AN OPEN LETTER TO ALL MEMBERS OF THE LEGISLATURE – PART 1of5 / 563

Ray Ferris is my guest writer for the next five GPS posts. He retired after a career that included significant years with the MCFD. In five parts this will be the substance of a letter already sent to specific officers of the government and offered publicly now using the Bayne Case to expose flaws and remedies in the child protection system. Here is part one of his letter.



THE BAYNE CASE AS A GRAPHIC EXAMPLE OF FLAWS – PART 1
My purpose in writing to you is to draw your attention to the facts in a particular case and in some related cases in order to illustrate a number of serious problems in the child protection system. Some of these problems are systemic and others are not. Where the problem is systemic, I offer some suggested remedies that can be tried. I think that there are possible remedies for the non-systemic problems, but they are deep-seated and difficult to correct. It can be noted that non-systemic problems cannot by remedied by making administrative or systemic changes. This is one of the reasons why the past systemic changes recommended by people like Gove and Hughes have not worked and have in many respects simply created new problems.

I am a strong proponent of being guided by fact based evidence in all branches of social work and in child protection work in particular. Thus in addressing the specific case of illustration, I try to restrict myself to making only fact based statements. The facts can speak for themselves. In this submission, I am not advocating for the case, but my purpose is to use the case as a graphic illustration of the serious flaws in the service.

The case in question is the case of Paul and Zabeth Bayne and their four children. The Baynes had two boys, both born prematurely, the second at 25 weeks gestation. They gave birth to a girl at six weeks prematurity. The case started when a paediatrician made an allegation of non-accidental injury on the girl when she was six weeks old. Specifically the allegation was shaking. She was placed in a foster home and the boys were placed with their grandparents, but were abruptly removed after seven months and experienced multiple placements.

Please note the following facts.

*The apprehension took place in October 2007. The court case lasted from that date until October 2010.

* During those three years the children were in interim custody, with repeated adjournments of the court.

* During that time and until the present day all access has been stringently supervised with strict rules about how the parents could interact with the children.

* Access was two hours twice a week. In the late summer of 2010 the judge increased that access to three hours three times weekly. Several court hearings were dedicated to this request.

* Hearing of evidence did not start until January 2010, two years and three months after apprehension. There were 22 days of hearing spread out over 8 months. Evidence concluded on August 13th 2010. The director's lawyer took another three days over two months to make the case for the ministry.

* Chief provincial Judge Crabtree took another four months to make a written ruling. This was over six months after the last day of evidence.

* In the ruling he denied the director's request for a continuing care order and did not accept the evidence of shaking. He could not determine the cause of injury, but did rule that cause could not be determined by medical symptoms alone.

* In spite of rejecting proof of deliberate injury, he made a temporary order for six months, with only supervised access. He made a protection finding on the basis that the injury was "unexplained" and on his opinion of Mrs. Bayne under cross-examination. He cited precedents to support a small degree of risk.

* In making a six month order he made a legal error and he had to issue a new order for three months and certain clauses in his judgement were deleted.

* In February 2011 Mrs. Bayne gave birth to a boy, who was apprehended at birth and remains in care. The child needed to stay in the nursery for over a week and Mrs. Bayne breast fed her son. She needed to express milk for the interim feedings, but the social worker forbade the nurses to feed the child expressed milk. Eventually an officer from the child advocate's office persuaded the social worker to allow expressed milk. For the last four months the mother has breast fed the baby at visitations and has expressed and stored milk for the rest of the time.

* The Baynes spent all their money on lawyers, paying over $60,000. They had to sell their home to meet their legal debts. No lawyer would take their case without a guarantee of $100,000. They would have been completely helpless were it not for the fact that a Victoria lawyer took on the case with no guarantee of payment.

* The Baynes incurred heavy legal costs apart from payments to counsel. The Canadian Alliance for Justice took up their case and raised funding for costs. They also staged demonstrations outside the court houses.

* The Baynes were investigated by the police, who found insufficient evidence to proceed.

* The Baynes agreed to enter mediation, but found that the ministry required them to admit that they hurt their child, or no progress could be made. In addition their lawyer charged them $2,500 every time he attended mediation meeting.

* In order to be available for court and other appointments, the parents took on jobs as night janitors.

* Seven months after apprehension, the Baynes had received several expert opinions from forensic physicians. They all disagreed with the findings of the first paediatrician and pointed out errors in her assessment.

* About the same time the counsel for the director advised him that with proper defense the case could not succeed, and counselled him to return the children. The director continued to pursue a continuing care order.

* In his judgement, the judge made no reference to the possible emotional damage being done to the children, by the prolonged period in limbo. Nor did he make any reference to several days of testimony by non-medical ministry witnesses.

* The Baynes are currently undergoing a parental capacity assessment by a psychologist and the expectation is that the children will be returned home before the start of the next school year.

Summary
On the strength of one disputed medical opinion this case was pursued for three years. The case was enormously expensive for the ministry and bankrupted the parents. Apart from the legal costs a great deal of special payments went into the foster care. It is likely that the children will soon return home, but the same help will not be available to them. Many people will be asking themselves what has been accomplished by this and how the best interests of the children have been guard
ed.