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Protecting Vulnerable Children
December 1, 2012 permalink
In 1999 Ontario got a revised Child and Family Services Act, brought into law through an irregular procedure at Queens Park. The first reading took place on April 26, 1999. Seven days later, the legislature completed enactment in a marathon session jamming second and third reading into a single day. There was no roll-call on bill 6 as it was known. In a legislative love-in the deputy speaker (Bert Johnson) declared: "Is it the pleasure of the House that the motion carry? Carried. Be it resolved that the bill do now pass and be entitled as in the motion". The day after enacting bill 6, the legislature was prorogued.
Normally, second reading can be delayed by weeks or months, and committee hearings take place after second reading to allow the public to comment and the legislators to educate themselves on the issues. With the breakneck speed of bill 6, the public had no chance to comment on the proposal, or even find out about it. Remember, the internet was in its infancy and the print media never showed complete bills.
Now through a freedom of information request Chris Carter has unearthed the genesis of the legislation. It is a document titled Protecting Vulnerable Children. A panel of eight experts, all within the social services system, submitted it to then-Minister of Community and Social Services Janet Ecker.
Legal scholars use the term adhesion contract for a one-sided agreement, the kind where one party to a contract has so much power that the other has no say about its terms. Examples are the contracts you agree to when getting tickets from an airline or a sports stadium, or the terms of a bank loan or credit card agreement. Ever try to renegotiate the fine print in one of them? In addition to being created entirely by one party, frequently every provision in the acres of fine print favors that party. The 1999 revisions to the Child and Family Services Act could be called an adhesion law. Every provision favored the social services system, there was nothing granting more rights or protections to families or children.
The paper contains 26 recommendations, suggestions for changes in legislation and seven items dubbed further considerations, non-legislative suggestions. The legislative changes, mostly enacted, were for more power for children's aid societies at every stage. The objective of family integrity was scrapped in favor of best interest of the child. Grounds for snatching protecting children expanded by a dozen items including the vague likelihood of risk or failure to provide adequate affection. Another provision was to institute crown-wardship solely on the ticking of the foster care clock (12 to 24 months depending on the child's age). The panel was concerned about parents getting adjournments, and proposed limiting adjournments to valid reasons only. (This provision has been unexpectedly turned on the child protectors by resourceful family advocates). For parents not complying with court orders the panel recommended a requirement to return matters to court as soon as there is non-compliance with court-ordered terms. The panel made no recommendation to return matters to court as soon as a children's aid society is in non-compliance with court-ordered terms. For gathering information the panel recommended extending the list of mandated reporters and expanding the powers of social workers to examine records without family consent. Even solicitor-client-privilege was to be abolished when it concerned a child. Child apprehension should be simplified by eliminating the need to get those burdensome warrants. Standards of evidence, already a sham before the legislation, were to be loosened further. Among the non-legislative suggestions is the ever-popular enhanced funding for social services. The Panel recommends that judges with an interest and expertise in child protection be selected to hear child protection proceedings. Could that by why so many newly-appointed judges have a stint with CAS on their résumé? But the panel went further, suggesting taking adjudication out of the courts and giving authority to tribunals consisting of persons with knowledge and expertise in the areas of child development, child protection and children's mental health. No more ornery judges between social workers and children.
Even after thirteen years Protecting Vulnerable Children is not a public document. The Ministry of Community and Social Services still asserts its privilege of redacting a few passages. We cannot see the full credentials of two of the eight panel members, or the titles of eleven court cases and six (coroner's) inquests cited as other background sources by the panel.
Addendum: Chris Carter followed up with a request to the ministry for copies of the documents listed as submitted to the panel in Appendix B. The reply from the ministry (pdf) says they are not in their files. Maybe the Archives of Ontario has them.
Addendum: A letter from Cate Parker to Chris Carter (pdf). dated February 19 adds a little. One case is unredacted so we can see the full citation: Ontario Court (Provincial Division): Reasons for Judgment, Catholic Children's Aid Society of Metropolitan Toronto and Lisa Marie O and Michael P, 1995. The case is on CanLII as Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.), 1995 CanLII 6216 (ON CJ). It is a case of serial child abusers. The panel focused on the worst of the worst, ignoring the more usual kind of family in which mom and dad love their children.
The letter goes on to say:
First, the ministry has tried on several occasions to confirm if the disclosed record, which dates back to 1998, was publicly released along with the bibliography at that time. However, the ministry cannot definitively confirm that the disclosed record was publicly released in its entirety in 1998.
This non-committal bureaucratic waffling seems to mean that the document was never published before its appearance on fixcas, and corroborates that bill 6 was enacted in 1999 in a legislative ambush before the public could learn of its existence.
Addendum: A news article prepares the public for the adoption of bill 6. It is the story of a baby harmed because the CAS did not have enough power. This article was found on the internet, not on the Toronto Star website, so its provenance cannot be assured.
THE SORRY SCANDAL OF BABY M
Child care workers visited her 48 times. And not one noticed she was dying
IN THE mathematics of misery, the life and near death of a tiny girl who can be identified only as baby McCutcheon is a case that doesn't add up.
Child-protection workers visited the dark-haired toddler 35 different times at her family's Acton apartment.
Other social workers met her 13 times. Medical professionals saw her on another 27 occasions.
Yet not one of these professionals sounded the alarm over the frail child's failing health.
Not one noticed she could barely stand. Not one noticed she was slowly starving.
Today, at age 5, baby McCutcheon is permanently disabled and unlikely ever to lead a normal life.
And the performance of the Halton Children's Aid Society - which still has her in its care - is being reviewed by police.
What went wrong?
At the time, baby McCutcheon was living with her mother - a woman with the mental age of a primary school girl, a woman who already had lost custody of five previous children because she couldn't care for them.
Nevertheless, the involvement of all those professionals should have assured baby McCutcheon's safety and well-being - in theory.
The key question police are attempting to answer was raised by Mr. Justice Kenneth Langdon of the Ontario Court, general division.
Langdon, who presided over the criminal trial of the child's father, said it was "a mystery to the court" how child-care workers could have visited the family 48 times and not noticed the child's failing health.
Indeed, in November, 1995, when the child was "mortally ill," one worker was even preparing a discharge summary so the little girl could be moved up to another program for older children, the judge said.
Two aspects of the girl's condition observed by the worker should have resulted in the child getting more help, Langdon said in his judgement.
First, the worker discovered that although the child was aged two years and eight months, she was actually functioning like a toddler aged 1 1/2 - or less.
She couldn't walk. She couldn't speak.
Second, the worker noted the little girl "seemed unwell."
It's unclear just how thin the child was at this time, but a few weeks later, in December, 1995, when she was admitted to Toronto's Hospital for Sick Children, doctors took photographs showing she was so malnourished that the skin on her thighs was hanging in folds.
Child-abuse experts at the hospital say the starvation didn't happen overnight. They believe the girl's poor condition was obvious long before she ended up in hospital.
This past July, Langdon sentenced the girl's father, James Wayne Clayton, 31, of Acton, to 21 months in jail for child neglect.
The mother, Maryanne McCutcheon, 38, of Barrie, is on three years' probation for the same offence. She has since undergone a tubal ligation so she will not have more children.
"The social agencies involved in this case would do well to study the history of this child with great care to see how it is that a life-threatening situation which was obvious . . . was not discovered by trained child-care workers," Langdon said in his 17-page judgement.
Halton Police Detective Sgt. Jackie Gordon says police are reviewing the court documents to determine if anyone besides the child's father was criminally negligent.
Gail Vandermeulen, acting director the Halton Children's Aid Society, has refused to discuss the baby McCutcheon file with The Star, citing the confidentiality provisions under Section 45 (8) of the Child and Family Services Act.
"I prefer to not be interviewed but instead have enclosed the attached press release," Vandermeulen says in a letter to The Star.
The four-page release cites Ontario's own child-protection law as one of the reasons why the society sees itself as innocent of any wrongdoing in the baby McCutcheon case.
Under provincial law, child-protection workers must "provide assistance in the least intrusive way and support the autonomy and integrity of the family unit," the release says.
This means child-care workers cannot take a child out of its home simply because of neglect - unless that neglect is so extreme the child can be proven to be in danger.
In the case of baby McCutcheon, the society says, it didn't have that kind of compelling evidence - initially, at least.
"The child had neither been observed by its staff, the medical professionals nor the child's development worker as being malnourished," the press release says.
So in spring, 1995, the society closed the baby McCutcheon file, satisfied all the legal requirements had been met.
"The society had proceeded in the least intrusive way while providing help within the family unit," the release says.
Who is ultimately responsible for the tragedy that befell the child born to McCutcheon and Clayton in February, 1993?
Could the child's fate have been predicted?
Today, McCutcheon lives in a tiny Barrie apartment with her fiancé, Al Jacques, an unemployed mechanic. The two are supported only by McCutcheon's monthly disability payment of $1,315.
In an interview with The Star, the childlike McCutcheon laughed, cried and rambled on about her children, her dead parents and the collection of clowns neatly arranged in her bedroom.
Jacques says he can't understand why, given her severe developmental delay, she was ever allowed to have responsibility for three young children. "She's a child in a woman's body," he says.
Jacques says he's dedicated to protecting McCutcheon from what he considers further abuse by the social and legal systems.
Slowly, he is learning the sad story of her life and how she had - and lost - eight babies.
Born on Dec. 17, 1959, Maryanne McCutcheon was the third of four children. The family lived in Angus, just west of Barrie. Her father was a maintenance man at a nearby military base, Her mother stayed home.
Most evenings were spent in the bar at the Simcoe Hotel in Barrie.
"I always remember them drinking," McCutcheon recalls.
She says she was sexually abused as a child and saw her mother being hit and verbally abused. At 15, she says, she was raped by eight 20- to 21-year-old males. One was charged and convicted.
At 16, she quit school and began a series of short-term relationships, mostly with men she met in bars. That period in her life is blurred.
McCutcheon had a child in Thunder Bay and three more in the Barrie area. She remembers moving around a lot over that time and having a fifth child, but she doesn't know the sex of the baby or when it was born.
She met Jim Clayton in a Barrie bar in 1992. He had worked in a gas station and as a cleaner, but was unemployed when he met McCutcheon.
The couple moved to Acton to live with Clayton's father, but after one particularly nasty fight McCutcheon moved in with her parents in Barrie.
Clayton pleaded with the pregnant McCutcheon to come back.
"He said I was going to have the baby soon and I should come back. I did go back, but I wish I hadn't," McCutcheon says.
On Feb. 17, 1993, McCutcheon gave birth to a girl at Georgetown hospital.
Worried that the developmentally delayed woman couldn't care for the infant, hospital staff called the Halton Children's Aid Society.
In the following weeks, case worker Joyce Page grew concerned about the baby and recommended that the tiny girl not be left alone with the mother.
"I tried to help them cope with the baby by getting other family members, like the grandmothers, involved . . . but basically things just didn't work out," says Page, now retired.
Page contacted the Simcoe County Children's Aid Society in the Barrie area and learned that none of McCutcheon's five previous children had been left with her. I'hree were taken into society care and adopted. The other two remained with former common-law partners.
Staff at the Barrie society told Page the children were taken from McCutcheon because of her transient lifestyle, her inability to provide adequate care and her excessive alcohol consumption."
Simcoe County workers also mentioned that McCutcheon was accused of shaking and threatening to harm her fifth baby and she was known to walk away from a child even though she had lots of support.
Page told The Star she does not know why the Halton society did not act on her recommendation that the child not be left alone with McCutcheon. And that's one of the questions society officials refuse to answer.
According to court records, the case was transferred from Page to two other society workers, Monica Radley and Carolanne Malenfant.
McCutcheon remembers these workers sitting and talking to her about once a week. Sometimes they gave her pamphlets and other printed information on infant care, but she couldn't read them.
"Sometimes there was no milk in the fridge and Jim would have to borrow money to buy it. . . but I would never tell the workers that," McCutcheon recalls.
The regular visits with the workers, she says "didn't help."
In the spring of 1994, Radley noticed the child wasn't eating well and seemed slow in her development.
Radley put the family in touch with Linda Barker of the Parent Infant Program run by the Halton Region social and community services department.
After conducting several tests early in 1995, Barker determined that the toddler was seriously developmentally delayed and needed to be placed in a special daycare program.
Meanwhile, the Halton Children's Aid Society closed the Clayton/McCutcheon file noting the "family was doing well," a conclusion largely based on the family's referral to a program to address the girl's needs.
But for reasons that remain unknown, no information about McCutcheon's five previous children was shared between the society and the Halton program, officials say.
Nor did society staff advise Barker of Page's recommendation that the child not be left alone with her mother.
This lack of what Halton officials now say was "critical' information, led to the tragic lack of follow-up.
For example, in September and October, 1995, when Clayton cancelled Barker's visits, no one in the Halton program phoned the family back to find out what was going on.
No one at the Halton program checked either to see if the child was being enrolled in the proper daycare program.
When Barker finally saw the child on Nov. 2, 1995, she wrote in her notes that the "child does not look well."
She recalls asking Clayton if it was perhaps not a good time to update the child's developmental assessment. Clayton told her to go ahead, saying his daughter had been coughing and sneezing for a few days.
Barker's tests that day indicated the child was about a year behind other children her age in development. What Barker didn't know, though, was that the little girl was getting progressively weaker and she was suffering from severe anemia. This medical condition should have been treated, but the child hadn't been seen by a medical doctor in several months.
Barker, however, accepted the father's explanation and left.
Had it not been for a chance meeting between the child and a hospital nurse six days later, baby McCutcheon might not be alive today.
On Nov. 8, 1995, shortly after McCutcheon gave birth to her eighth child, Clayton brought the little girl with him to visit the new baby and mother at Georgetown Hospital. It was during this brief visit that nurse Lucy Gilmore noticed that the little girl couldn't walk, couldn't even stand on her own.
"Most kids would be running around, making noise, pushing the buttons on the equipment, but she wasn't doing any of that ... I just felt something was really wrong," Gilmore recalls.
Gilmore phoned the Halton Children's Aid Society and society workers arranged for baby M and her two younger brothers to be seen by a doctor.
Both the little girl and her 1-year-old brother were found to be suffering from severe anemia and at the end of November the two were admitted to Guelph General Hospital for treatment.
The boy improved and was released, but the little girl's condition worsened. On Dec. 8, 1995, she was transferred to Toronto's Hospital for Sick Children where she would undergo four operations - two of them life-threatening. Her spleen and parts of her bowel were removed.
According to hospital records, the child suffered from severe malnutrition and this, combined with the profound anemia, resulted in severe complications including the bowel damage.
Dr. Dirk Huyer, a child abuse expert at the Hospital for Sick Children, says her very poor eating habits and slow language development would have been obvious to the family earlier that fall. He is among several experts involved in this case who can't understand why the little girl wasn't given medical help sooner.
But Karen Chan, acting commissioner of Halton social and community services department, says it's "hard to allocate blame in the case."
"The child couldn't walk because she was developmentally delayed. We knew that, so for our worker it wouldn't have seemed unusual that she wasn't walking."
But Halton social workers didn't know about McCutcheon's other children, and had they known that, it would have made a big difference, Chan says.
Why didn't Halton have all the information? That can, in part, be blamed on the rules of confidentiality, Chan says.
Under the current law, the privacy provisions are somewhat unclear so staff at children's aid societies generally do not share information about cases to non-society workers, says Mary McConville, executive director of the Ontario Association of Children's Aid Societies.
Why is the sharing of information so important?
Without it, each worker involved with baby McCutcheon "saw their own piece and only their own piece of the case ... the missed appointments . . . not putting the child into a child-care program and so on," Chan says.
"But the judge saw all the little bits put together to make up this case and we didn't see that at the time. All we saw was our missed appointments. We should have seen this was part of a bigger pattern of neglect."
Chan says that in light of what happened to baby McCutcheon, Halton has made some changes in the way its workers handle cases.
Halton social workers, for example, must now insist on a complete sharing of information regarding cases where other agencies and professionals also are involved.
The region's staff now must also insist on verification that medical and health-related direction given by workers is actually carried out by the family.
Some experts however, say that sharing information and monitoring families more closely are only two parts of a complex legal maze that desperately needs to be fixed in order to protect other children from sharing baby McCutcheon's fate.
An average of 25 children being supervised by children's aid societies are murdered or die in suspicious or accidental circumstances each year in Ontario.
But in a typical year, the societies look after about 150,000 children who are suffering from neglect or abuse.
It takes an average of 44 months to rescue a child, according to an analysis of 100 child protection judgements examined by The Star's Kevin Donovan and Moira Welsh.
During the past few years, several coroner's juries have placed the blame for the deaths and injuries of hundreds of Ontario children on the Child and Family Services Act, which fails to put a child's safety first.
In order to remove a child from a family, the onus is on the Children's Aid Society worker to prove that the child is at serious risk. Yet in many cases, such evidence doesn't present itself until the child is seriously ill or dead.
As a result, such juries have called for the complete overhaul of the child-protection system that would place the safety of abused and neglected children above the need to keep families together.
Social Services Minister Janet Ecker said last week that she will keep her promise to overhaul the Child and Family Services Act before Christmas,
Ecker said the upcoming changes will for the first time include and define "neglect" as a form of child abuse.
The new legislation also will expand the powers of child protection workers.
Addendum: A letter from Cate Parker (pdf) of June 19, 2014 unredacts nine more citations.
Addendum: The Archives of Ontario have no additional material.
Thanks for your email.
I want to be clear that I cannot answer your questions with certainty, this is only my best guess.
I believe that it is most likely that the records no longer exist, because a) they never made their way into Ministry custody, or b) they were considered “transitory records” and were destroyed according to the appropriate records schedule.
In the case of scenario a), it could be that since this report was created by a panel external to government, the only document the panel submitted to the Ministry was the final report, and none of the working material, i.e. the submissions from the experts.
In the case of scenario b), a bit of background about government recordkeeping might be useful. Essentially, there are two types of government records: “business records” and “transitory records.” Briefly, business records are records that have ongoing business value or usefulness and are needed to ensure program accountability and support business needs. Transitory records are records that have no ongoing business value or usefulness beyond an immediate and minor transaction or the preparation of a subsequent record. In this case, it could be that all of the working material used and created by the panel was turned over to the Ministry upon completion of the report (the final business record), but, as per government recordkeeping guidelines, the working material was considered to be captured in the final report, and was therefore deemed transitory in nature and destroyed according to the appropriate records schedule.
Again, I do not know for sure what happened to the submissions, this is only my best guess.
As for whether the records do exist but might be in another location, I think the location information provided by the Ministry of Community and Social Services (MCSS) can be considered reliable, and as noted in the decision letter you attached to your email, two boxes of records were actually searched: the box suggested by MCSS (box 56B), as well as a second box located through our own search of the Archives’ collection (box 55B). After receiving your email, I did another search in the Archives’ database and discovered a copy of the report in box B852252; however, like the other two boxes, this box also only contained a copy of the report but did not contain any kind of submissions or presentations made to the panel.
Finally, to answer your question about fees regarding research, the Archives has a policy that we do not conduct research for clients. Therefore, we do not have any set rates, and I cannot give you an estimate. You are more than welcome to hire your own researcher and have them conduct a search at the Archives, but this is not a service we provide.
I hope I have answered all of your questions, but please feel free to be in touch if I can assist any further.
X Information & Privacy Analyst
Archives of Ontario
Source: Facebook, Chris Carter