18 September 2015

"Young Children Can't Be Home Alone, BC Judge Rules" ...No, Actually, He Doesn't

The Vancouver Sun published an article yesterday under the headline above. The headline was inaccurate and misleading, and so was the article, which began saying "a BC Supreme Court judge has ruled that it is not OK to leave an eight-year-old child alone at home, even for two hours."

Today the headline in the electronic version of the story reads "Judge upholds interim order that children can't be left home alone," and that first sentence has been changed. This is a little better, as the judge most certainly was not issuing a general pronouncement about eight-year-olds. However, the case the Sun was talking about, B.R. v K.K., reveals some interesting nuances of the child protection legislation in British Columbia ...and the importance of taking news stories about legal issues with a grain of salt.

Bad Headline

Better Headline

Let me explain about what happened in B.R., what the Supreme Court judge actually decided and what the decision actually means for British Columbians.

Mum and dad have two children and, at some point, separate. Sometime later, the Ministry for Children and Family Development, the folks that manage child protection in the province, comes to learn that mum leaves her eight-year-old son alone from after school until she gets home from work at 5:00pm. A social worker in the employ of the Ministry is dispatched to investigate.

The social worker asks mum to agree to a "safety plan." Mum refuses, as she is entitled to do, but is nonetheless a huge red flag to Ministry workers. Mum then refuses to allow the social worker to speak to her son, as she is entitled to do, but is also a red flag to Ministry workers. The social worker files a Form F Report with the Provincial Court, which you can find in the schedules to the Child, Family and Community Service Regulation, containing the social worker's statement that the child is, or is likely to be, at risk of harm.

The filing of a Form F triggers something called a "presentation hearing" under the Child, Family and Community Service Act, the legislation that gives the Ministry its child protection authority. Court proceedings on child protection matters are a two-stage affair. The presentation hearing is the first stage. The purpose of the hearing is to have the court look at what the Ministry is doing or proposes to do right away, and give it the thumb's up. The second stage, the protection hearing, is where the court actually hears evidence and decides whether the child is actually at risk.

To be clear, presentation hearings are not full trials and don't critically enquire into the facts of a case. They merely confirm that the Ministry has some evidence which, if true, could support the conclusion that the child in question is in need of protection, and thus that the Ministry is acting reasonably in taking the actions it has taken or proposes to take. Think of it like this. In criminal matters, the burden of proof on the government is to prove, beyond a reasonable doubt, that the accused person committed the crime. That's like proving 98% of a case. The burden of proof on the government at presentation hearings is only to show that it has a reasonable suspicion, and that's like having to prove 2% of a case. 

In any event, at the presentation hearing, with its very low burden of proof, the social work testified that, in her view, children who are eight years old don't have the mental capacity to be left alone and that in fact children who are under the age of ten cannot be safely left unsupervised. The judge also received unsworn evidence supporting this view in the form of "articles and documents" supplied by the lawyer for the government.

The Provincial Court judge hearing the case took the social worker's evidence very seriously, partly because of another decision, Re N.K., in which the court said that, at presentation hearings,
"[16] ... I am not required, nor is it appropriate, that I go behind the statements of fact contained in the Report to Court of the social worker. The court must, and the legislation requires, that great deference be given to the social workers who complete these reports. ..."
This decision kind of tied the judge's hands in the matter, and the judge made an order that the mum must ensure that the two children "will be under the care and supervision of a responsible adult at all times and not be left alone to care for themselves."

Mum appealed the Provincial Court decision, saying that the Provincial Court judge shouldn't have paid attention to the social worker's broad statement that no child under the age of ten should be left unsupervised. That's a pretty reasonable position to take, in my view. First, there is no law, in either the Criminal Code or the Child, Family and Community Service Act, that says "children under the age of ten can't be left alone." Second, it seems to me that the reasonableness of a parent's decision, because it is a parent's decision, to leave a child alone probably depends on
  1. the child's age,
  2. the child's maturity and stage of development, and
  3. the place where the child is being left alone,
rather than on a universal rule that all children under the age of ten mustn't be left alone. After all, there are some eight-year-olds I would trust with the keys to my house and my car, and some eighteen-year-olds I wouldn't allow anywhere near either.

The mum's appeal was heard by the Supreme Court, and it is the decision of the Supreme Court judge rejecting her appeal which was the basis of the Sun's story. Unfortunately, as much as I sympathize with the reasons for the appeal, the Supreme Court was right to dismiss it. 

First, appeals aren't opportunities to have a case heard all over again, particularly in cases like this, where the decision appealed from is discretionary. As the court said,
"[12] ... The decision of the Provincial Court judge should not be interfered with in the absence of some material error. The function of this court on appeal is ... to determine if [the judge] erred in law or disregarded or overlooked some relevant matter ..."
In other words, the appeal court must respect the original judge's decision unless he or she made a significant mistake about the law or didn't take into account some important fact that might have influenced the outcome.

Second, the court hearing an appeal generally isn't allowed to interfere with original judge's decisions about the facts of a case. After all, the judge hearing the appeal wasn't there to observe the witnesses and make decisions about their credibility.
"[27] I am obliged to defer to the findings of fact made by the trial judge absent a palpable and overriding error. ..."
Third, the original judge was stuck having to give a lot of weight to the social worker's opinion because of the Re N.K. case, whether you agree with that opinion or not.
"[22] ... great deference is owed to the evidence of social workers in the presentation hearing content. ..."
Fourth, the burden on the original judge at the presentation was extremely low, and did not involve making decisions about whether the child was actually at risk of harm:
"[16] ... at the presentation hearing, the [government] need not show, and the Court need not conclude, that the child is actually in need of protection in order for a supervision order to issue ..."
In these circumstances, the fate of the mum's appeal was almost foregone. 

So, what should parents take away from this decision? I'm afraid not much.

You certainly can't conclude, despite the Sun article, that all children under age ten can no longer be left alone in British Columbia, because neither the Provincial Court judge nor the Supreme Court judge made that conclusion, and because there is no law in British Columbia which says so. The Provincial Court judge was obliged to accept the social worker's evidence, and the Supreme Court judge was in turn obliged to accept the facts as found by the Provincial Court judge. At the end of the day, the social worker's opinion, although informed by her years of service and doubtless well-intentioned, is just her opinion.

What you can take away from this case, however, is the danger of rebuffing the interventions of Ministry workers. In the child protection cases I've handled in the past, the sheet the worker fills out when speaking to a parent includes a checkbox labelled "refuses to accept services." When this box is checked, the Ministry's antennae go up and it becomes even more concerned that a child is at risk. As the Supreme Court judge said,
"[41] I also note that ... [the mother] refused to permit the social worker to speak with [the eight-year-old], and in doing so kept her from undertaking the individual inquiry that [the mother] now says should have been done. ..."
Refusing to cooperate with the Ministry in a child protection case can have serious consequences, such as further investigation or, as happened in this case, the filing of a Form F Report, even though the mum was well within her rights to do so. Compliance with the suggestions of the Ministry, even if they strike you as intrusive or unnecessary, is an awfully good idea.


1 comment:

  1. Thanks for this excellent and comprehensive explanation.

    ReplyDelete