Jul. 16, 2002. 01:00 AM
Aid worker's actions backed in spanking case
Used good judgment in seizing 7 children, lawyer tells court
By Cal Millar
ST. THOMAS, Ont. - A social worker did nothing wrong when she seized seven children after learning they were disciplined with a belt, fly swatter and electric cord, a children's aid lawyer told a court here.
Alfred Mamo, who is representing the Family and Children's Services of St. Thomas and Elgin County, said the worker, Shelley West, used good judgment when she apprehended the children from the parents who believe God condones corporal punishment.
The couple, members of the Church of God Restoration of Aylmer, Ont., became embroiled in a battle with the agency on July 4, 2001, when West made an unannounced visit to their home to close a file on one of the children who'd received medical attention for a burn.
The wife refused to allow West into the house because her husband was away and the social worker later arrived with police. Although she didn't have a warrant, Mamo said she was entitled to see the children to ensure they were safe.
"She did nothing wrong that day," Mamo said. "She was driven by her mandate to protect children."
Mamo said this case demonstrates the tough position child protection workers are in every day when they are involved in apprehensions.
He suggested West's job was made much more difficult on July 4 because the pastor of the church, Rev. Henry Hildebrandt and some 35 to 50 members of the congregation had converged on the home to prevent West from conducting an investigation into possible abuse.
"When we talk about what caused the circus and pandemonium ... that was created by the pastor," Mamo said. "Shelley West couldn't walk away because people were making her job hard to do," he said. "Shelley West exercised good judgment."
He said she was concerned the children were at risk of being spirited away to Mexico where the parents had lived before moving to Canada two years earlier. The mother had admitted to West that she sometimes hit the children with a stick and one of the girls told her sometimes marks were left after they were hit, Mamo said.
During his final submission to the Ontario Court of Justice (family division) on a voir dire — a trial within a trial — to determine if the Charter rights of the parents had been violated, Mamo told Madam Justice Eleanor Schnall that the children have rights.
"You can't simply put the right of parents ahead of children," he said.
The parents had argued that their rights were denied when authorities entered their home without a warrant and questioned the children without their permission and without allowing them to speak to a lawyer.
Donald Kilpatrick, the lawyer representing the children, told Schnall the rights of the parent had been violated, but said that's no reason to throw out the evidence.
He suggested the parents could seek an order for costs or be given compensation if the court determines the entry into their home was ill-advised, irresponsible or in bad faith.
Kilpatrick said he believes West should have apprehended the children only as a last resort and used far less intrusive means in her efforts to determine if the children were at risk.
"If the CAS had backed off, if cooler heads had prevailed ... none of this would have happened."
Kilpatrick said West, who had been employed as a child protection worker for only two months, "was thrown into a very difficult position with very little experience and no support.
"A supervisor should have arrived. Somebody should have come and taken over. It was very unfair to her."
The hearing continues Thursday.