Wednesday, April 3, 2013


The rights and best interests of children. 

In British Columbia, children have certain rights. They have a right to be made safe in their own homes or in alternative care. Right? When in care they have the following rights.
They have a right to continuity and stability of care. Right?
They have a right to be placed with relatives and to continuing kinship contact. Right?
Young children have a right to timely resolution of their cases. Right?
This means not being left long in damaging limbo. Right?
They have a right to privacy. Right?
They have a right to the protection of the courts from unwarranted removal. Right?
The ministry director has the responsibility to prove his case. Right?
Parents have a right to protect their own children. Right? Wrong on all counts because in practice they get none of these rights.
The system simply cannot deliver them. The Child Family and Community Services Act (CFCSA) says that a temporary order on children under 5 cannot exceed one year and can only be in three monthly increments. This protects against the emotional damage known as attachment deficit disorder. The courts often stretch this temporary care to years before any hearing of evidence. They just re-label it as interim custody. The indefinite limbo of interim custody causes the same damage. At first hearings, called presentations, courts rubber stamp approval of social workers' actions, because there is no time to hear arguments. All judges want to do is to clear the list and not get seized (stuck) with a case. Contested cases will not be heard for over a year. Kids are often moved from home to home and disclosure is withheld. (Protection of privacy you know.) Children have even been moved from safe relative care to protect privacy. Nobody asks the kids if they are grateful.

The truth is that children's rights can often come into conflict with each other and judgement is needed to strike a balance. That judgement is in the hands of those with power. That means the ministry's regional directors, until a judge rules otherwise. The paramount right declared in the act is "the best interests of children." The big problem with this is that the best interests are always a matter of opinion. Only the opinion of those with power counts and that can be biased and self-serving.

Family courts have become as adversarial as criminal courts and just as expensive. Some parents who got back their kids had to sell their homes in order to raise the legal fees to do it. Ask how this in the best interests of the children and you will be told that the topic cannot be discussed to protect privacy. Or that the safety of the children must come first. In a case recently covered on CBC's "Go public" and "Fifth Estate" programmes, three children were kept in limbo care for nearly four years before the parents got them back. The children suffered multiple moves and all had anxiety disorders. That effort bankrupted the parents and cost the taxpayer an estimated half million dollars or more. The act allows the judges to make protection hearings quite informal, so sticking to rigid, expensive processes in not necessary. This informality only seems to extend to the social workers and not to the parents. Social workers are allowed to enter as evidence any piece of hearsay, gossip or conjecture. The same leeway is not given to parents, who may not be allowed to say anything at all.

It takes a certain amount of collusion to be able to dodge all the important guidelines and time lines of the act. Collusion between ministry employees, judges and counsels for both prosecution and defence. Obviously the adversarial process generates much more income than a conciliatory process, so there is little incentive for lawyers to speed things up. One device is to stack the court with far more witnesses than necessary. Parents are simply outgunned by the legal financial clout. The end result is that child welfare gets drowned in the culture of the courts. Do I sound cynical?

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