Part 2 Lawyers, judges, professors,
authors, victims spoke on the industry ...

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Fairness of Adjudication

Robert McQuaid of Dufferin VOCA sued by CAS for defamation ...

Once a child is removed in British Columbia, it will take at least 3 to 4 months before a Section 35 presentation hearing can be scheduled. This is the first judicial hearing in which parents are given an opportunity to present their case. During this period of time, parents have to attend meetings with MCFD bureaucrats in which they fish for incriminating information to further their advantage in court. Using children as pawns, parents will be offered opportunities to admit child abuse related allegations, attend counseling (which usually is another round of interrogation and fishing expedition conducted by another special interest group), allowing "child protection" social workers access to their home to conduct their investigations and forced to accept many other intrusive acts. The main objective is to ensure job security, create business opportunities and to keep children "in care" as long as possible.

Statistically (based on 1999-2001 data), MCFD stands a 98% chance of winning the interim custody. The remaining 2% comprises of a return under a supervision order. No provincial court judge had returned removed children unconditionally to their parents, which is an option open in law.

To provide support to oppressed parents at their request, we have attended many Section 35 hearings in support of parents with children removed. We are astonished to observe that many judges appeared to be reciting the following script after hearing hours, sometimes days of legal argument, examination and cross examination of witnesses:

"It is most difficult for a judge to make a decision surrounding child custody when the Ministry is involved. I understand the hard time parents are facing. The threshold in a Section 35 hearings is so low that as long as the Ministry can make a prima facie case, the court will order the interim custody to the Director. Only arbitrary removals will oblige this court to return the children to their parents. If there is a discrepancy in facts surrounding child protection matters between parents and the Ministry, this court is obliged to err on the side of caution and place the children in a known safe place with the Ministry. Parents may think that my decision is unfair to them. After hearing the arguments of counsels and the examination of witnesses, I am satisfied that the removal is not arbitrary. I make an interim custody order in favor of the Director for 3 months. Commencement of child protection hearing should be scheduled as soon as possible."

English law is built on both statute and precedents. Lopsided statute (CFCSA) and the attitude of the judiciary have created many precedents in favor of the Ministry. Furthermore, the aforesaid typical judgment in Section 35 hearings unveils the following interesting points:

Err on the Side of Caution

  • It appears that erring on the side of caution is an acceptable safety measure authorities should use in child protection matters. This is the right decision in serious child abuse allegations like sexual abuse, if supported by good evidence. However, if the allegations from MCFD are of a minor nature like poor personal hygiene, acceptable corporal punishment within the scope allowed by Section 43 of the Criminal Code [affirmed the Supreme Court of Canada per Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4], taking nude photos of children of a non-pornographic nature, naming a child after a notorious character, erring on the side of caution and remove children from a functional family and place them in foster home is irresponsible, ignorant and inappropriate. There are ample research studies confirming permanent damage on children if separated from their parents. It far overweights the potential risk of returning children to their families and inevitably deprives a child's right to be nourished in a loving and caring home.

"Known Safe" Place

  • In their infinite wisdom, judges conclude that foster homes where MCFD places removed children are "known safe" places. Are they aware that children are physically or sexually abused or even killed in foster homes? Unfortunately, there is no "known safe" place. We are unsure whether foster home is a safer place, let alone a known safe place.

Factual Discrepancy

  • Most lawsuits litigate on discrepancies in facts among opposing parties. If the judiciary is obliged to rule in favor of the Ministry whenever there is a factual discrepancy, why bother to have a hearing to begin with? Such attitude has inevitably turned the judiciary into a very expensive rubber stamp.

Impartiality and fairness are fundamental to a democracy governed by the rule of law, where everyone is equal under the law. Failure to act fairly and the lack of authority to punish unbecoming behavior of "child protection" social workers and to rectify their abuse of authority bring the administration of justice into disrepute.

This leads to another interesting question why judges behave like this in child protection hearings. American scholar Stephen Baskerville (who is one of the speakers in the video at the top left hand corner of this page) believes that it is in the interest of judges to have more cases in their courtrooms. He stated his opinion below in no uncertain terms during an interview by Insight Magazine on June 18, 2001:

"Like all courts, family courts complain of being overburdened. Yet it is clearly in their interest to be overburdened, since judicial powers and salaries, like any other, are determined by demand for their services."

Professor Baskerville further concluded in the last paragraph of his article titled "How the Government Creates Child Abuse" (published on April 13, 2006) as follows:

"if they (judges) do not they may be punished by the bar associations, feminist groups, and social work bureaucracies whose earnings and funding depend on a constant supply of abused children. It is a commonplace of political science that bureaucracies relentlessly expand, often by creating the problem they exist to address. Appalling as it sounds, the conclusion is inescapable that we have created a huge army of officials with a vested interest in child abuse."

 

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[This page was separated from the "Structural Corruption" page on 28 March 2015.]