Ruling stems from case where social workers took kids

Religious parents said constitutional rights violated
Toronto Star, Mar. 4, 2003

The interests of children take precedence over the rights of parents, an Ontario court judge has emphasized.

“The court has clearly said children’s rights trump parental autonomy every time,” London lawyer Alfred Mamo said yesterday, after Madam Justice Eleanor Schnall released her reasons for upholding the actions of a social worker who took seven children from their home in July, 2001.

Schnall said that while the seizure of seven children from their home two years ago for fear they were being spanked was “very traumatic,” the child welfare worker did not violate anyone’s constitutional rights.

Schnall said Shelley West of Family and Children’s Services of St. Thomas and Elgin County “made the right decision, in law” after the children described how they had been disciplined with objects by their parents, former Mennonites who belong to the Aylmer Church of God.

The children, then 6 to 14 years old, told West of beatings with a fly-swatter handle, a belt and an electric cord that sometimes left marks, though none were visible that day.

“The fact that the parents believe that they strike their children out of love, and that they are obliged to do so because of the teachings of the Bible, as interpreted by their Church, does not detract from the view that excessive force cannot be condoned, under any circumstances,” Schnall ruled.

“Application of force to a child that leaves a mark is unacceptable.”

Apprehending the children turned into a public-relations fiasco for the society when about 100 church members surrounded the home and police carried out the kicking and screaming children.

The parents claimed their constitutional rights were violated because West did not allow the mother, who spoke Low German and no English, the right to obtain legal advice and because their permission was not given before police videotaped interviews of the children.

The society went to court seeking a year-long supervision order. Lawyers for the parents asked Schnall to exclude the society evidence because it was obtained unlawfully.

Schnall, who heard the testimony in May and June last year, issued a decision in October stating the evidence is admissible, but did not release her reasons until yesterday.

Mamo said a key element of her ruling is that protections provided under criminal law — like the right to a lawyer or against self-incrimination — do not apply in child welfare cases.

Of the argument that parental permission is required before police interview children, Schnall said it would be “sheer nonsense” for consent to be required from a parent suspected of abusing a child.

Lawyers for the parents refused comment yesterday.

The family’s pastor said the judgment ignores the harm to children caused by cases where social workers make mistakes.

Rev. Henry Hildebrandt found Schnall’s ruling “alarming” because she notes an apprehension in any case might be very short, with a judicial review required within five days.

“She’s justifying an apprehension, no matter how traumatizing it is,” he said.

Hildebrandt rejected criticism in Schnall’s ruling that he “orchestrated” the chaotic scene outside the family home and cultivated media interest.

“I had nowhere else to turn,” he said yesterday. “If it hadn’t been for the public involvement in this case, we’d have achieved nothing.”

Hildebrandt and society executive director Steve Bailey agreed yesterday that relations between the society and the church congregation have improved, with one Church of God family now approved as a foster family and a mentor for others in the congregation.

The children, who were placed in foster homes for three weeks after the apprehension, have been home since then, under an agreement that prohibits corporal punishment.

The case returns to court May 25 for a continued trial to decide whether the children are in need of protection.

Mamo said negotiations between the society and the parents may result in an agreement on the length and terms of the supervision order.

In that case, Schnall would be asked to approve the settlement and no further hearing would be required.

Though known as the “spanking case,” it centred more on the powers of child welfare workers.

The issue of whether corporal punishment is permissible is to be heard by the Supreme Court, probably this fall, in a challenge of a Criminal Code section that allows parents and teachers to use reasonable force for purposes of correction.

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