents.

    It is useful to know some law, but CFCSA is a very simplistic statute. There are only a few key points you need to know. The loopholes, subtleties and the "gotchas", such as when the clock starts ticking for the maximum months allowed to be in care are what opens up the system to the extreme abuse of process we now witness.

    I think the point is, with the 98% success rate of the Director at getting what they want when they get to court, it does not matter WHAT is said, the judge is pretty much bound to give them what they want. This is what is meant by the social worker having more power than the judges.

  11. 2/2 Typical Presentation Hearing Transcript

    Presentation Hearing Oral Judgment

    [1] THE COURT: I will indicate at the outset that these types of cases are some of the most difficult that judges have to deal with. These children have been severely traumatized because of other things that have happened before they got to this point. Living in [city], then coming back, the issues that arose from that.

    [2] This is a hearing that arises to determine where the children should reside while the matters that are alleged by the Director are investigated. It is a very low threshold under the statute. The Director has raised concerns about the [parent’s] actions in disciplining the children and [the parent] has offered affidavit material and a different characterization of [] discipline methods. As I look at the evidence that is before the court, it is not for the court at this stage to make findings of credibility or to make a determination as to whether the children are in need of protection or not. That happens at a later stage.

    [3] I have to be satisfied, firstly, at this stage, that the removal was not arbitrary, that there was some basis for it. It is akin to a preliminary inquiry in criminal law. If there is some evidence upon which a trier of fact could find that the children are in need of protection, then that threshold has been met. It is a prima facie or balance of probabilities test, prima facie case that the Director has to present and it has to be dealt with at stage two, as to the strength of that case. If there is a conflict on the evidence at this stage, it must be resolved in favour of the Director for a more thorough investigation at a full hearing.

    [4] I am satisfied that the removal was not arbitrary, that there are issues that must be investigated. In the interim the children will remain with the Director. I trust that some suitable arrangements can be made for access in the interim. I know weather conditions have not been the best but that really is not an excuse. These children are entitled to see their [parent] and likewise is entitled to see [the] children. I trust that everything possible will be done to facilitate that. The order will go interim custody to the Director.

    [5] This matter should be set for hearing as quickly as possible. I am alive to the issue of the children's activities. Fortunately or unfortunately, [activity] season ends, I know, in the month of [month], the beginning of [month] but these children need some stability and need to get on with their lives. This family unit needs to be restored in some fashion.


  12. There is an avenue to address civil liability issues Ray mentioned and avoid high costs. In my case I raised the CFCSA matter to Supreme Court because I discovered an FRA Order I wanted varied could be joined with the CFCSA.

    Provincial court judges cannot vary a Supreme Court order, so a Supreme court judge must hear any such matters, and the CFCSA allows joining matters to avoid duplicated trials.

    A pretrial Supreme Court judge (not seized with the case) sorting out witness submissions heard a preliminary report from me on what was going on and advised me that I would be able to file a cross-application lawsuit to be heard at the same time for a civil suit. The face of the MCFD's counsel turned purple when he heard this.

    This would have the advantage of having the Ministry on the hook for trial time costs and having to pay, at least, applicant legal costs. It should be noted that Civil suits in BC awards very low amounts that are not Jury trials, but this exists as a deterrent.

    I did not posess the skills, the funds, or the time (I was given one week) to prepare this option. Other parents should know that this option exists.

    The recipe is that you need to have "any" sort of Supreme Court decided FRA matter concerning custody that would have been suspended by the CFCSA/MCFD action. Apply to vary it in some manner, then apply to join the matters. Then you can later add a cross application for a lawsuit, and everything can be heard together.

    If MCFD is on shaky ground (ie. no criminal assault charges filed against you) AND you are pre-addressing concerns by taking their crappy "services," this is an ideal way to up the ante and possibly get some of your money back.

    I would seem to me that even filing a cross application in Supreme Court then having matters heard together would work as well. This is one reason I wish one of the readership of this blog would be a lawyer.

    I recall a paralegal commenting from New York online as being the closest thing to a lawyer. Law can be used to immediately address problems, but the skills and costs involved is unquestionably prohibitive. This is why MCFD targets low-income families that typically do not have the wherewithall to fight back.

    Many MCFD report to courts being are flaky and prepared with the knowledge supporting evidence is not there. Having a mechanism to force MCFD to prove in submissions the evidence exists as they respond to a Suprem Court civil lawsuit would then force MCFD to be subject to processes of discovery. In theory.

    MCFD staff were proud to announce to me that in normal CFCSA proceedings they were immune to examination for discoveries.

    Ideally, if you really want to fix child protection issues quickly, you would have an expert lawyer in CFCSA, FRA and Charter Rights would represent you and apply for a Jury trial. Do THAT on a regular basis, and you will very quickly see revisions in internal policies.

    As CW alluded with respect to the CAPP "transformation" process MCFD claimes to be engaged in but does not seem to progressing very quickly with, don't hold your breath. They have more reason to ignore such things with the current turmoil in BC politics.

  13. Alison,

    But the problem is, new "evidence" is so easy to produce. All it takes is an affidavit or two, which can, from what I understand, be hearsay. And from the sounds of it, this hearsay is not hard to come by.

    Many parents here and elsewhere have spoken and written about how social workers, or case workers, have said things about them that were completely untrue. Some of these parents only found out about the misrepresentations when they got their file.

    "Evidence" is not an objective term, whatsoever. That's why so many law books have been written on the subject, and so many cases deal with this one aspect.

    Your input is very worthwhile, and shows you take your education, and profession, seriously.

  14. Point 3 of Anon 10:08 is the correct interpretation of my previous day's comment.


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