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NP: A thin line between abuse and discipline

Date: JUL-04-02
Source: The National Post
Keywords: spanking, objects, warrantless entry, unconstitutional
Posted: JUL-14-02
Aylmer Case Index

A thin line between abuse and discipline
Children's agency, Church of God both believe they are right

Christie Blatchford
National Post

(PHOTO Alfred Mamo)

ST. THOMAS, Ont. - Valerie Wise was on her feet all day yesterday making complicated Charter arguments, but of all the things she said, the one that rang the most true was this: "Children's aid societies have not cornered the market on what are the best interests of children."

Ms. Wise represents the mother at the centre of a child-protection hearing that until last Friday, when a Superior Court justice with a minimum of fuss lifted a sweeping publication ban on the case, has been conducted in virtual secrecy over the past five weeks.

A year ago tomorrow, Ms. Wise's client and her husband, members of the fundamentalist Christian Church of God Restoration in the nearby town of Aylmer, saw their seven children snatched weeping and struggling from under their noses and placed temporarily in foster care by Child and Family Services of St. Thomas and Elgin County, the local children's aid society.

The bottom-line rationale, then and now, for what's called a "warrantless apprehension" is that the agency says the youngsters were at substantial risk of real physical harm by dint of their mother's admission that day that she sometimes used objects when spanking her sprawling brood.

There were other factors at work -- chiefly, the agency feared the family might flee the jurisdiction, as another Church of God family had done earlier last year -- but even the social worker in charge, Shelley West, testified here that her main reason for seizing the children was the spanking-with-objects issue.

Once she learned that they were sometimes spanked with such instruments as the wire end of a fly swatter (which the agency lawyer, Alfred Mamo, several times brandished during the secret portion of the hearing as though it were, at the least, a smoking Kalashnikov), a belt, a coat hanger and a stick, she promptly classified the case as "excessive use of physical force." And though there wasn't a single mark on any of the youngsters, Ms. West coded it as "extremely severe," a spectrum that is meant to encompass injuries that at minimum are comprised of "bruises, welts, cuts, abrasions" and at their most grievous ought to refer to such things as long-bone fractures, punctures and deep wounds.

Now, Ms. Wise argued yesterday that the agency had no reasonable grounds to believe the youngsters were in need of protection and that the alleged risk to them was not such that Ms. West was entitled under provincial legislation to act -- to enter the home and start questioning the children -- without a warrant.

By proceeding as she did, Ms. Wise said, Ms. West's entry into the house, the examination and questioning of the children that followed, and their subsequent apprehension were rendered both "unlawful and unconstitutional."

And in the same way that in the criminal courts improperly or illegally obtained evidence may be tossed and deemed inadmissible, Ms. Wise said, so too should the statements made by the children and their mother to Ms. West that day, and all the further statements by both children and parents be declared inadmissible here and the proceeding stayed as a result.

The ramifications for child-protection work could be immense, and though Ms. West told presiding Ontario Court Judge Eleanor Schnall yesterday that every child-protection case is different -- and that in instances where an agency "has grounds for a warrantless entry," of course the social worker would not need a parent's consent before questioning a suspected abused child -- the lawyer also acknowledged that there was a broad principle at stake.

"We're doing this for the greater good as well," Ms. West told the judge. "We want to deter abuse of state authority separate and apart from the particulars of this case."

The prospect of social workers, and their allies in child protection, the police, needing to first get the OK of parents who are suspected of abusing their children before questioning the children themselves is a scary one.

Just this sort of thing was a factor in the state's failure to properly protect Randy Dooley from his battering stepmother and father, recently convicted of his second-degree murder. Faced with a report of the little boy being covered with fresh whip marks on his back and a bogus explanation of the injuries having been inflicted by some cousins in a game, the local children's aid deemed the injuries "a peer assault" and quickly handed the case off to the Toronto Police without a lick of investigation.

And the officers who came to inquire a day later and were denied by his fierce stepmother the chance to question Randy alone, inexplicably yielded to Marcia Dooley and ended up buying her transparently weak story. Within a few months, Randy was dead.

Clearly, it would not serve the interests of vulnerable youngsters if social workers and police were further handicapped by a blanket requirement that puts the parents' Charter rights before their children's rights to safety.

The difficulty is in finding a happy medium that protects children, but does not also automatically sanction the trampling of their parents' Charter rights to security of the person and against unreasonable detention and seizure.

In this case, the children were rather the opposite of Randy Dooley.

He was gaunt, covered in terrible bruises and welts, had suffered a broken arm, appeared cowed in the presence of his stepmother, and went, over the course of a school year, from a bright and outgoing child to a quiet and troubled introvert who moved, at the end of his short life, like an asthmatic old man.

The children in the case before Judge Schnall were not only entirely without marks or scars, they were also sturdy and confident youngsters obviously secure in their home and loving of their parents.

And unlike Mrs. Dooley, these parents were particularly ill-equipped to stare down any flexing of state muscle -- born and raised in Mexico as devout Mennonites of Canadian ancestry, they are poorly educated and unsophisticated, recently arrived in this country and on the day Ms. West came to call, only the mother, who even now speaks little English, was home.

The family's earlier involvement with children's aid -- it centred around their failure to get medical treatment for a young son who had suffered a serious burn in a kitchen-table accident -- had ended satisfactorily eight months before, and for lo those eight months, no one at the agency had been moved to take further action, let alone such a drastic step as a warrantless apprehension.

Yet, at the first mention of objects being used in spanking, Ms. West formally opened a child-protection investigation and within a couple of hours had decided to seize the youngsters.

The St. Thomas agency, and indeed virtually all children's aid societies, strongly oppose the use of objects in corporal discipline. As the Church of God preaches the merits of using objects, so does the child-welfare elite preach against it -- in public education, in policies and in supporting court challenges to the Criminal Code section that still allows parents to use reasonable force for the purposes of correction.

The best answer will differ from case to case. This church, or another, may be right in one instance. An agency and its workers may know best in another. Sometimes, even parents may get things right on their own. The very quality that society ought to ask of its social workers, police and Crown attorneys -- the exercise of their discretion and the bringing to bear of their common sense -- is also required of the courts.

As Ms. West [should read 'Ms. Wise' -Editor] said yesterday, no one has the patent on this tricky turf.

This hearing, as she pointed out, yesterday marked its 18th day. Those children were in foster care for 22 days, and they were "24-hour days" for a real family torn apart by the state. It was her answer to Mr. Mamo's Kalashnikov fly swatter.

Copyright 2002 National Post

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