BC Child Welfare is found to have caused injury to children through misfeasance

Imagine, if you will, that child protection authorities get it so wrong that the children are placed in the care of the abusive parent with the active support of child protection. Imagine that, as a result, the children having been sexually abused but not believed. Imagine that the youngest will be sexually abused by the father while the child is in the care of child protection. Imagine, as well, that the misfeasance is led by a supervisor who develops a closed mind on the case. If imaging this and more seems possible, then you can well imagine the case of J.P., her three children and the father, B.G.

A decision on this case has been issued by The Honourable Mr. Justice Walker of the British Columbia Supreme Court. He lays out the cause of action this way:

The plaintiffs’ claims are framed in negligence, breach of fiduciary duty, and misfeasance in public office (“misfeasance”). The essence of those claims is that the Director and her agents failed to assess and investigate the reports of sexual abuse; wrongly apprehended the children and then misled judicial authorities during a subsequent apprehension proceeding; and, permitted B.G. unsupervised access to the children despite a supervised access order of this Court, with the result that the youngest child was sexually abused by B.G. The plaintiffs further allege that what gave rise to this misconduct was an unreasonable and unyielding belief on the part of the Director, one wholly unsupported by the available information, that J.P. had mental health issues and was unfit to parent, and that B.G. was the parent best capable of caring for the children. 

Justice Walker will find that the child protection authorities are indeed guilty. In particular, he will be highly critical of the supervisor whom he determines developed a fixed view, based on uninvestigated and false allegations which he would expect staff to also accept. Justice Walker further notes that the behaviour of the supervisor adversely impacted the police investigation.

Justice Walker states:

...The children described sexual touching, including digital touching of genitalia and the anus, oral copulation, and partial penile penetration by their father. B.G. denied all of the allegations. 

[14] The Director failed to assess and investigate the report of sexual abuse of the three older children as well as required by the standard of care….

social workers involved in the case disregarded evidence supporting the sexual abuse allegations and failed to ensure that the Director carried out her own assessment and investigation 

Justice Walker goes on to describe how child protection developed a view that the allegations of abuse were fabricated and related to a mental illness suffered by the mother - a conclusion that Justice Walker concludes had no merit to it. Further, Justice Walker, in measured language of the court, makes it clear that child protection misled courts and lied about information. 

By February 2010, nearly all of the social workers involved with the case had determined that the children should be returned to the care of their father, and they actively supported B.G.’s claim for sole custody. 

The decision goes on to note:

[24] Until mid-December 2011, the Director continued to deny the veracity of the sexual abuse allegations. On December 14, 2011, however, during the First Trial, the Director admitted in a written statement that was handed to the Court shortly thereafter that it was possible that the children had been sexually abused by their father. The Director continued, however, to support B.G.’s claim for sole custody and guardianship. 

[25] Suddenly, and following her appointment of new trial counsel, the Director reversed her position on March 29, 2012, after some 64 days of trial. She withdrew her protection concerns about J.P. and advised the Court that the children should be returned to their mother. The trial of the issues between J.P. and B.G., including the allegations of sexual and physical abuse, continued and concluded in May 2012. I found that B.G. had sexually and physically abused his three eldest children and physically abused J.P., and ordered that sole guardianship and custody go to J.P. I also ordered that B.G. be denied access to his children. 

Justice Walker concludes:

[35] I have determined that the infant plaintiffs have established the liability of the Province for negligence and breach of fiduciary duty owed to them. The plaintiffs, including J.P., have also proven the misfeasance claim. I have determined that the Director and certain Ministry social workers acted well outside of their statutory mandate and the duty to protect children. The nature of their tortious conduct varies depending on the individual. It ranges from intentional misconduct, bad faith, reckless disregard for their obligation to protect children, breach of the applicable standard of care to unreasonably supporting the custodial interests of the children’s father even if it meant he sexually abused them. 

[36] Fault for the ongoing failure of the Director and her agents to carry out their obligations to act in the best interests of the children and to protect them from harm is not attributed solely to a single Ministry employee. The Director had many opportunities to carry out a proper assessment and investigation of the reports of sexual abuse and to assess the information and evidence provided to her on an ongoing basis, including during the Apprehension Proceeding. Different employees are at fault for different and not necessarily mutually exclusive reasons depending on the point in time. 

[37] A key feature of the Director’s conduct in this case is that she and many of her agents approached the case in front of them with a closed mind, having concluded at a very early stage, before the children were interviewed, that there was no merit to the sexual abuse allegations and that J.P. had fabricated them and had coached her children to make their disclosures. The Director’s focus turned away from the best interests of the children and on to J.P. As I previously noted, until the 64th day of the First Trial, the Director’s steadfast position was that the sexual abuse allegations were groundless and that J.P. was unfit to parent because she was suffering from mental illness or instability that posed a risk of emotional harm to the children. J.P.’s persistence in her claim that her children had been sexually abused by their father was held against her by the Director because she thought the manner in which J.P. continued to act on her belief caused and would continue to cause emotional harm to the children. The Director supported B.G.’s claim for custody of the children at an early stage in the case, and then unreasonably and aggressively stuck to that plan until March 29, 2012, to the detriment of the children. 

In the end, Justice Walker will hold child protection liable and will also determine at paragraph 1086 that "Immunity afforded by the CFCSA to good faith discretionary decisions is not afforded to the Director and social workers in this case." In essence, Justice Walker determines that child protection did not act in good faith.

This case has the risks of the specific social workers being targeted (as happened in the United Kingdom with the Baby Peter case) and the real issues of systemic problems in child protection not getting discussed. In my research of hundreds of cases where things have gone wrong, there are some strong themes that we see in this case. Yes, it appears that the social workers here did not do their job well, but it is the fact that many practice issues seen here are not unique to this case. Therefore, one must conclude that there are some fundamental issues with how child protection is done that we see these issues repeat across cases and across jurisdictions both within Canada and elsewhere in the western work.

Here are some of the themes in this case and others:

1.     Hostile divorce matters are often not well managed in child protection. Many times, they are not seen as a child protection issue. In this case, child protection did get involved but then, without proper investigation, took sides.

2.     Not understanding domestic violence – the mother, who was passionate about trying to get people to hear her concerns, was labeled mentally ill (partially at the instigation of the father). Yet, in domestic violence cases, it is often the more “hysterical” party who is telling the truth. It is the calm, cool one who is often the perpetrator. It takes skilled investigation to sort through this.

3.   Mental health issues need professional assessment – child protection workers do not possess the advanced training, in most cases, to determine the presence or absence of a mental illness. Experts in the field need to be brought in (not done in this case). Even then, the presence of mental illness does not preclude a parent being appropriately concerned; does not determine parental capacity; and does not make the other parent more capable.

4.   Group think – in this case, a unified view of the case was developed, led, it seems, by the supervisor. There did not appear to be room for dissension which is one of the most important voices in case management. It is dissension that often leads to critical thinking.

5.    Ethical practice means being willing to go against the group or the leader. There were some hints that others may have been open to seeing the problems in the case management. Justice Walker talks about deception, lying and misleading courts. Here is an example why child protection workers need to be licensed professional social workers who can be held accountable for ethical practice. I do not know if these individuals were, but it does show how having child protection worker behavior linked to a code of ethical practice is important.

6.    The best interest of the children was lost. They were not properly assessed or heard which means that their voice was not at the forefront. Other cases have shown that the voice of the child needs to be central to the case. 

7.    Using selective data and filtering out competing information – good case management means being open to competing data. This does not occur when workers believe that they know it. It is an imperative that each new piece of data be seen as adding to, detracting or altering present understandings – but which is it?

8.    Interagency communication adds to good case management. Justice Walker noted “The Director delayed in delivering documents requested by another branch of government…” It has been shown time and again that information held and not shared diminishes effective case management.

The leadership was deficient - it did not appear to offer balance, critical review as well as an instance on continual data gathering and review.

This case matters because it shows how poor practice gets compounded as the case goes along, ideas become fixed and unchallenged, children get lost and are harmed.

The BC Representative for Children and Youth has called for the case to receive a full inquiry. This is the kind of case that should because there are many systemic issues to be considered. These children have been damaged, and likely will suffer life long impacts. How we can avoid such harm from bad practice needs to be understood. These are common errors of reasoning that front line practitioners need to better understand.

The case can be found at http://www.courts.gov.bc.ca/jdb-txt/SC/15/12/2015BCSC1216.htm

August 8 2015

Since I wrote this post, three important things have occurred:

1. The Minister has appointed an independent officer, former senior government official, Bob Plecas, to investigate this case.

2. The Representative for Children and Youth, Mary-Ellen Turpel-Lafond, has been bypassed to conduct the investigation even though it would fall within her jurisdiction. She has issued a press release saying she may yet use her powers to investigate and thus, will not work with Plecas. She has powers to take evidence under oath which Plecas does not. It is curious that the government has by-passed the Representative. 

3. The BC Government has appealed the decision which the mother has called cruel.