A legal battle over the removal of seven siblings from a home will be reprised today as the appeal begins in the Aylmer Church of God case. The case grabbed national media attention in 2001 when Family and Children's Services of St. Thomas and Elgin, without prior approval by a court, seized the children.
The youngsters had been struck with belts, electrical cords and the wire handle of a fly swatter, a family court has heard.
"What if police came into a home, for any reason, without establishing protocol for doing that," London lawyer Michael Menear, who is handling the appeal, said yesterday.
"We are saying the social worker should not have acted without judicial scrutiny, without a warrant to enter the house."
Judge Eleanor Schnall ruled in 2003 the agency acted legally when it took the children for three weeks. However, she returned the children to their parents, with the provision they could not strike the children and had to have supervision from children's aid for six months.
"Social workers have to make decisions in the field, on the spot, and they are subject to review and scrutiny," Steve Bailey, former executive director of the Family and Children's Services of St. Thomas and Elgin, said yesterday.
"The more restriction you put on people enforcing the laws, the greater the risk they cannot do what they are mandated to do."
"Reasonable and probable" grounds are required and subject to review by court, when a social worker acts, he added.
"The society and worker are held responsible if that power is abused," said Bailey.
Menear, however, suggested the ruling demonstrates power unchecked, leaving all parents vulnerable to a social worker.
He will ask the appeals court to rule the child-welfare agency trampled rights when the children were removed.
The appeal also seeks greater clarity of the "standards and process" needed before an agency determines children are in trouble, he said.
The usual test for a social worker seizing children without court approval is "imminent danger" and that was not the case with the Aylmer family, Menear said.
Bailey disagreed, however, saying the court heard there was an imminent danger "of flight," meaning the family would leave.
"The whole system is set up with checks and balances. I like the safeguards where they sit now," said Bailey.
Lawyer Valerie Wise, who is handling the appeal with Menear, has said Schnall mischaracterized the parents' position and misapplied the law.