Child protection overload
By Michelle Mann
Legislative reforms have resulted in a wave of child protection cases swamping many family courts across the country, exacerbating long delays and heavy workloads in an already overburdened and underfinanced system. There are potential solutions, but is there the political will to implement them?
Randall Dooley was seven years old when he died in a Toronto townhouse in 1998. His father and stepmother were charged with and eventually convicted of second-degree murder: at the time of his death, according to the National Post, Randall had "13 broken ribs, a developing case of pneumonia, a damaged diaphragm, a fractured vertebra, a torn liver and a crushed adrenal gland." Despite intervention and reporting by a concerned teacher and her vice-principal, as well as involvement by the Children’s Aid Society and the police, Randall was never taken away from his abusive parents.
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“People who agree to solve a problem [through mediation] stand a much better chance than having it decided for them.”
Rob Hamilton, Dunnaway, Jackson & Hamilton, Vancouver |
Over the past several years, partly in response to cases much like Randall’s, some Canadian jurisdictions have introduced legislation aimed at strengthening their child protection regimes. Social workers have been given more power to intervene in potentially dangerous family situations, while regulatory regimes have ordered higher priority for the resolution of such cases. One aspect of these changes has been a shift in the purpose behind child protection cases. Whereas the government’s focus once was to keep families together, now the welfare and best interests of the child have become paramount; taking kids from their homes is no longer considered a last resort.
Of all the numerous effects of these changes, perhaps the most significant has been in the family courts, where a tidal wave of child protection cases has swamped dockets and surged to the top of the priority list. Without adequate resources to manage this increased workload or sufficient programs to ease the pressure, family courts are in danger of drowning in the flood. The political will behind the child protection legislation rarely has been matched by the resources to support the new regimes.
Three provinces in particular – British Columbia, Nova Scotia and Ontario – present striking examples of family law benches and bars doing their best to cope with this new approach to child protection (or, in B.C.’s case, the reinforcement of its existing approach). The challenges are enormous – but it appears that there are solutions.
System impact
In both Ontario and Nova Scotia, family courts were already filled to capacity with custody-and-access hearings, support variation applications, full-scale divorce litigation and other family law matters. In many places, the recent massive injection of child protection cases has pushed the system to the breaking point.
Justice Margaret Scott of the Family Court of the Superior Court of Justice in Oshawa, Ontario, says her court has experienced a "triple whammy" in the last two years. "More public awareness of child safety issues, combined with legislative changes, have resulted in increased reporting," she says, "and a policy shift has made reporting even more relevant."
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Legislative Reforms
Here are summaries of the changes to and impacts of child protection law in three provinces.
Ontario
Amendments to the child protection regime under the Child and Family Services Act, which took effect in 2000, shifted the law’s focus from keeping families together to protecting the physical and mental well-being of children. The changes provided shorter timelines for placing children in care, which has had the effect of increasing the burden on the courts and defence counsel.
These changes were largely inspired by the work of the Child Mortality Task Force in 1997 and the report of a panel of experts reviewing child protection legislation in 1998.
The Task Force reports cover six Ontario inquests into the deaths of children known to a children’s aid society. They describe the tragedies that can happen to children at risk when the child protection system is without the necessary resources to adequately protect them.
The inquest jurors themselves made over 400 recommendations, which largely echo those of the Child Mortality Task Force, including 120 recommendations concerning changes to the Child and Family Services Act, family courts, court management and legal representation of children.
The expert panel – consisting of judges, social workers, doctors and other child protection professionals, struck by the Ontario government to make recommendations on legislative change – also had a great impact; all but two of their recommendations were imported into the 2000 amendments.
The two the government neglected to include? Family violence (spousal) was not imported as a head of protection, and the concept of adoption with parental contact was not incorporated, to the chagrin of some advocates who believed this could encourage mediation and save valuable court time.
Nova Scotia
The amended Children and Family Services Act child protection legislation maintains a focus on the rehabilitation of families, but its primary emphasis is now on the best interests of the child. This includes shorter deadlines for deciding care issues, and while Dartmouth family law lawyer Julia Cornish understands the risks involved in delaying permanency for a child, she asks: "How quickly can you decide a family can’t be fixed?"
The Nova Scotia legislation has been amended repeatedly over the years. Some amendments can be traced back to the 1996 report Too Good To Lose: Better Services to Children and Families, a Provincial Placement Review Project, which attempts to address mounting concerns expressed by front-line and management staff of child welfare agencies, district offices, and community organizations.
In 2002, the Nova Scotia Government and General Employees Union (NSGEU) released its report, Caseload Overload Ready to Explode, which documented the dramatic escalation in the workloads of child protection caseworkers.
British Columbia
B.C. has largely stayed its course with respect to child protection law: the new Child Family and Community Service Act legislation of 1996 created "no real shift" in the law, says Rob Hamilton, a partner with Dunnaway, Jackson & Hamilton in Vancouver. "The safety of children was always the paramount consideration, and the timelines of cases haven’t really changed at all."
But the B.C. legislation and subsequent amendments did introduce a greater focus on mediation, even in permanent wardship cases. "There’s no restriction on the type
of child protection case eligible for mediation, but discretion remains with the Director," says Mark Sieben, Director of Legislation with the B.C. Ministry of Child and Family Development.
In June 2002, adds Sieben, "family conferencing provisions came into force, wherein the director can offer the extended family an opportunity to address protection issues and the family has an opportunity to put forward a plan to address risk issues."
The 1996 Act had already been drafted and passed in 1994. But in 1995, after passage of the Act but before it came into force, Judge Thomas Gove was appointed to head a Commission of Inquiry into the adequacy of the work of the Ministry of Social Services, arising from the death of a child under supervision.
The resulting Gove Report contained many recommendations that have influenced later amendments to the Act, including the conclusion that the system must be child-centred, with early determination of decisions affecting children paramount. |
When the floodgates opened, with the judicial complement still based on the old numbers, Justice Scott says, the Unified Family Court – which was formed less than a year prior to Ontario’s legislative amendments – was caught off-guard. To make matters worse, her own judicial region has experienced a demographic explosion – it’s the fastest-growing region in Canada – and child protection cases are front and centre in the increased caseload.
Justice Grant Campbell of the UFC in London, Ontario, shares Scott’s perception that the UFC has been hearing more child protection cases. He estimates that at least half – if not two-thirds – of the court’s trial list consists of child protection matters. New, shorter timelines in Ontario are one reason, he says: parents often find they have run out of time to remedy their family problems.
"There has been an enormous increase in the volume of child protection cases in the courts and the numbers of children in care, be it long-term care, foster care or group homes," confirms Queen’s Law Professor Nick Bala, an expert in children’s law.
Moreover, there is a growing perception that some social services agencies are hesitant to make the tough calls required in child protection cases – do we intervene or not? – and would rather leave it to the courts. Inquiries or even criminal charges can be (and have been) brought against agencies that made choices that turned out to be inadequate. "To call it a chill is to under-describe it," says Campbell.
Bala agrees. "Agencies are required to make judgment calls, and leaving a child with a troubled family always involves some risk," he says. "So there is some pressure to remove children. The professional stakes are much lower for removal."
The UFCs in Nova Scotia’s Halifax and Cape Breton Counties have also been profoundly affected by legislative change. "In the Halifax court, the system couldn’t handle all the family law cases efficiently," says Julia Cornish, a family lawyer with Sealy Cornish in Dartmouth and Chair of the CBA’s National Family Law Section.
"The legislation gives an advantage to child protection cases by providing mandatory deadlines for hearings," she explains. "There’s nothing comparable in divorce legislation. So my clients have a very long wait, and can always get bumped when the court has to hear a protection matter." Chandra Gosine, a Legal Aid staff lawyer in Halifax, agrees that child protection cases have "taken over the courts, with other family law issues relegated to the sidelines."
The court is trying to cope, says Cornish; for one thing, young offender cases are no longer heard there, though there was always some debate concerning the suitability of having these cases in Family Court anyway. But Cornish points out that these cases weren’t "moved out because of philosophical differences, but for reasons of practicality – the court is bursting at the seams."
In British Columbia, the courts appear less overwhelmed – or at least, no more so in family law than in any other area. But Rob Hamilton, a partner with Dunnaway, Jackson & Hamilton in Vancouver who does child protection work, points out that a contested child protection case can take months, and that there is a lack of consistency in hearing times across the province.
Representation issues
Not only is the volume of child protection cases slowing down the system, the growing prevalence of self-represented parties, who require more time and indulgence from the courts, is an aggravating factor. "As I understand it," says Cornish, "child protection cases represent a hugely disproportionate amount of court time, and the UFC has attracted more self-represented parties [because it’s] perceived as user-friendly."
In addition, delays can result when parties to a child protection case fall into the gap between qualifying for legal aid and affording counsel. Thanks to low tariff rates, Gosine says, there is a shortage of lawyers willing to work on legal aid certificates.
And for those practitioners who do take on child protection work, the legislated timelines intended to speed up disposition of these matters have actually backfired. "Lawyers preparing for deadlines [are] seriously overworked, with no chance to be adequately prepared," notes Gosine. "For a first appearance, timelines are so short as to be unreasonable: parents often don’t have time to get counsel."
While Justice Scott praises the existing child welfare bar as being the "most dedicated group of lawyers," there are simply too few available, she says. Heather Smith, Chief Justice of the Superior Court of Ontario, has been appointing generalist judges to hear child protection matters within the required timelines, but often there are no lawyers available to conduct the cases, says Scott.
In B.C., Rob Hamilton reports fewer problems with delays in child protection cases linked to representation issues, though there can be initial delays while legal representation is sorted out.
"Representation issues are not too significant, and in light of the G.J. case [a 1999 Supreme Court ruling that recognized a right to representation in child apprehension cases], we have no problems with unrepresented parents in child welfare [cases]," adds Mark Sieben.
"Funding rules under Legal Aid require all parents with children subject to removal to have representation," adds Sieben. "There is still a financial cutoff for legal aid, but there’s no problem with parents falling into a ‘gap’ in British Columbia."
Nick Bala points out the inherent challenges in child protection practice, where institutional interests and ethics are involved. "It’s not just about winning your case," he says. "Everyone recognizes that indirectly, they have responsibilities to the children." And while counsel can greatly assist parents in improving their position, says Bala, they require resources and services to do so.
Identifying solutions
How can these issues be resolved? What are these "resources and services" that lawyers need to make the system better? Among lawyers most familiar with the child protection system, neither legislative nor strictly administrative approaches are considered panaceas.
"Are answers found in legislation?" asks Bala. "Social and economic crises cannot be remedied by legislative reform." And while improvements can be made at the court level by getting rid of unnecessary paperwork and sacrificing procedure to efficiency, the systemic nature of the problem would remain unaddressed. "The court is only one piece of a multi-layered system," Justice Scott points out.
Perhaps the most widely recommended solution is the increased use of mediation, despite some concerns regarding the limitations of this approach in such emotionally charged situations. In British Columbia, where mediation is used extensively in these matters, Hamilton points to a high success rate.
"Mediation is less restrained; parties can be frank and can break the ice to a resolution on a without-prejudice basis," Hamilton contends. "People who agree to solve a problem stand a much better chance than having it decided for them."
Sieben agrees that case conferencing and mediation initiatives have played a role in B.C.’s success. In addition to legislated mediation provisions, he says, "the court has a judicially facilitated settlement conference option, pursuant to case management. If it’s a contested protection hearing case, then the court rules require the parties to attend a case conference managed by a judge."
Chandra Gosine thinks ADR is a better approach, but while the Nova Scotia legislation provides for it, mediation is rarely ever used. "Some would argue that by the time you reach the court system, parents have already had too many chances," he observes.
Justice Scott reports that her Oshawa UFC is working towards a new multi-disciplinary initiative involving mediation for child protection. But she does point out that "capacity and competency of parents is what child protection is about, so it has to be done properly." Justice Campbell adds that in the London UFC, a judge is introduced to a case early through case management, and the case is diverted out of court into the mediation pilot project for child protection and supervision order cases.
In addition to mediation, there are other potential solutions that could ease the pressure on the court system. For one thing, parties to a child protection case could be given more options, other than simply "keep the child or lose the child."
A 1998 expert panel convened by the Ontario government to recommend improvements to child protection legislation recommended that apprehended children could be adopted by other families, but with continuing contact with the birth parents.
Had that recommendation been accepted, says one panel member, court caseloads would have been reduced: parents might well participate in mediated orders if contact with their kids were a possibility. Absent such a provision, says this member, "parents have nothing to lose, and might as well fight."
Bala agrees that if the agency is planning to permanently sever the relationship between parents and apprehended children, the parents have no reason not to litigate. Permanent wardship, he says, is "the capital punishment of the family law system."
Resources and training
A common refrain among the experts is that the child protection system is simply under-resourced to deal properly with child protection cases. Across the country, there are growing calls for more resource dedication for lawyers, the courts, and preventive programs.
"There are not enough judge hours to do everything," says Cornish. "While I had hoped that the demands on the court would lessen, services are most easily cut when cash is short. The more creative aspects of what you might do, the programs with the highest potential for benefit," are the ones for which funding can disappear, she says.
Cornish would also like to see more training for lawyers in child protection, given that abuse generally does not occur in isolation from mental health issues, addictions, income and economic stressors, and inter-generational poor parenting. She notes that there’s an interconnectedness of child protection law with other components to the "mandate of repairing a family."
Gosine cites the lack of preventive programs, noting that "there’s no early education for parents until they are involved with the system ... courts will not solve the problems associated with child protection. It will take social and economic benefits to improve the situation."
Preventive programs could assist in reducing court backlog, and early intervention with high-risk families has seen remarkable rates of success. "Some families might not become families within the system if prevention programs were available," says Cornish. While such programs can be costly, Hamilton points out that "the cost of a child in foster care is a bigger issue."
There may already be hope on the horizon. In Justice Campbell’s court, statistics indicate that the number of new child protection cases has started to decrease, from 1,059 in 2001 to 942 in 2002. "My assumption is that the harder cases are coming to court, those that are high-conflict and the most difficult," he says. "I assume that the Children’s Aid Society may be entering into more voluntary agreements with parents."
In Ontario, where a legislated five-year review of the child protection system is approaching, Nick Bala recognizes the "fundamentally sound ideas behind the [recent legislative] changes." But he questions whether the reforms went too far, given the absence of resources for children in care and the long-term costs of the envisioned system.
And virtually everyone agrees that the stakes in the child protection system are extremely high: social crises, desperate families, and vulnerable kids. Justice Margaret Scott sums up the feeling best with a simple observation: "So much more needs to be done for these children."
Michelle Mann is a Toronto-based lawyer and freelance writer.
Photo: Lurenda Mastromonaco
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english
Les régimes de protection de la jeunesse sont débordés!
Des réformes législatives ont entraîné une vague de causes de protection de la jeunesse dans plusieurs tribunaux de la famille, partout au pays. Il en résulte des tâches additionnelles et de longs retards dans un système déjà surchargé et sous-financé. Des solutions semblent se profiler, mais la volonté politique de les mettre en oeuvre demeure incertaine.
Randall Dooley avait sept ans quand il est mort dans une maison en rangée de Toronto en 1998. Son père et sa belle-mère ont été accusés et jugés coupables d’homicide involontaire. Au moment de sa mort, selon le quotidien National Post, Randall avait 13 côtes brisées, une pneumonie naissante, un diaphragme endommagé, une vertèbre fracturée, le foie déchiré et une glande surrénale écrasée. En dépit d’interventions et de rapports par un enseignant inquiet et par son vice-principal, et de l’intervention de la Société de l’aide à l’enfance et de la police, Randall n’a jamais été éloigné de ses parents abusifs.
Ces dernières années, en partie pour remédier à des situations comme celle-là, certaines juridictions canadiennes ont légiféré pour renforcer leurs régimes de protection de l’enfant. On a confié aux travailleurs sociaux des pouvoirs accrus d’intervention dans des situations familiales jugées dangereuses, pendant que les réglementations accordaient une priorité accrue au règlement rapide de telles causes.
Les objectifs poursuivis ont changé, du même coup. Alors que, jadis, le gouvernement s’efforçait de garder les familles unies, il s’intéresse aujourd’hui d’abord au bien-être et aux meilleurs intérêts de l’enfant. Les tribunaux ont été submergés sous un raz-de-marée de causes. Sans ressources suffisantes pour faire face à l’augmentation, les tribunaux de la famille risquent l’effondrement.
Dans trois provinces en particulier – la Colombie-Britannique, la Nouvelle-Écosse et l’Ontario – la magistrature et les barreaux font de leur mieux pour s’adapter à cette nouvelle approche à la protection de la jeunesse, en dépit de défis énormes. En Ontario et en Nouvelle-Écosse, les tribunaux de la famille étaient déjà débordés avec les causes de garde d’enfants, de pensions alimentaires, de divorces et d’autres questions de droit familial. À plusieurs endroits, en y ajoutant la protection de la jeunesse, on approche du point de rupture.
« Il y a eu un accroissement énorme du nombre de causes de la protection de la jeunesse dans les cours et dans le nombre d’enfants en situation de garde, à long terme, dans des familles d’accueil ou dans des foyers d’accueil » , confirme Nick Bala, professeur de droit à l’Université Queen’s et expert en droit de l’enfance.
De plus, explique Julia Cornish, avocate en droit familial au cabinet Sealy Cornish, à Dartmouth (Nouvelle-Écosse) et présidente de la Section nationale du droit familial de l’ABC, « les nouvelles lois accordent un avantage aux causes de protection de la jeunesse en prévoyant des délais obligatoires d’attente. » Quand ses clients attendent un divorce, leur attente peut être prolongée dès que survient une affaire de protection de la jeunesse.
En plus du volume accru de causes de protection de la jeunesse, de plus en plus de parties choisissent de se présenter en cour sans avocat, obligeant le juge à leur accorder plus de temps et à faire preuve d’indulgence. Comment régler ces problèmes? Le recours accru à la médiation compte parmi les solutions le plus souvent mises de l’avant, en dépit des limitations de cette méthode dans des causes ayant une si grande charge émotive.
En Colombie-Britannique, où la médiation est fréquemment employée, on fait état d’un taux de réussite élevé. En Nouvelle-Écosse, la législation le permet, mais la médiation est rarement employée. En Ontario, Mme la juge Margaret Scott, de la cour familiale unifiée d’Oshawa, rapporte que son tribunal prépare un projet multidisciplinaire de médiation en matière de protection de la jeunesse.
Une plainte répandue concerne le sous-financement des systèmes de protection de la jeunesse. Partout au pays, on réclame plus d’argent pour des avocats, pour des tribunaux et pour des programmes de prévention. Chandra Gosine, avocate de l’aide juridique à Halifax, note qu’il n’existe pas « de programmes d’éducation pour les parents avant qu’ils se retrouvent dans le système... les tribunaux ne régleront pas les problèmes associés à la protection des enfants. Il faudra des mesures sociales et économiques pour améliorer la situation. » |
