The Motherisk bombshell caught many of us who work in child protection off guard. For years, children were removed from their families based on flawed hair testing for drugs and alcohol at the Motherisk lab at the Hospital for Sick Children.

According to a report issued by a commission tasked with investigating the saga (full disclosure: I was outside counsel to the commission; the views expressed in this column are my own personal views and are not, in any way, the views of the commission), Motherisk test results had a "substantial impact" on the outcome of 56 cases. The process was "manifestly unfair and harmful," according to the commission, but since many of the children have been adopted out to other families, there is no simple way to remedy the situation.

Though many of us were stunned that such an injustice could have manifested for so long, in retrospect, it should have been no surprise at all. For years, fundamental procedural protections for parents have been eroded in favour of efficiency, at the expense of fairness. When this happens, it should be no surprise to anyone that something like Motherisk could occur.

Respecting procedural safeguards

There is a major power imbalance between an impoverished parent (we know that families of low socio-economic status are hugely overrepresented in the child welfare system) and a state agency. To guard against such an imbalance, it is critical that our legal system respect the time-tested procedural safeguards developed to specifically ensure that the disadvantaged party is treated fairly.

Yet according to the Motherisk report, these safeguards were ignored. The report describes a litany of procedural injustices perpetrated on parents: parents were pressured to consent to testing; were not informed of their right to reject testing; they had adverse inferences drawn against them when they rejected testing; they were required to prove the unreliability of testing instead of the other way around; and they were refused the right to cross-examine Motherisk "experts" at summary judgment motions.

The Charter of Rights and Freedoms guarantees procedural fairness when the state interferes with fundamental personal rights, such as the right by parents to care for their children. Ironically enough, the issue of taking body samples (such as hair for testing) without proper consent for the purpose of criminal investigations was found to be an infringement of the Charter 20 years ago by the Supreme Court.

It is unconscionable that these protections are available to accused persons, but were never considered applicable to parents at the mercy of child protection services.

There is nothing new about the commission's finding that many parents were explicitly or implicitly told that there would be negative consequences if they did not undergo hair testing. In fact, this type of coercive action continues to happen: parents are often given messages that if they do not consent, for example, to a finding that the child is in need of protection, that there will be negative consequences. For example, they may be prevented from bringing further motions, or — more damning in CAS work — labelled as being "uncooperative."

One would have thought that post-Motherisk, we would want parents and children to have more procedural protections and safeguards, and yet, it looks like the opposite is happening again.

In the wake of Motherisk, children's aid societies have continued to emphasize working with parents outside of court on a "voluntarily" basis, which might include parents giving up their children to the agency under a temporary care agreement. These agreements are usually signed without lawyers and circumvent the court, which is the only place the powers of the CAS can be kept in check.

To me, Motherisk is a symptom of a larger problem in child protection work. The Motherisk scandal came about because of the failure of the legal system to protect parents and families. Somehow, we have forgotten that the desire to do good cannot be done at the expense of rights violations.

The balance between protecting children from the risk of harm and protecting parents' and children's basic rights to fairness is a challenging one. It is easy to fall too heavily on the side of overriding a parent's rights in favour of efficiency and expediency. But to ensure that something like Motherisk never happens again, it is something to which everyone involved in child welfare — lawyers, judges and caseworkers — must strive.

Tammy Law is a lawyer practicing in child protection, family and criminal law in Toronto.

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