Thursday, August 27, 2009

Day 5 Society's Child: Children's Services Takes Action But Within the Rule of Law?

Society's Child is a blog series emerging out of a Director in Alberta Children's Services being found in contempt of court. This series deals with how the best interest of the child in question has been handled by those involved. It is based on the records filed in the Court of Appeal in Alberta.

If you are just joining us here is a synopsis of the facts:

A child was in foster care with the same family almost from birth to 4.5 years old. He was removed from that foster family based on a Children’s Services investigation about alleged abuse. The Foster Mother appeal the removal decision. A Children's Services Appeal Panel reversed the Director's decision and ordered the child returned to the Foster Mother.

Children’s Services appealed that decision to the Court of Queen’s Bench sided with the government, said the Appeal Panel erred in law. That court reversed the Appeal Panel decision saying it could not "second guess" the government and confirmed the child should be removed from the foster home.

The Foster Mother then went to the Court Of Appeal who found the Court of Queen’s Bench erred in law, not the Appeal Panel. They ordered the child returned to the Foster Mother. Later the Court of Appeal found the Director to be in contempt of court for failing to follow the court order to return the child to the Foster Mother.

What events and actions that led to the contempt of court is where we pick up the story on this Day 5 of "Society's Child."

Children's Services Petitions for Adoption of the Child in the Face of the Court Order:

While waiting for the Court of Appeal decision on the future of the child the government Director who was also guardian of the child, petitioned the courts for adoption of the child by the extended family, which was caring for him at the time. It is an interesting question as to why this was done and at this time.

This seems to me to be unduly hasty given that the Court of Appeal decision to return the child to the Foster Mother had been made on January 30, 2009 but had not yet been file. In the meantime a Petition for Adoption of the child is filed by the government. One would think the prudent course would be to wait for the Court of Appeal decision to be filed. It would have some serious implications as to where the Child ought to be residing and even if this adopted was appropriate. Is this further ineptness, a continuing disregard for the courts or a tactical move to add pressure on the Foster Mother's pursuit of the government for the return of the child to her care as ordered by the court?

Foster Mother Responds With Actions of Her Own:

Faced with the government's adoption petition of the child, the Foster Mother took some significant legal steps of her own. First she had her lawyer write to the government and the Court of Queen's Bench in mid-March 2009. She was advising them that the Foster Mother was considering instructions to her lawyer about the adoption. The lawyer asked that no further steps be taken without notice to the Foster Mother.

The Foster Mother also wrote to Children’s Services on February 5, 2009 asking for the return of the child to her saying that the court had determined his return to her care was in the child’s best interest. She also suggested a meeting with Children’s Services to discuss the government’s expectations regarding the child. Interestingly, on February 5, 2009, the same day, the government’s lawyer sent a letter to the Foster Mother’s lawyer. It said to the effect that while the Court of Appeal concurred with the Appeal Panel’s decision to return the child to the Foster Mother, “…neither the Appeal Panel, nor the Court of Appeal indicated it was in the child’s best interest to return the child to your client’s care.” (Emphasis added)

The government goes further in this letter to say, "In any event, my client does not believe that it is in the child's best interest to be moved from the home of is prospective adoptive parents where he has resided for over two years." (Emphasis added). There seems to be no appreciation in this position that the child had lived with the Foster Mother for over the first four years of his young life. But there are other serious concern about the content of this letter.

This letter from the government’s lawyer appears on its face to say that notwithstanding what the Court of Appeal decided it did not consider the best interest of the child and the government has decided otherwise. And so Children's Services, in this letter, appear to put itself above the courts and states it will not be complying with the order of the court. How can this be happening in a country and a province that ascribes to the rule of law?

Optional Courses of Action for Children's Services:

If the government did not like the Court of Appeal decision it could have appealed to the Supreme. But their time for such an appeal has already lapsed, and you have to wonder who was at fault for that? Alternatively and according to the rules of Court 390(1), they could have gone back to the court to ask for the decision to be reconsidered, varied or set aside. If they had new evidence that would influence or change matters they should have brought it to the attention of the court. They didn’t do that, instead they wrote a letter the opposing counsel saying they, the government, did not agree with the court and therefore they would not be following the order of the court. Astonishing!

This Rule of Court is there to enable variations of court orders to correct errors in the original decision or to reflect important facts that subsequently come to light. There is a court case, Public School Boards Association v. Alberta AG (1998) in the Alberta Court of Appeal that explains the scope of Rule 390. Rule 390 “…it is not a try again or a do over.” “It does not permit an applicant to revisit any issue because he is dissatisfied with the original decision and has thought of better arguments. Otherwise there would be no finality to litigation.”

Instead of revisiting the court decision, Children’s Services “believed" the court order was not in the child’s best interest. They took the position they were simply not going to comply with the decision of the courts. With that attitude it appears that they believed they were above the law and did not have to obey the law. This attitude to be above the rule of law, from a government, simply invites anarchy. It is amazing to me to see this attitude of appearing to be above the law expressed in any way by government in a free and democratic society like Canada and Alberta. To actually see it in writing, from my government, is even more demoralizing and unsettling.

Children's Services Tries To Negotiate a Deal:

The government officials and the Foster Mother met February 20, 2009. The government agreed to contact the extended family, who still had the child, to facilitate the Foster Mother having visits with him and to arrange “post-adoption” visits for her with the child. The government was unsuccessful in negotiating such arrangements with the extended family. The Foster Mother was advised of this failure in a letter dated February 26, 2009. The Director then petitioned for adoption of the child by the extended family on March 13, 2009.

Foster Mother Writes to Court of Appeal for Clarification of Their Order:

Through all of this, the Foster Mother still had not seen the return of the child as order by the court. On April 14, 2009 her lawyer wrote to the Deputy Registrar of the Court of Appeal asking to appear again before the original panel of Justices to “…appeal for guidance, direction or clarification” of their decision to return the child to the Foster Mother.

Instead of re-appearing in the Court of Appeal the Deputy Registrar wrote to the Director on June 4, 2009 confirming the direction in the court’s decision that the child had to be returned to the Foster Mother.

This letter from the Court of Appeal triggered Children’s Services middle management to “…canvass the availability of upper management t arrange a meeting the following day.” That meeting happened on June 5, 2009 and included departmental senior management people, Director Ouellet, his lawyer. And according to a filed affidavit of a government employee, not the Director, these people “discussed how we could respond to the Court’s direction in a manner that would least impact the child.”

Theses Children’s Services people seem to be oblivious to the duty of care they have to serve the best interest of the child and their duty to follow the rule of law. Both duties required them to return the child to the Foster Mother as decided and ordered by the Court of Appeal. Children's Services had still not even contemplated how and when they were going to comply with the law and return the child as order by the courts in this June 5, 2009 meeting.

In fact on June 8, 2009, according to the same affidavit, the government game plan was to develop a plan that would entail returning the child to the Foster Mother “…for a period or time.” (Emphasis added). Even when they were finally considering obeying the court order they were still equivocating about fully respecting the court decision.

On June 9, 2009, the Director’s government lawyer advised the group that they had received notice that the Foster Mother had, on the previous day, filed a court application to find the Director in contempt of court. We will pick up this part of the story in the next post on Day 6 of Society’s Child.

NOTE TO READER: Here is a link to a blog post the puts all posts of the Society's Child Services in one place so you can go back and put the whole matter in context.