Mar. 22, 2003. 01:00 AM

When spanking kids crosses the line

JOHN GODDARD
TORONTO STAR

The Church of God child-abuse court case returns to its original focus next week, after nearly two years concentrating on the issue of parental rights.

The case began on July 4, 2001, when child-welfare authorities carried seven children kicking and screaming from their home in Aylmer, Ont., in the belief that the children needed protection from their parents, evangelical Christians who routinely spanked them.

After 22 days, the children were returned home pending a court decision on the protection issue. In court, however, the parents' lawyers turned the case around, arguing that the authorities violated the parents' constitutional rights, such as the right to be secure from unreasonable search and seizure.

Last fall, Madam Justice Eleanor Schnall rejected those arguments. Then, two weeks ago, she gave her reasons in writing.

She issued a 99-page judgment that is extraordinary for fully exonerating the child-welfare authorities and thoroughly discrediting Henry Hildebrandt, pastor of the 200-member Christian fundamentalist Church of God that advocates using the rod.

On Tuesday, the case reconvenes at a courthouse in St. Thomas, near Aylmer, where sources close to events say the judge is expected to choose from among three main options:

Rule that the children are in such danger that they must be removed from the family home permanently — an outcome no one is seeking.

Rule that the children are no longer in need of protection from their parents and that no monitoring is necessary.

Rule that Children's Services of St. Thomas and Elgin County be allowed to monitor the home, possibly for one year, as the agency requested.

Schnall's judgment suggests she is leaning toward a protection order. And her reasons are especially interesting for how they touch on a bigger case.

On June 6, the Supreme Court of Canada is to hear arguments on whether parents can legally spank or otherwise discipline their children, as provided by Section 43 of the Criminal Code.

If the top court strikes down Section 43, children's aid societies would be given greater responsibility to decide which cases to pursue.

In her ruling, Schnall scrutinizes child-welfare procedures and offers a partial definition of "spanking" that promises to become part of the coming national debate.

At the outset, Schnall makes clear that the Aylmer case was not a "spanking" case, as it has been commonly referred to in the media for nearly two years. It is a child-abuse case.

All seven children were routinely struck with objects for trivial offences, objects that left marks, or "stripes," as the children called them, which often lasted several days.

At the time of the intervention in 2001, the children ranged in age between 6 and 13. The family cannot be identified publicly.

"Excessive force cannot be condoned," the judge says, echoing Section 43, which allows parents to hit their children to discipline them as long as the force "does not exceed what is reasonable under the circumstances." And Schnall also offered a partial definition of "reasonable," a rare legal opinion on a word not defined in Section 43 itself: "Application of force to a child that leaves a mark is unacceptable."

Schnall says the parents in the case hit their children with a hairbrush, a belt, a wooden stick, the wire handle of a fly swatter and electrical cords of appliances.

The children were struck for talking loudly, sitting on a desk, playing in the street, spending too long in the bath and going outside with messy hair.

Usually, the parents struck the children across the upper legs and buttocks, the children told authorities in taped interviews. Younger children would be hit more often than older ones.

One boy, 7 at the time, felt so badly about "drawing a bad picture" that he couldn't sleep. He finally confessed to his father, who asked if the boy wanted a spanking.

Madam Justice Eleanor Schnall

When the boy said "yes," the father struck him three times across the buttocks with an electrical cord. The boy told authorities that it hurt but he didn't feel as bad afterward. He said he thought a "spanking" would help him remember not to do the bad thing again.

In another episode, a pot of coffee was accidentally spilled on the outside thigh of the same 7-year-old, burning him badly. Instead of taking him to a doctor, the parents treated the wound with water, bleach, Vaseline and vitamin E cream. The wound grew worse, until an anonymous tip alerted authorities who rushed the boy to hospital.

A children's aid worker noticed a bruise next to the burn. The father explained that he had struck the boy a few days earlier when he wouldn't sit still while being treated with the water and bleach mixture.

The parents, Schnall points out, did not argue in their defence that their discipline methods are legally acceptable. Nor did they raise the constitutional right of freedom of religion to raise their children according to their interpretation of the Bible.

Instead, they maintained their constitutional rights were violated when authorities removed the children from their home, specifically, the right against "unreasonable search or seizure" and the right to prevent authorities from questioning their children.

Schnall's ruling is often blunt.

"To suggest that a caregiver or parent must give consent before (a child-welfare worker) is able to ask questions ... when there are allegations that that person has abused the children, is absurd," she says.

The key passage of the judgment deals with the now-famous event in which a social worker and several police officers carried the children from their home, separating them from their parents.

That scene, perhaps more than any other, turned the case from one of child protection into one of parental rights, and put the child-welfare agency on trial.

During the home visit on July 4, 2001, case worker Shelley West decided the children had to be removed for their own safety. West also knew that another Church of God family had earlier left the district when child-welfare workers showed an interest in them.

"She made the right decision," Schnall says. "I can find no indication that Ms West acted in anything but a professional manner."

The person responsible for the chaos, the judge says, is Henry Hildebrandt, pastor of the Church of God.

When he arrived at the house, he brought others from the congregation with him. More than 100 members were soon gathered on the lawn.

"Even the children of the Church congregation were involved," the judge says.

Hildebrandt contacted several news outlets and, when it looked as if reporters would not arrive in time, he asked deputy police chief André Reymer to delay the removal. When Reymer declined, Hildebrandt had his son take pictures. Afterward, the pastor distributed them to the news media and gave interviews on the lawn.

"The entire `scene' at the family's home ... was orchestrated by the pastor and the Church of God congregation for its own purposes," Schnall says.

Hildebrandt and the congregation members obstructed the police inside the home, clinging to the children, she says.

"I find as a fact that the actions of the pastor, and of the congregants with his encouragement, created the chaotic situation, severely exacerbating the very stressful situation for the mother and especially the children, and gave little if any thought to the well-being of the children," Schnall adds.

She also details Hildebrandt's involvement with the family that fled the district.

"I find that Pastor Hildebrandt had colluded with that family in assisting them to flee from the jurisdiction," she says.

Hildebrandt, by his own testimony, knew all along where they were, kept in touch with them and arranged to sell the family's home for them after they left.

Schnall is scheduled to hear further arguments in the case starting Tuesday.

Her written reasons suggest she is leaning toward a monitoring order. If so, the children would remain with their parents but the child-welfare agency would be directed to keep tabs on them.