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.

5 Steps that institutions can take to protect children

We have been seeing in the media, more and more stories about the abuse of children involved with various institutions.  A recent story tells how the Jehova's Witnesses covered up abuse. In Australia, there has been a Royal Commission looking into institutional abuse. It seems each  chapter of their work reveals more breadth and depth of abuse.

In the United Kingdom, there has been the Rotherham story where 1400 children have been exploited. Authorities failed to act.

The reality is that children typically do not disclose abuse and when they do, they are telling the truth the vast majority of the time - we need to listen. So what can institutions do to better manage - here are 5 thoughts:

The long term impacts of child abuse in institutions is well documented. One only need to look at the impact of the Residential Schools in Canada. One recent story shows how one community is still tackling the impact of the St. Michael's school in Alert Bay, B.C. 

Institutions owe a duty to those in their care.

What supports sexual abuse disclosure?

In 2011, I had the privilege of delivering the annual lecture sponsored by the Tulir Centre for the Prevention and Healing of Child Sexual Abuse. They are located in Chennai, India. I was speaking on the sexual abuse by a sibling or juvenile. An individual in the audience found it hard to believe that the majority of victims are not disclosing the abuse almost immediately after it happens. I was reminded of this upon reading a newly published study in the Journal of Interpersonal Violence. McElvaney, Greene & Hogan have raised a number of very fascinating points. The article is well worth a read including their literature review in the introduction.

These researchers helped to identify that there may be a difference in the data from studies that have been done on a prosecution sample (where there has been disclosure in some way) and in studies where there has not been the involvement of the criminal justice system. They note that in research studies, there is a substantial group who has never told prior to being asked in the study - this ranged from 19% up to 47%. Silence is real.

The longer the delay in telling, the harder it may be to seek help. Further, given the link between child sexual abuse and subsequent traumatization through sexual assault and abuse, it may be even harder as trauma builds upon trauma.  There are many barriers to disclosure which the authors identify including shame, guilt, the risk to the family or the perpetrator and fear of reactions by others. I was particularly interested in the notion of the victim needed to weigh the consequences of a disclosure creating a pressure cooker effect - the wish to tell and the wish to keep it secret. This is a wonderful insight that serves as a useful reminder that disclosure is often an extremely challenging decision.

These authors found 5 themes from they qualitative research with both victims and parents:

1. The fear of not being believed although those fears often turned out to be unfounded once the disclosure was made;
2. Being asked is a way in which disclosure occurs.There were also those in the study who felt that someone (an adult) must have known it was happening;
3. Shame and Self Blame was another theme;
4. Fear and concerns for self and others - for example the fear that a disclosure would break up the family or that the victim would be unsafe or get int trouble; and
5. Peer influence in that first disclosures often happened to a peer.

There is a need to be aware of these barriers when working with those who may have been abused. As the researchers noted, many parents were "incredulous" when the child disclosed. It was not something that was meant to happen in their own family. 

A child who has yet to disclose may have some or all of these barriers in place - each one of them being quite powerful in and of themselves. Imagine the impact of several at once.

In my own work, I have seen time and time again, various disclosures simply because I have asked. This research affirms that. 

An already hurt and wounded child does not want to spread the pain - hurt the family; cause a family member to be gone; create more vulnerability as well as the fear of retaliation. One feature that may be useful in creating disclosure, beyond creating safety for the child, is to ensure that the perpetrator does not hurt others. Thus, disclosure can protect siblings or other children. This seemed to matter. But, of course, little will occur if the child believes that disclosure will create a further lack of safety.

Reference:

McElvaney, R., Greene, S. & Hogan, D. (2013). To tell or not to tell? Factors influencing young people's informal disclosures of child sexual abuse. Journal of Interpersonal Violence, published online 27 November 2013. http://dx.doi.org//10.1177/0886260513506281 

Jimmy Savile and Jerry Sandusky - Hiding in Plain View

Social workers and others who work with children around the world, have much to learn from these two high profile sexual abuse case. The material published in the UK today about the breadth and extent of the sexual abuse committed by Savile farnkly boggles the mind. As the CBC reports today:

Detectives said the scale of Savile's sex abuse was "unprecedented in the U.K." They have recorded 214 offences allegedly committed by Savile between 1955 and 2009, including 34 rapes, on victims aged 8 to 47. In all, 450 people have come forward with information about abuse by the late TV presenter.

Jimmy Savile

The details that are coming out show that the range of sexual behaviors and the settings in which Savile committed his alleged crimes includes children who were pre pubescent and teenagers. He did it under the cover of his fame and charity work. As one police officer has noted, he hid in plain view. The Guardian newspaper in the UK offers insight not only into the staggering size of Savile's crimes but also the utter failing of a system that refused to believe, deal with, or collate the data that was available from victims who had come forward. The system failed those who were willing to seek justice - a system that the report clearly shows bent badly in the wind that blew from the magnitude of Savile's deemed importance.

Like Savile, Sandusky had a huge public reputation which appears to have allowed him to hide as well. The power that both men possessed made coming forward with the allegations incredibly challenging. It would be a brave victim indeed who could challenge the reputation of these powerful men. Bear in mind that sexual abusers have an uncanny capacity to choose victims who are weak, vulnerable and desperate for the attention of the powerful.

These two cases are not unique but rather help us to see, yet again, the role that power plays. We have seen hundreds of victims in the cases of priests in various churches and also in such revered organizations as the Boy Scouts.

Sexual abusers take full advantage of the power of role - Savile as the music industry icon; Sandusky as the winning coach; the priest as the sacred leader; the Boy Scout leader as the person to be trusted as a guide in life. These are all very socially supported and revered positions.

Social workers need to be very mindful of the ability of the predator to use position. The sexual abuser does it time and again. When the social worker hears the stories, we need to be open to the telling. Sexual abusers in these positions count on their reputation and the notion that those speaking against them won't be believed.

The rate of false allegations is small.

I like some key points from Dr. D.L. Reed:

* A substantial proportion of sexually abused children are quite reluctant to disclose their abuse; many are ambivalent about disclosing; many delay disclosing•Disclosure of sexual abuse is typically a “dynamic process” not a “one-time event.” Consequently, confirmed victims often make inconsistent statements•When CSA victims are interviewed only once, they often minimize the extent of their abuse; and some deny it altogether•When children’s abuse allegations include fantasy elements, this does not necessarily mean that they weren’t abused 

 The point is that disclosure occurs in a variety of ways, over time and often with a great deal of shame and guilt (the victim may well think that the abuse is their fault). Victims may let slip little details by accident at the start or as a way to test how people will react. We have a need to just listen and not judge.

There are many more perpetrators out there that have yet to be discovered. Social workers are key in hearing these stories as are parents, teachers, police officers and many others with whom a child has contact. A child alleging it occurred with someone powerful should not deter us hearing them.

Let the Sandusky convictions mean something

Throughout North America, if not in many parts of the world, the case of former Penn State coach Jerry Sandusky was followed closely. There may well have been a sigh of relief at his conviction on 45 charges. Some will think justice has been done and with Sandusky, maybe it has. But little such satisfaction should exist.

The larger question is how does a Sandusky come to exist for so long in society without intervention. His is hardly the first such case. Indeed, in the same week that Sandusky was convicted, Monseigneur Lynn was convicted in Philadelphia for assisting in the cover up of abuse by priests in the Roman Catholic Church. CNN is reporting  that Penn State not only likely knew what he was doing but chose to not report it.

Then there are other cases in Canada such as Graham James who sexually abused minor hockey players for years. There was the Mount Cashel orphanage in Newfoundland where the Christian Brothers of Ireland physically and sexually abused boys placed in their care. Canada also saw the rampant abuse of children in the Residential Schools, with the last one closing as recently as 1996. The impact on Aboriginal families in Canada was profound. Many have yet to recover both from the abuse and the extensive fracturing of family systems.

If society truly wishes to see the end of these horrific stories of abuse, then it must be willing to open the proverbial Pandora’s Box and talk about what has and is going on. Sandusky is a high profile case in which some of his former victims found the strength to come forward and tell their story. As so often happens, their disclosures come years after the abuse occurred. Victims routinely fear disclosing because the perpetrators often occupy positions of power over the child – be it a parent who threatens harm if they disclose or a person in authority such as Sandusky whose position is such that victims typically feel they will not be believed. Many victims mistakenly feel that the abuse was somehow their own fault.

The recent report on the failure by the Boy Scouts of Canada to properly address the issues of sexual abuse perpetrators amongst their midst shows that one of the solutions is better institutional policies and responses. Without them, sexual abusers remain hidden to carry on.

Secrecy is one of the most potent tools that abusers have in order to keep abusing.  To change this, we need to allow children to tell their story with confidence that they will be believed. But we also need institutions that are willing to hear those children.

Most children who are being abused will not have their situation brought to anyone’s attention. Thus, it is up to ordinary Canadians to decide that abuse should stop and be willing to speak up when they see it. Failure to do so, is to give it tacit approval.

Cases like Sandusky serve a purpose. They create conversation and awareness. These high profile cases are rare. It is the far less visible cases that require us to act. Sandusky could get away with it because, like so many abusers, he was in a position of power. Why are we so willing to turn a blind eye to such people whether they be coaches, priests, teachers or other professionals and carers for children? The tide will start to turn against sexual abuse when we call out the powerful people in children’s lives who break the trust granted them with our children. 

As Eldridge Cleaver said, you are either part of the problem or part of the solution. Become part of the solution. As a nation, we need to raise awareness of the impact of abuse and help to create solutions. We can stop abuse by supporting families so that their children are safe. Families that need help will need to be able to find it in communities across the country. If abuse occurs outside the family, we can make it safe for our children to tell. You can do this by hearing the voices of children and making sure that a child who discloses is given a safe place to tell their story. You might be that person.

Why Sandusky matters

The conviction of former Penn state coach Sandusky matters a great deal for child protection. And no, it should not act as the basis for fear mongering that it will lead to more unwarranted apprehensions of children by child protection. Such a suggestion is based upon the notion that child protection workers are incapable of critical thinking when considering cases.

The fear might be that politicians will now try to gain political capital by making pronouncements that they will enact laws that will ensure that there will never be another Sandusky on their watch. That is politics and bad policy.

But Sandusky does matter because it sends to society some very powerful messages. To begin with, it means that the powerful who abuse can be held accountable. It means that the stories of abuse in the past can still be brought forward and the abuser convicted. It means that systems keeping these dirty little secrets should no longer be tolerated in society and that those systems should be held accountable.

Sandusky's defence lawyers argued that one of the motivations for the victims was to be able to sue and gain money. Yes, Sandusky and Penn State should be held accountable and that might mean paying money as a form of restitution. But there is no amount of money that will make up for the permanent, negative impact that sexual abuse will have on a child. There is no mistaking that such abuse creates life long changes that affect all aspects of a person's life.

There is also the good news in the conviction of Msgr. William J. Lynn. He is also in Pennsylvania. He was convicted for assisting the Catholic Church in covering up the sexual abuse by priests. This also opens the door for further accountability by institutions and systems for what goes on by those they supervise.

These convictions will not stop sexual abuse. They are public pronouncements that society is one step closer to taking strong stands that it is wrong and it will be something that society will take on stand on and send messages that it should not be tolerated. I should say will not be tolerated but I worry that there are still elements of society where it is going and the systems have yet to take the needed stand. Maybe this will crack open some of those doors.

Maybe also, these convictions will make it easier for other victims to step forward and tell their stories.

Child Sexual Abuse Disclosures

Two recent studies have offered some very important information on the issues of disclosures in child sexual abuse. The first is an Irish study which uses a qualitative grounded theory approach. This study of 22 children looked at the process of disclosure. They conclude that:

The process of confiding experiences of child sexual abuse is not linear and sequential as suggested in the early literature on child sexual abuse, but is, as Staller and Nelson-Gardell (2005) suggested, a dialogical process that is renegotiated and influenced by each experience of disclosure. (p.1169)

As they note, the disclosure process is a “stop-start” experience that occurs over the lifetime.

This research by McElvaney, Greene & Hogan, offered 3 overarching themes which will be of assistance to child protection and police investigators as well as therapists.

1.     Active Withholding – This included the subthemes of not wanting people to know; denying when asked and even experiencing difficulty saying that it did occur.  The latter is the experience of wanting to let something out but just not being able to do it.

2.     Pressure Cooker Effect – there was a build up of tension between wanting and not wanting to tell. There was also the effect of being in a state of distress about actively withholding. Telling may be the result of either an opportunity presenting itself of an unplanned disclosure.

3.     Confiding – Who to tell became important with the notion that telling needed the ability to confide in another person. Thus who was chosen was careful and might include the sharing of confidences or a need for confidentiality.

These researchers also noted that disclosure wasn’t a single event. There would be a number of occasions over the life span when the story may need to be retold or told in more or different detail. Thus, for the victim, it may well be an unfolding part of their lives.

The researchers also note in their literature review that there can be powerful influences which help us to understand why children do not disclose or may delay disclosure until later in life. These might include fear of the perpetrator or fear of the consequences of telling. Other factors might include other pressures not to tell. The child’s own guilt that they may be responsible for the abuse as well as considering the costs and benefits of telling. It is important that disclosing always comes with some level of internal and / or external costs.

The second important piece of research is by Allen & Tussey who conduct a systematic review of whether or not projective drawings can be effectively used to detect if a child has been sexually abused. Given the research above, that would be helpful if it could. There have certainly been claims from various corners that this is possible.  This research review carefully considers the literature and concludes:

The current literature review demonstrates that attempts to identify projective indicators of sexual and physical abuse in drawings completed by children are not supported by the existing evidence. (p.12)

This conclusion has very significant legal implications for mental health professionals. This really means that projective drawings should not be used and that any such use is unlikely to meet the Daubert or Frye tests in the United States. They are also not likely, in my view, to meet the Mohan test in Canada. This is:

(1) Test for Admission of Expert Evidence

[13] The test for the admission of expert evidence is well-established and undisputed on this appeal. At the first stage of the admissibility inquiry, the party seeking to tender expert evidence must establish on a balance of probabilities that the proffered evidence is: (1) relevant; (2) necessary; (3) not subject to any applicable exclusionary rule; and (4) to be advanced through the testimony of a properly qualified expert. Where these four preconditions to admissibility are satisfied, the second stage of the admissibility inquiry obliges the trial judge to engage in a contextual weighing of the probative value and significance of the proffered evidence to the case against the potential prejudice that could flow from its admission. See R. v. Abbey (2009), 97 O.R. (3d) (C.A.), leave to appeal refused (2010), 409 N.R. 397 (note); R. v. Mohan, [1994] 2 S.C.R. 9. (as cited in R. v. Boswell, 2011 ONCA 283)

While the Canadian test is different, the qualified expert must still tender evidence that is reliable. An expert relying on these projective tools may now well be more directly challenged on the credibility of the evidence when the research of Allen & Tussey is considered.

References:

Allen, B. & Tussey, C. (2012). Can projective drawings detect if a child experienced sexual or physical abuse?: A systematic review of the controlled research. Trauma, Violence & Abuse, published online first. doi: 10.1177/1524838012440339

McElvaney, R., Greene, S. & Hogan, D. (2012). Containing the secret of child sexual abuse. Journal of Interpersonal Violence, 27 (6), 1155-1175. doi: 10.1177/0886260511424503