Tuesday 12 December 2000
We are tearing families apartDave Brown
The Ottawa Citizen
Today the Citizen's Dave Brown begins a five-part series taking a critical look at Canada's family court system.
Family courts, he writes, have moved far beyond protecting children from abuse. They deal now in terms such as "a child in need," and "best interests."
That means the court can decide a child needs better parents, even if the child has not been abused or neglected.
By creating courts that undermine parents' rights to a fair trial, he argues, families are being torn apart.
Every day in North America, thousands of people are judged in courts that don't offer the protections of burden of proof, reasonable doubt, hard evidence or presumption of innocence. These courts operate in virtual secrecy.
They're called family courts, and they dispense judgments far more heartbreaking than criminal courts. Because they operate under different standards, they can have the effect of removing the right to a fair trial. In the climate of our times, that's seen as the price of protecting children.
These courts are very busy and rapidly increasing in number and power.
They will likely get even busier after a recent Supreme Court decision written by Justice Claire L'Heureux-Dube, giving child protection workers the right to apprehend a child without a warrant.
She wrote: "A wrongful apprehension does not give rise to the same risk of serious, and potentially even fatal, harm to a child, as would an inability on the part of the state to intervene promptly ... "
Hers was the majority view from a five-member panel that voted 3-2. Justice Louise Arbour filed the minority opinion, arguing: "Harm may come to the child from precipitous and misguided state interference."
That's already happening.
There are sections of the Criminal Code of Canada that call for harsh penalties for persons who abuse or neglect children. In the past two years in Ontario, 2,168 children were made Crown wards.
If they were being abused or neglected, there should have been an equal number of parents punished.
In fact, virtually no parents were punished. In the past year alone, 133 of those children were processed by family courts in Ottawa, again without parents being jailed or fined.
See BROWN on page D2
Once Crown wardship is in place, child protectors turn children over to foster parents. If adopted, they become new persons with new names. Who they were becomes a package of sealed records.
See Brown on page D2
The absence of corresponding punishment of abusive and negligent parents begs a question: Why not?
The answer is that family courts have moved far beyond protecting children from abuse. They deal now in terms such as "a child in need," and "best interests." That means the court can decide a child needs better parents, even if the child has not been abused or neglected.
Are children safer in foster homes? In its Nov. 13 issue, Time Magazine observed that many foster parents act selflessly to help at-risk kids, but "a quagmire of child-swallowing bureaucracies plague the system ... The incidence of neglect, physical and sexual abuse of children in foster care systems is feared to be significantly higher than the incidence in the general population ... Nobody bothers to keep an accurate count."
Is the situation any better in Canada? Who knows? Children's Aid Societies are arms-length agencies. Their books aren't open and their accountability seems to be questioned only when news leaks out that a child in care has been hurt or killed.
Criminal courts must deal with matters in a timely fashion. To make a criminal wait too long for closure is considered cruel and unusual punishment, and can result in the case against him being dropped. The same time limits aren't enforced on family courts.
In October, family court Judge Jennifer Blishen handed down a decision making three sisters, now aged seven to 10, Crown wards. They had been in the system, in custody in foster homes, for three years and four months. Except for short visits, they were kept apart from their parents and from each other for most of that time. Neglect or abuse (by the parents) were not issues. Parenting skills were on trial.
About the same time in another courtroom a few doors away, family court Judge Jennifer Mackinnon permanently removed a two-year-old from her mother. The mother was in family court because of an allegation of child abuse made against her when she was a foster mother, before her own child was conceived. Back when she had no children of her own, the child protectors pressed criminal charges. The case didn't go to court. The Crown Attorney said there wasn't enough evidence.
When she became a mother, though, she became vulnerable. Lack of evidence is not a problem to a family court. It uses created evidence, such as psychological profiles and projections that almost always support the side that pays for them.
I monitored these trials and in both cases needed a lawyer to argue me into the courtrooms. The law says the courts are open to the public, but CAS lawyers frequently argue that public attention would not be in the child's best interests. I was the only uninvolved witness to proceedings, and by law must protect the identity of the families. In both cases the parents would love to be identified, and scream that they are victims of an unfair system. The child protectors would consider that an embarrassment to the children, and therefore child abuse.
Details of these cases will come later in this series.
It's important to understand the lengths we, as a society, are prepared to go in an attempt to do the impossible -- shield all children from all danger. By creating courts that undermine parents' rights to a fair trial, we are tearing families apart. Most of us, remembering our childhoods, can understand that being separated from one's parents would be terrifying. To be kept in limbo while a court process ground endlessly on would be torture.
Beyond a doubt there are children in need of protection, and court processes to protect them are needed. Our ancestors knew that when they built child protection into the Criminal Code. Somehow it became accepted that protection under the code was handicapped by the requirements of a fair trial, so family courts were formed. They have now evolved to the point where we can lose our children if we fail to pass parenting tests. The rules are unclear, but the testers will be social workers, psychologists, or psychiatrists.
Courts accept those specialists as experts. They don't deal in ballistics or poisons, but in theories. The view seems to be that they practise a science. Psychology is not a science. Its practitioners are fallible, but free from accountability.
If these views sound harsh, they aren't just those of this writer. They are shared by family court Judge Robert Fournier, quoted in a case I reported in April, 1999. After ruling an Ottawa couple were good people and good parents and could keep their baby twins, he had to explain why in previous family court hearings they were vilified as violent drug-addicted perverts, and lost four children to Crown wardship and adoption.
Three were taken into custody on allegations of child sexual abuse, made while they were out of the country and the children were with a babysitter. By the time they got back, the babysitter was the paid foster mother of their children. The fourth child was a newborn removed by protection workers from the nursery of the Ottawa Hospital, Civic Campus.
Judge Fournier explained that evidence allowed in family court is anything from an observation to an opinion to an impression. He said the mother's appearance contributed to the loss of her children. She's a bodybuilder with a penchant for tight clothing, high heels and big hair. To child protectors, she gave an impression of a wrong mom, said the judge.
As a result, some of the analysis/opinion/evidence became less than objective, and she lost her children. Judge Fournier also made it clear there's no reverse in the child protection system. "I know it leaves a hole in your heart," he told her, "but c'est la vie."
While Judge Fournier was making that statement, the CAS was continuing with the adoptions of the first four children. Heidi Polowin at the time was chief in-house counsel for the society. She said: "The cases aren't connected. Once a court makes a child a Crown ward, other processes start. There's a normal flow." Mrs. Polowin has since been made a judge.
It wasn't my first close-up look at family courts in action. In 1991 I reported on the case of baby Joshua, handled by Lanark Child and Family Services. There was no allegation of abuse or neglect. The mother came under the agency's scrutiny when she asked for its help.
Over the next few months, authorities slowly pulled her baby from her through a series of access-reducing court orders. She came to my office frequently, and I watched her turn into an emotional wreck. Eventually a judge granted Crown wardship, but with a condition. The baby was only to be adopted if no member of his extended family would take him.
The adoption happened quickly. The extended family was in New Brunswick and had a room waiting. I know because I phoned. The child protecters didn't make those calls.
Tomorrow: Three sisters.
Copyright 2001 Ottawa Citizen Group Inc.