Thursday, September 20, 2012

Criminals and Lawbreakers

This article was written by Ray Ferris and published here on May 30th, 2012. He sent it to me this week believing that it is once again a timely comment with regard to the concerns that you and I have about the way MCFD handles some families.

Ray Ferris retired from a a career with the Ministry of Children and Family Development at a time prior to the present Child, Family and Community Services Act which empowers the current Ministry of Children and Family Development. He has been an unapologetic critic of Ministry mistakes, practices and case management for some time. He contributes comments here and occasionally I print his material as the primary post for the day. This is one of Ferris' posts. Ray is the author of 'The Art of Child Protection'. You can purchase it from him by writing to rtferris@telus.net.


CRIMINALS AND LAWBREAKERS

What is the difference between a criminal and a lawbreaker? Is it just a term, or is there a real difference? Well it seems to me that lawbreaker is a generic term, which applies to anyone who breaks any law, but a criminal must specifically break the criminal law. We know what happens to criminals, because they go to prison, or get fined, or put on probation. Some countries put them to death.

What about all the other laws which are not criminal. Civil law and administrative law? What happens to breakers of these laws and who are typical lawbreakers? Well we know all about speeding tickets and parking fines. We know all about income tax penalties and divorce and custody orders. There can be unpleasant consequences if you fail to pay maintenance or fail to return a child on a court ordered access visit.

Do we find lawbreakers in family court in child protection cases? We most certainly do and those lawbreakers are not all at the back of the court. A lot of the lawbreakers are social workers and their bosses. There are also plenty of lawbreakers in front of the bar among the various lawyers who make a living out of the Child Family and Community Services Act. But the biggest lawbreakers are right on the bench. Those judges who collude and enable social workers, their lawyers and others to ignore just about every requirement of the act.

The CF&CSA is civil law and it is also administrative law which lays certain responsibilities on people. Unlike other law, they can ignore all those requirements without any fear of consequences. Social workers, lawyers and judges become so nonchalent about those responsibilities that the law may as well not exist. Social workers often fail to serve notice properly, but no matter let us all agree to waive them, they are just a formality. Surely the parents can guess at the order we want. How picky to demand the information in writing. Defence lawyers who fail to demand proper process are colluding at breaking the law. The law requires prompt disclosure of the social workers of their evidence. What is prompt, what is timely? Whatever the social worker says it is. This year, next year, sometime never. Lawyers and judges who do not insist on prompt disclosure are once more in collusion at law breaking. Judges can define in specifice terms what is meant by prompt and timely, but they are not likely to do it unless a lawyer presses the issue. So these lawbreakers can ignore evey guideline in the act and every firm requirement in the act, without suffering any consequences. Every time the defence counsel fails to read the act and demand disclosure and prompt process, there is collusion at breaking the law. Every time a judge allows lengthy adjournments he or she is colluding at breaking important guidelines in the act.

Are there any consequences? You bet there are. Only the consequences are visited on innocent young children and distraught parents who are helpless at protecting their children against the precarious care of the ministry of children and families. Even if you have fifty to one hundred thousand dollars to spend on a lawyer, it may just evaporate while you get nowhere.

The case of little Ayn raises all these issues. Did Derek's lawyer look up the act and demand prompt disclosure? Did he/she insist on proper notice and hold the ministry to account if they failed to obey the law? The act is clear that no child under five years should be in temporary care for more than one year. Yet judges keep them in temporary care for years. Just look at the Bayne case, where it was nearly four years. Oh that's okay, we just relabelled it as interim custody. When the judge ordered six months temporary, he did not comply with the law. Was he a lawbreaker. What do other readers think?

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