Thursday afternoons in the Victoria Provincial Courthouse, Courtroom 203, features the rapid-fire dispensation of justice for families in crisis.
This is where cases involving the Ministry of Children and Families are heard – child apprehensions, supervision orders, continuing custody arrangements. Every case involves children in distress. But the long list of cases and the shortage of legal-aid dollars mean that children are often left in government care, sometimes for weeks or months, before their parents or caregivers have an opportunity to challenge those ministry decisions.
"I have never seen such human misery in all my courtroom days," veteran family lawyer Diane Turner said as she sat outside family court last Thursday.
Ms. Turner is a member of a group of Victoria lawyers asking for help from the broader legal community to donate time and resources to ensure that families have at least a chance to access justice when they need it most. The city's law firms are being asked to commit to take on two or three cases each year.
Last week, Justice Susan Wishart heard three dozen cases in an afternoon session that ran for a little more than 90 minutes.
Some were presentation hearings, where the ministry is required to defend to the court a decision to take children from their homes. But in each case, parents' counsel hadn't had enough time to review the ministry's files. The result was that the child or children were left in government care while the case was put off to a later date. Most cases were handled in two minutes or less.
"You will find people walking in here today without having seen a file or having met a lawyer," said Forrest L. Nelson, who logs countless hours in this courtroom as either duty counsel or a legal aid lawyer. There is little time to second-guess the ministry decisions, and so there is little accountability on those occasions when mistakes are made.
His chief concern, however, is the disproportionate number of aboriginal families who are present in the courtroom.
Between October, 2014, and September, 2015, in British Columbia, 2,802 children and youth were removed from their families and placed in care. (Another 829 were admitted into care through a voluntary agreement, and 269 children and youth were placed with extended family.)
Aboriginal families are in disproportionately high numbers in these ranks. Half of the kids in care are aboriginal – but First Nations people make up only about 5 per cent of the general population. Mr. Nelson believes that is strong evidence that B.C. is not doing enough to support those communities and families before they reach a crisis.
"We heard this in the Truth and Reconciliation report – there are too many aboriginal kids in care. People are confusing poverty with neglect," he said.
The report of Canada's Truth and Reconciliation Commission, released in July, found that across the country, poverty and social stress are major factors in child welfare investigations involving aboriginal families. "The direct connection between aboriginal poverty and high child-welfare apprehensions has been known for half a century," the commission concluded. "Yet, aboriginal children are still taken away from their parents because their parents are poor." The report urged governments to provide more family support and prevention services.
Yet there is no time on Thursday afternoon for Mr. Nelson or other lawyers to question whether there are better, less disruptive solutions to protect these children than seizing them from their homes and families.
The minister was unavailable for comment about the concerns outlined by Ms. Turner and Mr. Nelson.
Mavis Underwood is a First Nations elder who came to court on Thursday to support a young aboriginal mother. Ms. Underwood has played this role many times, filling a gap created when the province cancelled funding for a native court worker.
Ms. Underwood said First Nations communities can and should play a bigger role in supporting families, but there is a deep reluctance to work with the court system. "We don't always have our people coming forward to say, 'I can provide a safe home,'" she said. "It is such an intimidating process, there is a lot of anxiety."
Restoring the position of a native court worker to offer advocacy for families, she said, would help reduce the adversarial and frightening experience for the families who are often not even aware of their legal rights.
Under the Child, Family and Community Service Act, a child can be removed from a home without a court order if ministry officials have "reasonable grounds" to believe the child is in immediate danger, and there is no less disruptive measure available to protect the child.
Mary Ellen Turpel-Lafond, the province's independent watchdog for children and youth, is troubled by the lack of checks and balances placed on those broad powers. Decisions to apprehend children are not being challenged at that first interaction in the courts, the presentation hearing, and she said that is not healthy.
"They [ministry representatives] have won every presentation hearing," she said. "When they walk in to court, they get [approval]. With odds like that, they should be buying lottery tickets."
Ms. Turpel-Lafond said children are not well served when the ministry is not held to high standards. "This then unleashes extreme harm to families and sometimes, in a quite unnecessary way, creates a bigger problem than they were coming to respond to."