CASE CONFERENCING (What a Parent Needs to Know)
By Ray Ferris
When one reads the preparation advice for case conferencing that is recommended by PAPA INBC, it is hard to imagine that this is preparation for some negotiating meeting with a benevolent and helpful agency, which is supposed to find every means of keeping children at home wherever possible. It is hard to imagine it will be a dialogue with an agency that is charged with looking after the best interests of children and with giving parents every help possible. No indeed, it is more like a preparation for a war, or some other violent contest. Instead it is like two people preparing to fight a duel. One is not there to discuss a peaceful solution. One is there to discuss the choice of weapons, the venue, the seconds and the furnishing of a surgeon. If it is preparation for a war, often it is not like discussing an armistice, or an avoidance of conflict. With the Ministry of Children it is more like discussing the terms of surrender rather than truce.
The advice of PAPA INBC seems to be very confrontational and mistrusting. Come in full armor and never let your guard down. This begs the question as to whether parents are justified in taking such an extreme position. I think that the answer to this has to be that in many cases it is justifiable. It does not matter whether it is true in most cases, or in just a few. An organization like MCFD which tolerates even a few cases like that of Ayn Van Dyk and other recent cases simply cannot be trusted. One can never let ones guard down, because you don't know until you get there how aggressive the Ministry is going to be. One should of course hope for the best, but always prepare for the worst. Many people might think that Youth and Child Representative, Mary-Ellen Turpel-Lafond has been too confrontational in dealing with MCFD. But what choice has she had?
Having said that, I have to say that much of the advice of PAPA INBC is not going to do you any good. He said that you should take a copy of the CFCSAct with you to the meeting. If so, have you read it and do you truly understand it? Even if you have, there is no guarantee that any of the social workers, or even the lawyers present have read the Act. Even the judge may not have refreshed himself/herself on it for years. It certainly seemed that Chief provincial Judge Thomas Crabtree did not know very important sections of the Act when he made an illegal order in the Bayne case. Even if the lawyer and the judge know the Act well, you have to remember that most judges will go with the establishment if they possibly can. It saves them a lot of bother. So they are quite capable of cherry-picking the Act to use only the bits and pieces that suit them. They are also quite capable of cherry-picking the evidence to find ways and means of supporting the Ministry (MCFD) if they can. And of course ministry lawyers can cherry pick everything and ignore the rules of evidence, secure in the knowledge that the bench will be supportive of anything feasible.
So take the Act to the meeting if you wish but don't think for a moment that anyone is going to let you quote from it. Everything is stacked against you and your only hope is to have the kind of top drawer lawyer that you cannot afford anyway. PAPA INBC made a comment something like. "if you are allowed to speak to the court." Now why on earth should you not be allowed to speak to the court. Your lawyer speaks for you and if you have no lawyer, you have no choice but to speak for yourself. Actually it is sometimes an advantage to have no lawyer, because judges are sometimes more sympathetic to an unrepresented person and will allow them more informality. More informality? Oh how terribly formal and stifled in process the family courts have become. The legal profession will tell you that it is the only way to preserve the purity of the process, the pursuit of truth and a just outcome. This may well be the truth --- if you manage to live long enough to benefit from any result. No, the real truth is that for at least 200 years the long drawn out processes generate the most revenue for those in the profession.( Read Bleak House by Charles Dickens.)
Tomorrow – Part Two Case Conference
You have to always remember that they are NOT your "friends", that they will use and twist and fabricate everything they can to make you look bad, that they are underhanded, dishonest, tricky and will betray you at every turn. You need to have a good lawyer and never let your guard down.They are always watching and recording every little thing that they will use against you. You have to always be vigilant and never trust them!
ReplyDelete1/2
ReplyDeleteThe importance of eradicating the appearance of coming to any meeting with an adversarial approach is the opposite of good faith. Add this line to the list of suggestions for preparation for a case conference.
Any parent or advocate that does NOT give a clear appearance of participation in good faith (tears, smiles and expressions of rage excluded) will have that entered into social worker black book notes. You do want to appear calm, cool, collected, organized etc.
The one section I forgot to add was what NOT to do. Based on Derek's feedback from the case conference:
- Don't get emotional. Duck out quickly or ask for a recess.
- Don't get on a podium and try to dictate.
- Don't say what the other party is doing (or is not doing) is "wrong" (another way to say "illegal", which is not the case.)
- Don't appear to be at the top of the pecking order, your lawyers must be seen as the primary contact. You will lose respect if you attempt to undermine their efforts.
- Don't let any division of position seep through any part of the discussion between you and your partner as parents of the child in care of MCFD.
- Don't Let the lawyer lead the discussion (pass silent notes to them)
Every lawyer and judge carries a current copy of the CLE book of Family Law in BC. Parents should familiarize themselves with the CFCSA and caselaw within. As MCFD has their children for a minimum of a year (1.5 years it appears in Derek and Ayn's case), there is plenty of time to study this.
It is useful in meetings to have an overriding authority from which you can specifically cite sections regarding timelines. It is not necessary to memorize the tome and master the finer points. The point is to have MCFD explain why they think it is more important to use their innate problem-solving skills to resolve issues rather than wait for court.
As far as the generalized interpretation the document in its entirety is "very confrontational and mistrusting" that was not the intent.
Certainly, specific sections that may appear to convey a perception of "war" and advocating an adversarial approach, so any such points should be revised so as not to give the impression that participation is without good faith. You hand the other side a brownie point if your approach is perceived as adversarial. (I suspect Derek wins here, since MCFD holds all the cards in this area.)
Walk softly and carry a big stick should be the approach of both sides. MCFD has the bigger stick, which parents must respect. Pretending you have a big stick (ie. media) will be laughed at and retaliated against, and generally used against you.
2/2
ReplyDeleteKeep in mind I wrote the guidelines specifically for Derek's case, in the space of 30 minutes before I left for work that particular morning. It would need considerable polish for generalized use. That said, Derek accomplished 90% of the most important objects (weighted by importance), so he should definitely be congratulated for this outcome.
The instruction's primary objective is for preparation and establishing this mindset of preparedness and not to be discouraged at a particular lack of progress in any one meeting.
Obviously, if the information has use, and has re-use value, I would suggest continuing to refine it.
To summarize, Derek did very well on the more difficult large points:
- Court date achieved (December)
- Pretrial date achieved (October)
- Number of days declared (6)
Lesser items I did not see in his report:
- Date and name of seized judge appointment
- Days not exceed 3-5 days (6 days selected)
- Witness list
- Judge's opinion of chances of success (mediation was suggest instead of a court date)
- Audio record of proceedings
- Get MCFD's position on why they continue to retain Ayn, concerns, remedial suggestions
Case conferences, as opposed to mediation are supposed to be more informational and dispassionate, and I detect there was some misunderstanding on this point. Once side needs to have sufficient cause to clearly illustrate the other side clearly will not will not win.
For example, in BC Supreme Court cases, judicial case conferences are mandatory before committing to trial because of the huge expense and time involved. Each parent may want custody et al. If one parent is armed with a joint s.15 custody report that recommends they have sole custody, the other parent would be more likely to want to go to court to have the judge override this recommendation. The judge might politely state in his opinion, the parent with the benefit of the expert report would likely win, and the cost of the trial would be born by the losing parent.
In Derek's case, neither MCFD or Derek had the benefit of an expert report, so the original reasons for removal, ratified by the Presentation Hearing Judge, stand.
Thank you PAPA for the additional counsel.
ReplyDeleteOops, pressed return too quick:
ReplyDeleteChange:
"Don't Let the lawyer lead the discussion (pass silent notes to them)"
to
"Don't interrupt the lawyer or try to lead the discussion (or punctuate their communications with your own commentary), pass silent notes to your lawyer instead. Keep in mind this is not a testimony.
I hope never to find myself ( or anyone else I know ) in this horrible situation, but thank you so much to Ron Unruh and Ray Ferris for "putting it out there"....people NEED to know.
ReplyDeleteVictoria Ettinger