MORE FROM FERRIS ON JUSTICE WALKER'S STUNNING VERDICT

You will need to refer back several blog posts to catch the significance of the court case that has captured Ray Ferris's attention. The judge ruled against a father who he said had abused his children, and roundly faulted MCFD for believing him and getting it so wrong, and awarded the children to the mother. Now she is suing MCFD. Listen to Ferris below ... By the way, he is a colleague advocate for change to MCFD and for justice to the improperly treated.

The judgement by Mr. Justice Paul Walker was so full of meaty issues, that one could write about it for weeks. Today I am going to continue with issues raised in the Walker judgement, but they also relate to other cases and so I am going to branch off a bit.
I was in a mall recently and I saw pictures of children with a slogan stating that children are not for sale. This was an organisation to raise awareness that there is far too much slavery in the world and half of those sold into slavery are children. How are we doing in British Columbia? We don’t exactly sell children into slavery in British Columbia, but we do allow people to buy children from the provincial government, believe it or not. This is how it works. The provincial protection services can remove your child on any pretext it sees fit and it does not have to prove a thing. In theory the protection staff must be accountable to a court within seven days and must prove the need for protection. This simply does not happen and here is why.

It is true that if a social worker removes a child from the parent, a presentation report must be filed within seven days and a copy of the report given to the parents. That report does not have to contain one piece of factual evidence, but in spite of this the judge will always support the social worker and deny access if requested. Once again the matter of access does not need one piece of factual evidence to determine what sort of access will be allowed or denied. Later I will explain how to buy these children.

Let us look at some of the things that might go into a presentation report. What sort of evidence should we be looking at. Best is convincing factual evidence.

1. Only parent was arrested for drunkenness and was in jail, while two young children were left alone. This is evidence of immediate risk, but does not demand a conclusion that the parent will always be unfit.
2. The parents left the children with a babysitter for the weekend. When they had not returned by Wednesday, the baby sitter had to go to work and called in the social worker. This is evidence of irresponsible parenting, but the children were not in danger and further evidence is needed.
3. A baby was found abandoned on a park bench. Self-explanatory.
4. Mother demanded care for her child as she could no longer cope with his handicaps. She might just need respite care and supports, or she may really want to be rid of him. Time will tell.
5. An autistic child climbs out of a fenced yard and is missing for a couple of hours. The child may well have been at some risk for a while, but it certainly does not prove an unfit parent, or that a protection order is needed. The parent may have thought, quite reasonably that the child could not climb that fence. Matter for support and guidance and not severance of family ties.

Now another part of strong evidence is eyewitness evidence and it is generally considered to be reliable if it can withstand examination and cross examination. A neighbour may witness violent family rows with children being screamed at or sworn at, or violence between the parents. A relative may report a refusal to give proper medical care and so on. A school may express concern about abnormal behaviour in a student.

Less reliable is opinion evidence. Expert opinion is generally accepted in a court. A witness must prove expertise and even then the witness must state the facts on which an opinion is based. If a non-expert witness testifies, their opinion is not necessary if they have good facts to report.

Weakest of all is hearsay evidence. Hearsay is repeating what somebody else said. Generally the courts do not accept hearsay evidence unless there are good reasons why the originator cannot testify. Hearsay statements about what children have said is allowable in the act, because they may be too young to testify directly. This is sometimes combined with expert opinion when, for instance, a psychologist has interviewed the children.

A great deal of what the protection workers bring to court is in the realm of opinion or hearsay evidence.

1. In the Bayne case there was an expert medical opinion. A doctor claimed that an injury to a baby must have been deliberately inflicted. Quite reasonably the child was admitted to care until matters could be further checked out. The child had to stay in hospital anyway. When ten medical experts disagreed, the social workers should immediately have been prepared to re-evaluate the situation, but they seemed to be paralysed when faced with conflicting expertise and dragged the case on.
2. A couple were in the throes of a bitter divorce. The husband had often been violent and the police had to be called on more than one occasion. The mother believed that her husband sexually abused the children and the judge came to the same conclusion. The children were removed from the mother for one reason only. The husband, who was an antagonist claimed that the mother was emotionally unstable. On his word and on his word alone, the children were removed. On the strength of this the social workers told the police that the mother was unstable and so they failed to investigate properly. On the strength of one obviously unreliable opinion, a two million dollar trial took place.
3. It is common to see on presentation reports vague innuendos, such as “we have concerns that the emotional needs of the children may not be being met.” “ We have discussed the allegations of the neighbour with the parents, but they continue to be in denial. Unless they are prepared to admit things, we cannot move on and the children may be at risk.” Or community sources have revealed that the father may be using and dealing in crack cocaine. He is often out late in the evening.”

On the strength of such flimsy allegations the parents may not see their kids for years except on supervised access and the supervision will be draconian. How can this happen? Simple. At the presentation hearing the parents notify that they will oppose the director and they want a hearing. At the time, or within a few weeks there is a case conference and the director states how many witnesses he will call. He will stack the hearing with witnesses. They may have nothing of value to contribute, but that does not matter because the contest is on and winning is everything. He may a call two or three intake workers, the social worker with the case file, the team leader, the foster home social worker and some of the supervising agency staff. Plus a psychologist and anyone else who might take up court time. How many days do you need? Oh at least twenty your honour. The judge asks the case manager when those days will be available and finds the case will take two years and possibly three if the parents want to call any witnesses. Meanwhile the parents may have their access to the children severely restricted and the kids may be moved from foster home to foster home.

It is of no consequence that the evidence may be garbage. The judge cannot tell that until the case goes to trial and it might be a year before the first evidence is heard. Here is another nice little twist. The act allows the director to withdraw from the case at any time during the trial with no questions asked. All he has to do is to file a letter giving reasons and the judge is obliged to discharge the case without making a protection finding. The reasons can be nonsense and it does not matter a jot, because the judge’s hands are tied. Like in the Walker judgement, the director withdrew from the case after 65 days of court hearings on the bare information that she did not think that the children would be at risk with the mother. She did not have to explain himself at all. Unfortunately for the director, the hearing was in front of a supreme court judge because it was a combined divorce and protection case and so the judge was able to make a ruling in favour of the mother and against the father. He was able to make a written judgement with strong criticism of the director.

Of course on the bright side, the parents can always buy back the children. Rates vary, but usually start at about $100,000 and can easily double that and sometimes reach half a million dollars. Of course the parents do not pay the director directly. They go through a broker to get the kids back. The brokers are called barristers and solicitors and if you pay them enough you can usually get your kids back. Mind you it can take three or four years. How does this serve the best interests of children?

Ray Ferris is a retired child-protection worker and the author ofThe Art of Child Protection.