Ottawa Citizen
Thursday 14 December 2000

Mother presumed guilty by court

Dave Brown
The Ottawa Citizen

Part 3 of a series

A two-year-old child, never abused or neglected, has been taken from her mother. Expert evidence purchased from psychologists by the child-protection system won out over expert evidence purchased from psychologists by the defence.

Mother was launched on her personal voyage of the damned in January 1997, when she was accused by child protectors of abusing two children who were not her biological children but who were in her care.

They were brothers aged three and five who were wards of the Children's Aid Society of Ottawa-Carleton. The CAS pressed criminal charges but allegations didn't get past the Crown attorney's office. There wasn't sufficient evidence for an appearance in a criminal court.

Had the allegedly abused children been her own, she would have appeared in a family court, where the burden of proof is not much of a burden. As it was, the two were in her home on an adoption-probation basis. She found them too difficult to handle and wanted to return them.

In the minds of the protectors, those stopped charges against her were still hanging. In their minds, just because a criminal court wouldn't hear them didn't mean she wasn't guilty of something.

After quitting the adoption program, she and her husband split up. She became pregnant with a new partner, who was never part of these proceedings.

When she gave birth to a daughter, she immediately had something to lose, and so qualified for family court. Seven months after the birth, child protectors appeared at her door and took her baby into custody, weaning her in the process.

The mandate of every state-funded child-protection agency is to enforce child protection laws. In Ontario, it's called the Child and Family Services Act. By definition, that makes them something like police departments. Like police in the criminal system, caseworkers are not held accountable if they push into the courts persons who shouldn't be there. They may not have the power to arrest parents, but neither are they subject to the same kind of review and second-guessing that police are.

In the criminal system, there are safeguards, such as presumption of innocence, to protect the accused. Hard evidence is needed. In family courts, judges make decisions based mainly on opinions. They could be called trials by psychology.

An obvious case of child abuse with broken bones or bruises, goes to criminal court. "Maybe" cases, or "it-might-happen" cases, go to family court.

In this case, Judge Jennifer Mackinnon, in her judgment released Nov. 6, made mother's baby daughter a Crown ward to protect her from a mother who may have abused children in the past, and therefore, presumably, could do it again. Psychologists paid by the state to support the CAS case said those were real possibilities. Psychologists hired by the defence said otherwise.

There was hard evidence of injury in the case of the two children who had been temporarily in the mother's care as possible adoptees. The three-year-old required eye surgery for an injury experts said was caused by shaken baby syndrome. That injury is usually associated with babies not developed enough to support their heads. But experts said it could happen to a three-year-old if the shaker was strong enough. Mother said the boy fell down stairs.

There were burns from an iron on the older child. Children don't testify in court, so he said through interviews, reported to the court by experts, that the marks were punishments inflicted by mother. She said he was a strange and damaged child and had burned himself.

The boy made other accusations that became part of the record: She held his head in the toilet. She flushed his brother's head in the toilet. She made him iron. She put him in the washing machine while it was running. He was forced to sit on the toilet while the family ate, and he wasn't fed. She made him eat feces and drink urine. She wrapped a chain around them in the garage and was going to pull them. She kicked. Hit. Pushed.

Those accusations were presented along with an expert opinion that the child did not suffer from "attachment disorder." There were no signs "whatsoever" of self-mutilation. In the final phase of the two-year ordeal, that same expert under cross-examination by lawyer Frank Armitage saw "some partial aspects of attachment disorder."

The words "post-traumatic stress disorder" were added to the psychological soup. A child can get that from being separated from his birth mother. There was agreement that the disorder can result in "a vivid sense that terrible things exist which don't exist."

CAS lawyer David Elhadad presented the court with an impressive profile of mother as a dangerous person. It was painted mainly by opinions from a variety of experts, most of them using psychology.

Journalists in court can't ask questions. Here I can. Why wasn't the woman assessed before two children were left in her care for more than a year? If they were abused, did the protection system not fail them? Where's the accountability?

As a skeptic, I see psychology as a spooky craft too open to error. Its application can be too easily turned and tuned to the needs of lawyers.

For the third time, I saw a twisted test turn up in evidence. It's called the Child Abuse Potential Inventory. You may not have abused a child yet, but maybe you will. In none of the three cases did the mothers pass the test, and always for the same reason.

The way it was worded this time: "(Mother) gave socially desirable responses, perhaps in an attempt to hide negative personal characteristics. Moreover, she wished to present herself in a favourable light to create a positive image. Consequently, the results of the test were invalidated."

In other words, you fail by trying. In the other two cases, they lost their children too.

It smacks of Salem in 1693, and a test for detecting witches. Suspects were bound and thrown into a pool. If they knew how to relax and stay afloat, they were condemned because it must be the Devil holding them up. If they sank and drowned, they weren't witches after all.

In this year's case, there were other tests deemed unreliable because the mother has multiple sclerosis.

What Judge Mackinnon was faced with here was not hard evidence, but opinions on which she had to build a balance of probabilities: Had the mother abused those CAS wards? If so, was she likely to abuse her own child?

There's no room for reasonable doubt. If there is a chance a child may be abused, it's a chance family courts won't take.

Every child is at some risk of abuse, more so as the definition of what constitutes abuse expands. This latest child taken into state care is still at risk -- but any hurt the baby daughter gets won't be from her birth mother.

The last time I talked to the mother, after the decision was delivered, she proved one part of her psychological assessments correct. She's a strong woman with impressive self-control. (Some experts thought those traits were good.) Others said it showed she may be capable of masking her true cruel self.) She was making arrangements for a private polygraph test. She said she will appeal.

Dave Brown is the Citizen's senior editor. Send e-mail to dbrown@thecitizen.southam.ca

Read previous columns by Dave Brown at www.ottawacitizen.com

Copyright 2001 Ottawa Citizen Group Inc.