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.
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.
