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January 30, 2010 permalink
The Ministry of Children and Youth Services will conduct a five-year-review of the Child and Family Services Act as required by law. In December the Ministry solicited comments to be delivered by the end of January. Here are two submitted comments, one by Canada Court Watch (pdf), the other by Robert T McQuaid in the expand block.
January 29, 2010
Minister of Children and Youth Services
Child and Family Services Act Review
Subject: Five year review of the child and family services act
The Child and Family Services Act (section 224) provides for a periodic review of its operation. By web posting you have invited email comments.
Last February Irwin Elman, Ontario's Provincial Advocate for Children and Youth, stated that 90 children had died in one year in the care of Ontario's Children's Aid Societies. In a rebuttal a few days later the Ontario Association of Children's Aid Societies pointed out errors in Mr Elman's assessment, stating that children's aid society involvement in some of the children occurred only after their deaths, so that only 53 died in the care of children's aid. Depending on which set of numbers you use, the death rate in foster care is seventeen or only ten higher than the death rate in the general population. Notwithstanding this unconscionable level of abuse, most children in long-term foster care reach the age of majority still alive, but lesser forms of abuse, impossible to measure on their own but reasonably scaled up at the same rate as deaths) lead to insurmountable problems once the children age out of the system. An article by Lori Culbert in the Vancouver Sun for June 27, 2008 said that for foster children aging out of care jail was more likely than high school graduation. There are many other negative outcomes such as homelessness, prostitution, mental hospitals and untimely death.
The child protection system qualifies as the greatest danger to the welfare of Canadian children. It is driven by the perverse incentives of bureaucracy. When a children's aid society provides assistance to children in their parents' home, their funding is subject to cuts in future years by the legislature. But when crown wardship severs the bond between child and parents, their future welfare depends on the generosity of the legislature in providing funds. Elected officers, such as you, are never stingy with this kind of funding, feeling that the welfare of foster children will be enhanced by generosity with appropriated funds. The funding is large enough to serve as an incentive to children's aid societies to take yet more children.
The only real way to stop this cycle is to end the use of appropriated funds for the care of children, turning the job of feeding orphans back to private charities, as it was before the development of provincial welfare systems. Since you are unlikely to do that, here are some lesser reforms that may improve the lives of children.
- Open the process.
The process should be open to public scrutiny at all stages. An open-records rule for Children's Aid Societies might become ineffective through foot-dragging, but applied to the courts it could work.
Most courts dealing with criminal and civil matters are now open to public scrutiny, and family courts should be as well. Then anyone could sit in a family courtroom and more important, he could examine the document file where most of the legal action takes place, viewing the same record presented to the judge. For children as well as adults, public trial is an ordeal, but secret trial is worse.
Such a reform could provide a remedy for families falsely accused, through reference to the court record exonerating them. Rogue Children's Aid Societies would come to public attention quickly, and scholars could sample the files to measure the level of effectiveness of child protection.
- Allow the provincial ombudsman to review children's aid.
The ombudsman is shut out of children's aid by law. Expanding his mandate could allow many of the abuses to come to public view in a form that would allow for early legislative correction.
- Limitation or elimination of immunity for caseworkers
Currently, child-protection workers are immune from all legal actions unless they can be shown to act in bad faith, placing them beyond the reach of the law even for rather blatant wrongdoing. In private meetings between caseworkers and parents, they regularly bully parents with their power. One caseworker told a father: "Fathers have no rights"; another was only slightly exaggerating when she boasted: "We have as much power as God". Giving the caseworker, not the taxpayer, civil responsibility for wrongdoing would effectively eliminate most abuse by caseworkers.
- Never suggest divorce
One activity that needs to be stopped is forcing a divorce on a couple against the will of both, a shotgun divorce. In tiny Dufferin county, a dozen instances were reported in just three years, a rate that suggests thousands of such cases for the province as a whole.
- Do not seize children until after hearing both sides
The law now in most places requires judicial authorization before child removal, but excepts children in immediate danger. In practice, children are always picked up first on pretense of emergency, and court hearings are after-the-fact. Owing to caseworker immunity, they cannot suffer from any misrepresentation.
The law could be changed to eliminate the exception, delaying child abduction until a judge has signed a warrant on probable cause. This may have limited effectiveness, since societies with millions of dollars in revenue may get friendly judges to rubber-stamp their requests. A more meaningful reform is to require an adverse hearing in which the parents can present evidence in opposition before the issuance of an apprehension order. This would at least protect innocent families with means to hire competent counsel.
- Trial by jury before crown-wardship
Juries, not judges, should have the final word on removing parents from a child's life and turning them into crown wards. This protection exists now for liberty and money, things normal parents value less than their children.
- Require that the child be in the courtroom during proceedings about him.
This procedure is followed now in criminal matters, though not in the more consequential custody cases. There have been many instances in which a child was advised he had a legal right to be in the courtroom, but was still excluded. Requiring the child's presence would prevent consideration of the case of any child currently out of the jurisdiction of the court, even when the court had jurisdiction in the past. And as long as the child is old enough to understand, he could witness the proceedings in his own case.
- Fully investigate all child deaths, including those in care
The large number of deaths in children's aid care has little impact because the public only sees (disputed) numbers. Publishing the names and circumstances in each death could lead to reforms cutting the death rate. I note that a dead child cannot suffer emotional harm from publication of his case details.
- Refusing psychotropics is not neglect
Failure to follow a doctor's orders is now treated as neglect, so when a medical professional prescribes psychotropic drugs for a child, parents cannot refuse to administer them. In a few American states, parents now are granted authority to refuse such drugs, without that being treated as a reason for child protection intervention. Ontario should give parents the same authority.
- People should be able to see their own records at all levels
The records open to an adult should also include the records made of his life while in foster care. Now the disclosure of records is discretionary with CAS, allowing them to conceal wrongdoing by social workers and foster parents.
- Outlaw anonymous reports, and fully disclose reports to family
Anonymous reports of child abuse should be disregarded. Right now, an anonymous report is an easy way to sic CAS on a personal enemy. And parents kept in the dark may suspect the wrong accuser. In June 2003 the press reported that mother Marguerite Dias lost her children to Toronto Children's Aid. She (falsely) suspected a neighbor, Madeline Monast, attacking her with a machete and cutting off both hands. Had the identity of the accuser been disclosed to the mother, the neighbor might have kept her hands.
- Eliminate mandated reporting
Because of mandated reports by child care professionals (doctors, teachers, day-care operators), parents are fearful of taking an injured child to a professional. Every child care professional knows of cases in which persons have been prosecuted for non-reporting, inducing them to over-report, causing extra work for CAS, and more fears for parents. Recent trends are toward more mandatory reporting in a system that needs less compulsion and more voluntary action. Love does not come out of the barrel of a gun.
- Notify parents when children are removed
Several parents have reported not learning of an apprehension until their children failed to return from school, when they began frantic inquiries. Parents deserve to be notified immediately when their children are taken into custody.
- Provide meaningful accounting of the distribution of public funds
Currently, the published accounts do not answer the most basic questions about CAS operation: How much is spent on foster care? How much on group homes? How many child-days of care are provided? How many child-protection cases were opened? There are lots of numbers printed in the financial statements, but they do not answer the real questions.
- Allow other family (grandparents) to get kids when parents are unfit
The law formally favors this now, but it is infrequent.
- Do not separate parents from children when placing with family members
When the child of a teenaged single mother gets placed with his grandmother, the mother should continue to see the baby.
Should you need clarification or additional information, you are welcome to call or write.
Robert T McQuaid
558 McMartin Road
Mattawa Ontario P0H 1V0
Addendum: Recommendations (pdf) from the Foster Care Council of Canada
Addendum: A message sent in English gets a bilingual thank you/merci. Lets you know they are paying attention.
- "@MCYS-G-CFSAREVIEW" <CFSAreview@ontario.ca>
- RE: Five year review of the child and family services act
- Fri, 5 Feb 2010 15:35:34 -0500
Thank you for your submission / Merci pour votre soumission
Source: email from cyberspace