Article by Ray Ferris. (Ray Ferris, my friend and fellow advocate is an expert on child protection and specifically the work of the Ministry of Children and Families in British Columbia (MCFD). He is the author of 'The Art of Child Protection." Ray reissued this information now, sent to me September 27th, 2017-09-27. Ron Unruh).
PROPOSED IMPROVEMENTS FOR CHILD PROTECTION.
This is based on material I wrote at the request of some NDP members of the legislative assembly for the election of 2009.
The British Seebohm Commission of the 1960s noted that there were many problems of a non-administrative nature in the British social services and they could not be solved by administrative changes. This is important to remember because there have been many serious problems in the child protection services of British Columbia, but the repeated attempts at solving them have only been through administrative and legal devices, which have always failed. Indeed it could be argued that they have sometimes made the situation worse.
The problems in the children's ministry are many and complex. Unsuccessful practices often become entrenched and heavily defended, so to tackle them all would take years. In view of this, I am only making suggestions based on clear evidence and which would require no structural changes and only one legal change. First I will define the problems and the suggested solutions. In order to keep the main part of this paper short and readable, I am placing all the evidence and the detail in some appendices, so that interested parties can better evaluate my position.
1. No child should be deprived of the care of the parents and no parents deprived of their children for lack of good legal representation through lack of funds. At present a parent has little chance of successfully opposing a director. Directors simply outgun them with legal firepower and run them out of money. The legal debts can be in the hundreds of thousands of dollars.
2. Many of the important clauses in the Child Family & Community Services Act ( CF&CSA) are routinely ignored, which deprives parents and children of their rights to due process. Two very important sections of the Act are the right to receive ten days written notice of protection hearings, stating the evidence to be presented and also the right to full disclosure which can be very specific. When due process is denied to unfit parents, it can easily be denied to cases where the director has weak evidence.
3. The child family and community service act has many flaws, but if used by well-trained professionals within a clear set of ethics, it can work well. The main weaknesses of the Act are that it was written by many people who were more theoreticians and not practitioners and they made the mistake of trying to legislate good practice, making the Act cumbersome and difficult. The strengths of the Act is that it was written by people with a good knowledge of child development and the damage that can be done by severance of the bond with principal caregivers. The Act has many clauses meant to give guidance on this and to forestall injury. Unfortunately the Act is not followed in a great many instances. This has become entrenched at every level.
4. A leading cause of a denial of parent and child rights is that social workers and their superiors are simply ignorant of the duties required by the Act. They rely entirely on advice from their contracted lawyers who can become very careless. Defence lawyers, especially on legal aid are often equally careless and do not take well to taking reasonable instructions. One outcome of the heavy reliance on lawyers is that the adversarial culture of the law and the courts has permeated the children's ministry and staff behaviour has become antagonistic to clients. As soon as a complaint is laid under the CF&CSA the social worker is in an adversarial situation. This spills over into attempts at mediation.
l. It is not easy to equalise the power in the court situation. The directors have deep pockets funded by the taxpayer, but the parent has to rely on patchy legal aid, selling property or the charity of an individual law firm. My proposal is that we follow a model that has been used with success in the criminal law arena. Public prosecutors and public defenders are both funded by the state. We used to use this model in the Victoria juvenile court. A duty defence council was always there to ensure fair process. At present counsels are contracted to act for directors. I suggest we also contract public defenders. This model could greatly speed up cases and facilitate the settlement of cases by mutual consent. Defence counsels should know the Act inside out and be diligent in checking the wording. Prosecution and defence would in effect work together to review the evidence and this would help to avoid unnecessary extreme positions. Cases could be settled with fewer hearings and this should ease the court backlog and save parents from being beggared by legal costs. A pilot project could be initiated in a medium sized court to evaluate the concept.
2. The imbalance of power between director and parent, coupled with the adversarial culture renders a mockery of attempts at mediation. It has been suggested that it is like the wolf mediating with the lamb. Mediation can be used to manufacture evidence and cause lengthy delays. I suggest that mediation be removed from the Act and made mandatory in core training.
3. Training is a vital part of child protection work. Whether they like it or not, the directors’ staff are executors of an important public statute and have many duties to fulfil. It is important that social workers and their superiors understand what those duties are. They should know not only what is in the key clauses of the Act, but also why they are there and the intention of the legislature. In order to practice ethically, they cannot fail in duties through ignorance. The CF&SA is where good social work practice and the law should join hands with mutual respect. Both the Gove and Hughes reports noted that social work schools do not train students for child protection. Training comes after graduation and is the responsibility of the employer. Training should start with the managers and supervisors, who cannot otherwise mentor social workers. Of course training can contain far more than knowing and following the Act, but if we start with that as the first goal it will be a big step forward.