Homeschooling May be Educational Neglect

March 19, 2008 permalink

While the Child and Family Services Act does not include "educational neglect" as a reason for intervening in family life, the courts have interpolated such a provision. Homeschooling parents can now be picked off one at a time until the submit to the whims of social workers and psychologists. The Ontario courts are inclined to give children's aid societies even more powers than granted by the legislature.

This case started out as a dispute over home remodeling. There is a family blog dealing with this issue. Click on myspace blog after you link to Legally Kidnapped.

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Children's Aid jurisdiction over "neglect of education"

A court case initiated against a homeschooling family by the Durham Children's Aid Society (DCAS) has recently resulted in a ruling that the courts have jurisdiction under the Child and Family Services Act (CFSA) to deal with cases of possible "neglect of education" to ascertain whether there is a need of protection.

The case that triggered this jurisdictional decision began in summer of 2006 when the family was reported to DCAS because of the state of their house during renovations. They were ordered to remove the children from the house until it was back in a more livable state.

In other words, this was not initially an education issue. During the process of the investigation, however, the CAS worker became concerned that the education of the homeschooled children (3 out of the 7 children of the family) was being neglected, mainly because the then-12-year-old could not read well. It should be noted that the child is recognized by his parents as being slightly "delayed" in a way not caused by their approach to homeschooling but inherited as a trait that "runs in the family". We take it the mother is also slightly "delayed".

Section 37(2) of the CFSA describes the circumstances in which a child is to be considered in need of protection. There is no mention of any educational issues. The closest thing to academic delay is "delayed development", listed under emotional harm.

"A child is in need of protection where,
(f) the child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(ii) depression,
(iii) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development,
and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child".

The other subsections relating to emotional harm refer back to the same list, with variations on the surrounding circumstances relating to whether the harm is caused by the parents or they are not the cause but are not seeking remedies, and also whether the harm has already been suffered or the child is at risk of suffering it.

There is also a subsection (h) relating to "a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development". The child is considered in need of protection if the parent does not provide "treatment to remedy or alleviate the condition". However, this is not the subsection referred to by the DCAS in their later motion. They refer instead to subsection (g), relating to the risk of serious delayed development caused by the parents.

The DCAS's original motion regarding education was for the court to order the parents to comply with their demand that the children be tested so their academic performance could be assessed and remedies prescribed accordingly, including the possibility of ordering that the children attend school. The parents, with the support of a document prepared for that purpose by OFTP, claimed that such educational matters do not come under the jurisdiction of the CAS but should be dealt with under th Education Act instead, since the CFSA does not list anything related to education among the concerns that serve as criteria for finding a child in need of protection (see sidebar), whereas the Education Act contains all the provisions needed to deal with issues of satisfactory instruction and exemptions from attendance at school.

The judge was unwilling to order the assessment until the jurisdictional issue could be determined. The DCAS therefore changed its motion to request a "Summary Decision on a Legal Issue, specifically on whether neglect of education is a protection issue".

OFTP attempted to intercept the process by writing to the Minister of Children and Youth Services and sending a copy to the Minister of Education, but neither ministry was willing to interfere or comment while the matter was before the court.

[ material on how the issue was presented to the court is omitted. ]

THE RULING

In conclusion, Justice Shaughnessy wrote:

"The CFSA focuses on the consequences of abuse and neglect, or the reasonable risk thereof, of any number of unspecified parental responsibilities. There is no limit to the kind of responsibility that a parent may breach for the purpose of scrutiny under the CFSA, provided the breach gives rise to a protection concern under the provisions of the Act. It follows then that the education of a child is one of the responsibilities of parents. Accordingly, neglect of education which either causes emotional harm, or the risk thereof, may be dealt with under the CFSA provided the Society can relate it to a protection issue under S 37(2) of the Act".

"In the result there is a finding that neglect of education is properly an issue before the court and the Court has jurisdiction under the CFSA to hear the matter".

The ruling also called for a case conference to be arranged within 21 days so that a speedy resolution could be reached for the particular children in this case. The result of that conference was a temporary order that "The parents shall continue to provide home based education to [their children] and shall allow the Society to record completed work. The parents shall consult with the Durham Board of Education, ILC and homeschooling resources to develop appropriate individual education plans for each child. The parents agree to have [the children] undergo a psycho-educational assessment pursuant to s.54 which shall be arranged for and funded by the Society and shall be conducted by Dr [C...] [a psychologist]. Upon receipt of the assessment the parents shall implement the resulting recommendations into the children's individual education plans. Within 4 - 6 months the implementation of the assessment recommendations into the children's individual education plans shall be demonstrated and assessed by Dr [C...] and the children shall be reassessed by Dr [C...].

The psychologist's letter of agreement includes a reference to the DCAS having expressed "concerns about the intellectual and other capacities of their mother" and "very likely the need to assess the mother's capacity to properly design and implement an education programme". He also states it is "unclear whether the programme the mother is providing meets the standards of the Ministry of Education".

The psychologist's report is due by the end of February 2008 and the case conference is scheduled to continue in early March.

WHAT IT MEANS FOR THE HOMESCHOOLING COMMUNITY

What this jurisdictional decision means for the homeschooling community is that each family being investigated by the CAS will need to rely on the merits of their own situation rather than on the general notion that educational matters are not protection issues. There still remains an evidentiary burden on the CAS to demonstrate in each case that there is indeed a risk of serious delayed development. In order to demonstrate or disprove that, they will no doubt be relying on "psychoeducational" assessments as in this case.

It will be up to each family to negotiate with the CAS as to who the assessing psychologist will be, otherwise it will be one chosen by the CAS. It would be helpful if we had a list of psychologists who are familiar with or at least open-minded to homeschooling, particularly unschooling, who could be recommended to families in this situation. If you know of such a professional in your region, please let us know.

Source: Home Rules, newsletter of the Ontario Federation of Teaching Parents, February 2008