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Friday, November 11, 2011

Child protection failing to follow the order of the court?

A Saskatchewan Court of Queen's Bench decision has raised some important points about the kinds of cases where the child protection authorities appear to have a different view of a case as opposed to the court. In this decision, Justice Dufour outlines a tortuous pathway that a mother took from a life of addiction and prostitution to one where it is quite possible that she might be able to parent her 2 children. The Justice ordered that child protection take certain steps to allow for increased visitation. This appears to have not happened despite a direct order that it should. Child protection appeared to have a different view of the case and were pessimistic about the mother's prospects. They even felt that there was evidence that the mother continued to use.

It is a challenge for workers who see a case quite differently than the Court. Justice Dufour however, outlines what is an important principle in the relationship between the courts and agencies - the rule of law. If the courts cannot order in a way that yields a party to act, then where is the authority of the court. Any of us who have anything to do with divorce and custody matters see parents flout such orders routinely without much consequence (although that may be a subject for a later time).

What matters here is the party failing to follow the order is the state. As Justice Dufour writes:

"In matters such as here, the Court is the only check on the enormous power that is wielded by ministry workers pursuant to The Child and Family Services Act. Social services workers can apprehend any child they think is in need of protection. They do not need a warrant or any other form of judicial pre-authorization to take children from their parents – the worker’s opinion that the children are in need of protection is all that is required. It is months, and usually many months, before the matter comes before the Court in any meaningful fashion for a determination as to whether the ministry’s decision to apprehend children was correct at law. Until then, it is ministry workers alone who determine where and when – or if – the parents will see their children. The Court is the check, albeit a belated one, in the child protection system." (paragraph 104)

This decision raises one other major point which is seen in tow areas. It is the role of valuable collateral data. In the decision, one is led to understand that, if the social workers had bothered to gather data from a medical specialist, they would have learned that the evidence that they thought suggested ongoing drug use may have another explanation.

I am disturbed as well by the way in which the parenting capacity assessment was apparently done. Too little time was spent with the mother; there was too much reliance on psychological tests and the records from child welfare and little was done to complete appropriate collateral data. As I have written elsewhere an assessment is meant to be a comprehensive and independent view of a parent that considers multiple sources of data. Like child welfare, the psychologist who conducted this assessment also failed to speak with the medical specialist.

This court decision should act as a reminder that the rule of law is a crucial pillar on which we should rely so that there is a powerful and independent check and balance on the power of child welfare. It should also serve as reminder that assessment requires that major sources of information be considered carefully when conducting a parenting capacity assessment.

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