Court delays in child welfare cases traumatic for children, parents


WINNIPEG — The Manitoba Court of Appeal has ruled that parents whose children are seized by social workers have a right to an expedited hearing if they want their kids back.

The ruling involves a couple whose child was seized at birth in December 2015, due in part to concerns over the parents’ mental health.

The parents, who cannot be identified under provincial law, hired separate lawyers and it was more than a year before there was a full hearing.

An interim hearing was held, but the Appeal Court has ruled such hearings can make matters worse by taking up more court time while all parties are waiting for a final decision.

The Appeal Court ruled in January that waiting times of 10 months or more are unreasonable and violate the Charter of Rights and Freedoms.

In its written decision Friday, the court stopped short of setting a maximum wait time, but said hearings must be held sooner when children are taken from their parents.

“A timely but fair and balanced hearing is essential,” Justice William Burnett wrote on behalf of the three-member panel.

“There are numerous factors which affect when the hearing is to be conducted but, generally speaking, when the parents are ready to proceed, an expedited hearing must be conducted.”

While Burnett did not specify a timeline, he said an expedited hearing is “a summary and less formal trial or hearing, or a summary judgment proceeding.”

A lawyer for the Assembly of Manitoba Chiefs told court in January that long delays are especially hurtful to indigenous families, whose children make up more than 80 per cent of kids in government care.

Children are away from their parents at a crucial stage in development and are often placed in non-indigenous homes away from their culture and language, the assembly submitted.

The chief justice of Manitoba’s Court of Queen’s Bench has promised to reduce wait times, and recently introduced changes that prioritize cases where children are taken from their parents.

“While the new model will be a work in progress, open to necessary improvements, it is premised upon a recognition that there is a moral and constitutional imperative to deal with the delay that has for too long defined child protection proceedings,” Chief Justice Glenn Joyal said in a written statement Friday.

In an interview with AdvocateDaily.com, Alberta child protection specialist Melani Carefoot says parents in that province face similar delays in child apprehension cases, especially when they disagree with the application filed by children’s services.

When parents consent to a temporary guardianship order, she explains, that order begins immediately and if all terms are met, it ends at an agreed upon date.

“If the parents challenge the application, however, a number of court dates are held, lawyers are hired and trial dates are set — in some cases eight or nine months later,” says Carefoot, owner and principal of Positive Choices Counselling.

In that scenario, the child can remain in care for much longer than the original order stipulated, she points out.

“If parents disagree that children’s services has valid reasons to keep their child in care, and they want to give evidence to prove that at trial, the delays in the court system are making it very difficult for them to do so,” Carefoot says.

Children’s services applications are difficult and time-consuming to challenge, and the ordeal can be traumatic for the entire family, she says.

“Newborns need to be with their birth parents regularly to form a healthy attachment, and that’s often difficult to facilitate due to the cost and availability of visit supervisors,” Carefoot says.

Despite the challenges, she says some parents view delays in court proceedings as an opportunity to stabilize and prove they are capable of changing their behaviour.

“Some welcome the time as it allows them to connect with appropriate services and prove they have fully engaged with the process. Those with addictions, for example, can access treatment and show their commitment to sobriety by the time the court date comes around,” Carefoot explains.