RESOLVING SYSTEMIC AND NON-SYSTEMIC PROBLEMS IN CHILD PROTECTION SERVICES, Part 6

By Ray Ferris, (This piece is one of a series Ray will write here.)

Lawyers and the adversarial culture of family court.
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.

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.

FOR PARENTS - INFO & SUGGESTIONS - CHILD PROTECTIOIN & THE COURT, part 1 of 4

INFORMATION AND SUGGESTIONS FOR PARENTS WHO ARE INVOLVED WITH CHILD PROTECTION AUTHORITIES IN BRITISH COLUMBIA.
Written by Ray Ferris April 29th 2012.

Part One of Four
THE CHILD PROTECTION AND FAMILY COURT SYSTEM

Introduction.

girlsportguide.com

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.

RESOLVING DILEMMAS / 603

Today Ray Ferris has written, "So the real problem is that the children's ministry keeps in step with the rest of the-English speaking world and manages to get it wrong 60% of the time." He is continuing a theme which he began last week on 'Family Court is not So Civil / 599.'

"Last week I wrote a piece about the problem that a protection complaint laid with an allegation of shaking, or any other non-accidental (i.e. deliberate injury ) is tantamount to an accusation of having committed a crime and a finding by the judge of deliberate injury is as good as convicting someone of a crime without the protection of criminal court. A shaking baby accusation is always an allegation of criminal behaviour. Criminal court provides these protections. 1. Presumption of innocence. 2. Right to remain silent without prejudice. 3. Rules of evidence and laws of evidence. 4. Proof required beyond a reasonable doubt.

FAMILY COURT IS NOT SO CIVIL. / 599

"It is interesting to see what would have happened in the Bayne case, had their case been in criminal instead of family court. Of course it did not get into criminal court because of lack of evidence. When the police investigate a case, they look at the evidence and by that they mean the hard, provable factual evidence. If when the case is reviewed, an investigating constable reviews the case together with a superior. They may decide, and I believe this happened in the Bayne case, that there is insufficient evidence to take to the prosecutor."

That paragraph and the rest of today's post is written by Ray Ferris, an occasional GPS post writer. Ray speaks from 31 years service in child welfare and protection as a social worker and district supervisor and family court coordinator. Ray is the author of 'The Art of Child Protection'. 

Does it need Reform you Ask? / Part 415 / For Love and For Justice / Zabeth and Paul Bayne

I know that I rarely write about positive achievements of the child protection sector of the Ministry of Children and Family Development. Of course there are children that are secured from neglect and abuse. Sadly some parents are immature, reckless, substance addicted, or maladjusted and they are not properly caring for their children. MCFD steps in. Surely it is understandable if I do not mention these cases. That is after all what MCFD is mandated to do. When it is well done it doesn't need applause here. MCFD congratulates itself enough. Look at its web pages. This blog has focused upon that which is not working effectively in MCFD because that is what requires attention. That's what needs to be fixed so that is where I concentrate. Do I hit it right? I make no claim to thorough journalistic research. I am a listener. A host of similar stories inform me that MCFD is in trouble.

Much abuse goes unnoticed yet we are spending millions of dollars to keep children safe. Each year Ministry workers falsely accuse some parents and none of the money stems that transgression. Poverty is frequently and unjustifably equated with neglect, yet as one late night commenter stated yesterday, poor families do not equate to a higher incidence of child protection. The stories of how families are treated once they have come within the sweep of MCFD's radar are never happy. Some of the innocent families that have been victimized have hit the public news channels and front pages but not enough, because there are so many others.

A shift occurred in the 1960's when child abuse and neglect which were once treated as crimes began to be viewed as a treatable illness for which therapists, doctors and social workers were prepared to provide advice and to order help and resources. In conjunction with this diagnostic shift,  cases of abuse and neglect were no longer prosecuted but rather sent to family court which orders treatment. What I believe is forfeited is fairness and timeliness. So many of you readers have already told me that. Criminals are fully informed of their rights. They have an attorney to represent them even when they cannot afford one. The same is not true for accused parents. They do not get a jury of peers. They do not have the opportunity to face and to cross-examine their accusers. They do not even receive the right to insist that any evidence that is employed against them should meet the highest of standards. And we have underscored before the absence of presumption of innocence and the insistence of guilt being beyond all reasonable doubt? Or, what about not being subjected to cruel and unusual punishment, because that is precisely what some clinical dispassionate MCFD operations look like. There is no protection for parents accused of maltreatment of a child. Oh, but here is the disparity. If the Baynes had been formally criminally charged and tried, they would have been afforded all sorts of protections and provisions. Oh, so that imbalance and disparity is not MCFD's responsibility? No, but MCFD certainly works it.

This Blog has been advocating the return of three children to their biological parents, Paul and Zabeth Bayne, for which a ruling is expected from Judge Crabtree within the next eight days. Stay posted.

Connections and Comparisons/ Part 360 / For Love and For Justice / Zabeth and Paul Bayne

MCFD Connections and Comparisons with the Criminal Justice System

This page demonstrates the links and comparisons between the MCFD/Family Court System and the Criminal Justice and Provincial Court System and in particular the investigation practices.

Connections with the Police and Criminal Justice System

1. Many parents are suspected by MCFD of abuse of children but investigation by the police finds no reasonable grounds for continuing the investigation. However MCFD still treats the parent as if he or she is guilty of an alleged offence or minimally of being an unsafe parent and therefore subjects the parent to supervised access and other limitations which are tantamount to a sentence without trial.

2. Some parents are actually charged with an offence such as assault on a child but charges are subsequently dropped or if tried, are acquitted in the Provincial Court. In such cases, MCFD may still treat the parents as guilty or unsafe and continue to malign their character and competency in Custody/Care Court hearings. Every avenue is pursued by MCFD to prevent a previously acquitted parent from securing the return of a child.

Comparisons between the two Court systems

Both Criminal and Provincial/MCFD/Family Courts have an adversarial approach in that the frequently displayed primary motive is to win the case. Upholding truth and justice appears to be of secondary importance. It might be said that justice is a power game to be won or lost. The objective seems not the discovery of the truth but rather to case win. However, in the absence of truth there is no justice.

1. The Criminal Court, while adversarial, is typically open to the public and media to insure that justice is witnessed and affected, whereas the MCFD/Provincial/Family Court is often concealed.

2. The MCFD/Family Court system tends to be far less accountable than the Criminal Court, having a pervasive secrecy and privacy which tends to conceal practices which may be unprofessional. The MCFD/Provincial Court while technically open, permits few non-family supporters to attend defended hearings and the media is typically excluded.

3. In the Criminal Court a conviction must meet the burden of proof which is guilt beyond reasonable doubt while in the MCFD/Family Court a ruling is determined on the balance of probabilities which is a much lower standard.

4. The 'Child, Family and Community Services Act' for the sake of child protection, allows procedures and actions by social workers and police which would be fundamental breaches of human rights if conducted for any other purposes. Parental rights and responsibilities and children’s needs and wishes are often frequently disregarded when a child has not been harmed but is considered likely to be at risk and therefore is removed, often with force (police). Stated another way, freedom to live as a family unit has been destroyed when no parent has actually committed any crime.

Part 140 / EXPLANATION & RATIONALE / For Love and For Justice / Zabeth and Paul Bayne

Today I have removed yesterday’s post 139 which drew attention to a website, the content of which did not live up to the intended purposes. I was speaking to the confounding phenomenon of similar issues that characterize child protection programs throughout the English speaking world of former colonialized nations. In commenting on my post, one writer pointed out numerous inadequacies to the site that purportedly was a Family Law Resource Community dedicated toward helping and supporting families to establish and solidify their personal dealings and directions within the Family Court System World Wide. The writer cited enough reasons that I chose to disassociate the site from my blog. We will make the point in other ways.

I have been a lifelong writer and when I began this particular blog it was a commentary upon diverse areas of current interest. Concentrating upon the grieving community of families impacted by MCFD treatment was not my original design. In September of 2009 I learned about Paul’s and Zabeth’s heartache. Their loss of family is almost as old as their youngest child. My curiosity was fixated immediately because years earlier I was the officiating clergyman for their wedding ceremony. Life choices moved us out of one another’s lives until that news broke upon me. I was compelled to know more. How could they find themselves in a dilemma this appalling and more importantly, how could they extricate themselves?

Like perhaps 95% of the B.C. population I have had no knowledge of the Ministry of Children and Family Development or of child protection. I have never had personal involvement with such services or until this past autumn known anyone who did. In hindsight it seems peculiar to me that in forty years of pastoral work and dealing with people’s lives and concerns there was never a family in my sphere of work that had an MCFD or child welfare association. MCFD’s need of re-examination is unknown by the vast majority of people and they will not care until they are faced with it either personally or through public awareness.

The more that I learned about the Baynes, the more convinced I was that I should do what I could, that was to write about them. The more that I learned about the system of child protection that interrupted the Bayne family, the more informed I became that theirs was not an isolated case of misunderstanding or confusion or even medical misdiagnosis. Some systemic weaknesses in our government funded child protection efforts were removing and keeping children from parents for far too long and sometimes for unwarranted reasons. As I learned, I wrote and this little read blog began to pick up readers on both sides of the Bayne predicament.

My thematic focus in upcoming posts will continue to be the Baynes’ recovery attempt. They have been without custody of their children for 2.5 years. That may not be unprecedented but it is nonetheless inexcusable because Paul and Zabeth are the kind of parents who will provide a loving, nurturing and safe home for their birth children. Their determination and their personal efforts to right a wrong may become a precedent however, when it evokes concern among journalists, readers, advocates, politicians and legislators.