The issue of 'evidence' bedevils child welfare

There are some evident themes developing at the Phoenix Sinclair inquiry as lawyers spar with witnesses about who did (or, mostly, didn't do) what, when and why. Workloads were high, then as now, and triggered judgment calls and compromises for social workers.

But there is another narrative emerging: Child welfare workers believe most of us are toiling under the delusion that they can bust in and snatch kids from parents and hold them for as long as they think necessary.

Social workers who had their hands on Phoenix's case sought mightily to disabuse us of this myth.

Parents' rights -- to their children, their privacy -- are protected by law that puts the onus on the child welfare agencies to prove kids are better off in CFS care, they noted.

"He could shut the door in our faces," Kathy Peterson Epps replied bluntly when asked why she didn't push Phoenix's father to get support when he was caring alone for the one year old in July 2001. Phoenix's three-month-old sister, Echo, had died of pneumonia and Steven was suspected of having a drinking problem.

An investigation in 2006, in fact, stated Peterson Epps might have gone for a court supervisory order to force Steven to comply.

In the absence of evidence that Phoenix was in need of protection, no such order could be granted, Epps insisted.

The issue arose again after February 2003, a year after CFS had closed Phoenix's file. A doctor at Children's Hospital had pulled an object out of Phoenix's nose and suspected physical and medical neglect, which is covered by the CFS Act's definition of a child in need of protection.

Workers noted the doctor found Phoenix to be generally healthy, no bruises, no evidence that would convince a judge to give CFS any kind of guardianship or supervisory order, the inquiry was told.

The impression is that social workers are hard-pressed to prove to a judge a child is better off in the safety of CFS care or with social workers monitoring their homes.

Lore Mirwaldt, a lawyer who works in child protection for a northern agency, says the evidence has to meet reasonable and probable grounds -- a lower threshold than the criminal test of beyond reasonable doubt -- meaning that risk or harm is more likely than not to happen.

But generally, Mirwaldt says, judges in Manitoba err on the side of caution, in favour of protecting children. The classic scenario for apprehending -- a drinking party where kids are present and the adults are drunk -- is pretty sure-fire to result in a temporary guardianship order.

"I can always jump that first hurdle," Mirwaldt says, because social workers are trained to know what constitutes evidence. Getting temporary orders renewed is not so easy, because if there's evidence of ongoing risk, judges get impatient with parents and want to know why CFS isn't going for permanent care of children. The basis of child welfare is that children deserve permanent homes, she notes, which can work for and against parents.

There are 10,000 Manitoba kids in care, a record in Manitoba's history, she notes. That's a consequence of a number of factors, one being that society is less tolerant of neglect and abuse.

This is reflected in the courts' attitude to child protection, she believes.

"The climate in provincial courts increasingly is to err on the side of keeping kids in care," keeping them safe.

Mirwaldt refused to comment on the Phoenix Sinclair case. But she did say child-protection risk assessment often comes down to judgment calls.

Winnipeg CFS, at the time a doctor was worried Phoenix was suffering from neglect, found a nose infection small stuff. Go to any school in the neighbourhood where Phoenix lived, former supervisor Andy Orobko said, and you'll find similar and worse stuff.

Mirwaldt, who works for an agency at Nelson House, said child welfare cases have become more severe in 20 years.

"Winnipeg is a very, very violent place for many women and children. I've never seen abuse like I see in Winnipeg in northern Manitoba."

The difference? The substance abuse: Alcohol still reigns in the North; drugs rule in the south.

catherine.mitchell@freepress.mb.ca

Republished from the Winnipeg Free Press print edition November 26, 2012 A13