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October 16, 2000

Nationalizing children

National Post

The Supreme Court has taken another step in Canada's creeping nationalization of its children, diminishing the role of the private sector -- which is to say, parents -- and increasing the role of the state. On Friday, the top court ruled child-welfare workers no longer need to apply for judicial warrants in "non-emergency" situations, and can take children away from allegedly abusive parents solely on "reasonable and probable grounds." This means child protection workers now wield more authority over children than police officers, teachers, pastors -- and mothers and fathers.

In this case, the appellant, known only by the initials K.L.W., was the mother of two children who had been repeatedly apprehended by Manitoba's Child and Family Services Agency on the grounds that she was periodically intoxicated, neglected her children, or had abusive boyfriends. K.L.W. notified the agency that she was expecting a third child; two weeks prior to delivery she agreed to enter a residential facility designed to assist pregnant women. But she ended up giving birth before she got there and, pursuant to s. 21(1) of the Manitoba Child and Family Services Act, the agency apprehended K.L.W.'s day-old infant. Although it possessed no evidence the mother or her boyfriends had physically assaulted any of the children, the agency ordered the hospital not to discharge K.L.W. or her baby. The child was placed in a foster home.

Even assuming the agency was justified in worrying that K.L.W. put her newborn in harm's way by refusing to enter the special birthing facility, it still had ample time to seek a warrant for the apprehension -- with no risk to the infant -- who during this time was in hospital and under the care of doctors. But, according to the court, "the state must be able to take preventive action to protect children and should not always be required to wait until a child has been seriously harmed before being able to intervene."

But it is possible to get a hearing before a judge at any time, day or night, and to apply for immediate permission to apprehend a child. If we require prosecutors to get a warrant before allowing them to search the homes of alleged rapists and murderers, we should require as much from the state when it wishes to sever the sacrosanct bond between parent and child. In an emergency situation, when a child is thought to be in imminent danger, it is proper that child care workers should be able to step in without delay and then quickly satisfy a court ex post facto that intervention was necessary. But K.L.W's case was a non-emergency and the court decided it should nevertheless be handled like an emergency. The majority ruled it was impossible to distinguish between the two, and that to try would "impede pro-active intervention by placing the burden on the state to justify intervention in situations of arguably 'non-imminent,' yet serious, danger to the child."

But this begs a question. The state should have to justify its intervention; taking children away from parents is a supremely serious matter. In seeking to protect children, the country's most senior constitutional justices are failing to give due weight to the harm done by imperious state intervention. Their reasoning -- their very wording -- betrays a presumption that state control of children is a good thing. It is not. As a minimum in non-emergency cases, a court should weigh the case presented by child welfare workers who may be -- indeed naturally are -- biased against the custodial interests of parents. We should have learned from the "Sixties Scoop" cases, in which children of native parents were apprehended en masse and put in institutions where they later committed suicide at a high rate. The balance of presumption should be that children are better off with their parents than in the care of the state.

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