Ray Ferris is my guest writer for the next five GPS posts. He retired after a career that included significant years with the MCFD and he has written a book entitled 'The Art of Child Protection.' In five parts here is 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 to propose remedies in the child protection system.
THE CHILD, FAMILY AND COMMUNITY SERVICES ACT – PART 3
The child family and community services act.
The act itself causes many problems. It is too long and complicated and the authors made the fundamental error of trying to prescribe practice. As soon as it was passed it virtually ground the courts to a standstill. In trying to be all things to all people, it fills itself with conflicts and contradictions. Strict adherence to one clause can cause another clause to be sabotaged. The well meaning general principles and guidelines are routinely ignored and in the Bayne case the statutory time lines were totally set aside.
Judges take a very passive role with the ministry and for the most part always go along with the director. They do not take an active part in making sure that guidelines are followed and they do not protect the rights of parents and children. There are many cases where children were removed on weak evidence and kept in care for a year or more, before a hearing took place. When the hearing came up the workers simply withdrew complaint and judges accept it without question. Just look at the Bayne case. The judge could not find the compelling evidence needed for a continuing care order. In spite of the weakness of the evidence he kept the children in the equivalent to temporary care for a period of four years. The act says one year maximum. In doing so he was very kind to the director and spared the ministry a media roasting.
Relationship between the ministry and the courts.
It is an accepted matter of appropriate behaviour in the criminal courts that the independence of the judiciary must be maintained. It is unacceptable for politicians to try to influence the outcome of a trial. This is only partly true, because politicians can influence decisions made by the prosecution, which also impacts the courts. ( ie Basi-Verk case) In civil cases we have a completely different picture. When a protection case is before the courts, the politicians will not comment on it. None of the various levels of the civil service will comment on it and neither will the youth and child advocate. This situation needs to be revised.
In actual fact the judiciary are far from independent of the actions of social workers. The nature of protection work demands that judges must take a good deal on trust and must assume that the social workers have good reasons for their actions. This would be quite acceptable, if the workers are well trained and reliable. However, this is not the case. The underlying principles, which are fully supported by the legislation is that the parents have the right to require the social workers' allegations to be tested under due process within a reasonable time frame. Thirty years ago parents usually got their day in court much sooner. Now this never happens and even cases with very weak evidence can drag on for years.
Judges can only make their decisions based on what is brought before the court and what is before the court is very much in the control of the social workers and their superiors. The actions of the social workers are controlled by their supervisors and directors. When parents (as in the Bayne case) try to use the internal appeal systems, or to approach the deputy minister, all doors are closed to them on the grounds that the matter is before the court. At any time the director could have ordered the social worker to withdraw the complaint and the court would have acquiesced. This has happened numerous times. It is not surprising that the public perception is that the courts work hand in glove with the social workers and it is impossible to win a case by due process.
This is one more reason why the courts should only be used in extreme cases and other methods of resolving protection matters should be explored. Cases have been successfully appealed, but this is a lengthy and costly processes. For instance an appeal has been launched in the Bayne case, but it will never be heard. The children will be back home long before an appeal could be heard and there would be little point in pursuing the matter.
You can order Mr. Ferris' book entitled 'the Art of Child Protection' by contacting the author directly at email@example.com.