INFORMATION AND SUGGESTIONS FOR PARENTS WHO ARE INVOLVED WITH CHILD PROTECTION AUTHORITIES IN B.C.

Information and suggestions for parents who are involved with child protection authorities in British Columbia. 

Written by Ray Ferris April 29th 2012.This is reposted in memory of Ray who passed away on December 4, 2019 at the age 90, having helped countless children, parents and forster parents.

Introduction.

            These notes are aimed at helping people who have recently become involved with the Ministry of Child and family services directly or through others. The information is written in the light of a number of cases coming to me and to other child protection helpers. I have borne in mind many of the most common questions that have been asked me. In writing this, I warn readers that the child protection scene is ugly, not only in British Columbia, but throughout Canada and the whole English speaking world. Unfortunately, I have good grounds for this statement, which is based on contact with numerous cases and with consistent reporting on a number of child protection blogs. I am very blunt about it because I believe that people are better off knowing the stark reality of things, than in harbouring false hopes, only to be disappointed.

The child protection and family court system.

            There are a number of reason why child protection systems throughout the western world have the same problems. Put in simple terms, it is generally because the responsible officers have great powers, but they are usually lacking in the training, knowledge and skills to be able to practice competently and members of the upper management do not have the competence to organise proper training, which in turn leads to stress and  high staff turnover rates. In addition the mechanisms for accountability are sadly lacking and are largely hypothetical than existent in reality. As in British Columbia, child protection authorities become large, unwieldy bureaucracies, where a great deal of staff time is spent on maintaining the internal needs of the system and in protecting staff from criticism. 

            Child protection services are governed by legislation and thus involve the courts. In theory the law and the courts protect parents and their children from unwarranted intrusion by the authorities. In theory the courts also provide a medium of accountability for child protection staff. In theory there are also various internal review systems and public watchdogs who hold staff accountable. In reality most of these media  seldom function and are often largely ritualistic, offering process with no outcomes. There are reasons for all this and I first want to deal with the courts, because that is where I get a lot of questions. 

            In order to realise why the courts are largely ineffective in following the letter and spirit of child protection law, one has to understand the longstanding culture of the courts. The courts are an adversarial arena, where opponents engage in long and tedious battles. The courts are also an industry providing employment for lawyers, judges and the many types of support staff. Too many people have a vested interest in prolonging cases and it is no surprise that cases often last as long as the money holds out. Family court often used to be held before lay magistrates and protection cases were examined on a less formal basis. One seldom saw a lawyer in court.  Now family court is held before highly paid judges and the courts are awash with lawyers. The protection court has become a good source of revenue. In British Columbia the governing statute is called the Child Family & Community Service Act.  ( CF&CSA ) This act does allow for family court to be more informal, but the ingrained culture of the courts and legal professions soon turns family court into an arena that is just as adversarial, disputive, expensive and time-consuming as any criminal court. Nobody plans it to be that way. They just cannot help themselves. 

            The child protection services operate on a basis of continual anxiety. Not being trained in the basic rules of evidence and being unsure of their own skills, protection staff are always worried that something unexpected will happen and they will get the blame. When a whole organisation operates in anxiety, the staff become controlling and secretive. This rubs off onto the courts. Judges are worried that the worst could happen and they tend to play it safe and to make cautious decisions. Even when there is no clear evidence to cause concern, they still tend to play it safe by supporting the establishment and they usually rubber stamp the requests of ministry directors. 

Do you need a lawyer?

            There are both advantages and disadvantages to using a lawyer. If you are in agreement with what the protection workers are doing and you have social workers that you can trust, you probably do not need to use a lawyer. You do have a right to address the court, but you may have to insist on being heard. At least it becomes part of the record. Like any other profession, there can be a great variation from one lawyer to another. They all have different levels of experience and expertise in different fields of law.  A lawyer does not have to be experienced in family court to take a case and may  not be familiar with how family court operates and with important precedents. Lawyers  will vary in diligence and perspicacity and in many other ways. A person with expertise in your field may be far too expensive for your budget. Legal aid lawyers may take the line of least resistance and come ill prepared. So how do you decide on a lawyer?

            First you need to understand the function of the lawyer. Lawyers all have training in law and in knowing the rules of evidence, court etiquette, and various tools of the trade. They should know how to issue a subpoena, how to draw up an affidavit and how to negotiate the court registry. Importantly, they are officers of the court and only a barrister is allowed to speak before the bar. That is why they are called bar-risters. They will always be able to get the ear of the judge, because they are part of an inner circle from which you are excluded. The law operates on what is written in the various pieces of legislation and on how the court chooses to interpret them in your case. Previous interpretations by upper courts are important and are called precedents. Thus it is important that judges and lawyers know what the law is in order to make sure it is followed. One of the functions of a lawyer is to review the wording of an act and draw it to the attention of the court and to argue about the interpretation. 

How to use a lawyer.

            One of the first things you need to know is to understand that your lawyer is there to advise you. In turn you listen to the advice and then you give your lawyer instructions. Not the other way round. Many experienced lawyers seem to forget this. You may even find an advantage in using a less experienced lawyer, who will be cheaper and may be more open to following suggestions and instructions. In a number of cases that have asked for my advice, it has become evident that the client had to tell the lawyer to do his/her job and also sometimes how to do it. Do your own checking. Ask your lawyer if they have actually read the CF&CSA. Ask what are the important things to know about it. Not only ask that, but ask how recently they have reviewed it. I have read the act many times, but I still have to check every time I advise someone, because I can easily get the wrong section or forget the precise wording. Later I will advise on some important sections that you can learn for yourself and make sure that they are not missed. Regard yourself and your lawyer as a team, both helping each other.

            I am going to use a specific case example, because it is a model of all the things that can go wrong in a case and how the welfare of the children can be completely lost in the obsession with procedure and argument. It is an object lesson in how to waste money on the wrong lawyer and in how easy it is to evade legal obligations. I refer to the celebrated Bayne case, covered by CBC Fifth Estate on January 9th 2012. To start with, they paid a lawyer $60,000  and had to sell their home to meet the bill. His expertise was not in family law and after several months, there seemed to have been no progress on their case.  I should state that I have in-depth knowledge of the case because I worked on it for two years helping them and their lawyer. In the process,I read every   piece of medical evidence and a great deal of non-medical evidence. I read the full summary for the ministry, the defence arguments and the detailed judgement.  

            The foundation of the ministry's case was that a paediatrician at the children's hospital alleged that the youngest of the three Bayne children had been injured by shaking. This is automatically alleges deliberate injury. The case was before the court for three years and the protection hearing took 22 days over 10 months. The children were in limbo for nearly four years before they were returned home. Chief provincial court judge, Thomas Crabtree took four months to deliver a written ruling. He rejected the main part of the ministry case, saying he did not accept the allegation of shaking. However, he did make a finding of minimal risk and made a temporary order. The children were in interim custody and temporary care limbo for nearly four years, before they were eventually returned home. This appears to ignore many of the important guidelines of the CF&CSA, which warn about the damage to children by long delays. 

 After all this time, it seems that Judge Crabtree did not take the trouble to review the act. He issued an order that was beyond his authority, which he had to retract and issue another one. This was not detected by the lawyers in the case, which supports my advice to read important parts yourself and make sure your lawyer does too. This judgement also gives credibility to the view that judges will generally find ways to support the establishment if they possibly can and the actual welfare of the children is  a subsidiary matter. 

How to help yourself.

            There is a lot you can do to help yourself. It helps if you understand the process and what to expect.  Any person with a reasonable degree of literacy can research the act. Internet users can simply enter the name of the act into a search engine and access it on line and print it. You do not need to know the whole act, but you can quickly  learn how some key sections of the act are supposed to work and how they are meant to protect you. You can and should insist on compliance, even if your lawyer wants to be more casual. If you look at division 4 and especially sections 34,35,36 and 37, you will see that a presentation report must contain a statement of the facts leading to protecting the child and an explanation that no less disruptive plan was available. Also that parents get a copy of the report and that a protection hearing must commence within 45 days of the presentation hearing. If you look under guiding principles under section 2, you will find emphasis on certain things, including the importance of timeliness in the cases of young children. Temporary orders on young children may not exceed three months at a time. This is to protect against the emotional damage known as attachment deficit disorder. In practice all these clauses are a joke and they are never followed, except in consented cases. Interim custody is sometimes extended for years, regardless of the emotional damage to the children. 

    The presentation report should contain facts, but this is interpreted very loosely by the courts. Sometimes the presentation reports contain only hearsay, opinion and conjecture. When social workers file affidavits headed as statements of fact, they often take great liberties with what are facts and what are not. Now you can turn that to your advantage by doing the same. When you file an affidavit with a statement of facts, you can safely use the same license without fear of being challenged. Say for example if you are arguing for more access to your children. 

            When a protection hearing is set you must be given ten days clear notice in writing stating the order being sought. The only exception is if the parents specifically waive notice at a hearing. You must insist on getting this notice so that the ministry cannot evade clarity. You are entitled to disclosure. Look up section 64.  Note that a request for disclosure must be made in writing and the director must comply. If this has not been done, immediately instruct your lawyer to do so. Note especially subsection 64 (3.) If they do not disclose something, they cannot use it as evidence. You can write yourself demanding disclosure under 64, but they will probably pay more attention to it if your lawyer makes the request to ministry counsel. Instruct your lawyer to pin the director down to a time line on this. Get your lawyer to go back to court for an order if they do not comply. Do not allow disclosure to cause stalling and further adjournments. You are entitled to prompt disclosure so that your lawyer can prepare a proper defence. If the director does not know what is to be presented to court, why were your children removed in the first place?

Evidence. 

            The only really valid evidence is factual. Expert opinion is allowed on validation of expertise, but even expert opinion must state the facts on which it is based. You will note under sections 66 and 68 that the hearing may be as informal as the judge may allow, so it is not necessary to be as slavish to process as in criminal court. Section 68 allows a certain amount of hearsay evidence that the court considers reliable. The writers of the act did not intend this section to make the act into a free for all, with no regard for the rules of evidence, but that is what happens. Social workers generally get little training in the rules of evidence. They cannot distinguish between fact, opinion, hearsay and rumour. In the 22 days of the Bayne hearing there was only one fact and that was not disputed. The rest was all opinion, hearsay, rumour, conjecture and thinly disguised smear. When you get your disclosure, look at what is fact and what is not and assist your lawyer in discrediting the evidence. She should challenge all the hearsay and so on. I had occasion to discuss this with a couple of family lawyers last summer. They told me that it is now just called “anecdotal evidence”. Oh great. We just find a new label and it is alright then. They seemed okay with it. I hope your lawyer is not. 

Mediation.

    Have no illusions. As soon as you get into the courtroom you are in an adversarial process against a determined adversary with deep pockets. Never mind all the principles under sections 2 and 71, they don’t mean a thing. If you enter into mediation, it will just become part of the adversarial process. The imbalance of power is such that it is like the lamb seeking mediation with the wolf. The usual routine is that you are supposed to admit that you are a risk to your child, or nothing can move forward.  They may simply tell the judge that they cannot work with you because the  parents are not willing to co-operate. Mediation may be used as an opportunity to manufacture evidence against you. The Act also allows mediation and conferencing to derail the statutory time lines of the act. Believe me the social workers make the most of it. 

Accountability and internal review mechanisms.                          

I would not advise anyone to try the internal review mechanisms in the ministry, because I have never known anyone get anywhere by doing so. Basically it turns out to be another case of the ministry closing ranks in self-defence and all you will get is the run-around.  It only frustrates by raising false hopes. Basically it is a waste of time to go to the Ombudsperson too. They take for ever to do anything and they are very reluctant to look at anything that is before the court. However, it is worth while going to the office of the representative for children and youth and ask for an advocate. They tried hard for the Baynes and had a minor influence. You can go to your MLA, but they too just get the run-around. In truth, even the minister is virtually powerless.