Reform for Children's Aid
The only real remedy for the abuses of the child protection system is its abolition. No one should have the power to take children from their parents by force of arms, and the upkeep of children should not be paid with appropriated funds. Once the child protection behemoth is dead, private charity can easily handle the small load of orphaned children, as it responded to the much larger number of homeless children a century ago before the creation of the welfare state.
Since the political will to eliminate the child protection system is nowhere near to realization, we have here a list of lesser reforms that may alleviate the hardships in the current system, and lead toward more comprehensive reforms. This list includes all known suggestions for reform, most politically impractical, some that are useless, and a few that might aggravate the current problems. The suggestions are more to stimulate discussion than legislation. Do not waste effort mailing the list to your MPP.
The suggestions are organized into policy reforms, reforms to the legal system, and dubious reforms that may do more harm than good.
Families should have the right to discuss their own case, in private and in public. Parents (and even children) in child protection cases are now muzzled, and may not plead their case in public. The exact measures used to silence parents vary from place to place. In Ontario, it is unlawful to publish the name of a parent or child involved in a child protection case. In some places, there is no blanket prohibition in the law, but judges routinely issue gag orders in protection cases.
Child protectors plead that confidentiality is required to protect the fragile child from emotional harm, a plea that continues even after a child's death. Yet by their own actions, they inflict the same emotional damage on their wards. Children are hawked for adoption on the internet with a picture, the child's age and a biography disclosing his most significant problems.
never suggest divorce
One activity that needs to be treated as felonious is forcing divorce against the will of both partners, a shotgun divorce. In tiny Dufferin County, a dozen instances of this have been reported. If it happens at this rate throughout Ontario, there have been thousands of such cases.
uniforms for social workers
The law grants child protectors (and animal protectors) the powers of police, and immunities often superior to the police. Yet they appear in civilian clothes, misleading clients. The law could require these workers to appear in uniform, alerting parents to the hazards.
do not pay child care from appropriated funds
The primary fault of child protection is the seizure of children to gain funding. Any funding from appropriations is subject to this problem, and rules to eliminate the practice will be effective only until agencies find a way to thwart them. If funding for orphan children was, as in the past, the domain of private charity, such as churches, no children would be seized to gain funding. Also, the amount of available funding would be greatly reduced, restricting care to cases where it was genuinely needed.
When a child is taken into custody not for his benefit, but to gain appropriated funds, the appropriation has been the victim of a fraud. If there was an effective means of remediating this kind of fraud, families might be safe from funding-driven child seizures.
refusing psychotropics is not neglect
Failure to follow a doctor's orders is now treated as neglect. This rule turns psychiatrists into drug pushers, since parents cannot refuse to follow a prescription. 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.
The child abuse hotline must be eliminated. In the year 2002 alone, reports were filed affecting 4.5 million children. After screening and investigating, less than 1 million children were found to be in need of services. Clearly, the hotline is not an effective tool to prevent child abuse, but serves only to clutter up an already overburdened system with reports fueled by overzealousness, hysteria and malice. — from congressional testimony by Julian Holderbaum, July 13, 2004
ignore anonymous reports
Anonymous reports of child abuse should be disregarded. Right now, an anonymous report is an easy way to sic CAS on a personal enemy. But anonymous reports have a more serious problem. Parents who do not know the name of their accuser may suspect the wrong person. In June 2003 Marguerite Dias had her children taken by Children's Aid in Toronto. She did not know the identity of her accuser, but suspected a neighbor, Madelene Monast. The mother attacked her with a machete, cutting off both hands. Had the identity of the accuser been disclosed to the mother, the neighbor could have kept her hands.
eliminate mandated reporting
Mandated reports by child care professionals, doctors, teachers, day-care operators, sound nice, but are a big problem. Parents now have to think carefully before taking an injured child to a professional, because they might lose their child as a result. Also, every child care professional knows of cases in which persons have been prosecuted for non-reporting, so they over-report, causing extra work for CAS, and more fears for parents. Prosecution for non-reporting should be eliminated. Doctors will still be able to report suspected child-abuse, but will not have to do so in frivolous cases.
investigate foster deaths
Deaths sometimes occur of children under the protection of children's aid societies. The public has no way now of learning even how many there are. Serious estimates range from 28 to 80 deaths per year in Ontario. The argument of secrecy to protect the emotional development of the child does not apply to dead children, and these cases should be fully opened to public scrutiny.
Persons who are adopted should by right be able to see the record in their own case. What purpose is served by preventing an adult from finding the names of his birth parents? Ontario enacted legislation to do this in 2005, but it is full of restrictions.
let people see their own records
Adults ought to get copies of their own records from when they were in foster care. Now the disclosure of records is discretionary with CAS, allowing them to conceal wrongdoing by social workers and foster parents.
eliminate foster care entirely
In this suggestion, adoptive parents would be pre-qualified, then when a child came into care, it would go to a pre-qualified adoptive parent immediately. This parent would have full parental authority, just like any other natural or adoptive parent. This would eliminate the current abuse in which a social worker has the rights of a parent, but the foster parent providing day-to-day care has no legal authority. This idea works best in conjunction with the proposal to delay child seizure until after an evidentiary hearing. It is of course impossible in the current political environment.
governing boards should include parents who have children placed in care
Currently the governing boards of child protection agencies at all levels are staffed by functionaries of the child protection industry. There are no representatives of children who lived in foster care, or parents whose children have been taken into care. Including them on governing boards would alleviate many of the current abuses.
citizen oversight board
Some reformers advocate an independent board to review CAS cases. But in practice, such boards would likely come under control of the same political machine running the child protection system, making them rubber stamps. A better reform might be to make the existing board of directors serve that purpose. Right now, boards of directors are puppets of management. They could become effective if their members were elected in the same manner that municipal officers are elected.
provide meaningful accounts
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.
do not separate parents from kids when placing with family members
A seventeen-year-old mother reported that her baby was taken from her and given to her own mother, the baby's grandmother. So far, this sounds reasonable; grandmothers have been helping in this way for centuries. But then CAS issued an order preventing the mother from seeing her own baby while in the grandmother's care. This latter part of the order served no purpose, and should not occur.
Eliminate payments from parents to agencies.
Parents in many places are required to pay the agency removing their children for the cost of necessities. Richard Wexler candidly calls these payments "ransom". In the most common cases, children taken because of poverty, this only serves to place the parents hopelessly in debt. In the case of middle class families, it reduces them to poverty, preventing them from making the efforts required to reunite their family. It also serves as an incentive for agencies to prey on families.
Recognize right of children to parents
Policy should recognize that children have a right to their parents. For young children, this means that the decisions of parents take precedence to the decisions of service providers such as teachers, doctors or social workers. For grown children, this means the right to know the identity of their parents, and the rest of the family tree.
Place children near home
Children not placed with their family should be placed as close as is practicable to their home. Very often children are placed many miles away from family. This should be avoided. (from John Hemming).
Records open for scientific inquiry
Bona-fide scientists should have unrestricted access to all court records relating to child protection matters, or even unrestricted access to CAS internal records. This proposal must come with a legal definition of bona-fide scientist. Once implemented, failings of the child protection system could become known to the public through scientific inquiry without risk of damage to individuals through disclosure of their personal information. (from John Hemming).
open the process
In the spirit of free speech, this suggestion is to open as many stages as possible of the child protection process to public scrutiny. There is no prospect that subjecting child protection agencies themselves to open records will work — even if mandated by law, foot-dragging will soon render the reform meaningless. But applied to courts, the reform could work. Most courts dealing with criminal and civil matters are now open to public scrutiny, and family courts should be as well. This means that any person could walk in off the street and sit in the courtroom while a family court matter was being heard, and even more importantly, that anyone could examine the file full of documents that is where most of the legal action takes place. To be exact, any member of the public could read all of the documents presented to the judge. What about the objection that public scrutiny could be embarrassing to the child and the family? There is only one ordeal worse than a public trial, and that is a secret trial.
Such a reform could soon end many of the current abuses. An unjustly accused family could point to the court record as proof of their innocence. When a rogue child protection agency runs berserk, as in Wenatchee Washington, the full record would be available to reporters from the first day. And scholars could sample the files to measure the level of effectiveness of child protection agencies.
allow defense witnesses
This proposal comes from Camilla Cavendish in the UK, where family courts are even more closed than in Canada. Courts hear only one expert witness, and parents cannot call on testimony from an expert with a different opinion. In Canada unrepresented parents are silenced by court officers who make no statement on record, but menace parents with handcuffs when they try to speak.
lay adviser for unrepresented parents
Give automatic permission for parents who are refused legal aid to get a lay adviser to help them present their case. Another suggestion from Camilla Cavendish.
limitation or elimination of immunity for caseworkers
Currently, child-protection workers are immune from all legal actions as long as they act in "good faith". This means they are above the law. This is no theoretical statement. In private meetings between caseworkers and parents, they regularly bully parents with their power. One caseworker told a father: "Fathers have no rights". Another told a grandmother: "We have as much power as God". It was only a slight exaggeration.
When a case gets to court, immunity prevents the presentation of true evidence. Since caseworkers are immune, they cannot suffer even from intentional perjury.
do not seize kids until after adverse hearing
The law now in most jurisdictions requires judicial authorization before child removal, but it comes with an exception for children in immediate danger. For the caseworker, this means checking a box on a form. In practice, children are always picked up first on pretense of emergency, and court hearings are after-the-fact. The caseworkers enjoy immunity, so 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 probably cause. By itself, this is unlikely to do much good, since child protection agencies with millions of dollars in revenue will find a way to induce 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, and only then can the court issue a pickup order. This would at least protect innocent families able 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.
require child's presence in the courtroom
This procedure is followed now in criminal matters, though not in the more consequential custody cases. It would eliminate two current problems. First, the child may be out of the jurisdiction of the court, and impossible to bring into the courtroom, but as it is now, the court can continue to exercise jurisdiction based on some past condition. Two courts can even claim jurisdiction over the same child. Second, as long as the child is old enough to understand, he can witness the proceedings in his own case.
provide parents with adverse evidence
Provide an automatic right for parents to receive copies of case conference notes and all evidence used against them in court, just as they would in a criminal trial. This is most vital for unrepresented parents who must get this material without specific application.
eliminate risk assessments
Child protectors now use risk assessment tools to estimate the risk of future abuse or neglect. A high score can justify child removal, even when no abuse or neglect has already occurred. Scientific analysis and reports from caseworkers confirm that these are subjective tools that reflect only the will of the caseworker. Do we lock people up because they have the capacity to rob a bank, or commit any other crime?
eliminate vagueness in definition of child abuse and neglect
Both child abuse and neglect are vaguely defined in the law. This might be tolerable if, as in other areas, the courts were open. In that case, examination of past decisions would eventually build up a body of common law that would inform parents of what they had to do to avoid a charge of abuse or neglect. But where the courts operate in secret, no parent can possibly know, until it is too late, what actions to take to be within the law. The law should define child abuse and neglect with sufficient precision that parents can know their responsibilities.
eliminate junk science from therapists as evidence
Therapy for children is now rife with junk science theories. A few years ago, there was a procedure called rebirthing, in which adopted children were compelled to struggle for hours confined in a bag to escape into the arms of their adopted parents. This was supposed to promote bonding with the new family. The procedure became discredited when Candace Newmaker died in Denver during her struggle. Sadly, this is not the only therapeutic fad, and lots of others just as silly are still in vogue. Therapists should not be giving expert testimony in child protection cases.
notify parents when children are removed
Several parents have reported that they did not learn of the seizure of their children until the children failed to return from school. At a minimum, parents should be notified immediately when their children are taken into custody.
tell parents their rights
The United States Congress enacted a provision requiring social workers to notify a parent of certain rights at the onset of a case. That might be a good idea in Ontario as well, at least if parents had any rights. There are none enumerated in the Child and Family Services Act.
An even more comprehensive reform requires informing parents of their rights at later stages of the process.
tell children their rights
A reform that sounds good. But what is the use of informing a child of rights that he has no power to exercise?
video tape all contact between families and CAS
This would eliminate much of the private bullying by CAS workers. It would also eliminate another abuse, coaching children. In Orangeville, a three-year-old girl was coached, off camera, then induced to say on camera that her mother hit her with a frying pan. The mother later found that the girl did not know what a frying pan was.
require child's guardian or lawyer to actually meet the child
Ontario children are now appointed lawyers through the Office of the Children's Lawyer. The most common complaint about these lawyers is that they have never spoken to their own clients. Parents recognize this when the lawyer makes arguments at variance with the child's true condition. An actual meeting with the client should be a requirement for representation of a child. More substantive reform requires proof that the child's guardian faithfully represented his client's interest.
create a legal presumption of innocence for accused parents
Persons accused of a crime are presumed innocent, meaning that the prosecution has the burden of proving that the accused committed the crime. There is no such presumption in family court. Falsely accused parents have to find a witness to acts that never happened.
allow other family (grandparents) to get kids when parents are unfit
The law formally favors this now, but it is rarely done. John Hemming suggests that grandparents, aunts, uncles and older siblings of children in protection cases should have a right to participate in the court process as interested parties, and when children must be removed from their parents, the relative should get custody without supervision or the detailed scrutiny applied to strangers becoming fosters.
end collusion between child protectors and psychiatrists and similar expert witnesses.
When a family is examined by professionals, the family should select the professional. Allowing the child protectors to choose the professional allows for collusion between the professional and the agency.
allow families to enforce CFSA
There is nothing which forces Ontario's children's aid societies and foster homes to obey all parts of their governing legislation (the Child and Family Services Act). John Dunn proposes amending the act to allow citizens to press provincial offence charges against persons acting under authority of the act.
Allow up to five supporters in court
John Hemming suggests allowing any participant to bring up to five supporters into the courtroom. In his words: "Attending the family court can be quite intimidating. If you have a young mother, for example, in her teens or early 20s then allowing her parent to attend as of right will make it less intimidating. Under The Family Proceedings (Amendment) (No.2) Rules 2009/857 parties can already pass information to close friends for advice. Allowing them to attend court reduces the level of stress without actually widening the number of people who have access to the details of court proceedings".
The criminal records of any child in care shall only contain information that would have been included had that child not been in care. Explanatory Note: At times the police are called to deal with incidents involving children at care homes (like throwing a bowl of cereal at a carer) which would in a family not involve the police. This should not follow the children around as part of their criminal records checks. (from John Hemming).
complaints by children in care
Children in care with complaints, for example, abuse in a foster home, should have a means of getting their complaint heard and resolved independent of the child protection bureaucracy. As it is now, they must complain to their children's aid society, the same agency imposing the abuse. (from John Hemming).
Here are a few reforms that may do more harm than good:
have police do protection investigations
Investigations of abuse should be carried out by professional investigators, not professional social workers. This is a popular reform among some advocates of of child protection reform, but it is hard to see how it will really improve things. As long as there is a financial gain from taking children from parents, the investigating agency, whether police or CAS, will respond to the incentive.
provide real legal help for parents
Currently most parents involved with children's aid have no means beyond the requirements for necessities, and so cannot afford a lawyer. More funding for legal aid might let some of them keep their children. Unfortunately, this only adds to the burden on the taxpayers. It makes more sense to cut the number of children taken needlessly by reducing funding for foster care.
This is a favorite of bureaucrats in the system. Since there is now far too much intervention in the lives of parents, this could only make the situation worse.
make malicious false reporting a felony
This is another popular suggestion among reformers, but may have no effect or make matters worse. Since a felony can only be prosecuted when a (political) prosecutor initiates a case, in practice no one will get prosecuted. And in any case, families need less legal intervention, not more.
give foster parents a say in their case
This is suggested by some reformers, and foster parents, but it is difficult to see how it would help. It could even make matters worse when foster parents oppose the efforts of natural parents to retain their children.
alter funding formula (let money be spent for non-foster care)
Another reform now popular in a few American states. Responding to the criticism that child protectors take children from parents just to get funding, some have proposed giving money to child protection agencies without regard to the number of children in their care. This will be no reform at all in the end. Child protection agencies will soon discover, as ministries have now, that children in their care are the one sure defense against political reform movements to reduce their funding.
Professional licensing boards usually are dominated by the profession being licensed, making them a branch of the union. The social workers union cannot protect the rights of parents. In some places where licensing of social workers is in effect, child protection agencies have sidestepped the licensing requirement by changing titles from "social worker" to "case worker".