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Suggestions for CFSA Revisions
February 19, 2005 permalink
Here are suggestions for improving the Child and Family Services Act from three members of the Advisory Committee for Child and Youth Services.
311 Taylor Drive
Lakeshore, Ontario N8N 4K9
February 19, 2005
Hon. Marie Bountrogianni, MPP
Ministry of Child and Youth Services
Dear Madame Bountrogianni:
Our comments regarding the present CFSA legislation follow. We are enclosing also a legal memo drafted for us by Sarah Weisman, our lawyer.
We have many letters of complaint in our possession that relate to the present abuses of the legislation. These letters are addressed to a multitude of legal regulatory agencies. These agencies have all filed them in the "circular file." They have failed to take their legal responsibilities seriously.
We have had the privilege of speaking to a great many parents and service providers across the Province of Ontario. Their stories and experiences are all very similar. They have the "ring of truth."
We ask you to bring justice to these families. We want a "Royal Commission of Inquiry" so that these files may be opened and testimony may be taken from these families. These "stolen children" must all be returned to their rightful families.
Dolores A. Sicheri MD FRCPC
Advisory Committee for Child and Youth Services
Proposal to the Ministry of Child and Youth Services for Reform of the Child and Family Service Act
This Act set the bar for apprehensions too low. It went from "substantial risk" to "risk." Neglect and emotional abuse were added but not defined. Neglect, risk and emotional abuse can mean almost anything. If one were subjected to the CAS microscope, every parent in Ontario including the Marie Bountrogianni could potentially be accused of neglect and emotional abuse.Recommendations
That the threshold for neglect, risk and emotional abuse be clearly defined
This Act set the bar for apprehensions too low. It went from "substantial risk" to "risk." Neglect and emotional abuse were added but not defined. Neglect, risk and emotional abuse can mean almost anything. If one were subjected to the CAS microscope, every parent in Ontario including the Marie Bountrogianni could potentially be accused of neglect and emotional abuse.
That we recognize that the family is the fundamental unit of society
The "best interests of the child" are intimately intertwined with those of the parent and they must be balanced under the law. This is a fundamental principle. The new legislation needs to recognize this.
That workers be held accountable for wrongdoing
Currently, there is no real "legal accountability" for wrongdoing by workers. Poorly trained and inexperienced workers often swear false/misleading affidavits. Their documentation is used to justify their actions. They take situations and twist them out of context in order to justify their intrusion into a family. There has to be "legal accountability" and specified penalties set out for the submission of falsified records to the court.
That interviews with children be videotaped
There are reports and videotaped testimony from children in which children are reporting that they are being lied to and coerced by CAS workers. Some children are reporting that they are threatened with removal from their school, away from family and out of their community if they do not do as CAS workers tell them to do. All interviews involving children should be videotaped like the police do in their investigations, not only to protect the children involved, but also to protect the CAS workers and their agency and minimize the risk of lawsuits that ultimately the taxpayers of Ontario end up paying for.
That CAS files and tapes should be readily available to parties in court proceedings
At the present time, many parents complain that they are unable to gain access to CAS records for the purpose of defending themselves and their children. Most CAS offices refuse to allow parents to obtain copies of their files and in most cases they are told to take the agency to court to get a court order to obtain the file. The files and tapes should be readily available to all parties participating in Court proceedings. Clients who in most cases are already overburdened by the court process should not have to go to Court to get disclosure on their file.
That hearsay and innuendo be disallowed in court matters
Under present legislation, CAS workers often resort to the use of hearsay and innuendo to justify their actions and to convince a court to decide in the favour of the CAS when matters go before the court.
Prima facia evidence needs to be presented, not hearsay or innuendo. The same standards that apply in Criminal Court need to apply in Family Court. The premise should be that one is innocent until proven guilty, not the other way around as is currently enshrined in the Canadian Bill of Rights. The CAS using their own standards of finding a person guilty should not endlessly pursue cases dismissed in Criminal Court in Family Court.
Recommendation # 7
That standards and procedures be established to determine credibility and accuracy of children's testimony
Currently, many children who are in fact telling the truth to CAS workers are labeled as "not credible" or labeled as being "coached" by a parent. In other cases children who make allegations are taken for their word. As a result, many children continue to be abused because they are not being believed and in other cases innocent people are being persecuted based on the unsupported claims of children. Disabled and emotionally troubled children are often allowed to manipulate scenarios for their purposes, often to the harm of parents and other children. Standards and procedures must be established which will look at all the circumstances surrounding a child's circumstances to be able to more accurately determine the credibility and accuracy of a child's disclosure to workers.
Parents are forced to take and pay for lengthy and expensive evaluations that mean nothing to the resolution of the case. If the parents refuse, they are called non-compliant. If they undergo the evaluations, they are sent to professionals funded by the CAS whose reports are then considered biased. Even if the parents pass the evaluation, they are still denied resolution. They are then made to jump over even bigger obstacles with no expectation of ever recovering the child. Workers routinely speak to professionals prior to an evaluation. This biases the evaluation.
When my child went for a medical evaluation, the consultant reported that the worker had called earlier and discussed with him that "The mother was causing her child's problem." Child welfare workers obstructed the medical care that would have allowed my child to return home. I ask "In whose "best interests" that the worker is actually working in?"
That CAS workers not be allowed to contact parties at their workplace without prior the parties' written consent
Children's Aid workers often call parents at their workplace. This violates confidentiality and causes some parents to lose their jobs. A jobless and then homeless parent has to surrender. This practice should be severely disciplined. The government should not have to destroy the parent to acquire the child or to intervene in the family's matters.
That parents be put on equal footing in relation to legal funding of their case
Currently, many families give up the fight for their children just because they cannot afford the legal expenses to go up against a CAS agency. Families cannot fight a system that pays its legal fees out of the public purse and where unlimited amounts of money are available to CAS agencies.
Reform of the legal process is important to end this financial imbalance that favours CAS agencies. The legal timelines all favor the Society. Parents are served often at the eleventh hour with no chance to respond. Often only an obscure ad is placed in the paper as the only notice. Important timelines are buried in a stack of paperwork. Conflicts of interests among lawyers and agencies are not disclosed. The lawyer spends the legal aid money doing pretrial nonsense. He actually has no real intention of ever going to trial. Lawyers are being paid to represent the other side on another day. The other side usually has all the money and most of the work. The parent's case is sacrificed to maintain the lawyer's income. This creates an adversarial system with conflicts of interest. Parents then view their lawyers and their recommendations with suspicion. Parents are forced to represent themselves in Court against a system that pays top fees to lawyers from the public purse. Parents are doomed to failure because they are not equipped to represent themselves in the legal process. I ask, "Where is justice?"
That all professional services be done by agencies considered at arm's length to the CAS agencies
Currently, CAS agencies send parents to receive counseling and assessments from professionals who are being paid by the CAS agency. Many parents are forced to accept whom the CAS agency recommends because they cannot afford to pay for these services. Many parents and children claim that these professionals are biased in favour of the CAS agency that hired them.
It is clearly a conflict of interest for CAS to be sending parents to outside professionals that receive monies from the CAS. Funding must be available to parents, who would then be reimbursed by a government-based fixed fee just like OHIP. Parents could then choose whomever they wish to obtain services from.
That the Office of the Children's Lawyer be required to represent the wishes of the child only.
Currently, there are many complaints from parents and children regarding the Office of the Children's Lawyer. Many children and parents have complained about the lawyer not accurately presenting the child's wishes and preferences to the court. Some children have reported that their lawyer has actually lied to them and took the opposite position in court, contrary to what the child wished and instructed their lawyer to present. The lawyers from this office often just spout the CAS rhetoric and in some cases support the position of the CAS contrary to the "best interest of the child". There is even no pretense of impartiality
The Office of the Children's Lawyer needs to actually represent the wishes of the child.
Recommendation # 12
That the process be more transparent and accountable
Secrecy is purported to be in the "best interests of the child." It allows these workers to behave in a most recklessness manner. Social workers should be registered with their College as a condition of their employment. The College of Social Work must hold them accountable for misconduct with a sizeable fine and/or loss of license. These complaints need to be kept in a permanent file accessible to the public on demand. Unqualified people should not present themselves as social workers.
The veil of secrecy needs to be lifted. Reporters should be allowed to monitor the judicial process. Family/friends/advocates should be allowed into the courtroom to support the parent and child. The secrecy only allows the abuses to go on.
The name of the person making the complaint and the nature of the complaint needs to be disclosed to the parent. Right now, anyone can make an accusation and be assured anonymity. One should have the right to face one's accuser. This is basic to judicial process. Furthermore, it will deter reckless and malicious reporting.
That there be an initial judicial review at 48 hours
This will prevent family from becoming endlessly mired in the legal system. It will require that the apprehension meet an initial legal test.
That apprehensions in the delivery rooms of Ontario be stopped
I would like to see an accounting for the children removed in the delivery rooms of Ontario. Single young women are easy targets. These women are being denied access to due process. The public needs to know where are these children going? No one should be forced to sign away their rights under the influence of powerful medications and anesthetics. There should a time frame where the mother can change her mind without prejudice.
The CAS often returns only some of the children, often keeping the baby. Why? Is the baby more marketable? Is this a demonstration of the state's power over the parent? Does it have to do with the funding formula that regards this baby to have a higher reimbursement value because it is "adoptable?"
That access orders be enforced
The Minister says that 75% of crown wards have access orders that are not being used. Is the Minister aware of the numerous dirty tricks that are played to prevent access? The families will tell you. Access orders need to be honoured. Women who cannot care for their children often just want access. Dirty tricks prevent them from having access. Workers verbally and sometimes in writing promise them access and then renege. They circumvent the access order by placing the children at great distance from the biological parent. As a rule, placements should be within the child's community.
Court orders and decisions need to be honoured. There has to be a level playing field. I was subjected to legal dirty tricks. I walked out of the Courtroom with a different version of the settlement than CAS. I was told not to discuss the settlement particulars with the CAS. Three weeks later, I discovered that we had different versions of the same settlement. My version said that my child was to be returned to me at the settlement conference; their version said that he was to become a crown ward. I ended up with firing my lawyer thinking that either the Society lawyer had made a fool of her or that she was actually in collusion with him. As a consequence, I had no faith in the fairness and honourability of the legal process. It made the final settlement more difficult to reach.
That requests for kindred placements be given the priority they should have
Many young women sign the termination agreement with the verbal proviso that the child be placed with a relative. Once the papers are signed, these verbal agreements are reneged on.
That the Agencies respect the diversity of their clients
The services provided need to respect the religious, cultural and ethnic origins of the family. Continuity and stability for the child should be important drivers of the child protection process. Children in care should be left with a respect for their biological parents.
That the audit processes include both the child and parent
When I brought my complaint in 2003 Michelle Burd, program supervisor told me that any Ministry review of the file for compliance involves only the child being interviewed. This is a flawed process. Any review process should include testimony from both the parent and the child.
That the public be given information regarding regular outcome statistics for crown wards
I would like to see regular outcome statistics for crown wards. Are they finishing high school, college, vocational programs and university? Are they simply being warehoused? Are transitional planning and counseling services available? How many crown wards are accessing these services? Are these crown wards on departure ending up on the street as "street kids"? Parents generally provide for their children after 16. How does the government intend to provide for its "children" after 16? With parenthood, must there not be responsibility as well? Taxpayers are demanding accountability for the monies spent on the child welfare system.
That there be a final disposition of records for the crown ward
Once a child graduates from crown ward status, they should have the right to have their records sealed to prevent these adults from carrying this stigma with them. Crown wards have discussed with me how these records follow them and are used against them to apprehend their children. The cycle of trans-generational perpetuation of involvement with the social welfare system must be broken.
That there be a mechanism to expunge the records of the innocent
People whose cases are thrown out of court with no finding of protection should have the right to demand to have their records expunged.
That government needs remain out of the private adoption business
This advertising of children for sale like they were commodities has to stop. The CAS has to remain outside the private adoption business. There is a basic conflict in allowing the two to become one.
That the funding formula not reward the apprehension of children and the destruction of families.
It should reward organizations for keeping families together. Our children are not "provincial reimbursement units." Societies need to change their profile from police work to social work. Unless this happens, the entire system will degenerate into violence. Workers will continue to fear for their safety. The government needs to return to the community the services that support families.
That the adoptee be given his personal information
Adoption records should become the property of the child on transition to the adult world.
That open adoption and sibling contact occur
Open adoptions should be the norm rather than the exception. Parents with developmental disorders/mental health issues still love their children and deserve the opportunity to remain connected. Sibling groups should be preserved and their connections maintained. These connections will ease the transitional to independent living.
That kindred placement be given special status
Kinship placements should be given the high priority that they deserve. They should be facilitated and funded. Grandparents, siblings, aunts and uncles should not be simply regarded as foster parents. They deserve the special status of "legal guardians" for their kin.
That the rule of law occur
The law as it is written must be adhered to and implemented evenly. Presently these workers do not function under "the rule of law." Often the law and the Court processes are deliberately flaunted.
The legislation must be clearly written and applied equally and completely across the province. Selective implementation or non-implementation of the legislation created huge issues. For example, the special needs agreements clause for "special needs" families was present but never implemented due to lack of funding.
Parents have the right to make medical decisions for their children. CAS must respect this right. CAS cannot force parents to act contrary to their cultural and religious beliefs. It cannot force parents to administer psychotropic medications, blood products and/or chemotherapy to their children.
That "special needs children" have equal protection under the law
Provisions must be made for "special needs children" to access services without the surrender of parental rights. Children's Mental Health Services need to be funded apart from CAS. CAS should not be the gatekeeper for all children's services.
Recommendation # 29
That there be a return of the CAS to its legal mandate of child protection
It must get away from seeing itself as the sole provider of children's services. It must respect the mandates and integrity of other community agencies dealing with children.
Child welfare workers should have training in normal and abnormal child development. Child welfare workers need to understand the long-term harm that can be done by the disruption of the child-parent bond. They need to be respectful of the client. They need to return to seeing themselves as providers of family services. They are not policeman, doctors, teachers or lawyers. They need to respect these boundaries.
Recommendation # 30
That there be an internal grievance process
Social workers with grievances need to have a complaint process at arms length from the organization. Their complaints and concerns need to be taken seriously. Every worker who leaves the organization should be debriefed. Frontline workers, who disagree with a decision being forced on them, need to have an avenue to bring their concerns forth. The short career lifespan of these child welfare workers is a good indicator of the problems existing within the system.
That there be changes in governance
The Board of Directors needs to have legal responsibility for and input into the operation of the Society. Membership in the Society from the community should be encouraged, with employees and family members excluded as a conflict of interest.
That meaningful change occur to the reporting process
The present legislation requires everyone to report everything with regard to children. No one thinks, but everyone reports. It turns the ordinary caregiver and citizen into the enforcer of this legislation. Parents are afraid to seek help for fear of being reported. This creates a police/fascist state where everyone is spying on everyone else. This will forever change and possibly destroy the psychology and social work professions. This decision to report needs to be returned to the control of the caregiver dealing with the child and his family. The caregiver needs to weigh the risks versus the benefits and he takes the onus of legal responsibility.
Our schools and educational programs need to be given the mission of strengthening the family. Creating respect both for the child and the parent needs to be a driver in the educational process. The family should not be viewed as the enemy, but as an integral part of a healthy society.
The schools use the threat of CAS to coerce families into signing educational plans for children with disabilities. The schools use the police and social services to maintain discipline. This is the wrong approach. The school, parents and social services all need to be on the same page to help the child. The schools need to do a better job in identifying the special needs of students and delivering services. The real goal should be to create independent, productive future members of society.
Recommendation # 33
That there be a process for an external review of files
The review of CAS files needs to be done externally through a judicial review process. I am convinced that neither the CAS nor the Ministry is capable of policing itself. As a person who went through the Section 68 review process, I believe the process to be deeply flawed. The Ombudsman and the Office of the Child Advocate should be given the power to intervene on behalf of the rights of parents and children.