HTTP/1.0 200 OK Content-Type: text/html The Nanny State
Pubdate: Wed, 27 Feb 2008
Source: North Shore News (CN BC)
Copyright: 2008 North Shore News
Author: Jerry Paradis


Ever thought what it would be like to have your child taken forcibly 
from your home?

Not by kidnappers, but by agents of your provincial government?

Not many people have. However, as an ex-toiler in the vineyards of 
the Goddess of Justice, I would say unequivocally that there is no 
more taxing and challenging job for a judge than deciding the fate of 
a child apprehended by the state. The criminal, civil and other cases 
that come around are very often decided by their facts -- and by the 
lying witness embarrassingly trying to explain away those facts. The 
tough part of criminal work is sentencing; but that, too, is 
circumscribed to a large degree by rules.

But an allegation that a child is at risk in its own home squeezes 
all that is valuable out of the adversary system. There is a 
painstaking examination of the reasons given by social workers for 
the removal of the child; of the objective facts surrounding that 
last resort, often provided by neighbours or otherwise interested 
outsiders; of the explanation given by the parent(s) for the 
appearance of risk to the child; and of the assertions by extended 
family and friends that the parents are good people. All of that must 
be distilled down to three questions. Was the child at risk? If so, 
does that risk continue to exist? And, if so, is it critical enough 
to warrant the state to continue its custody of the child?

Risk, in that context, is often an elusive target. The court (and the 
Ministry of Children and Families) can't simply substitute its own 
view of what constitutes a proper home. Messiness, for example, 
doesn't count -- unless it can be shown objectively to be a threat to 
the health of the child. Strict (or lax) discipline is no sure thing 
either -- unless it has degenerated into abuse (or abandonment). In 
short, everyone involved is extremely careful to measure the risk to 
the child objectively, without injecting their own preconceptions 
about what constitutes good parenting.

Which brings me to legislation passed in Alberta about 15 months ago. 
It is called the Drug-Endangered Children Act -- and it suggests that 
our good neighbours to the east have fallen off the edge of the flat 
earth they live on.

Like British Columbia, Alberta has a perfectly workable statute to 
protect children at risk. It's called the Child, Youth and Family 
Enhancement Act. It is much like all such legislation across the 
country and, as in British Columbia, the general criteria for what's 
called an "apprehension" are that the child is neglected or 
abandoned, deprived of necessary health care or is likely to be 
sexually, physically or emotionally harmed.

So it comes as something of a surprise that the Alberta government 
considered the existing law insufficient to deal with children who 
are at risk because of drugs in their environment. Indeed, they 
considered it necessary in the preamble to the Drug-Endangered 
Children Act to state categorically that "children exposed to illegal 
manufacturing of drugs, indoor cannabis operations, trafficking and 
other forms of illegal drug activity are victims of abuse."

That is as wild a claim as it is unsupportable. But the circumstances 
under which it may be invoked are so broad there is little that can 
be done to counter its stupidity. Although the preamble suggests that 
only the really serious stuff is the object of the Act, a child is 
deemed to be drug-endangered if he or she is "exposed" to illegal 
substances. That's it. Full stop.

There is little doubt that, under existing legislation, finding a 
child in the heart of a meth lab would be sufficient grounds for 
removal from the home. Similarly, existing law would also catch a 
child that is forced to ingest the substances his parents use or to 
actively participate in trafficking. So, also, would the child who is 
being raised by alcoholics who have lost their capacity to nurture 
and protect him or her. Those are all examples of an objective 
connection between risk and the presence of drugs. But there is none 
at all in any number of circumstances where drugs are in the picture. 
The simple fact is, having drugs around -- any kind of drugs -- is a 
neutral factor in a child's well-being.

Abusing drugs -- all drugs, including alcohol, tobacco and 
prescription medications -- or being actively involved in the drug 
market and subjecting your child to the fallout from that activity, 
is what counts. If the preamble to the Alberta Act is to be taken at 
face value, the millions who smoke in their own home, or keep alcohol 
on hand, drink it in front of their children or pass it out to their 
friends (or, god forbid, have a wine-making operation in the 
basement) should be deemed, by that very fact, to be abusing their kids.

It is only the illegality of the drugs, therefore, that underpins the 
statute. That makes as much sense as maintaining that a child is 
abused because its father cheats on his income tax, or its mother 
shoplifted a pair of pants, or both have been known to occasionally 
drive over .08 (with the kid safely at home with a responsible babysitter).

This legislation was enacted by a government all too eager to play on 
the hysteria over drugs. But it's not just a harmless political ploy. 
The Act allows provincial authorities to inflict punishment, both on 
the parents and the snatched child, without anyone alleging that the 
child is really, seriously and, most important, objectively at risk 
because of the presence of drugs. As long as the kid is "exposed," 
that's enough.

The statute is a shameful example of the obsession of elected 
representatives with petty political advantage at the expense of real 
human beings, in this case the parents and children who will 
inevitably be unjustly damaged by its operation.

- ---

In my last column, I referred in error to the attorney-general as the 
"right honourable." He is not. He is an "honourable" (or not).
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MAP posted-by: Jay Bergstrom