Derek wrote, “Well I'm gonna put on a pot of coffee and get to reading here. But first I'll write up a brief synopsis. It was very emotional to say the least - did have to take a recess but at least now we know how long this can possibly go on for.”Soon Derek sent us his report which I posted the next morning, Tuesday January 24th, entitled ‘Derek’s Report about Case Conference,’ which you can read here. If you have not read that report, it provides the backdrop to today's and tomorrow's pieces. Many page members responded to him on Facebook.
His report prompted numerous questions from me which I consolidated into one comment. The following day Derek graciously took time to answer these questions, one at a time which became very informative for us all but also offered opportunity for us to continue those conversational strings. I have provided the series of my lead questions and Derek’s responses.
I said to him, “Derek, I have read your comment and I have responses by your supporters. I am sure that none of us feel differently than we did with regard to our ardent desire to see Ayn come home to you. However, I believe a number of us may experience some confusion. I think many of us have questions arising from your report of the Case Conference proceedings and your principled position. I will place some of this before you and also make some comments. They are reasonable questions I think."
I believe we now understand that it was not the Ministry that abandoned mediation and moved toward a trial, but you Derek. You wanted the trial so that you can insure that the Ministry’s feeble reasons can be exposed and your positions on all features of this removal, disruption and confinement entered before a judge. Is that correct?
Derek responded this way. “Well that is sort of correct yes, the Ministry did not abandon the mediation, but neither did I. What happened was that there was a push to delay the setting of a trial date in order to first go through the mediation set for the 2nd of March. I did not want to leave that room without getting a trial date, in no way does mediation have to be cancelled in order for the trial date to be set and as far as I know it is still set. I did however say that if mediation was going to be an impediment to getting that date then I would simply cancel it as I am not optimistic about its success anyway. I think the most likely resolution will be found through our ongoing informal mediation, and not the formal mediation set for the 2nd.”
I put to Derek, "I suspect that you Derek, in wanting the trial did not foresee that the waiting time could be so far away - is that correct? If you had known, would that have changed what you said and did yesterday?"
Derek answered with this. “No I knew that I was looking at about a year away, and did make my choices with that knowledge in mind. It is my belief that once the ministry examines its case with an eye for an actual standard of evidence to meet, they will simply not show up. What they did is wrong and how they present my daughter and my family is skewed at best.”
More tomorrow.........
Derek; I agree with your position completely. As I have stated many times on the Unruh blog that the top priority must always be to get the case to a protection hearing as soon as possible. As long at is out of court it leaves the social worker totally holding the whip hand and you will be powerless.
ReplyDeleteNow look at what is supposed to happen and what actually happens. A presentation hearing must be summary and completed as quickly as possible. Within 45 days of the presentation hearing a protection hearing must start. It does not have to be concluded immediately, but all the notices and disclosure must be done. 10 days written notice must be given and the notice must state the section under which the complaint is made and must state the order intended to be sought by the ministry. These are firm guidelines. It does not say subject to available court time, mediation or case conferencing. The act also states that a full disclosure of the ministry's case must be made. It is obvious that if a protection hearing must commence within 45 days, then disclosure must be before that time.
Nothing like this has happened in Derek's casse. The child has been in care for half a year and there has been no written notice and no disclosure. The social worker has disclosed nothing at the case conference. It is not discretionary to decide what the worker wants to tell you. The law states what must be done. You can bet your boots that if you had agreed to formal mediation, it would be spun out as long as a mediator could make a buck from it and you would not get to court for about 2 years. You need a top notch lawyer and a judge who does more than take the line of least resistance. I will contact you privately with further suggestions.
I forgot to mention why I did not offer help to Derek sooner. My advice would have possibly been more effective right at the start, but might eventually make little diffference. I was aware of the sad situation of little Ayn as soon as Ron put it on his blog.
ReplyDeleteI had been working on the Bayne case from about April 2009 until October 2010 and I had put in many hours. Any illusions that the ordeal might be over were dispelled by the judgement in February 2011. The appalling treatment of the Baynes following the birth of their youngest child and the fact that the judge allowed it all was shattering. After nearly three years of travelling this tortuous journey, I was drained. So were many other stalwart supporters. It was not until August of 2011 until I felt that we were finally out of the wood and even then I was wary until November. Even then I was busy in resourcing Kathy Tomlinson with Go Public and so on. I don't know if readers realise how much it takes out of you to strive like this and see it come to nought. I simply did not have the heart to get involved in another heartrending episode of injustice. However, now I have had a break, I will try to give Derek any help that I can.
This is exactly the correct way to approach matters, get the trial date first THEN participate in mediation. If there is any threat of dates being pushed off in order to accommodate mediation, simply cancel the mediation.
ReplyDeleteI see no reason for the case conference to have been held off this long, as this is the event that was supposed to have occurred 45 days from the Presentation Hearing, not the 90 that it did take. Because the date was by agreement, this is the loophole that allows the CFCSA timelines to be thrashed. The legal aid lawyers should have pressured the judge to call the JCM to get the case conference date at the Presentation Hearing that was within the 45-day period.
This is one complication of having not one, but two legal aid lawyers, who must all agree on a date to appear. The other variable, and the unanswered question is the how the number of days of trial was arrived at.
The Baynes case, mediation was also used as an excuse to put off hearing dates, then they can blame process rather than be held accountable for their tactics.
MCFD absolutely loves delay. Any way they can manufacture a reason to delay proceedings, they do it.