National Post Saturday, October 12, 2002 A child care worker who entered a family home, interviewed seven children and examined them for marks and questioned their mother before abruptly seizing the youngsters didn't trample upon the parents' constitutional rights, an Ontario Court judge has decided.
The one-page ruling from Judge Eleanor Schnall was quietly released two days ago to lawyers involved in the so-called "spanking case" that unfolded in a St. Thomas, Ont., courtroom last spring under a blanket of secrecy.
Unusually, since the case had been on hold since last June in order to give Judge Schnall time to make this critical decision, the judge did not release her reasons. Normally, judges either deliver a ruling orally, and follow up with written reasons, or reserve important decisions until they can provide a proper legal rationale.
The ruling means that all the evidence heard over about a month in what is known as a "voir dire" proceeding -- including various statements made by the children and both their mother and father -- is now admissible in the child-protection hearing proper.
It is in effect a victory for the Child and Family Services of St. Thomas and Elgin County agency, whose worker, Shelley West, decided the seven children were "in need of protection" when she went to the family house in the town of Aylmer on July 4 last year.
The youngsters spent only about three weeks in foster care in the summer of 2001 before being returned to their home, but their parents have been living under a supervision order ever since, prohibited from this sort of discipline and required to allow workers to inspect the children.
There were no marks or bruises found on any of the youngsters, and in videotaped interviews with police made shortly afterward, they all appeared healthy, well-adjusted and happy, if distressed that they had been wrenched from the bosom of their home.
Ms. West, who testified at the voir dire proceeding, made her decision to apprehend them based in the main on what their mother, who at the time spoke little English, told them about her disciplinary practices.
The mother admitted to using various objects, including a belt, a clothes hangar and the metal end of a fly swatter, to spank her offspring.
Both parents are members of the fundamentalist Church of God congregation in Aylmer -- upon which the St. Thomas agency has long been keeping a watchful eye -- and as such, as they testified, believe in the use of the Biblical "rod" or reasonable facsimilies in raising children.
Though the children's father speaks good English, and did at the time of the apprehension, only their mother was home when Ms. West arrived on the fateful day. As with many Church members, her first language is a dialect called "low German", and her grasp of English remains halting.
Lawyers for the parents, Michael Manear and Valerie Wise, had argued that the parents' Charter rights to security of the person and against unreasonable detention and seizure had been breached. Had the lawyers convinced Judge Schnall, most of the evidence against the parents could have been ruled illegal -- as indeed often happens in the criminal courts.
Alfred Mamo, on behalf of the St. Thomas children's aid, successfully argued that child care workers must have the right to interview and examine children without their parents' consent, and without judicial warrants, when they believe a child may be at risk.
The decision has significant ramifications, both for children's aid agencies, who almost uniformly deem all spanking to be harmful, and for Canadian families who believe, as do the Church of God members, that corporal discipline is fairly a helpful part of the parenting repertoire.
The case won national attention because television cameras and photographs captured much of the children's apprehension. The youngsters, crying and asking for their Bibles, were taken out of their parents' house by agency workers and local police officers.
What is likely to follow now is that the duelling parties may try to reach a deal which would satisfy the agency that the children won't be spanked with objects again, but would see them remain in their parents' care.
Judge Schnall had originally clamped a series of sweeping publication bans upon the voir dire proceedings, but these were briskly set aside last June by a Superior Court justice. In her brief ruling last week, Judge Schnall gave no hint of how she came to her decision, promising only to release proper reasons soon.
Christie Blatchford can be contacted at firstname.lastname@example.org
© Copyright 2002 National Post
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