FACS says it has a right to intervene

By Times-Journal Staff

Family and Children's Services of St. Thomas-Elgin intends to argue that it has the right to intervene to find children in need of protection where there are allegations they have been hit with an object, a St. Thomas trial heard Tuesday.

The statement by Alfred Mamo, lawyer for FACS, was made as lawyers in a hearing made opening statements.

The hearing is to determine whether seven Aylmer children, forcibly removed from their home last summer under suspicion of physical abuse and medical neglect, should be found in need of protection. The first day and a half of the hearing was mired in arguments to determine if the media could be present at the trial and what could be reported.

Judge Eleanor Schnall ruled Tuesday that while the media may be present, all of the evidence at the hearing will be covered under a sweeping ban of publication as it will be heard under one voir dire -- a hearing within a hearing.

In making her ruling, Schnall found that the risk of allowing "unfettered media coverage" would harm the children.

Further, she ruled, there would be little advantage to the media being allowed to report evidence heard during a voir dire, which may be ruled inadmissible.

"This would do little to advance the information base of the reading and listening public," she said. Schnall said that because of the prior publicity on the case and the characteristics of the family, unrestricted reporting could invade their privacy.

A statutory ban on publication prevents stories from identifying the parents and their children or witnesses in the trial. Further orders prohibit photos to be taken of the families and children. Schnall referred to a London Free Press story published May 27 which referred to the opening of the case and went on to further discuss questionable deaths at sister locations of the Church of God where the family worships.

"What message does that send to the children?" she said, adding this was an example of how easily the children could be affected.

Schnall said she was not persuaded by arguments that extensive media coverage of the case would allow the public to be the jury.

Schnall ruled the media could report on an ongoing basis about the case, but still protect the evidence and identity of parents, families and witnesses. A witness could be identified after completing their testimony and up to then, be referred to by their position only, she said.

On Monday, Tony Wong, arguing for all media, said there should no reporters excluded from the trial and that no ban on publication should be made, except for the statutory ban used in all family law cases. Don Kilpatrick, court-ordered lawyer for the children, said while the media should stay, there should be total publication ban. Both lawyers for the parents argued that while the media should be allowed to stay, there should be a ban on voir dire evidence.

In his opening statement, Mamo said FACS originally sought temporary wardship of the children after they were seized last July. FACS later agreed to apply to find the children in need of protection subject to conditions, one of which was that corporal punishment not be used.

Mamo listed nine legal issues which the hearing will address. They include:

• the validity of the apprehension;
• the right of the FACS workers to ask questions during an investigation;
• whether the parents had the right to remain silent;
• whether the parents had the right to consent to the children being interviewed by FACS;
• the right to interview children without the parents' permission;
• the right of the parents to file documents that may incriminate them;
• the right of parents to refuse to answer questions in court that might incriminate them;
• admissibility of statements by the parents; and
• the relationship between the apprehension and the application before the court.

FACS had the right to interview the parents and the children, without permission, to meet its mandate, Mamo maintained.

FACS will argue that the children's interests were paramount to the parents, Mamo said, and that the children can't be relegated to the role of chattel by their parents. He said FACS would also argue children are full persons under the law.

NEED?

Michael Menear, lawyer for the father, said he will argue that there was a question of whether the children were in need of protection when they were seized and that they are not in need of further supervision. Witnesses will include members of the Church of God.

Valerie Wise, lawyer for the mother, said she will challenge the application of the legislation by FACS and argue FACS exceeded lawful and constitutional limits.

As well, she said, her case will explore whether FACS had a warrant for the apprehension and whether the mother was given the right to counsel.

The parents are not seeking religious exemption to justify spanking, she said.

Kilpatrick, lawyer for the children, said one of the issues would be if the children were in need of protection and was there a need for future intervention by FACS. The hearing continues today.