Judge affirms rights of kids in ruling on Aylmer, Ont., 'spanking' case
TORONTO (CP) -- A judge says that while the seizure of seven children from their home two years ago for fear they were being spanked was "very traumatic," a child welfare worker did not violate anyone's constitutional rights.
The worker had "reasonable and probable grounds to believe the children were in need of protection," Ontario Court Justice Eleanor Schnall said in written reasons supporting her ruling last October to admit certain evidence in the so-called "spanking case" in Aylmer, Ont.
Michael Menear and Valerie Wise, lawyers for the parents, had argued that evidence gathered by child welfare worker Shelley West was inadmissible because it was gathered in violation of the constitutional rights of their clients.
West "is not to be faulted for taking the action she did," Schnall wrote in reasons dated last Thursday.
"The rights of the parents cannot be elevated to be paramount to the rights of the children," Schnall said.
The parents had also argued that West should not have interviewed the children without their consent.
But Schnall called that "sheer nonsense."
"No community, or society, could reasonably agree with the concept that a parent who sexually abuses or physically mistreats a child should be entitled to give his/her consent to the interviewing, or examination of the child by a member of a
Children's Aid Society."
A spokeswoman for Menear's office said "we're not making comments at this point.
"We haven't had a chance to review it with our clients yet. It's a 100-page ruling and it's going to take us some time to digest it," Janet Heuvel said in an interview from London, Ont.
Family and Children's Services of St. Thomas and Elgin County officials said Schnall's ruling "affirms that the right of children to be protected from abuse and neglect takes precedence over any other procedural rights for parents."
"We are pleased that Ontario's child protection legislation, regulations and accepted practice has not been compromised by the procedural arguments put forward by the parents' lawyers," Steve Bailey, executive director of the agency, said Monday in a release.
The children, devotees of a religious group called the Church of God, were taken kicking and screaming from their home in early July 2001 when child welfare workers, with the assistance of police, seized the children after the mother refused to promise she would stop using objects to discipline them.
The parents insisted they were acting in accordance with Biblical principle when they hit the children with objects, including a broken metal fly swatter described as the "spanking stick."
The children were returned home about three weeks later after their parents agreed, on an interim basis, to refrain from physical discipline and to seek medical care when necessary.
Section 43 of the Criminal Code has allowed spanking in Canada since 1892, but only for the purpose of "correction" and only within the bounds of what it calls "reasonable force."
The courts over the years have interpreted the law -- which withstood a constitutional challenge earlier this year -- as forbidding the use of inanimate objects such as paddles, sticks or wooden spoons.
Ultimately, Schnall will decide if the children need protection, and if so, what form it should take.