OPEN LETTER TO ALL MEMBERS OF THE LEGISLATURE – PART 4of5 / 566

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 POWER OF DIRECTORS & THE NEED FOR MEDIATION – PART 4  

Powers of the Directors

When the CF&CSA was enacted, the legislature in its wisdom decided that ministry staff must be protected from inappropriate political interference with professional decision making. Thus local directors were given great powers in the act and have virtually unquestionable authority over all children in care and over decisions relating to protection cases. A director cannot be overruled and can only be removed. This happened in the Draayer foster home case where it took an order-in-counsel removing the director as director in that case only and appointing someone else.
Unfortunately, the legislature, in its innocence, did not take into account that some directors may be mistaken, adversarial, hostile or incompetent. In the same vein, Judge Ted Hughes recommended that the Youth and Child Advocate not be given any powers to question or overrule decisions by ministry staff. He mentioned that former children's officer Paul Paulen had become too adversarial. However, he did not seem to consider that the officer may have had little choice in the face of continual obstruction. This obstructionism has been well publicized by Ms. Mary Ellen Turpel-Lafond. The authority of the directors is apparently without bounds and unaccountable. This is only one of several matters which need to be critically reviewed in considering changes to the act. One solution would be to give the youth and child advocate more powers.

The adversarial and aggressive culture was well illustrated in the Bayne case. They were treated like dangerous criminal abusers who could not be left unsupervised with a child for one minute. For three years every application for increased access was opposed. There was a rush to apprehend the new baby at birth, even though he would be safe in hospital for at least a week and the judgement was imminent. They tried to block the mother feeding expressed breast milk. The boys were removed from the grandparents by force in the middle of a birthday party. They ignored the advice of their own lawyer to return the children and so on.

Mediation.

There are a number of reasons for questioning as to whether mediation should be part of the act. This appears to be another failed attempt to legislate practice. One of the obvious difficulties in mediation is that there is a huge imbalance of power between the parties. The ministry has all the money and clout and can rely on the backing of the courts. It is somewhat like trying to arrange mediation between the wolf and the lamb. So mediation can become just another exercise in coercion. Another problem is that as soon as mediation becomes linked to the court process, it becomes another adversarial component. Not only that; mediation usually serves to delay and avoid the parents getting their day in court. Mediation can completely delay the intended timelines of the act. This is just another instance where adherence to one section of the act can sabotage another section. The more clauses there are in the act, the more difficult it is for staff and courts to decide which should have the highest priority. The main guidelines stress timeliness and continuity of care, but all this gets lost in the process. I think we need to be clear about our priorities and one of them should be to give parents their day in court within the timelines suggested by the act.

My own opinion is that mediation belongs in the realm of professional practice and should be taken right out of the act. Instead mediation should be one of a number of skills taught in a core training programme. Negotiation has always been practiced by good professional staff and that is one of the reasons that we had so few contested cases when I was family court co-coordinator. 

You can order Mr. Ferris' book entitled 'the Art of Child Protection' by contacting the author directly at rtferris@telus.net.