Saturday 18 December 1999

CAS rushes into bizarre battle for toddler

Dave Brown
The Ottawa Citizen

On a table in the corner of the living room is a photo portrait of a pretty 18-month-old baby with a Mona Lisa smile, wearing a blue dress, both hands raised as if asking to be picked up.

She's the prize in a bizarre case of duelling jurisdictions. A family court is being asked to rule on something the criminal court system has already looked at and discarded.

In the room with the distraught young mother are two other young mothers; neighbours offering their support and wanting a chance to rail at the child protection system.

The mother's lawyer, Frank Armitage, is in the room, trying to juggle his responsibilities between his client and the legal industry. He expects the issue to be resolved in March. Seven weeks have been set aside for the family court trial that will rule for the sides claiming custody (ownership) of the baby -- the mother or the child protection system.

The Ottawa-Carleton Children's Aid Society will claim the judge has no alternative but to give the baby over to its care, because she could be in danger if left in her mother's care. Mother will try to convince the court she has never hurt a child. This is her only child, and her path to motherhood shows there probably never was a baby more desperately wanted.

It goes back three years, when the woman and her husband, unable to have children of their own, applied to join a CAS adoption-probation program.

To qualify, the woman had to quit her job and become a full time stay-at-home mom. They were given brothers, ages three and five, and told if things worked out, they could formally adopt after one year.

Seven months later, they were at CAS headquarters saying they wanted out of the deal. The five-year-old was more than they could handle. In a family conference session, the boy said he didn't care, because he was being abused. Specifically, he said the woman punished him by burning him with the iron. The couple said behaviour problems were beyond their ability to control and their lives had been made miserable. The brothers were taken back into CAS care.

When the five-year-old made his abuse claim, child protectors looked at records that showed the youngest had been treated at hospital for injuries the parents said were the result of a fall. There were no allegations of abuse at the time, but now the oldest child mentioned the word. Charges were prepared and put into the legal system.

They didn't get far. The Crown attorney's office discarded the charges that the youngest boy was abused, and stayed the charge resulting from the older boy's accusation.

It mattered little to anybody at the time that a charge was still hanging. It hadn't been withdrawn. After all, the couple was infertile.

The marriage ended. The fertility problem was the man's. She became pregnant with a new partner and delivered a healthy daughter. For six months, she lived her dream, with her own baby to hold and rock and cuddle and breast feed. Six months later, the dream turned into a nightmare. Word drifted to the child protectors that there was a baby in her life, so they scooped (apprehended) the child, weaning her in the process.

The earlier legal processes stopped because they were in the criminal system, which could not find evidence worth pursuing. It is now a protection application, and that means family court. Rules of evidence in family courts are much different. Basically, there are no rules. Even speculation can be evidence.

Child protectors, claiming special knowledge acquired through special training, will try to convince a judge the child is at risk from her own mother. They will put themselves in the position of claiming they can predict human behaviour. Mother can't be named and family courts are not open to the public.

Authorities are caught in a game of cover-butt. There is a paper trail that a child may or may not have been injured while in the care of this woman. Should another child be injured while in her care, child protectors will face public wrath. How could they let this happen? The safe play is to kick it into the family court system and let a judge make a decision.

The judge is in the same situation as the protectors. What if this normal-looking and obviously loving woman actually does have a dark side? Public anger will be aimed at the judge. The safe play is to turn the child over to the system.

That's the same system that defence lawyers, almost every day of the week, blame for their clients' problems. Being raised by the state, or in "the system," is usually accepted as evidence of a hard childhood. It isn't without danger. But if the child should be hurt while at the tender mercies of state care, the judge can't be blamed.

Meanwhile, in the most developmentally important years of her life, a child is separated from her mother. That's abuse. We are all guilty. It's our system.