Failure to Protect: Institutional Oppression as a Social Norm in Child Welfare Services
Generational socioeconomic divisions are maintained by oppressive systems of power.
Institutional Oppression as a Social Norm
Having been on both sides of the Ontario child welfare system and Ontario Superior Court Family Division as an institutional care survivor, former child protection worker, and foster/adoptive parent, I am in a unique position to discuss how the system fails the people who need our support and protection the most. In this article, I will attempt to show how, in a social welfare system crippled by intentional political attrition, our jurists and the court act as an instrument of oppression.
Like any ideology, the common law system used in Canada, the UK, and the United States is an adversarial system of ideas that relies on a few basic assumptions about reality that may or may not have any factual basis. As an ideology of power, the common law system conceals social contradictions in the ruling class's interest by falsely presenting the law as impartial and detached. In simple terms, the law is the exercise of power obscured by the illusion of impartiality and due process. Proof of this exists in the form of biased precedents that disproportionately favour wealth and power and through history with repeated examples of legalized oppression e.g. apartheid in Africa, the holocaust in Germany, Jim Crow in the United States, and residential schools, cultural genocide, and disability euthanasia in Canada.
Child Protection Workers: Sheep in Wolf’s Clothing
I didn’t get the phrase backward, a sheep in wolf’s clothing is a sheep forced to behave like a wolf. No social worker or family counsellor I’ve ever known has entered the field of child welfare expecting to do some of the oppressive things the job demands. Some, maybe most, don’t even understand or realize the damage they’re causing as they cause it. It is hard to recognize and understand oppression if you have never been subjected to it.
One of the most enlightening things I learned in university and child protection worker training was how to recognize my own bias and not impose it on others. I was taught to recognize that Canada and Ontario are a community of many cultures and traditions that deserve to be valued and respected and to make whatever efforts we could as social workers to not impose dominant eg able-bodied, rich, white, westernized beliefs and standards onto the families we serve. Unfortunately, this training is poorly translated into practice due to a damaging divide in child welfare caused by political forces, attrition and oppressive legal requirements inside the corridors of power that are fundamentally contradictory to the spirit and ideals of anti-oppression social work practice.
With names like Child and Family Services, Family and Community Services, or Children’s Aid, it is easy to think of child welfare agencies as child and family-friendly organizations. However, in reality, child welfare agencies in Canada and the United States are less social service agencies designed to help families in need and more social work-informed law enforcement with a mandate to uphold arguably oppressive “child protection” laws that sometimes harm children more than protect them. On the job, one of the big frustrations most child protection social workers share is how the dual role of social worker and law enforcement officer damages rapport and trust with client families.
Like all policing services, child welfare law enforcement culture is guided by oppressive legal requirements, social stereotypes, and bias. While only judges have the power to sever parental rights, without transparency or accountability child welfare agencies as a branch of state power have tremendous freedom in how they exert pressure on parents and family’s before the courts become involved and also have an unfair advantage through an adversarial legal process that favours wealth and power. The social work component is there with social workers who go into it with an honest intention of helping every child and family they meet; unfortunately, what they don’t know going in is that the legal system is not designed to let them do good anti-oppression social work. These agencies' child- and family-friendly names trick university graduates looking for work just as much as they trick the public.
Entering the field of child welfare, I honestly thought that as a university-educated foster care survivor I could make a difference; upon leaving the field years later, I understood why the system failed me as a child and why I couldn’t use my life experience and formal training to make things better for others.
Full Circle: Observations from the Inside
One of the first things I noticed when I started working as a child protection worker was the hierarchy of social cliques and power that saw popular bullies rise to the top and good social workers burnout and leave. At any given point in time at my office in West Toronto, at least 25% of the staff body was out on sick leave and the average time to burnout was only 18 months. Before my six months of child protection worker training had even been completed, with a caseload of 34 high-risk families, stressed out and frustrated by the sheer impossibility of the job I began to think about and investigate why the system was so poorly designed and run.
After witnessing a few head-scratching decisions made by upper management and judges, I began to ask myself why people in positions of power would intentionally promote damaging outcomes and what would change if the system worked as it should. Then one night, about a year and a half into the job, it just came to me that it was designed that way on purpose. It just made sense that the ridiculous caseloads, lack of social resources and pressure exerted on child protection workers are politically by design as it ensures protection of the power status quo by directing cases through the legal system while removing the time and freedom necessary for good and meaningful social work or social activism. The more I thought about it the more it made sense that a properly funded system of social work that was effective at empowering people would create meaningful social change in a manner that could threaten the balance of wealth and power. To those in power who control the purse strings, this is unacceptable. Once I figured that out, as someone who wanted to help empower the families I served, I felt useless and discouraged, like I was working with both hands tied behind my back.
In my five years on the job, there were many times my supervisor advised me against rocking the boat to help the children and families I was there to serve in good faith. I understood that she was looking out for my professional best interest, but looking the other way or accepting less-than-reasonable arrangements to appease power wasn’t something my conscience informed by living in foster care could let me do. Every child on my caseload was my child, and I loved and valued them as such.
While professional distance is important to professional longevity, it can’t be allowed to erode one’s conscience or moral responsibilities. No matter the consequences or rewards involved, right is still right and wrong is still wrong. Modern arguments that use amorality as an excuse to cut corners or do profitable wrongs are a dangerous spin contributing to generational damage and our social decline.
The Living Spirit of Colonialist Oppression
Forcing child welfare professionals to put advocacy and empowering support aside as social work goals, the primary limitations that control how a child welfare agency operates include funding, the legal process, and judicial direction. Generational oppression happens because it is much easier to justify a child welfare agency’s mandate and funding by removing children from poor families than it is to do the job properly. This is reflected in the disproportionate removal and placement of indigenous children, children of colour, children of single mothers or children of disabled single parents; all of whom are more likely to face poverty as a result of historical systemic oppression.
The opposite is also true, given the wealth-favouring nature of the adversarial system, it can be cost-prohibitive to legally protect the abused or neglected children of wealthy and influential parents. Unless one believes that the size of a parent’s bank account or the colour of their skin has a direct relationship to their character and innate parenting ability (it doesn’t), the disproportionate lack of white, affluent children in foster care tells us there are probably children out there being denied adequate protection from neglect and abuse.
Too often, the result of program cuts and political attrition is that poor families who could and should have been supported were, by legal necessity, demonized by the adversarial nature of family law that promotes winning and profit over seeking truth and justice, essentially feeding them into a legal meat grinder.
Basically, as agents of state power, when we failed to identify and address the often oppressive reasons for family breakdown for the sake of expediency, we were directed by management and legal services to unfairly place the entire circumstantial onus on the parent and go to court to argue the parent could not meet the expensive standard of care set out by law and it was in the child’s best interest to be removed. Worse, where parents had disabilities, were aged, or practiced cultural traditions that were questionable to the court, the result was frequently a complete denial of due process as matters could be decided on stereotypes and bias in summary judgment. It was evident in some cases that we were not only failing to help break damaging cycles of abuse and poverty but were contributing to a larger generational cycle of damaged families. As someone damaged by the child welfare system, I found this both infuriating and deeply damaging to my sense of moral justice. I fought as hard as I could against this but in the end, accomplished less than I would have liked while adding reprimands to my human resources file. I learned the hard way that in the political world, moral courage isn’t worth much but comes with a very high price tag.
To me, it always seemed rather perverted and morally corrupt that a system of power that creates oppressed populations should then use the negative outcomes of prolonged oppression as a justification for punishment and further oppressive damage to that population.
In simple terms, we starve people until they act out in desperation and hunger and then label them criminals so we can justify our actions and blame the victim for our oppressive laws and actions. It is a twisted and cruel circular logic that keeps the balance of power and wealth where it is. It’s not enough to determine if a parent can care for a child within a specific snapshot in time; we have to understand the context and determine whether it is something that can be reversed with support and restorative justice. The damage caused to a child by the loss of a primary attachment or cultural identity is too significant to justify our falling back on pragmatics or expediency. Where children are concerned, good enough is not good enough. In an indeed just system, we ought to address the underlying oppression, be it sexism, racism, or ableism, to empower these families to stay together so that children might grow up with a strong cultural identity and a critically important sense of belonging. The reality is that without significant legal and judicial reform child welfare cannot be relied upon to protect children from the issues of generational oppression and class division that are the greatest real danger to disadvantaged families and children in Canada.
The Law as an Instrument of Oppression
Driving oppression in Canada’s legal system is an adversarial system that promotes winning and profit over seeking truth, justice and meaningful solutions to social problems. It is a system that prioritizes profitability and wealth protection through cognitive bias, misinformation and power imbalances rather than child-focused solutions.
If we look at the people who decide the legal curriculum in law schools and make up our legal system and courts, it is clear that both are made of a privileged and elitist cross-section of society. From law schools up through every level of court across the nation, elitism, classism and the many other forms of status quo discrimination that stem from classist and exceptionalist thinking, continue to be taught, encouraged and made the punchline of elitist humour over drinks behind closed doors.
I went to York University and spent quite a bit of time at Osgoode Law School (I liked the atmosphere), so I saw and heard firsthand how law students were among the most obnoxiously smug and elitist to be found anywhere on campus. I worked in the family courts and consistently overheard lawyers and Superior Court judges speaking in the most grossly elitist and exclusionary language imaginable. Those born into privilege, especially those who enjoy power, frequently have this unrealistic belief that their life experience and world view is the same for everyone and that any variation must be due to individual choice or character flaw. Given their position of power in our society, it is not enough to excuse such errors as unavoidable misattribution bias. Even if they aren’t directly oppressive, these privileged ignorami perpetuate oppression by refusing to believe it exists. If I can’t see, understand or experience it myself, it’s not a real thing is a poor excuse for seriously harming people for whom oppression is a very real thing.
Given the cost and admissions requirements of law school and the culture within, it’s no surprise that such a prestigious and wealth-generating profession promotes a spirit of exceptionalism, producing graduates who genuinely believe they are better and more deserving than others (and certainly more deserving than anyone impoverished through poorly understood oppression). We have to expect that such a wide divide in class membership inevitably legitimizes oppressive stereotypes and promotes divisive norms. Impartiality and objectively are not possible in a system of power that lacks transparency and public accountability such that the more closely a litigant resembles the judge’s values and worldview, the better for them and the less they resemble it, the worse for them as they are unfairly judged to be inferior. Consistently disproportionate outcomes prove this to be true, yet nothing changes while we talk circles around the issues year after year after year….. The more we talk about anti-oppression and equitable social reform, the less we do about it.
Overwhelming resistance to reconciliation and resignation after resignation from the Truth and Reconciliation Commission proves we are far from a meaningful change in Canada. I’ll believe reconciliation, anti-oppression and human rights movements are real in Canada when I see substantive changes in the law, courts and other institutions of power. Those in power drive the oppressive divisions between us, and until we collectively rise to challenge them directly, nothing will change. Talk is cheap, and deeds speak.
Alternatives to Colonialist Power
By its very colonialist warlike nature, the adversarial system promotes using the legal system as an instrument of oppression. In fact, with its origins in the British common law, the adversarial legal system used in Canada is a continuing presence of colonialist British force in Canada that maintains the ongoing oppression of Canada’s indigenous and other vulnerable populations coast-to-coast every day. Given the overwhelming resistance and numerous council resignations, it should be clear to everyone that Canada’s reconciliation process was little more than a failed apology combined with a political spin. If we want to respect the First Nations people of Canada and build a genuinely inclusive, just and free nation, we must leave the commonwealth and British common law behind and move to a more respectful and fair form of justice in a more inclusive and progressive post-colonialist Canada.
In the case of child welfare and family law, the adversarial system is harmful to children and families as it brings out the worst in people by encouraging war between parents or families and the state giving an unfair advantage to the wealthier and more powerful party at the expense of children’s wellness and development. Using an adversarial system is also unnecessary, as there are far better systems for the fair and impartial administration of family justice that can better control the influence of cognitive bias, errors of evidence and imbalances of power. Most notable is the inquisitorial system used today in France, Germany, New Zealand, Italy and Austria which offers a very workable and reasonable alternative. The difference between adversarial and inquisitorial systems is one of war versus a fair examination of facts. The adversarial system aims to solve problems profitably through a war of ideas between the parties. In contrast, the inquisitorial system generally aims to get the truth of the matter and seek meaningful solutions through extensive investigation and examination of all evidence.
The problems with child welfare have always had less to do with child welfare agencies and more with oppressive legal and political power systems.
For all the reasons above, I believe that a more accessible and diverse law school admission process with policies and curriculum that actively challenge elitist and exceptionalist thinking combined with a trauma-informed family court based on the inquisitorial system would do more to improve child welfare and protect children than anything else we could do.
Ten Advantages of an Inquisitorial Family Law System
1. It reduces the advantages of wealth within the justice system.
The people who have the most money in adversarial systems typically experience a more favourable outcome when compared to those who must use legal-aid attorneys or represent themselves during a proceeding. The inquisitorial system eliminates this benefit because the judge in the case can investigate and be directly involved, just as law enforcement and lawyers do. The examples of wealthy defendants receiving preferred outcomes in Canada are too numerous to list. Adversarial systems divide justice into two systems, one for the rich and the other for the poor, perpetuating generational injustices. Switching to an inquisitorial family law system is likely the best change we could make for children and families across Canada.
2. It reduces emotional judgments against people
The adversarial system allows using bias, emotional manipulation, perjury, stereotypes and information without context to inform decisions. By contrast, the inquisitorial justice system offers a defence against biased or emotional decision-making processes by including the judge in the investigation to determine the facts of a case so that decisions are based on logic and fact instead of feelings and beliefs.
3. It reduces bias within the system of justice.
The inquisitorial system involves more people within a legal case, so there is a diversity of perspectives brought in to review the facts and circumstances. This process eliminates some of the biases that can occur in adversarial systems. With more eyes and minds examining issues, an inquisitorial system allows for facts rather than biased opinions or talented spin to determine outcomes.
4. It is a system which does not exempt anyone.
An inquisitorial system ensures that no one receives special treatment, as zero exemptions are offered under this design. Everyone gets asked the same questions when they have a case presented before the court, whether homeless people or politically influential corporate executives. The truth of each answer is then verified to see if there is any relevant context to apply to the situation.
5. It is a system which features independent review.
The inquisitorial system requires corroboration of facts between all investigating parties and the judge. This is a type of independent review that further ensures the accuracy and completeness of facts over the gut feelings bias and stereotypes more typical of adversarial systems.
6. It must resolve all factual uncertainties before coming to a resolution.
The inquisitorial system is a system of a continuous investigation conducted first by the child welfare authorities or police and then more extensively by a judge who serves as the lead investigator. The government mandates the judge or judges placed in this role to exhaust every effort to settle any factual uncertainties.
7. It allows the judicial system to play a substantial role in the proceedings.
A major advantage of the inquisitorial system is that the court becomes an active participant, significantly reducing the chances that decisions are made on incomplete, misinterpreted or false information. This provides a more balanced and fair process since neither side can effectively play the judge.
8. It makes a distortion of evidence easier to detect.
The inquisitorial system makes it much easier for misrepresentations, exaggerations, or other evidentiary distortions to be detected because additional investigatory groups are involved in the proceeding. The court can find these dubious practices and then dismiss them, allowing everyone involved to look at the facts first. There is no reason to look for “creative arguments” because the focus remains solely on the facts and seeking meaningful solutions.
9. It balances out the availability of resources.
In the adversarial system, a child welfare agency has access to a full suite of government resources and services. They represent the state, meaning the monetary and research resources are usually much more significant than what the average defendant could put together. With adversarial roles removed, both parties can better focus on working together to find child-focused solutions as a team instead of potentially harmful solutions, more likely with warring adversaries.
10. It allows defendants to tell their stories without revictimization.
Witnesses in an inquisitorial system can provide testimony without the need to respond to potentially harmful adversarial questions aimed at discrediting their character in a manner that can revictimize and harm them. The goal of testimony is to shed light on an additional set of facts that investigators can review and either include or dismiss based on how it is corroborated or refuted by the sum of available evidence.