July 30, 2007
On Friday, July 27, 2007, the Supreme Court of Canada ("SCC") released the much anticipated decision in the case of Syl Apps Secure Treatment Centre v BD, [2007] 3 SCR 83. The SCC considered whether a new duty of care should be imposed on a treatment centre and its social workers to the family members of a child ordered by the court to be placed in the treatment centre.
Since this case has been discussed in blogs by Julian Ho and Eric Baum on May 3rd and July 26th, 2007, respectively, I will bypass the factual circumstances and delve directly into the SCC's decision and analysis. In a 9-0 unanimous ruling, the SCC allowed the appeal by Syl Apps and Douglas Baptiste, finding that no legal duty exists toward R.D.'s family by the treatment centre and its social workers, and thus the statement of claim against Syl Apps and Baptiste disclosed no reasonable cause of action. In arriving at this conclusion, the SCC explained that in order to establish such a duty the test developed in Anns v Merton London Borough Council, [1978] AC 728 (HL) [Anns] must be satisfied. In order to satisfy this prima facie duty of care test, the harm must be reasonably foreseeable; there must be a relationship of sufficient proximity between the plaintiff and defendant; and there must not be any residual policy considerations for not imposing the duty.
The alleged "harm" is that the treatment that R.D. received rendered her incapable of being reintegrated back into the family. The first branch of the Anns test, reasonable foreseeability, is not considered by the SCC, as the parties agreed that it was not in dispute. The problem surfaces with the second branch of the test, the relationship of proximity between plaintiff and defendant. The family argued that ss. 1 and 37(3)5-7 of the Child and Family Services Act, RSO 1990, c C.11 and court orders recognizing the importance of the family unit form the basis of a relationship of proximity. The SCC, however, on examination of this statute, determined that while the legislation does reference family, the Act focuses on the promotion of the best interests of the child, rather than that of the family. Abella J., for the SCC, explains:
The statutory references to parents and family in the Act, which the family seeks to rely on to ground proximity, are not stand-alone principles, but fall instead under the overarching umbrella of the best interests of the child. Those provisions are there to protect and further the interests of the child, not of the parents and therefore, in my view, cannot be relied upon for finding a relationship of sufficient proximity.
Thus, while the views of a family are not irrelevant, it was determined that their "wishes are entitled to less deference than the child's best interests." The family also argued that s. 2(2) of the Act places obligations on the providers of services to ensure that the voices of both the children and their parents are heard; the SCC concluded that this does not merit the finding of proximity, as these are essentially procedural rights. Further, a duty of care owed by the child's court-ordered service providers to the family may result in conflicting duties, as the provider's supreme duty is to guard the best interests of the child in their care. A further potential conflict may exist in the medical realm. Syl Apps and Baptiste provided treatment services to R.D, which involve obligations of privacy and confidentiality.
The SCC found problematic the family's use of court orders to ground a proximity claim, as the court had never ordered R.D's reintegration back into her family. A child's treatment may very well be a success even if he or she does not return to his or her family. Further, not only does the Act provide options to families who wish to challenge the way their child is treated, but workers in the child protection field are clearly legislatively protected from potential liability stemming from the good faith exercise of their statutory duty. This is present in s. 15(6) of the Child and Family Services Act, as well as s. 4(3) of the Ministry of Community and Social Services Act, RSO 1990, c M.20 and s. 142 of the Courts of Justice Act, RSO 1990, c C.43. This legislative policy and immunity confirms that no relationship of proximity exists between the family of a child receiving care and the individuals ordered by a court to protect the welfare of that child. Thus there is "no basis for recognizing a prima facie duty of care towards the family on the part of the Syl Apps Secure Treatment Centre or Mr. Baptiste."
As explained by Abella J. in paragraph 64 of the decision,
Child protection work is difficult, painful and complex. Catering to a child's best interests in this context means catering to a vulnerable group at its most vulnerable. Those who do it, do so knowing that protecting the child's interests often means doing so at the expense of the rest of the family. Yet their statutory mandate is to treat the child's interests as paramount. They must be free to execute this mandate to the fullest extent possible. The result they seek is to restore the child, not the family. Where the duties to the child have been performed in accordance with the statute, there is no ancillary duty to accommodate the family's wish for a different result, a different result perhaps even the child protection worker had hoped for.
This decision serves as a victory for the Canadian child welfare system, as court-appointed service providers for children in need of protection will now be able to perform their work-related responsibilities without fear of litigation. More importantly, this judgment confirms the primacy of the best interests of the child and recognizes the potential for conflict if dual duties are owed to both the child and the child's family. While the wishes and interests of a family are certainly not inconsequential, ultimately, the primary focus in any similar circumstance, should be the welfare of a child. If a new duty to the family of a protected child were to be recognized, this could well compromise a service provider's ability to achieve an outcome which is in the best interests of that child.
4 Comments
It is a common criticism of "stakeholder" models of corporate law that, in making directors liable to employees, creditors, and community groups -- in addition to their liability to shareholders -- the models, in the end, make directors answerable to no one. Directors, by playing one interest off another, would actually be less constrained and less accountable under the more nuanced view of stakeholder liability than they are under the present regime.
The Syl Apps case addresses the same problem: should welfare agencies have to balance the potentially conflicting interests of the child and the family? As you point out, such a duty would compromise the service provider's ability to achieve a good outcome for the child.
Moreover, if the court had been willing to find such a duty, the unintended consequence could be the exact opposite of the plaintiffs' goal of an accountable children's welfare system. Based on administrative law principles, courts might be more willing to defer to child welfare agencies engaged in the complex task of balancing family and children's interests, and the well-developed case law on the "best interests of the child" would suddenly be meaningless. The service provider would have near-unlimited discretion to determine how the interests of all parties should be balanced.
This decision, by making the duty clear, preserves both the best interests of the child and the accountability of service providers.
The interests of the child are indeed paramount and not those of welfare agencies or families.
It seemed that when the welfare agency's priorities clashed with those of the family, a third party arbiter who researches all the circumstances could have solved the problem.
This was actually done in this case by the Halton police, which investigated the family, also found that the child's essay was fictional, and in consequence did not proceed with laying charges against any member of the family.
The welfare agency, at that time had the duty to return the child to the safety of the family, which as was proven by subsequent events, would have served the child better than placement with a foster family.
Independent mental health professionals at the time offered the same opinion.
As with the Maher Arar case in a different context, allowing officials to keep things secret, does not always serve public interests.
This decision is a load of crap. It essentially says that child agencies are self appointed gods and are accountable to no one. Unfortunately the Family Law System in this country and the judges and lawyers that comprise it are NOT interested at all in the 'best interests of the child'. They are interested only in furthering the best interests of the Divorce Industry of which they are a large part.
The whole issue of the "best interests of the child" seems a tangled one to me. Reading about this case made me go back and look up the decision in Eaton vs. Brant County from about 1997, which was different but had some similar underlying themes about who has the right to make decisions about the child and what is best for him or her. In the Eaton case, too, the Supreme Court determined that the procedures in place were protective of the child's rights and that the family should not always be the final arbiter. From time to time I have heard the possibility bandied about of having an official advocate for children, perhaps in such highly contentious cases as these -- someone appointed to be solely responsive to the needs and interests of the child and not the family or public bodies or agencies. Can you advise any of us laypeople where this initiative stands now? Is there such a position in effect, or in the planning stage?