Child protection: Catch-22 all over again. Again and again… Part 2

The case of the “Minister of Community Services v J.C,” says Emma Halpern of the Elizabeth Fry Society, “shows all the gaps in our child protection supports and services.” There are a lot of them.

PART 2

As of September 8th, I have had two one-hour supervised visits with K.C. at Child Welfare Services’ offices … At both visits K.C. smiled when he saw me and reached out for me to hold him. The visits are very difficult because I have only one hour, but it is so important that he spends time with me.
I am very worried about K.C. and his safety. I am worried that he may end up in the wrong hands. I had many bad experiences while in care. I worry that K.C. will not be well cared for. I have been told and I believe it to be true that he has already been in two foster homes this week. He is only seven months old, and we are very close.”

—J. C., Affidavit
September 10, 2020

The story of how and why J.C. found herself in the Supreme Court of Nova Scotia’s Family Division in September 2020 fighting against the odds to keep her infant son out of the clutches of the government has its beginnings before K.C. was born, at a time when J.C. herself was still a “child in care.”

The Children and Family Services Act, which is intended to protect “children who are living in situations of abuse or neglect,” became the law of the land in Nova Scotia in 1991. That law was based on what are known as the “principles of least intrusive intervention,” which are intended to protect vulnerable children while maintaining family connections wherever possible.

By 2015, that nearly 25-year-old legislation had become shopworn and in need of updating, according to the government. “Serious gaps and issues were identified by social workers, in judicial decisions, through bench and bar discussions and by stakeholders and child advocates.”

So, the government — without apparently speaking to, or more importantly, listening to many of those same stakeholders — introduced a dog’s breakfast of 90 amendments it claimed would make the world safer for children at risk.

In reality, explained Rollie Thompson who’d helped write the 1991 legislation, the new act was “a full-scale retreat from the principle of ‘least intrusive intervention,’” taking Nova Scotia “backwards in time … back to an era when child protection agencies got to run the show with minimal oversight.”

Legal aid lawyers, social workers, and others involved on the front lines made a similarly compelling case that the real problem wasn’t so much with the original legislation as with serious, ongoing underfunding of the child welfare system. In the end, they predicted the legislative changes would actually “result in more children being removed from their homes and placed in temporary foster care because of a lack of government financial support.”

“I categorically deny that,” the then-minister of Community Services, Joanne Bernard, categorically denied to reporters as she pushed-pulled the changes through the legislative process in the fall of 2015. The changes to the law, she said, were only “about good, compassionate social work.”

Six years later, the critics seem to have been right. In 2013-14, there were 10,078 child protection referrals. By 2020-21, that number jumped to 17,449.

The Department of Community Services counters that it always expected the number of referrals to increase because it was being more proactive and intervening earlier. In an email to me, it focused instead on the fact the number of children taken into temporary or permanent care — 328 last year — has actually declined. “This is an indication of the impact of our efforts to shift the child welfare system toward prevention and earlier intervention.”

It could also be seen as evidence the spike in early interventions was never necessary. And was, in fact, causing real harm to mothers like J.C. and children like K.C.

The department, as a spokesperson told me, insists it continues to work “to move to a child welfare system that focuses more on prevention and early intervention and less on responses that are crisis-driven. It is our goal to provide wraparound supports to families before they reach a crisis point. Keeping families together is always a primary goal. And, in the rare instances when a child is taken into care, we continue to work with the parent(s) to enable that child to return to the family whenever that is possible and best for the child.”

The department’s own recent internal “formal review of selected provisions” of the act gave its efforts high marks.

But the reality, notes the Nova Scotia College of Social Workers, is that the department not only cherry-picked “three of the least problematic areas of the act” for its legislatively required four-year review but also “chose to conduct its review in a manner that both limited the scope and engagement process, and excluded core stakeholders such as frontline staff, families involved in the system, and children and youth in care.”

The social workers’ college pointed to the new act’s “lower threshold [for intervention] based on vague definitions of a child in need to care” and the “lack of significant new funding and resources” as serious concerns. Those, combined with the absence of bigger-picture social supports to “create pathways to safety and well-being” had conspired to create “a child protection system that is more intrusive and focused more on investigations and court process than being able to create support and well-being for families.”

The act had “placed social workers in an impossible situation where even the most ethical, empathic, and altruistic social worker cannot begin to keep children safe in Nova Scotia without the fundamental tools and required resources to do so … It is no wonder so many social workers are facing record levels of burnout and there are constant recruitment and retention issues.”

Shelley Hounsell-Gray, the family law lawyer who represented J.C. in court, sees these issues up close and personal. The government’s “over-broad” legislation, she says, “has caused social workers to question their judgment because the [act’s] definitions were not used in any other legislation, ever. They just came out of the air … A social worker who’s doing child protection work is generally a first-year social worker. After five years, they burn out and leave. So, you always have this rotation of very, very inexperienced, very young people judging parenting, and they’re probably not parents themselves.”

The result, she says, is that child protection applications to the court have “spiked. Instead of trying to work with families on a voluntary basis or deciding that they don’t even need the intervention,” all those cases are ending up in court. “The number of court applications has put a tremendous strain on our court system.”

And on the social workers themselves. According to a 2019 report on Nova Scotia’s child welfare crisis by Jackie Barkley and Robert Wright, there was a “striking” 58% increase in the number of short-term illnesses reported by social workers between 2013-14 and 2016-17.

It’s a double-edged problem. Social workers, Hounsell-Gray says, don’t have the time to figure out what families need, “and then they’re also interfering where they shouldn’t be.”

As they did with J.C.

• • •

On Sept. 9, 2020, Community Services filed its formal notice of a Child Protection Application under the Children and Family Services Act to take K.C. from his mother, citing Section 22 of the act as its “reasonable and probable grounds to believe the child is a child in need of protective services.” Those grounds:

there is a substantial risk that the child will suffer physical harm…
there is substantial risk that the child will suffer emotional abuse and the parent or guardian does not provide, refuses, or is unavailable or unable to consent to, or fails to co-operate with the provision of, services, or treatment to remedy or alleviate the abuse.
there is a substantial risk that the child will experience neglect by a parent or guardian of the child, and the parent or guardian does not provide, refuses or is unavailable or unable to consent to, or fails to co-operate with the provision of, services or treatment to remedy or alleviate the harm.
there is a substantial risk that the child will suffer physical harm…
there is substantial risk that the child will suffer emotional abuse and the parent or guardian does not provide, refuses, or is unavailable or unable to consent to, or fails to co-operate with the provision of, services or treatment to remedy or alleviate the abuse.
there is a substantial risk that the child will experience neglect by a parent or guardian of the child, and the parent or guardian does not provide, refuses or is unavailable or unable to consent to, or fails to co-operate with the provision of, services or treatment to remedy or alleviate the harm.

You might want to swing back and read J.C.’s back story in Part 1, and then re-reread those grounds again. For context.

“Because of her past history of addiction and being raised in care,” J.C.’s lawyer, Shelley Hounsell-Gray, explains, Community Services “felt she was a huge risk to this baby. They wanted to keep the baby from her” while offering J.C. “supportive services” for two years instead.

Hounsell-Gray fired back with an impressive collection of affidavits from what Judge MacKeigan would describe approvingly as J.C.’s “support network,” including E-Fry’s Halpern, Sara Wheler, another family support worker from SHYM, and Dr. Fiona Bergin, the family friend.

“The interim hearing (‘five-day’ hearing) commenced on the 11th day of September 2020,” Judge MacKeigan wrote in her eventual decision. MacKeigan, who was a senior solicitor with the child protection division of the Nova Scotia Department of Justice and also worked with Nova Scotia Legal Aid before becoming a judge, began by asking the lawyer for the child protection agency a question. After reading the affidavits Hounsell-Gray had submitted, was the government willing to change its approach “from seeking an order of temporary care to a less intrusive form of supervision?”

It was not.

The lawyer for the government, in fact, argued it hadn’t had time to consider J.C.’s care plan, which had “only” been submitted on Sept. 10 — in response, it should be noted, to the agency’s own application, which had only been submitted the day before that.

Neither the agency nor J.C.’s lawyer asked to call witnesses or cross-examine the evidence presented.

“At the conclusion of the hearing,” Judge MacKeigan wrote simply, “I dismissed the minister’s application. “Counsel for the minister requested written reasons. These are my reasons.”

I do not accept the Agency did not have time to access J.C.’s plan. Planning by J.C. and her supports began before the child was taken into care and continued to the day of the hearing.
I find the affidavit evidence of J.C. and her supports to be credible and trustworthy. … They have knowledge of J.C.’s present circumstances where the Agency’s only involvement was investigation of an unsubstantiated referral in June 2020.
J.C.’s supports are professional who are aware of their duty to report any concerns for K.C.’s health, safety, and well-being.
By all accounts from those familiar with her current circumstances J.C. is an attentive caring mother who has bonded well with her son, is in tune to his cues, attends to his medical needs, and has been a model resident at SHYM.
On September 3^rd, J.C., in her own words, “screwed up.” J.C. acknowledged what she did was wrong, that it had never happened before and would never happen again.
The affidavit evidence of J.C.’s supports confirms this was the first time J.C. was under the influence of alcohol in a caregiving role to K.C. …
In this case I find the Agency placed too much weight on an unsubstantiated referral from June 2020 and their own history and experiences with J.C. as a child in care and did not adequately consider the plan involving the various supports brought forward by J.C. …
Responding to proposed plans should not be limited to office hours nor should there be a policy that a child cannot be placed with an alternate caregiver once a decision to apprehend has been made. The legislation does not require an agency to wait until the five-day hearing to place a child with an appropriate caregiver who has an established relationship with the child.
Considering all of the evidence, I found the Minister failed to meet the burden, on a balance of probabilities, of establishing reasonable and probable grounds to find K.C. to be a child in need of protective services and dismissed the Minister’s application.

— The Honourable Justice Pamela J. MacKeigan

• • •

J.C. — and K.C. — won! Against the odds.

But it is worth noting that Judge MacKeigan’s reasons came with a short but significant preamble. And caveat.

Parents of children who are the subject of such applications, she noted, often aren’t represented at five-day hearings, meaning “the only evidence the court has to determine whether there are reasonable and probable grounds to believe a child is in need of protective services is the agency’s notice of child protection application and the agency worker’s affidavit.”

The Department of Community Services’ rote response: “Families are always encouraged to seek legal representation.”

That is, of course, easier declared than done. And few of those parents — who are mainly poor and often racialized — can marshal the powerful network of professional supports like the ones who accompanied J.C. to court.

Halpern, who is also a lawyer, says J.C.’s case actually “shows all the gaps in our child protection supports and services.”

It also raises an important, uncomfortable question for the rest of us, and one that Halpern says “we have not figured out. We are taking children into care because of poverty. How do we build community-based resources so that we’re not taking children into care simply because they don’t have the privilege and resources that middle-class and upper-middle-class families have?”

Generation after generation of them, in fact.

“The state is not a good parent,” Halpern notes. “I don’t think the state would tell you they’re very good.” Trauma, addiction, institutionalization and criminalization of young people, lack of culturally appropriate foster homes, group homes that sometimes become recruiting grounds for young girls who are then trafficked and exploited… Not a good parent at all.

And yet, as the judge’s decision makes clear, child welfare authorities used “their own history and experiences with J.C. as a child in care” to justify taking K.C. into care too, thereby creating yet another generation of children condemned to be raised “in the care of the minister.”

• • •

As for J.C. herself? “She’s doing well,” says Halpern. She works part-time for the Fry Society and has an apartment in the community. When Halpern arrived at her office on her birthday recently, she tells me, she found flowers and “a beautiful card” J.C. had left for her.

J.C. has even spoken about her experiences to students in a law class at Dalhousie. While she isn’t conventionally articulate, says Hounsell-Gray, “she’s a super observer of other people.” Having grown up in care and endured time at Wood Street where authorities often “didn’t respond to people who were freaking out, or who had autism, [residents who] didn’t like the structure, didn’t like to be touched… [J.C.] can tell you all about how to deal with people.”

J.C.’s ambition now is to become a youth worker…

That won’t be easy. She has a criminal record, which means she’d need to be pardoned first. Hounsell-Gray shakes her head. “So again, she has another institutionalized impediment to her career choices, right? She has a criminal record, so she can’t be a youth worker.”

Catch 22. All over again. (You can find Part 1 here.)

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A version of this column originally appeared in the Halifax Examiner.

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