Part Eight of Nine
Resolving Systemic Problems in Child Protection Services
By Ray Ferris
Ferris retired after a career that included significant years with the MCFD. He has written a book entitled 'The Art of Child Protection.' This is the first in a series of pieces Ray will write here. You can order Mr. Ferris' book entitled 'the Art of Child Protection' by contacting the author directly at email@example.com.
Yesterday Ray wrote that 'Analyses of commonalities in cases and the subsequent probable conclusions illustrate systemic and non systemic problems and how they interact, and cited the prohibitive costs for those who oppose ministry action; an adversarial culture has developed as regional actions involve highest MCFD management in support; and lack of evidentiary skills among social workers.
Another thing that has developed since the enactment of the CF&CSA is that the use of lawyers has increased tremendously. Now that proper training in the act has become uncommon, the social workers rely on legal advice for every function. Interviews with clients have become so adversarial that they are often conducted with counsel present. This intimidates clients to the point where they feel they too must have an advocate present. It should be obvious that the legal profession and the courts have a very old tradition of being adversarial. It is also well known that the more adversarial the culture, the more financial benefit goes to lawyers, so they have little incentive to negotiate. The adversarial culture is so deeply ingrained into the legal profession and the judiciary that they seem unable to think in a different way. They just cannot help it. This culture now permeates the family court and processes have become as formal and adversarial as criminal court. The informality allowed in the act is soon forgotten.
It has often been said that courts do not dispense justice, but they dispense law. Family courts do not protect child welfare, they dispense process. This process often becomes so lengthy that child welfare gets drowned in process. No wonder many people are now wondering whether the family court is no longer suitable for deciding protection cases. Ways and means should be sought to have cases heard before some sort of panel of experts and only sent to court if unavoidable.
This is another problem area, which needs to be considered. Prior to the enactment of the CF&CSA, discussion, negotiation and mediation were considered to be social work skills. Supervisors would sometimes need to mediate disputes between social workers and clients and this was a much needed supervisory skill. Mediation is usually most successful when there is no great power differential between the parties. It must also be completely voluntary on both sides. The legislated mediation often fails for various reasons. First of all there is a huge power imbalance between the parent and the social worker. The mediation often takes place when the children have already entered care, and so the parties are already in an adversarial situation. So much so, that some parents feel they need their lawyer present at mediation---even at $2,500 at a time.
Second, there is no hope of mediation if the parties are totally opposed. As in the B. Case, the director said you deliberately hurt your child and the parents said absolutely not. The director said unless they admitted it we cannot move on. What is the point of mediation? Third. If the ministry pays the mediator, how can there be impartiality? What is the incentive for the mediator to terminate mediation? These situations come up frequently on child protection websites. The act allows for judges to postpone protection hearings when mediation is underway. The result of this is that mediation usually derails the mandatory time lines of the act and the priorities get all skewed. The priority, as clearly intended in the act, is to make sure that parents get their day in court as soon as possible and the director should be made accountable by requiring him to present good evidence under due process. Only after such process should children be deprived of the care of their parents. Separations of more than three months without proper process should not be tolerated.
The systemic change would be to take mediation right out of the act and instead defined as a core-training requirement for both social workers and their supervisors.