author of the book “The Art of Child Protection.”
You can purchase it from him by writing to firstname.lastname@example.org
Dealing with the ministry is usually as arduous as walking through molasses and dealing with the court system is as arduous as walking through molasses in January. So anyone contemplating either course should know that you can make slow progress, but you will have to push, push, push. Being forewarned is being forearmed and so you will be less frustrated if you keep your expectations low. You may well find out that you also have to push, push, push your own lawyer. So it helps to know how to do it.
The first thing to know is that as soon as you are in court, the ministry always has a lawyer present and the lawyer will manage everything for the social worker. Secondly the lawyer will not talk to you. You can only talk to your social worker and he/she may be unwilling to discuss any of the evidence with you and will leave that strictly as a court process. They may only discuss times and places of access, or what courses you need to take to satisfy them that you are “working with them.” If you have a lawyer, then the ministry lawyer will speak with your lawyer and you can speak to the ministry lawyer through your lawyer. The social worker will not speak to your lawyer. This is all part of the defensive ring. The circling of the wagons against the dangerous savages. The director will only take you seriously if you work through your lawyer.
You need to understand how your relationship works. The lawyers are basically there to do your bidding, because they are your agent with the court and it is very difficult to do certain things on your own. They have the skills, or should have the skills to know how to draw up an affidavit properly, to issue a subpoena, and to negotiate with the ministry lawyer. Lawyers are allowed to talk at the bar and you are not. The judge will always allow your lawyer to speak, but may shut you up. It is a closed shop.
Lawyers vary a great deal in their competence, but almost all will be guided by making some money. They will strongly resist doing unbillable work. For instance going to court for half an hour and agreeing to an adjournment is easy money. At least half a day of pay just for turning up. The relationship is that your lawyer advises you, or gives you counsel, that is why they are also called counsellors. You instruct your lawyer as to what you want done. Lawyers easily forget this and cross the line from advising you to instructing you. Even the best lawyers will do this and one has to be firm with them. This is not easy when one is so dependent on them.
I will deal with some process matters, because they are easier to pin down. For instance, under section 38, when a date is set for a protection hearing the social worker must serve you notice ten clear days before the date of the hearing. The notice must be in writing and it must clearly state the order that is being sought by the director. As far as I can see the courts have become very sloppy about notices. In the Victoria court it used to be a routine at the commencement of every case. The judge wanted notices to be filed before he would take the case further. Some judges would demand that parents be notified again for adjourned dates, if a parent was not in court at the time of the adjournment. Judges vary a lot. Some are very easygoing and others are particular. Some judges take a hands off approach and will not initiate any action themselves. They will only deal with issues that are raised by the barristers and that is why it is important that your lawyer raises the important issues. The director and his counsel may be sloppy about notification and the judge may be reluctant to make an issue of it. They all have a duty of care to you, but you have to work to get it into action. You should make sure that your own lawyer takes these matters seriously.
Let us take the matter of disclosure. The act requires that the director disclose to you and your lawyer the evidence to be presented and any internal documents related to your case. It was through disclosure documents that the Baynes learned that the ministry lawyer had advised the director to drop the case. Now the act requires that a protection hearing commence within 45 days of the presentation hearing. It is my position then that it must be obvious that the intention of the act is that full disclosure be made before that date. This rarely happens and it will definitely not happen unless you instruct your lawyer to push for it. In the Bayne case it was 13 months before they got any disclosure. You can instruct your lawyer to go to court and ask the judge to order full disclosure by a specific date. You need to be sure that your lawyer has read the act and knows which sections of the act to which to refer. You may not only have to tell them to do their job, but you may have to tell them how to do their job.
When you instruct your lawyer you should make it very clear what you want. I suggest that the best way for you to do this is to give your instructions in writing and make it very clear that it is an instruction. If you do it this way, it is very difficult for your lawyer to refuse an instruction without resigning as your counsel. It also gives the lawyer the opening they may need. For instance, if you write a letter to your lawyer saying “I am writing to instruct you to contact the director’s lawyer to make sure that the disclosure required under the CFCSA is processed immediately and that all the evidence to be delivered is detailed. Furthermore that this is done within 30 days of receipt of your letter. Should the director, or his lawyer fail to agree with this request, then you are further instructed to set down a hearing to ask the judge to order compliance.” That way the lawyer can simply write to the opposition lawyer and say “I am instructed etc. etc. “
Readers should note that disclosure is required under section 64 of the CFCSA.
64 (1 ) If requested a party to a proceeding under this Part, including a director, must disclose fully and in a timely manner to another party to the proceeding
( a ) the orders the party intends to request.
( b ) the reasons for requesting the orders, and
( c ) the party’s intended evidence.
( 2 ) the duty to disclose under subsection ( 1 ) is subject to any claim of privilege.
( 3 ) Evidence may be excluded from a hearing under this part if no reasonable effort was made to disclose the evidence in accordance with this section.
Note that the ministry is not obliged to disclose unless there is a request. Also note that even when requested, they have shown reluctance to comply. In the Bayne case they failed to comply and much of the evidence could have been excluded under subsection 3 and this would have saved days in court.
More another time.
Ray Ferris is an occasional GPS post writer. Retired now, Ray speaks from 31 years in child welfare and protection as a social worker, district supervisor and family court coordinator. He cannot tolerate injustice imposed upon families by ineffectual case work.