Ottawa Citizen

Friday 23 April 1999

New eyes on old case change everything

Dave Brown
The Ottawa Citizen

Columnist Dave Brown looks at a family fighting for the return of their children, who were taken away from them and given up for adoption. This is the third of a four-part series.

How could a family court judge allow a couple to keep their year-old twin sons when dozens of other courts in the past eight years had condemned them as perverts and child abusers, and caused four of their children to disappear into adoption?

It was one of the issues Judge Robert Fournier had to explain when he recently denied a Children's Aid Society application for a protection order for the twins.

The difference, he said, was in the quality of lawyer representing the CAS at this point, and the quality of work done by two CAS social workers.

Bob Morrow of the law firm Burke-Robertson represented the CAS. Ian Bates, a 12-year veteran social worker, did something social workers in the earlier cases didn't do. He went to the home and got to know the couple.

The parents entered a voluntary agreement of supervision for six months. After the birth of the twins, Brenda Williams was assigned to monitor the home situation. Their combined case notes said the parents were good people, and the twins were in good hands.

But court-generated past history put the CAS in a tough spot. It found itself forced to make another protection application even though its own people were saying there was no problem. It was as if the system took the view the couple must have undergone some kind of miraculous change.

Judge Fournier: "This trial was conducted in a much different atmosphere. Though our system calls for an 'adversarial' approach in court, this case was not adversarial. Mr. Morrow took special care and proceeded with caution and compassion, particularly so because the respondents were not represented by legal counsel.

"He was not antagonistic, but helpful both to this court and to the respondents in his quest for justice.

"It is clear from our review of past records and transcripts that counsel for the CAS in the past chose a more confrontational approach. It is also clear that some of the 'experts' (social workers and psychologists) called to testify did so with a lot of dedication but apparently with little inclination to perceive things from the respondents' point of view."

The judge praised Mr. Bates and Ms. Williams for their "open-minded and compassionate approach."

Having sat through several sessions of this case, and others like it, I've drawn conclusions about the dangers in a child protection system that operates virtually in secret, and in family courts that have virtually no rules of evidence.

In family court, a parent is guilty until proven innocent. The whole child protection system operates with no public overview, and little public accountability.

There's a similarity between a social worker and a police officer. Both can cause trauma when they make an apprehension. A child taken away from its parents is traumatized. A police arrest, particularly with force, can cause trauma.

The difference is if there's a complaint against police, the officer is called to account. In the child protection system, lawyers quickly become involved and the emphasis switches from protecting a child to protecting the agency. Lawyers are not in the child protection business. They are trained to protect the client (CAS), and do everything in their power to win for the client. Failure could lead to a suit, and child protection agencies are rarely successfully sued.

The records in this couple's case are laced with loopy logic. Although the man was never charged with abuse, and his name does not appear on the provincial abuse registry, CAS applied to the Ontario Criminal Injuries Compensation Board for the "criminal abuse" of the first three children. The board paid $18,000, and then demanded repayment from the father. He didn't pay.

Even with a judge now pointing to flaws in the processes that took away their children, there is no indication anybody will be called to account, nor will corrections be made.

The parents say they are far from finished. They respect and appreciate lawyer Morrow, and social workers Bates and Williams.

"They had a job to do, and they did it with efficiency and honesty," says the mother. "The question left hanging is, what were those other people doing for seven years?"

Both parents carry huge legal file holders. "Look at this," they'll say, reaching into a file and producing transcripts, tabbed and ready to open.

They can show you a caseworker, swearing to tell the truth, and saying a three-year-old boy disclosed to her that he was being abused. She appears in other court processes making the same claim on the same issue. They can show a letter she wrote to a police officer saying the boy clearly disclosed he was being abused.

But under cross-examination by the parents in one of their many appeals, the same woman answers "no" to the question of disclosure.

That the system will admit discrepancies in the legal treatment of this couple, but offer no solution, is not acceptable, say the battling parents.

The way the child protection system works, removing a newborn from a hospital nursery without certain cause is called erring on the side of caution. That the family court system then backs up that error and moves to adoption leaves the angry parents using words like kidnapping.

Tomorrow: Capital punishment.

Dave Brown is the Citizen's senior editor. Read previous Dave Brown columns at www.ottawacitizen.com

Copyright 1999 Ottawa Citizen