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Saturday, October 22, 2011

The real problem of evidence

Three high profile cases in Canada raise the very troubling question that weak evidence can get in the way of protecting children. When balanced against the needs to preserve families, such a problem can leave children in need of protection unprotected.

In Central Canada, we have the trial currently underway regarding the honour killings of three teenage girls. Media reports from the trail indicate that at one point child protection authorities interviewed the girls who did not provide enough evidence to warrant keeping a file open. We may yet learn more about this as the trial evolves. The Globe and Mail reports that the charges are against "Mohammad Shafia, 58, his second wife, 41-year-old Tooba Mohammad Yahya, and their son, Hamed, 21, are accused of killing the couple’s three teenaged daughters, Zainab, Sahar and Geeti, and Mr. Shafia’s first wife, Rona Amir Mohammad, 53" Were the children too frightened to tell the truth? 

In the second case, the Los Angeles Times and CBC's Fifth Estate have teamed up to examine the case of Richard Turley who appears to have been a serial child molester who operated as a scout leader, amongst other roles with children. The Scouting organization in Victoria, B.C. has suggested that they lacked credible evidence with which to go forward to the police. Yet, they would take the step of moving him to a program that would involve fewer younger children and be under the supervision of a leader who was to ensure he was never to be left alone with children, according to a story running in The Calgary Herald

In both cases, apparent lack of evidence has led to an utter failure for the children who died or were harmed by systems hampered by lack of evidence. In the Scouts case, one might well argue that child protection reporting laws should have led the organization to report Turley to child protection authorities or the police anyway. They might well have left it up to those skilled in investigating these cases. Given the number of victims, there may have been a better chance that his activities would be discovered with good investigative work. In my view, Scouts was wrong to see lack of evidence as a reason to fail to act as they were the wrong authority to make the decision. It leads one to question the motives - was it lack of evidence or was it trying to protect the name of Scouting? The decision to move Turley  and put him under supervision is almost too reminiscent of how the Catholic church managed far too many cases.

The third case is in the BC Supreme Court decision of K.A.K. v British Columbia. As the decision notes, "The plaintiffs are six[1] of eleven children born to the defendants G.K. and M.H. They seek general and future pecuniary damages from the Province of British Columbia (the Crown) for the failure of the Ministry of Child and Family Development (MCFD or the Ministry) to remove them from their parents’ care when it was readily apparent that they were in need of protection. The Crown has admitted liability."  This is a very troubling case in which there was not a lack of evidence but perhaps a lack of appreciation of the evidence that was avilable. For example, the decision notes, "[30]         In February and March 1992 there were reports that the parents would not accept visits from social workers and in May 1992 MCFD closed the file “due to extreme resistance”. In July, K.N.K. was seen in hospital after a “near drowning”. She was examined by Dr. Paul Korn, a paediatrician, who understood that the child had been in a bath tub unattended. He kept K.N.K. overnight and released her the next day, observing her to be fine. He recommended that public health go into the home to make sure safety issues were addressed. It is not known if this was ever done."

Yet the decision also notes that child protection authorities also made several efforts to work with the parents to address the alcoholism and other deficiencies in the family. The efforts were apparently without long term success. For example, the decision notes many pieces of evidence that, when looked at in retrospect causes one to wonder who was looking at the large picture to see how much cumulative data there really was, ". She [the social worker] testified that she spoke to K.N.K. and her older sister K.A.K. and both denied any abuse. She also spoke to the parents, who provided explanations for the injuries. She was concerned about abuse of K.N.K. and wanted to make sure that the parents were involved in a parenting program and the children were visible in the community. She was also concerned about the impact of the home environment on the other children. She clearly recalled the children as non-verbal, demonstrating to her a lack of development or lack of stimulation. Ms. Dahl prepared a risk assessment on April 14, 1997. She determined that the concerns of physical abuse were not substantiated and the children were not then in need of protection." The decision shows a litany of such examples of mounting evidence both before this referenced time frame and after. It is a classic case, so it seems, of a failure to take a careful note of all the evidence that was available.

The memories of the older children are detailed in the testimony described in the Court's decision. The trauma that the children experienced. Reading the decision is disturbing because of just how much evidence there was and how much trauma the children experienced.

It would take some years before a parenting capacity assessment would be done. When that is done, the court notes that the assessor may be one of the first to have really interviewed the parents. As the decision notes, "Dr. Krywaniuk’s general impression was that this had been a highly dysfunctional family for a number of years. He found the parents to be highly defensive, minimizing various behavioural issues and denying the use of alcohol and drugs in the face of what he considered obvious evidence to the contrary. He felt that the children were influenced by the parents. With respect to the visit, he described a “passive quality” to the parents and said that there did not seem to be a lot of emotional commitment between the parents and children; the children seemed to be “just there”. It was his view that the children all had special needs in respect of behavioural, developmental and emotional issues and because of this they required a “better-than-average level of parenting.”
[80]         He expressed concerns about continued contact between the parents and the children:
There is at least some indication that, the longer the children stay in care, the more the older children disclose regarding abuse and family dysfunction. I think it is likely that the parents will continue to communicate their level of distrust to the children, undermining their recovery and potentiating them for further difficulties. The background information indicates that there is continued concern for the safety of the children, despite the parents’ protestations to the contrary. For example, there appears to be a denial of children’s problems and continued substance abuse. I understand that there is considerable bickering in front of the children and a general lack of authority. ... The older children have significant problems and I think it is likely that the younger children will develop along the same lines because of the parental attitudes."
The court will conclude that the victims deserve compensation. The decision states: "84]         In my view, the evidence establishes that all of the plaintiffs suffered extensive neglect by the parents M.H. and G.K. and that K.N.K. suffered serious, on-going physical abuse by M.H. Other than the testimony of K.N.K. and C.N.K., there is little direct evidence about what went on in the home prior to June 1999. However, there is a body of circumstantial evidence. The most reasonable inference to draw from the numerous reports to the Ministry and the various observations of the children by social workers and school personnel is that M.H. and G.K. led a lifestyle that involved the regular abuse of alcohol and at least intermittent domestic violence between the parents, all of which the children were exposed to, and persistent neglect of the basic needs of the children. The family moved often, the parents rarely provided proper accommodation and in general did not regularly attend to their children’s essential nutrition, hygiene and health care. On apprehension in August 1998, most of the plaintiffs had long-standing, severe, untreated head lice, C.N.K. had an untreated skin condition, M.K. and C.N.K. had terribly rotted teeth and K.N.K. had numerous physical injuries, all of which had been observed by others.
[85]         The Ministry had strong evidence that K.N.K. had been physically abused as early as March 1993, when she was examined by Dr. Hlady, and this continued over the years. Various people observed injuries on K.N.K. in 1996, 1997 and 1998. In 1998, Dr. Korn was extremely concerned for her safety should she be returned to her parents, for good reason. The multiple injuries that K.N.K. had when she was finally apprehended in May 1999 were serious. The evidence was quite overwhelming that they were non-accidental."
Thus, we see that this is a case where evidence was present and not properly acted upon. The Scouts case is one where evidence likely existed and was not properly disclosed. The honour killings case suggest that there was evidence that was hidden by the victims. In child protection, it is chasing the evidence that matters but that is often in conflict with the roles of helping and preserving families.

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