Child protection escaping legal aid cuts no reason to celebrate | Tammy Law
Monday, February 03, 2020 @ 12:56 PM | By Tammy Law
The general sentiment was that even prior to these cuts, the legal aid system was one on the verge of collapse — with many lawyers already subsidizing out of pocket to ensure that their clients were served, devoting hundreds of hours of unpaid time every year to assisting clients. Now, after the cuts, we heard how different lawyers were managing the aftermath: some of us now refuse or drastically reduce our legal aid work; others openly questioned how clients would be served under the new model. It was a hard discussion for all of us.
As the child protection representative on the panel, the situation felt particularly ironic. On its face, child protection certificates largely avoided many of the deep cuts that were visited on other areas of practice. I should have been grateful for this reprieve. But in actuality, it felt perverse to be celebrating the maintenance of a status quo that for years has been widely acknowledged to be inadequate.
For example, in the recent report of the Motherisk Commission, the inadequate funding of child welfare defence work was noted to be a contributing factor to the systemic overreliance on unreliable hair-strand testing, which led to miscarriages of justice.
The significant underfunding of child welfare has led the parents’ defence bar to raise serious concerns that parents were losing children to the state without their lawyers having the ability to mount proper defences. Judicial commentary has noted the lack of funding that plagues child protection defence work.
The stakes are extremely high in child welfare: the removal of children permanently from parents has been described as the “capital punishment” of child welfare. The child protection system has been widely recognized as a system that disproportionately impacts women and children. Yet, the seriousness of those statements are not matched by funding.
As an example, a report, titled Inquiry into Pediatric Forensic Pathology, was released in 2008 by Justice Stephen Goudge. In that report, Justice Goudge recommended that complex case rates be provided to child protection and criminal counsel (and their experts) in cases involving scientific evidence. This was recognized as an incentive to encourage the development of expertise in the child protection bar and also to allow experts from outside of the jurisdiction to provide defence evidence.
To this date, more than 11 years after that report was released, complex criminal cases benefit from a complex case rate; child protection cases do not. It is unclear why not. But what is clear is that the development of a specialized bar in child protection, as envisioned by Justice Goudge, that is able to properly defend parents in cases involving complex scientific and medical evidence has not occurred.
The examples do not stop with the Goudge report. For years, our clients had their children permanently removed through a civil process known as “summary judgment.” Although the Supreme Court has extolled the virtues of these more “efficient” hearings, what happens in practice is the removal of children from parents without oral evidence or trials.
To add to that state of affairs, these motions are often voluminous. It is not atypical to receive multiple phone-booked sized volumes of evidence on summary judgment motions that parents’ lawyers need to respond to. Sometimes this evidence would include expert reports. The legal aid tariff for this very important procedure? An additional 8 hours. Most of us spend well in excess of this number of hours just reading the materials, let alone responding to them.
Yet, we are told, child protection lawyers should feel thankful that we were not cut even further to the bone. After all, we got to keep our status quo, inadequate as it was. As I sat on the LEAF panel, listening to how legal aid has been devastated in other areas, I could not help but agree. For once, child welfare had won the ticket. We were losing the race to the bottom of the legal aid barrel! The perversity of celebrating this achievement was not lost on me.
The word “revolution” was used by some on our panel to describe what needs to be done to ensure a properly funded legal aid system. It is an apt word to use. As a profession, we need to revolutionize the way we see legal aid. Unfortunately, too many of us see a properly funded legal aid system as a “good to have.” It goes beyond that. It is a necessity.
As a child protection lawyer, I know just how much an underfunded system can lead to terrible outcomes for my clients. My clients won’t achieve family reunification if they, for example, are unable to make bail, are unable to afford rent or are at risk of being deported. Having unresolved legal matters adds obstacle upon obstacle for my clients. Gutting the system that helps with these legal matters is not something my clients or their families can afford.
The health of our legal aid system is intimately intertwined with the ability of child protection clients to keep their children and this is also why we do not celebrate when other areas are cut. I hope that the rest of the profession can also join us in our call to not only restore, but inject adequate funding into our legal aid system.
Tammy Law is a family and child protection lawyer in Toronto. She is the current president of the Toronto chapter of the Ontario Association of Child Protection Lawyers.
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