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This article was published 6/11/2018 (475 days ago), so information in it may no longer be current.
Months after proposing legal changes aimed at keeping similar cases out of court, the regulatory body representing registered social workers in Manitoba is asking a judge to force a child-welfare agency to turn over its records.
A year-and-a-half ago, the Manitoba College of Social Workers received a complaint about a registered social worker employed by Winnipeg Child and Family Services. The complaint has yet to be fully investigated – before it can happen, a court needs to order the child-welfare agency to release the information needed to investigate the complaint.
The same process plays out in Manitoba's courts over and over – including in criminal, civil and child-protection cases – because most CFS records are confidential, unless a court orders otherwise, as per provincial law. But the court-order requirement has raised concerns when it comes to investigating public complaints.
"Under the CFS act, if they are using the confidentiality provision as a reason (not to disclose), we don’t want that to stand in the way of a social worker being able to be accountable to the college. And that is their wish, to be accountable, because they’ve chosen to be registered," said Barb Temmerman, executive director of the Manitoba College of Social Workers.
As part of their recommendations to the province's child-welfare legislative review committee earlier this year, the college asked for the Child and Family Services Act to be changed so CFS records could be disclosed, without a court order, for the purposes of a regulatory investigation. That recommendation wasn't included in the committee's final report to Families Minister Heather Stefanson, and it doesn't seem likely to be adopted in the new legislation, Temmerman said.
"It did not make their final report to the minister, so that’s unfortunate, and we’re not sure yet what the impact of that will be," she said, saying the college is more concerned the provincial government still doesn't require all of those employed in social-work roles to be called social workers or to be professionally registered and regulated.
To get the information it needs to investigate the May 2017 complaint against a registered social worker who works for Winnipeg CFS, the Manitoba College of Social Workers filed a legal application against the province's CFS director on Oct. 30.
'Child and Family Services records contain very sensitive information. So to have unfettered access to someone's record is potentially violating other people's rights' – Darryl Buxton, a lawyer at Meyers LLP who has worked in child-protection law for 18 years
On Tuesday, the case landed in front of Court of Queen's Bench Justice Colleen Suche, who is expected to sign a court order compelling CFS to release certain records.
The details of this particular complaint haven't been made public, but it's one of a small number against registered social workers the regulatory body receives, Temmerman said.
The college has received complaints against about one per cent of registered social workers since it started operating three years ago, Temmerman said, noting not all registered social workers work for child-welfare agencies and not all CFS workers are required to be social workers.
It's just one example of the courts being called upon to order CFS disclosure — requests that happen often.
"I would say they are extremely common," said Darryl Buxton, a lawyer at Meyers LLP who has worked in child-protection law for 18 years. "It is done on a fairly regular basis."
And for good reason, said Buxton, who has represented child-welfare agencies. If the agencies release the records without a court order, they could be breaking the law.
"Child and Family Services records contain very sensitive information," he said. "So to have unfettered access to someone's record is potentially violating other people's rights who may be named in those records... other foster children, other foster parents, care providers – contained within an agency record are so many other records."
When a court order is granted, a judge will typically impose conditions to ensure only relevant information is released, and agencies most often follow the court order without a lengthy legal battle.
"It's not to be difficult and it's not that Child and Family Services agencies don't want to co-operate, it's not that there's anything to hide by not providing those," he said. "There's a process, there's the law, and we need to ensure the privacy rights of third parties."
Katie May reports on courts, crime and justice for the Free Press.
Updated on Wednesday, November 7, 2018 at 1:06 PM CST: clarifies that social workers are registered