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.

They could have lived

The British Columbia Representative for Children and Youth, Mary Ellen Turpel-Lafond, has yet again delivered a thoughtful critique of a case where children have died who were known the the province's child protection system. The report titled  Honouring Kaitlynne, Max and Cordon: Make Their Voices Heard Now looks at the case of the three children murdered by their father, Allan Schoenborn who now remains in a forensic psychiatric unit having been found not criminally responsible due to a mental illness. The report tells the story of children exposed to domestic violence, untreated mental illness and addictions.

The story is one of multiple involvements that included child protection, mental health and police in what might be seen as poorly coordinated interventions that yielded weak protection for the children. This is a story that is often repeated. We have seen many cases in various jurisdictions where poor communication and poor coordination between agencies have resulted in families not receiving the help needed. The result has been the death of children.

The story also includes situations where data was available but not acted upon. Again, a theme that is familiar to those who have looked at these death reviews.

Turpel-Lafond also notes that child protection in this case failed to consider the domestic violence implications of the case. As she states:

Too often, ministry social workers did not apply a domestic violence lens or use their own domestic violence guidelines in dealing with this family...The children’s mother was sinking into depression, despair and anxiety. She was not given concrete suggestions or strategies or connected with appropriate supports on how to protect her children or how to keep Schoenborn away from the home, except to call police if he showed up. Workers repeatedly told RCY investigators that they had no training in working with families experiencing domestic violence, and this is evidenced in the poor practice and approach they took with the children’s mother. (p.2).

 The lack of coordination can be seen when The Representative states:

The various systems involved with the family were not aware of the severity of Schoenborn’s mental illness and substance abuse because he was not interviewed from these perspectives by police, corrections or child protection. Also, there was very little collaboration or information sharing among these systems. p.3

As was seen in the Matthew John Vaudreuil  case in 1995, also in British Columbia, Turpel-Lafon creates a chart that shows just how many different times child protection, justice and other systems were involved. There was clearly no lack of eyes on the family - what there appears to have been was a lack of effective interventions.

Turpel-Lafond's report is worth reading if only because she also lays out the ways in which the mother of the children behaved in almost classic ways as an abused women. She would recant allegations, seek to have orders lifted and show signs of being enmeshed into the patterns of a sick, abusive husband.

There is also a pattern of multiple child protection workers along with family moving. This meant that there was inconsistent case management. Case management between child protection and the justice system was, at times, also in conflict.

On p. 58 of the report, The Representative sums up the issues stating:

hese children were extremely vulnerable to violence and harm due to the domestic violence in their home, and their father’s untreated mental illness. Countless opportunities to ensure that the children and their mother were safe were missed because of a profound lack of coordination among the child-serving, mental health and criminal justice systems over many years, compounded by glaring failures in child protection practice, and an inability to recognize and assess the extent of the father’s mental illness.

As this report and many that have gone before, note that different systems, child protection, justice, mental health, have different priorities and thus approach cases from those varying perspectives. Unless there is good communication, co-ordinated  case planning and common training on common topics, there will be further failures to protect children.

In my own practice, I come across communication barriers often. The Velasquez review in Alberta highlighted this as a concern and notes that information silos can hamper good child protection. This appears to again be an issue in this review.

The review closes with an appendix that offers 8 steps that should be considered in domestic violence cases:

Keeping Women Safe: Eight critical components of an effective justice response to domestic violence

The following critical components are needed for an effective, specialized response to domestic violence:

1) Managing risk and victim safety – comprehensive, coordinated approach to risk and safety assessment and victim safety planning

2) Offender accountability – appropriate and consistent sentencing, enforcement of protection orders, and accessible treatment for abusers

3) Specialized victim support – comprehensive, proactive, and timely support with outreach and access for marginalized groups

4) Information sharing – consistent, timely information sharing between agencies and with the victim

5) Coordination – coordination and collaboration at all levels among relevant sectors

6) Domestic violence policy – consistent informed approach to charging, prosecution, and offender accountability

7) Use of specialized expertise – dedicated justice system personnel, court time and specialized training

8) Monitoring and evaluation – integral part of all the critical components and a systematic, comprehensive approach to collection, analysis, and publication of statistics across all justice system components

Source: Critical Components Project Team-Light, L., Ruebsaht, G., Turner, D., Novakawski, M., Walsh, W. (2008). Keeping women safe: Eight critical components of an effective justice response to domestic violence.