Episode 3 of 7: SUGGESTED IMPROVEMENTS TO B.C.'S CHILD
PROTECTION
The content
derives from a ten-page document prepared by Ray Ferris for members of the B.C.
legislative assembly. The segments for this blog are prepared with his
permission. Ray has written many articles on this blog for the past decade. Ray Ferris retired after a career that
included significant years with the MCFD. He has written a book entitled 'The
Art of Child Protection.' You can order Mr. Ferris' book entitled 'the Art of
Child Protection' by contacting the author directly at rtferris@telus.net.
Written
by Ray Ferris.
We've been dealing first the problems and then the
suggested solutions. CURRENT PROBLEMS WITH B.C. CHILD PROTECTION
Today, Problem
#3 of 4 WEAKNESSES OF THE CFCS ACT
The Child & Family And Community
Services 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 due
to the fact that it was theoreticians and not practitioners wrote it 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 failure has become
entrenched at every level.
Illustrations
of Time Lines and Principles
The
Child & Family And Community Services Act (CF&CSA) is long and detailed
but the working sections can soon be learned. When other sections become
relevant, it is not difficult to look them up.
It
is important that all levels of protection staff understand not only the
specific responsibilities of the Act, but also the spirit and intentions of the
Act. The basic intention of the Act is that children can be made safe at home
or in alternative care. This is simple in concept but complicated to achieve.
Parental rights are invested in their children's rights. When due process is
given high priority both rights are protected. The Act particularly focuses on young
children and urges swift resolution of cases and restricts the time allowed for
temporary orders. This is to avoid psychological damage caused by prolonged
separation, which can result in lasting anxiety disorders as is born out in
reputable child development literature.
Here
then are the principles of the Act relative
to the best interests of children.
Section
2 emphasizes that the family is the best place to
raise a child and they should be given help if that keeps them safe at home.
Kinship ties should be maintained and decisions should be timely.
Section
4 describes the best interests of a child. These
are guidelines and include safety, physical and emotional needs, continuity of
care, quality of relationship with parents and others and the effect of
maintaining it. It also speaks to the child's racial, cultural and religious
heritage and the effect on the child if there is delay in making decisions.
Section
71 also emphasizes the making relative placement a
priority. Also the child's right to privacy is mentioned.
Section
4 also emphasizes that no right is paramount and
they must be judged overall. This means that when there are conflicts between
rights a good professional judgement is needed. For example after years of
continuity of care it gains importance over other rights.
Next
are the procedural sections of the
Act.
Section
13 attempts to describe all the possible
circumstances that define a child in need of protection. This section is
problematic because many protection workers have not read it and because a
number of sections are hard to prove with factual evidence. Many sections are
subjective and rely on good judgement.
Sections
14 through 19 describe in great detail all the
possible circumstances that can arise in receiving reports and in accessing
children and evidence and how to deal with them. These do not arise in practice
very often and can be looked up when needed.
This is one more attempt at prescribing practice and is meaningless if
the staff is unfamiliar with the Act.
Sections
22, 23 and 24 deal with mediation and family
conferencing.
Section
23 is problematic because it allows family
conferencing to be repeatedly adjourned and this can cause long and damaging
delays in the court process. In other words there is a built-in conflict in the
Act. It also just does not work in the adversarial culture that commonly
prevails in the ministry.
Sections
24 through 30 once more describe in great detail
all the possible circumstances and actions necessary to protect children. One
more attempt to prescribe practice and ineffective when the staff do not know
the Act or how to look things up.
Section
31 begins a series of critical procedural
responsibilities and this is where the training needs to be strict. This is
after a child is taken into care and the case is presented at court. Parents
must be notified of the removal and the child must be presented to court within
7 days. At the presentation hearing a written report must be made describing
the circumstances and copies given to the parents, who are entitled to attend.
There is usually very good compliance to this point. The main snag that I have
noticed is that the evidence can be very vague on these reports. Also there is
no time for parents to argue any evidence or interim custody at a presentation
hearing and it can be a long time before they get the opportunity.
Section
37 and following detail numerous circumstances that
arise following child apprehension. Protection staff must know the ACT as it
pertains to dealing with these circumstances. For instance Section 37 specifies that a protection hearing must be set within
45 days of the presentation hearing and must be concluded as soon as possible.
This is no longer done except in consented cases. It is very easy for the
director to evade this section by calling in so many witnesses that there is
not enough court time for months or even years. In my case examples I cite a
case where one witness took a full week in court on opinion evidence and
another where the case was before the court and in interim custody nearly three
and one half years. There needs to be far more stringent vetting of evidence. I
have sat through hours of testimony that was absolute rubbish, but the judge
just let it roll on.
Section
38 spells out the duties for service of notice and
it's vital that protection workers know this. It specifies that notice must be
served at least ten days before a protection hearing and must state the time
place, date and location. Also it must specify the order being sought as well
as some other things. Note that this is an absolute legal requirement and failure
to do this should negate the validity of a protection hearing. No longer is
proof of service a court routine and notification has become whatever the
director says it is. This is now treated as optional by protection staff,
lawyers and judges. No judge should make an order without knowing that the law
has been followed. No lawyer should agree to waive notice unless specifically
instructed to do so by the parent.
Section 41 specifies the orders that
can be made when a protection finding is made. This includes the stringent
requirements for making a continuing care order and the fact that the parents
must be so unfit as to be virtually beyond redemption or else do not want the
child.
Section 45 specifies the time limits of
temporary care.
I
am only trying to deal with the most important parts of the Act for the
protection worker to know and I conclude with Section 64. This section covers the duty to disclose. This
specifies that, if requested a party to an action, including the Director must
disclose fully and in timely manner specific information. Timely means well
before the due date of the hearing, so that defence counsel can prepare a
proper defence. The specific information
falls short of what may really be necessary. There are a couple of problems with
this because there is plenty of wriggle room for the director to avoid it.
A good disclosure request will ask
for all witnesses to be called and the gist of the evidence to be given. Also
disclosure of all documents, reports and letters to be filed as evidence. This
is what a parent's counsel should demand. Social workers ideally should provide
it on request of disclosure anyway. The other snag is that it is hard to prove
that disclosure has been requested. So defense counsel should be instructed in
writing to make the request for disclosure in writing, so the proof is clear.
Tomorrow, Problem #4 Social
Workers Ignorant of Their Duties
“Some time ago submissions were invited to the provincial standing interparty committee on the representative for children and youth. It is this committee which selected Ms. Turpel-Lafond and with whom she dialogues and to whom she reports. I made a fairly long submission and copied the minister, and deputy minister. In it I used the Bayne case to illustrate some of the serious flaws in the protection services and to suggest some remedies. I emphasized that I was not advocating for the Bayne case, but simply using the Baynes to illustrate some of the problems. Even before submissions had been invited, I had sent a similar letter to the minister and the deputy minister. I eventually got a reply.
