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| GIST: The Motherisk bombshell caught many of us who work in child
protection off guard. For years, children were removed from their
families based on flawed hair testing for drugs and alcohol at the
Motherisk lab at the Hospital for Sick Children. According to a report
issued by a commission tasked with investigating the saga (full
disclosure: I was outside counsel to the commission; the views expressed
in this column are my own personal views and are not, in any way,
the views of the commission), Motherisk test results had a "substantial
impact" on the outcome of 56 cases. The process was "manifestly unfair
and harmful," according to the commission, but since many of the
children have been adopted out to other families, there is no simple way
to remedy the situation. Though many of us were stunned that such an injustice could
have manifested for so long, in retrospect, it should have been no
surprise at all. For years, fundamental procedural protections for
parents have been eroded in favour of efficiency, at the expense of
fairness. When this happens, it should be no surprise to anyone that
something like Motherisk could occur. Respecting procedural safeguards. There is a major power imbalance between an impoverished parent
(we know that families of low socio-economic status are hugely
overrepresented in the child welfare system) and a state agency. To
guard against such an imbalance, it is critical that our legal system
respect the time-tested procedural safeguards developed to specifically
ensure that the disadvantaged party is treated fairly. Yet according to the Motherisk report, these safeguards were
ignored. The report describes a litany of procedural injustices
perpetrated on parents: parents were pressured to consent to testing;
were not informed of their right to reject testing; they had adverse
inferences drawn against them when they rejected testing; they were
required to prove the unreliability of testing instead of the other way
around; and they were refused the right to cross-examine Motherisk
"experts" at summary judgment motions. The Charter of Rights and Freedoms guarantees procedural
fairness when the state interferes with fundamental personal rights,
such as the right by parents to care for their children. Ironically
enough, the issue of taking body samples (such as hair for testing)
without proper consent for the purpose of criminal investigations was
found to be an infringement of the Charter 20 years ago by the Supreme Court. It is unconscionable that these protections are available to
accused persons, but were never considered applicable to parents at the
mercy of child protection services. There is nothing new about the commission's finding that many
parents were explicitly or implicitly told that there would be negative
consequences if they did not undergo hair testing. In fact, this type of
coercive action continues to happen: parents are often given messages
that if they do not consent, for example, to a finding that the child is
in need of protection, that there will be negative consequences. For
example, they may be prevented from bringing further motions, or — more
damning in CAS work — labelled as being "uncooperative." One
would have thought that post-Motherisk, we would want parents and
children to have more procedural protections and safeguards, and yet, it
looks like the opposite is happening again. In the wake of Motherisk, children's aid societies have
continued to emphasize working with parents outside of court on a
"voluntarily" basis, which might include parents giving up their
children to the agency under a temporary care agreement. These
agreements are usually signed without lawyers and circumvent the court,
which is the only place the powers of the CAS can be kept in check. To me, Motherisk is a symptom of a larger problem in child
protection work. The Motherisk scandal came about because of the failure
of the legal system to protect parents and families. Somehow, we have
forgotten that the desire to do good cannot be done at the expense of
rights violations. The balance between protecting children from the risk of harm
and protecting parents' and children's basic rights to fairness is a
challenging one. It is easy to fall too heavily on the side of
overriding a parent's rights in favour of efficiency and expediency. But
to ensure that something like Motherisk never happens again, it is
something to which everyone involved in child welfare — lawyers, judges
and caseworkers — must strive."
The entire commentary can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog."
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