28 November 2011

Habeas corpus for kids #nlpoli

Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.
Matthew 25:40, Authorised Version
Open line show host Randy Simms had an interesting idea last week.

Speaking with child, youth and family services minister Charlene Johnson, Simms suggested that in cases where the department takes custody of children, it ought to appear before a judge within 24 hours to justify its action, at least temporarily.

Johnson didn’t really have a direct answer for Simms.  In fact, she didn’t offer a good reason why the province’s child protection laws shouldn’t include such a provision.

Instead, she relied on the talking points officials in her department prepared for her to use in every case.  The officials in her department always act in the best interests of the child and that these things are complicated.

Neither of these actually rebutted Simms’ suggestion.  They’re just stock lines Johnson got from her officials.
And when Simms persisted in talking about cases of families torn emotionally – sometimes without good foundations -  Johnson fell back on the old chestnut of bureaucrats:  “if only you saw all the nasty cases that I can’t tell you about because of privacy, then you’d understand why you are wrong.”

Johnson’s argument is based entirely on the patronising, condescending attitude of the technocrat. We know better.  And if only you knew what we knew, you would agree we are better able than anyone to make decisions about everything.

It is an arrogant point of view.  And it is one that constantly shields the bureaucrats who use it from any pangs of human emotion  - like say compassion or guilt – over the [sometimes disastrous consequences of] their decisions.

They can never be wrong.

By definition.

Whatever they do is right.


Even if it is wrong.

And any sort of oversight, like say having to justify to a judge the decision to forcibly remove children from a home would  - basically - be wrong.  Such a situation would  leave the decision to an inferior being or at the very least a being in an inferior [position] to oversee something they are not equipped intellectually and morally to comprehend.  Only the officials have all the information.  Only they know what is going on and, as Johnson, said a couple of times, her officials always do what is in the best interests of the child.
Not what they believe or think is in the best interest.

What is in the best interests.

And so the judge simply isn’t properly qualified to make such decisions.

What Simms was arguing for was a child’s version of what adults in common law countries have enjoyed for a couple of centuries.  Used to be that the king’s agents could snatch people and throw them in a dungeon. The same sort of thing happens these days in some countries.  They call it being disappeared, pretty much a literal translation of the Spanish used by the families of people the Argentinian junta decided were dangerous.

The idea evolved that people ought to be able to apply to a judge for an order that compelled the state officials to show that any person they held in custody was lawfully there.  They had to produce the body, so to speak.

Under the Constitution Act 1982, the Canadian Charter of Rights and Freedoms provides that everyone “has the right on arrest or detention…(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”

Now the lawyers out there will right away be squirming at the notion that a child taken into custody under laws about the child’s safety and welfare are not the same as laws about arresting adults who may be guilty of crimes.

But just think about Simms’ idea for a second. What he was basically saying was that when the state and its officials decide to intervene in a family, they ought to have their information ready to go at the moment the child is taken away.

Within 24 hours of an intervention, child welfare officials should be able to stand in front of a judge and present the evidence they used to justify their actions.

The most recent version of the province’s child protection laws allows provincial bureaucrats to take custody of a child without a warrant if they believe the child is in danger.  They have 24 hours to tell the  parents of what the officials have done and why.

The officials also have 24 hours to apply for a warrant from a judge but the hearing for that warrant doesn’t have to happen for up to 30 days after the government officials take custody of a child.

On the face of it and in light of the repeated failures of the province’s child protection system, it seems reasonable that the law should provide not only clear direction on how state officials could take custody of a child but also give some restraint on that power.

Judicial oversight within 24 hours would seem to be a suitable restraint.

It would seem to be a reasonable idea, given that the provincial legislature these days operates more as an arm of government rather than the place where government itself has to justify why it wants any sort of powers at all.   The same people who rubber stamped the expropriation fiasco in a single afternoon in December 2008 passed the child protection bill in the matter of a few hours of debate in the legislature 18 months later. Legal measures that affect rights – whether property or personal – don’t often get the sort of scrutiny they should in this province.

So couple a government that comes equipped with a seemingly endless capacity for self-serving rationalisation with the ability to give itself whatever powers it wants without much hindrance, and you can see that Simms’ idea for judicial oversight might be worth some consideration.

Call it habeas corpus for kids, but really the principle at stake is one that applies to us all.  The measure of a society is how it treats its weakest and most vulnerable.

- srbp -

Edited to add missing words [in square brackets] and delete redundant ones.