Part Three: Closing Submissions: Miscarriages of Justice And Ontario's Child Welfare System;

"CHALLENGES EXIST BECAUSE OF THE LACK OF RESOURCES AND PRESTIGE YET THE EFFECTS OF A MISCARRIAGE OF JUSTICE IN A CHILD PROTECTION PROCEEDING ARE UNIMAGINABLE."

LAWYER SUZAN FRASER IN HER CLOSING SUBMISSIONS TO THE GOUDGE INQUIRY ON BEHALF OF DEFENCE FOR CHILDREN INTERNATIONAL CANADA.

During the course of the Goudge Inquiry I have been stunned by the collateral damage caused by child protection authorities with respect to siblings when a parent is wrongly accused of murdering a child.

In most cases the damage happened at the outset - long before any conviction - while the accused parent was supposed to be presumed innocent.

We heard stories of children being seized from their still grieving parents and placed under the care and protection of a Children's Aid Society.

We heard stories of children baby's taken away from their loving mothers at birth and placed with strangers.

We heard about children who were ultimately put up for adoption into other families -the parents may never get them back.

Lawyer Suzan Fraser, who represents "Defence For Children International Canada" has done an excellent job at the Inquiry of reminding us that miscarriages of justice are not limited to the cases of wrongly convicted accused person;

Fraser reminds us in her closing submissions that Ontario's child welfare system is prone to miscarriages of justice too.

"The child welfare system has always been a poor cousin to the criminal justice system with fewer resources and less prestige than the criminal justice system," says Fraser.

"Challenges exist because of the lack of resources and prestige yet the effects of a miscarriage of justice in a child protection proceeding are unimaginable."

Yes, "unimaginable" is a very strong word.

But how else can you describe the horror experienced not only by the wrongly accused parent - but that experienced as well by the sibling that is being torn away from his or her parent in the circumstances;

Fraser also does a public service by pointing out that tunnel vision also contributes to miscarriages of justice in the child welfare system as she submits that "the need to guard against tunnel vision is as important in child welfare investigations as in criminal proceedings."

She also cautions that "social workers are slow to revise their judgments" - an apparent reference to Dr. Charles Smith who proved to be most reluctant to change an opinion once formed.

"Social workers need a greater acceptance of their fallibility and a willingness to consider that the judgements and decisions are wrong," Fraser adds.

"To change your mind in the light of new information is a sign of good practice, a sign of strength not weakness."

Fraser would like to see Justice Goudge make several recommendations aimed at preventing miscarriages of justice in the province's child welfare system, including:

0: Funding for counsel in child welfare proceedings;
0: Development and support of effective legal advocates for both parent and child in the child welfare proceeding through access to education initiatives;
0: Access to defence pathologists;
0: Funding for expert reports; and
0: Guarding against tunnel vision and confirmation bias.

Justice Goudge would do well to heed Fraser's advice.

Next posting: Part Four: Closing Submissions: And what about the children who were permanently given away?

Harold Levy...hlevy15@gmail.com;

Part Two: Collateral Damage; Dr. Charles Smith's Forgotten Victims;

The "collateral damage" caused within families by Dr. Charles Smith has been vividly captured by Toronto Star reporter Theresa Boyle, in a story, published on March 9, 2008, that focuses on "The 'forgotten victims' torn from their homes."

The most recent posting of this Blog presented Boyle's account of the assault launched on Sherry Sherret's family by the local Children's Aid Society following Dr. Smith's flawed opinion.

Today we continue with Boyle's report on the collateral damage caused within Brenda Waudby's family based on an email which Boyle received from Brenda Waudby's daughter Justine, who in now eighteen years old.

The story ran on March 9, 2008, under the heading, "Justine: 'I really want to not be afraid of the world."

"In an email exchange, Justine Traynor, now 18, recounted how her life was thrown into chaos the night her baby sister, Jenna, died in 1997," Boyles's story began.

"Then 7, Justine was apprehended by children's aid and spent most of the next 2 1/2 years in foster care," it continued.

"Her mother, Brenda Waudby, was charged with second-degree murder, largely on the mistaken evidence of disgraced pathologist Dr. Charles Smith.

Waudby gave birth to a son in May 1999 and he was immediately apprehended.

The baby was returned to her almost a year later under a supervision order.

The charge against Waudby was withdrawn in 1999 and a 14-year-old male babysitter later pled guilty to manslaughter.

"That night I can remember waking up to emergency personnel outside of the house and my mom standing at the door. They would not allow me to talk to my mom.

I screamed, "Where the hell is my sister?" No one replied. I was just put into a CAS worker's car. ...

"I would see my mom once, and sometimes, twice a week, Mondays and Wednesdays.

I was very confused and I missed my mom so much.

I do remember the woman who took me to see my mom.

We used to sing songs together after (the) visits to help settle me down from missing my mom.

I was so upset and confused that when I was actually able to come home I can remember ... that I said that I wanted to kill myself.

So I mean, yes, of course this has had an impact in and on my life.

"I did have to change schools, obviously homes, and I had to make new friends.

I was mostly just really confused, and I just wanted to go home to my mom. ... I had already lost my sister to a tragic event and then I lose my mom.

I really didn't understand what was happening ... It was hard to focus on school or care about friends ... when I just felt sad, scared, and confused for most of the time.

I know it sounds silly, but even having a different kind of food, having different clothing or a different way to be tucked into bed can make a big difference to a kid.

"I do dream about being a normal person, probably too much of the time.

I do not feel comfortable around people my own age because nobody is like me.

Nobody has been through the things I have been through, the way I have been through them.

"I am trying to not be angry or scared anymore but it is very hard, especially the scared part.

I am working with someone now every week to learn more about myself and how to build confidence.

I avoid most social situations but I really, really wish I could be more like everyone else and not have these problems or issues in my life.

I hope that I can one day know that this just made me who I am.

But when I really don't like that person so much – that's not the best feeling.

I really want mostly to not be afraid of the world.

I spend a lot of time alone and am working hard now to make friends and it's hard. Going to school is hard. Doing anything normal feels hard.

I really want to feel confident and to trust people but right now I just can't.

"Again, yes I think it has had a huge impact on me.

But I can't let that stop me from living my life. I mean I am 18 and I have no friends, really, and it is extremely hard for me to trust anyone."

Harold Levy...hlevy15@gmail.com;

Part One: Collateral Damage: Dr. Charles Smith's Forgotten Victims;

THE BOY, CHRISTOPHER (NOT HIS REAL NAME), IS ONE OF AT LEAST 17 CHILDREN WHOSE LIVES WERE THROWN INTO CHAOS AFTER THE DEATH OF A SIBLING. IN EACH CASE, DISGRACED PATHOLOGIST DR. CHARLES SMITH PERFORMED AN AUTOPSY OR OFFERED A CONSULTING OPINION ON THE DEATHS. BAD ENOUGH THEY HAD LOST A SISTER OR A BROTHER. BUT SMITH'S MISTAKES HELPED IMPLICATE THEIR PARENTS AND RESULTED IN THESE CHILDREN BEING REMOVED FROM THEIR HOMES BY CHILDREN'S AID SOCIETIES.

THERESA BOYLE: TORONTO STAR;

The "collateral damage" caused by Dr. Charles Smith has been vividly captured by Toronto Star reporter Theresa Boyle, in a story, published on March 9, 2008, that focuses on "The 'forgotten victims' torn from their homes."

The disturbing story is accompanied by a photograph of Sherry Sherret in her home, holding the baby album of the son taken away from her for adoption.

Boyle's story makes the point that much of the damage caused by Smith - and those who failed to rein him in - will linger for years to come.

"July 2012. This date won't come soon enough for Sherry Sherret," Boyle's story begins;

"It's when her first born will turn 18. And it's when the Belleville mother will finally be reunited with the son who was put up for adoption when he was only 5," it continues.

"The boy, Christopher (not his real name), is one of at least 17 children whose lives were thrown into chaos after the death of a sibling. In each case, disgraced pathologist Dr. Charles Smith performed an autopsy or offered a consulting opinion on the deaths. Bad enough they had lost a sister or a brother. But Smith's mistakes helped implicate their parents and resulted in these children being removed from their homes by children's aid societies.

At least three children, including Christopher, were adopted out to other families. There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.

The remaining children were sent to live with relatives or foster families for as long as two years.These children are from the 20 botched death investigations that have been explored at the ongoing Inquiry into Pediatric Forensic Pathology. A panel of renowned forensic pathologists determined Smith erred in all these cases.

While attention has largely been focused on potentially wrongful convictions, these children have been the "forgotten victims" of his errors, says Julie Kirkpatrick, lawyer for one family.

The upheaval they faced is "among the worst consequences of Smith's mistakes," she says, adding they are no less victims of miscarriages of justice.

One of the many issues explored at the inquiry is that of child protection. Child advocates are putting forth an array of recommendations on behalf of the displaced children, including possible reconciliation of broken-up families.

Twice a year, Sherret, 32, gets letters and pictures from Christopher. She stares at the photos intently, looking for signs of her son's growth. From a picture he sent this past Christmas, she can see his face had filled out some. He looks more like his dad, her ex, she notes. But she can see her own DNA in his eyes.

"He's a gorgeous young man. He will be 14 years old in July. I keep thinking to myself, four more years," she says.

In his letters to her, he addresses her as "Dear Sherry."

"That hurts," she says. "But it's understandable."

She signs her letters back, "Love, Mommy Sherry."

Sherret lost two sons in 1996. That January, she discovered 4-month-old Joshua dead in his playpen. Smith said the child was suffocated, as evidenced by marks on his neck. The pathologist also said the boy had a fractured skull. Sherret was charged with first-degree murder.

Years later, when Smith's work came under scrutiny, Joshua's body was exhumed. It was revealed his skull wasn't fractured and the marks on his neck were actually created by Smith, himself, during the autopsy. Experts who reviewed the case said Joshua had accidentally asphyxiated in an unsafe sleep environment. He had slept in a playpen, under a sleeping bag, comforter and blankets.

Child-welfare workers removed Christopher, then 18 months, from her custody. He was first placed with his grandparents and then with a foster family.

In January 1999, Sherret was convicted on a reduced charge of infanticide. The following June she was sentenced to a year in jail and two years probation. Meantime, Sherret learned children's aid was putting forth an application to the courts to have Christopher move from foster care to adoption. The foster family told Sherret they would be willing to make him a permanent part of their family.

Evoking the parable of King Solomon threatening to split a baby to determine its rightful mother, Sherret made the difficult decision to let this family adopt her son, fearing he could otherwise bounce around different homes. The adoption agreement included the exchange of letters, annual phone calls from Christopher's foster mother and plans for a reunion when he turns 18.

Lawyer Suzan Fraser has been representing Defence for Children International at the inquiry. The group aims to protect the rights of youngsters and is going to bat for the 17 displaced children.

"The big problem is that there is no process for dealing with apprehension or adoption orders made on the basis of flawed pathology evidence," Fraser remarks.

She says the damage inflicted on the affected children is immeasurable. "Imagine the anger and the sorrow to learn that you had been wrongfully taken from your mother or father. Imagine the taunts of the other children in foster care teasing you because your mother killed your sister.

"Imagine the horror of losing your sibling and then your mother, when your mother was actually protective rather than the killer everyone thought she was? Imagine having no power to fix it."

Fraser is fearful there may be even more children out there who were uprooted from their homes because of errors Smith made in child-death investigations. Undoing Smith's mistakes isn't so easy. The Child and Family Services Act makes no provision to appeal an adoption order except within the first 30 days after it has been made.

"The best interests and stability of a child require that the adoption order is not subject to further review, even if unjust and based on a clearly erroneous factual premise," states a paper prepared for the inquiry by Queen's law professor Nicholas Bala and McGill social work professor Nico Trocme.

"However, if it is established that a child was removed from parental custody due to an erroneous belief that the parent was responsible for the death of a sibling, it may well be in the best interests of the children to have at least some contact with the parents, depending on their age and wishes. At the very least, the adoptive parents, and through them the children, should be informed of the new circumstances," they continue.

Sherret says Christopher doesn't know why she gave him up for adoption.

He only recently learned he has a 2-year-old sister. This is Sherret's third child, the only one with her. Christopher's adoptive mother was afraid to tell him about his new sibling, lest it raise questions about why his biological mother could keep one child and not another, Sherret says.

While she dreams about the day they'll see each other again, she has nightmares about the last time she saw him. It was in a playroom at the Northumberland Children's Aid Society. Sherret knew she wouldn't see her son, then 5, again until he was 18. She kept her eye on the clock, savouring her last three hours with him.

Mom and child played for the first 2 1/2 hours, but as the end of their visit neared, Sherret pulled the lad onto her lap for a serious chat. "I told him that mommy still has some problems to deal with and that he couldn't come home," Sherret recounts.

The lad reacted angrily. "He told me I lied," she says, explaining how Christopher reminded her of a previous promise that he could come home. "He wanted to come home and he wanted to know if he could keep Whisper, his kitty."

In his letters to her now, Christopher asks if she still has Whisper. She does.

Sherret wept during her final minutes with her son. Her tears continued to flow in the car on her way home. She had lost her two sons now and was on her way to prison.

The next day, she was sent to the Vanier Centre for Women in Brampton, where other inmates called her a "baby killer." She ignored their taunts until one day it became too much. She overheard one women ask another: "Do you know how Sherry killed her baby?"

"I remember just coming around the corner and starting to beat on her," recalls Sherret, who was moved to segregation and then to another detention centre.

As devastating as it was to be blamed, jailed and taunted for Joshua's death, those experiences paled in comparison to losing custody of Christopher, she says. "Having a child taken from you is like having your life taken from you. I just didn't want to be around. I didn't want to live. But then I sat there and thought, I've got to go on because I know I'll get a chance to see him at some point."

Despite the hell a biological parent like Sherret has gone though, returning custody of a child may not be the best idea, experts warn.

"While the unmerited separation of children from their parents is a great injustice, it does not necessarily follow that returning these children to the care of their parents is in their best interest," Bala and Trocme write in their report for the inquiry.

"In particular, if children are returned to their parents' custody after several years in a stable foster home, they may well be traumatized by the stress of separation from their foster families and the experience of returning to a now unfamiliar environment," they continue.

Still, Sherret's lawyer, James Lockyer, hopes adoptive parents would be open to allowing some sort of contact between the birth parents and the children.

"What you would hope is that the adoptive parent might have the foresight, strength, courage to consider allowing the children to recontact the parent. But that's a pretty tall order," he admits, likening the struggle to Bertolt Brecht's The Caucasian Chalk Circle, a play about a literal tug-of-war over a child.

Lockyer doesn't blame children's aid societies in these cases. They were just sadly relying on bad information from sources like Smith, he notes. "Wrongful convictions have consequences way beyond someone being in jail for something they didn't do."

less than three years ago, Sherret discovered she was pregnant again. Her first reaction was panic. Her name was still on the province's child-abuse registry and she faced the prospect of having her third child taken from her, too.

Her reaction wasn't so unusual. In another case in which Smith was involved, a couple decided to have an abortion after learning of an unexpected pregnancy. Angela Veno and Anthony Kporwodu had their toddler son seized by children's aid after they were charged with the 1998 death of their infant daughter. They were told any new child would also be seized. Sherret was duty bound to report her pregnancy to CAS, which she did. This is how she discovered serious questions were being raised about Smith's work. A CAS official told her the doctor was being investigated.

Sherret contacted the Association in Defence of the Wrongly Convicted and Lockyer, who would assist her in trying to clear her name. He would also help her in her efforts to keep her third child. Initially, the CAS wanted to remove Sherret from her home when the baby was born, leaving the infant to reside with its father. Eventually they settled for a supervisory order, meaning Sherret could never be alone with the baby.

The child was born on Sept. 29, 2005.

For the first 11 months of the child's life, father Rob couldn't even go to the store without waking the baby and taking her with him.

But last April, a provincial court ruled that the supervision order be dropped. By this time, two outside experts had confirmed there was no foul play involved involved in Joshua's death.

"I believe I lost a special 11 months with her. It was an 11 months I could not be alone with my beautiful girl," Sherret says. "I had to go though hell to stay in her life."

Sherret has been diagnosed with major, chronic depression and post-traumatic stress disorder. "I'm exhausted physically, mentally."

Her children keep her going.

"I'm mad, but I have to live every day for my daughter and (Christopher), not just me," she says.

While she dreams about the day she'll see Christopher again, she has no illusions. "He's grown up with his family pretty much most of his life and it would just be wrong to take him away from them. I just want some kind of a relationship with him."

She's kept a lot of Christopher's old toys. She watches her daughter play with them, remembering her son doing the same.

"I would be so happy if I could see them play together," she says."

Next posting: Collateral Damage: Part Two;

Harold Levy: hlevy15@gmail.com;