Wednesday, 24 July 2013

Child Adoption and the Rule against Bias

Nova Scotia (Community Services) v. T.G., 2012 NSCA 43 is a sad case about adoption. Sad because of the facts and sad because lengthy litigation has prevented a young child being placed in a permanent home.

The child's siblings were in the care of another family. Initially, the child at the centre of the case was not placed with the siblings, but with a different family. Ultimately, social services sought to place the child with his siblings.

Litigation ensued. One of the points aired before the Court of Appeal was whether the officials charged with conducting the placement of the child approached their decision with an open mind. A letter revealed that they were actively trying to place the child with his siblings, before a final decision was made (at an Adoption Placement Conference) after hearing submissions from the interested parties.

The Court of Appeal noted that claims of pre-judgement have to be addressed in context. Failure to do so in the present case would open the door to harmful litigation in future cases:
[149]     As a culminating event, the Adoption Placement Conference is not expected to convene with the blank slate and placid mind of a jury on opening day of a criminal trial.  The Adoption Placement Conference is not tainted because some of its participants have prior inclinations. A conscientious parent is entitled to an opinion.  The Adoption Placement Conference likely will open with a prior recommendation for a preferred adoptive parent. That preference likely would have been discussed and endorsed, before the Adoption Placement Conference, by individuals who then attend that Conference. That preference may well be streamed by the criteria, including prioritized criteria, that the Legislature has channelled to define best interests of the child. The Adoption Placement Conference is not tasked to hear submissions from competing parties, then award the child as a res to the winning litigant. It is a problem-solving Conference about the child, not a forum for the argument between adoption applicants. The role of the Adoption Placement Conference is to undertake a culminating assessment, that may adopt a prior recommendation, or may include an appreciation that some second thought is in order, and make a final decision. This fairly describes what happened on June 22, 2011...
[151]     The Agencys files, as they existed immediately before the Adoption Placement Conference, would be produced and scoured by legal talent for pre-determination. It is highly likely - if the Agency is doing its job - that those files would disclose an email or a note from some Agency employee that expresses a preference, perhaps a strong one, for the proposed adoptive parent. The Agency is supposed to lead the fray to find a suitable adoptive placement. Its a cognitive challenge to imagine how the Agency could do that without such a document materializing in a file...
[155]     In my view, that scenario could not be farther from the adoption process that the Legislature contemplated for a child in Agency care ...
It is worth remembering that the test for bias in Canada requires the court to adopt the perspective of a reasonable observer appraised of all the relevant facts. The proactive role the officials are bound to play in child placement surely forms part of this. Legislative intent also played a key role: the process having been largely set out by the legislature, the Court of Appeal was unwilling to pick it apart.

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