Child advocate calls for review of case involving P.E.I. boy sent to Alberta

·7 min read
Marvin Bernstein, P.E.I.'s child and youth advocate, would like to see an internal review of how Child Protection Services staff dealt with the case of a young Island boy.  (Kirk Pennell/CBC - image credit)
Marvin Bernstein, P.E.I.'s child and youth advocate, would like to see an internal review of how Child Protection Services staff dealt with the case of a young Island boy. (Kirk Pennell/CBC - image credit)

Prince Edward Island's child and youth advocate is calling for the Department of Social Development and Housing to conduct an internal review of how child protection officials handled a case that led to a Supreme Court of Canada judgment.

Even if that happens, Marvin Bernstein says, he would still reserve the right to do an impartial review of the circumstances, from the point of view of protecting children's rights.

Back in 2019, the director of child protection ordered a young boy removed from the care of his grandmother in Charlottetown, placed with foster parents he didn't know for four weeks, then sent to Alberta to live with the biological father he had only recently met.

"In my experience, that is highly unusual and wouldn't reflect good practice," Bernstein told CBC News in an interview.

"Because you don't deal with children like sticks of furniture. They're human beings, and you start moving children around and you're really affecting their life trajectory, in terms of setting up a placement and removing a child from a caretaker who for all intents and purposes seems to be addressing the needs and developing a strong relationship with that child."

'What are you doing to the child?'

CBC News is not naming the boy or any of his relatives because he was at one point in the care of the province.

Child protection officials removed him from the maternal grandmother's care while he was at summer camp. The boy in question is now eight years old, and has had only one two-week visit to to P.E.I. to spend time with his mother's family.

Aside from what you're doing to the foster parent or the grandmother, what are you doing to the child, in terms of that disruption without notice? - Marvin Bernstein, child and youth advocate

"Aside from what you're doing to the foster parent or the grandmother, what are you doing to the child, in terms of that disruption without notice?" Bernstein wonders.

Wayne Thibodeau/CBC
Wayne Thibodeau/CBC

The advocate wanted to stress that he knows child protection cases are challenging, "and have an enormous impact on children and families in this province."

He said workers and managers want to do the right thing by children, and need departmental support to do so.

"It's also easy at times to apply hindsight and to speculate in terms of what could have been done and might have been done differently."

Many concerns

But he said the case as described in the Supreme Court of Canada's unanimous written decision on June 3 raises serious issues for him.

Among them:

  • "When a Child Protection agency looks to obtaining an independent, impartial parenting capacity assessment, they shouldn't revert to an assessor or a psychologist or a psychiatrist that has been working with one of the parents," as was done in this case, said Bernstein. The P.E.I. officials backed the opinion of a psychologist hired by the father recommending him over the maternal grandmother, whom the psychologist had never met.

  • "The other piece that was curious was the fact that the department made this determination to support the father without meeting with the father and without introducing the child to the father."

  • "I think we need to take a look at the timeliness of decisions," the advocate said. "There were apparently a lot of delays, getting close to breaching the statutory time limits. Children have a different sense of time. These decisions need to be made more quickly, more expeditiously."

Why not a child custody matter?

Bernstein pointed out that shortly before the child was apprehended by the Child and Family Services division, the maternal grandmother had been recognized as a legal parent, and a different kind of legal proceeding would have been triggered.

It would have been a pure child custody case, not a child protection issue.

"The only way child protection officials or the department could change that was by virtue of an apprehension. So there would have to be serious child protection concerns. That child would have to be at immediate risk in the care of a grandmother to justify that kind of action."

There was never any suggestion that was the case; the court rulings all agreed that the only allegation against the grandmother, and an unsubstantiated one at that, was that she was talking negatively to the boy about his father.

Wayne Thibodeau/CBC
Wayne Thibodeau/CBC

"Once you had a competition between two legal parents, one who was the biological father and the other who was the grandmother, there really was no further need for child protection to be involved in the case," said Bernstein. "It could have reverted to a straight custody application."

Boy had no legal representation

If the case were handled as a custody application, and the department had withdrawn from the proceedings, "then a court could have directed that a child could have legal representation at that age."

That help could have come from the provincial children's lawyer, a position established in 2017 to provide better protection for children at the centre of difficult custody disputes.

"If this were a custody case, then the office of the children's lawyer could have become engaged," said Bernstein. "Because it was a child protection case, they can't.

"So we gotta sort this out … so the child has a voice in the process. We don't have a structure in this province right now to make that happen. Other provinces do."

No comment from former director

Wendy McCourt was Prince Edward Island's director of child protection at the time of the events described in the Supreme Court of Canada ruling. She has since retired.

CBC News has tried to reach her for comment about her actions as described in the ruling, but she did not return phone calls.

Officials with Child and Family Services said they cannot comment on specific cases, when CBC News requested an interview.

But an emailed statement said: "The cases and families that we work with often have multiple levels of complexity and our staff do not take any decisions involving children and families lightly.

"These decisions are not made in silos, they are made with input from those connected personally and professionally with the child(ren) and family and in conjunction with professional clinical judgment that is always grounded in the best interest of the child."

MLAs working on changes

Liberal MLA Gord McNeilly, who chairs the standing committee on health and social development, is among the provincial politicians looking to change some of the structures when it comes to child protection.

"That's a very, very strong ruling, and that makes us look," he said Tuesday. "We have to look at our policies, we have to look at our procedures and we have to look at the next piece of legislation to make sure we're getting it right."

Kirk Pennell/CBC
Kirk Pennell/CBC

He too would like to see a review of the case of the Island boy now living in Calgary, saying: "It's very heartbreaking, it's tragic."

But he said that is based on "just from what I see on the outside."

He acknowledged not knowing all the facts of the case, and stressed that child protection officials "have to make tough decisions" while keeping the child's best interests in mind.

Green MLA Karla Bernard says a rewrite of P.E.I.'s child protection legislation that is now making its way through the draft stage could help prevent situations like this in the future — if it involves enough consultation and input.

Kirk Pennell/CBC
Kirk Pennell/CBC

"When you don't have legislation that is clear and concise, it leaves room for interpretation, it leaves room for people's own biases, for people's own beliefs, whatever, to kinda creep in," she told CBC News.

"So if you've got policy and legislation that is good and solid and strong, the language is good, you're going to make that clear for people, which makes it easier for them to do their job and to do their job consistently every time."

The Department of Social Development and Housing said this case, and others, are helping to inform a legislative review now underway. In a statement it said, "well-reasoned and informed amendments to the Child Protection Act will be brought to the Legislative Assembly for consideration by way of the proposed Child, Youth and Family Services Act this fall.

'Sets a bar'

Overall, Bernstein said the case has left him with more questions than answers.

"I have no authority or jurisdiction to review the decisions of judges," he said. "But I can scrutinize and review the actions of a reviewable service where it's flagged, where it's highlighted by a court.

"This is the Supreme Court of Canada. This kind of sets a bar in child protection matters across the country."

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