Child Welfare and the Law

1. Child Welfare and the Law Has child welfare become too legalized?

2. Role of law in Canada • Role of law in Canada over past 40 years has changed • Formerly, law primarily concerned with economic regulation and criminal law • Now a social policy tool

3. Charter of Rights and Freedoms • Affects child welfare along with many other areas of life • Has been used to restrict authority of workers of apprehend children • Also used to give biological fathers more rights

4. “Due process” • Takes time, energy and money • Delays • Adversarial • Court trials vs. mediation, family conferencing, healing • Publicity • Opportunity for legal challenge

5. Legal context for child welfare practice • Law provides mandated protection agencies significant but restricted powers • Legal context can produce tensions between protection workers and police • Law and Professional Code of Ethics may be in conflict

6. Core social work values: Code • Respect for inherent dignity and worth of persons • Pursuit of social justice • Service to humanity • Integrity in professional practice • Confidentiality in professional practice • Competence in professional practice

7. Criminal law • Criminal law spelled out under Canadian Criminal Code • Criminal investigations handled by police • Child welfare prosecutions relatively rare

8. Civil law • Definition: Non criminal--deals with person to person relationships • Rules of evidence less onerous • Standard of proof is lower • Rights of alleged perpetrators narrower

9. Legal roles of child protection agencies • Investigation • Court-ordered supervision • Voluntary care orders • Removal of children (apprehension) • Court testimony • Adoption

10. Hearings and court proceedings • Time consuming • In private, no jury • Outcomes: no case, court-ordered supervision • Wardship: temporary or permanent

11. Actors • Judge: can make a big difference • Child Advocate (arm’s length): speaks for the child • Front line: Workers and police • Lawyers

12. Canadian child welfare legislation: principles • Best interests • Least intrusion • Continuity of care • Consider views of children • Respect for cultural heritage • Primary: protect children from harm

13. Criminal Code • Three relevant areas to consider • Section 43: the “spanking” law • Sections dealing with sex offences against children • Sections dealing with negligence

14. Section 43 • School teachers, parents or person standing in the place of a parent • Justified in using force to correct a pupil or child • Force not to exceed “reasonable” in circumstances

15. Challenge: constitutionality • Supreme Court of Canada decision of January 30, 2004 • Six of nine judges conclude law does not violate the Charter • Not “cruel and unusual” punishment • Does not infringe child’s right to security

16. Qualifications: • Force must be sober and reasoned • Force must address actual behaviour • Force must be intended to restrain,control or express symbolic disapproval • Force must be transitory • Force must not harm or degrade the child

17. Continued… • Force must be based on the gravity of the wrongdoing • Force may not be adminstered to teenagers • Force may not involve objects such as rulers or belts • Force may not be applied to the head, and

18. Continued • Teachers may use force to remove children from classrooms and to secure compliance

19. Dissenting views: Three Justices • Should not be available to teachers • Encourages a view of children as less worthy of protection • Incapable of providing clear guidance to parents, teachers and law enforcers

20. Theories about child abuse • Child characteristics • Abuser characteristics • Learning factors • Parent-child relationships • Parent-parent relationships • Community relationships • Family system

21. Criminal Code: Sexual offenses against children • Numerous sexual offenses that could apply to child sexual abuse • Sexual activity without consent is always a crime regardless of age

22. Elements of the law • Under 12 never able to consent to sexual activity • 12 but under 14: sexual activity with peers might involve consent • 14 but under 18 protected from sexual exploitation in dependent relations • Belief a person is older not a defense

23. Sections of law involving sexual offenses against children • 151: Sexual interference: touching a child under 14 for sexual purposes • 152: Invitation to sexual touching, child under 14 • 153: Sexual exploitation of a person 14-18

24. Continued… • 160: Bestiality (sex with an animal): child under 14 witness or encouraged • 170: Procuring sexual activity of a child under 18 • 171: Householder permitting illegal sexual activity of a child under 18

25. Continued… • 172: Corrupting children, endangering morals, eg. adultery • 172.1: Luring a child--computer based • 173.2: Exposing genitals to a child under 14 for sexual purposes

26. Continued… • 179.1(b): Vagrancy, by someone convicted of sexual assault • 212.2 and .4: Living off the avails of sexual services of a child under 18

27. Continued … • 155: Incest with a blood relative (not cousins) • 163: Child pornography, under 18, making distributing, possession, accessing

28. And…. • 271 - 3: Sexual assault • With a weapon • Aggravated (harm caused during assault)

29. Ontario law: • Section 37(2)(c): Child sexually molested or sexually exploited, including by child pornography.

30. Some signs of sexual abuse • Inappropriate interest in/knowledge of sexual acts • Secuctive behaviour • Reluctance to undress in from of others • Extreme aggression or compliance • Fear of a particular person

31. Incidence of sexual abuse • In 2003, 2,935 substantiated cases—3% of total cases • Number down by about one third from 1998 sample

32. Criminal Code related to criminal negligence • 219 (1): Wonton or reckless disregard • 220: Criminal negligence causing death • 221: Bodily harm • 222: Homicide

33. Continued… • 223: (1) Killing a child--child must be born to be a “human being” • 233: Infanticide: female person kills a newborn when postpartum effects may be felt--five year term. • 242: Neglecting to obtain assistance in childbirth--five year term

34. And…. • Concealing the body of a child

35. Neglect: Criminal Code • 215 (1): • As a parent, foster parent, guardian or head of family, everyone is under a legal duty to provide necessaries of life for a child under the age of 16.

36. Defining child neglect • Omission of necessary care • In Ontario law: “pattern of neglect” in caring for, providing for, supervising, protecting [37(2)(b)] • Moral component: deviation from norms

37. Physical neglect • Food, clothing, shelter • Abandonment • Medical care • Home conditions • Failure to attend school • Failure to thrive

38. Incidence of neglect • 40% of all investigations—stable over time • 30,366 substantiated cases in 2003 • Almost double the number of cases in the 1998 sample

39. How workers identify neglect • Child left alone • Dirt and disorder— • Warrants activity • Provides concrete evidence • Shows departure from norms • Seen as chronic failure to provide

40. How organizations produce chronic cases • Opening and closing cases • “Case closed, pending more problems” • Fragmented service: “Mom’s inability to stabilize” • State exonerated

41. Physical child abuse • Act of commission (physical aggression) by an adult against a child • Intent not required to be viewed as abuse • Ontario law: child has suffered physical harm inflicted by the person in charge • Non accidental injury inflicted on a child by a caretaker

42. Incidence • 2003 CIS sample: • 25, 257 or 24% of all substantiated cases • More than twice as many cases as in 1998 sample

43. Some types of injuries • Bruises, cuts • Burns, scalding • Fractures • Brain injuries to infants as a result of shaking • Poisoning • Death

44. Stressors • Changes in family group, ie new baby • Financial strain, ie job loss • Physical or mental illness • Addiction • Domestic violence • The child, ie sudden change in child or chronic problem condition

45. Physical abuse and discipline • What is the difference? • Is physical force a solution to problems of discipline?

46. Emotional abuse/neglect • Generally considered a pattern • Incidence: Historically quite low, but investigations increased with the introduction of “witnessing” violence • 15,369 cases in 2003—15% of substantiated cases

47. Types of emotional maltreatment • Rejection • Isolation • Terrorizing • Ignoring • Corrupting • Destroying personal possessions • Harming a pet

48. Some considerations: • Differentiate: emotional abuse and growth-inducing challenges (tough love) • Differentiate: dissatisfaction with parents from maltreatment • Is emotional growth impeded? • Often seen as the most damaging kind of maltreatment

49. Lists of symptoms—often in law • Most lists contain: • Low self-esteem • Depression/anxiety • Relationship difficulties • Neediness • Anger issues • Delayed development

50. Lists of outcomes: • Problems at school • Eating disorders • Suicide attempts • Teen pregnancy • Prostitution • Addictions • Criminal behaviour