COURT FILE NO.: FC-15-FO-806-3 DATE: 2020-03-06
WARNING : This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both .
ONTARIO SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT
BETWEEN:
Children’s Aid Society of the Regional Municipality of Waterloo Applicant – and – A. M., M. E. and I. B. Respondents
Counsel:
- Charu Smith, Counsel for the Applicant
- Gloria Ichim, Counsel for the Respondent Mother A. M.
- Walter Wintar, Counsel for the Respondent Father M. E. (Not Appearing)
- Respondent Father I. B. Self-Representing and appearing by teleconference call
- Shuchanna Swaby, Agent for the OCL representing the child M. L. M.
- Valeria Ruoso, Agent for the OCL representing the child K.M.
HEARD: March 4, 2020
MADAM JUSTICE J. BREITHAUPT SMITH
Decision
Litigation Background
1There are three adults and five children 1 involved in this litigation in addition to the Children’s Aid Society of the Region of Waterloo (the “Society”). I use the following to identify each:
a. Ms. A. M. is “Mother”; b. Mr. I. B. is “Father”; c. Mr. M. E., being biological father to the two youngest children, is “M. E.”; d. the child who is the subject of this motion is eight-year-old “M. L. M.” and her siblings are similarly identified by use of their initials: K. M. who is turning ten years of age is the eldest sibling; F. M. who is seven and is immediately behind M. L. M. in the sibling order; J. M. and M. M. who are the two youngest children, being five and almost three years old, respectively.
2This is a motion brought in the context of the Final Order of Rogers, J. dated December 12, 2018 placing K. M., M. L. M. and F. M. in interim society care and placing the youngest two siblings in the care of their father, M. E. The court found that all five children were in need of protection pursuant to sections 74(2)(b-i) and (b-ii) of the Child, Youth and Family Services Act, 2017 (the Act ) on the basis of risk of physical harm arising from Mother’s failure to adequately care for and protect them and her pattern of neglect in doing so. All five children were in foster homes from May 23, 2018 through to October 3, 2018 when the two youngest children were placed with their father, M. E. K. M., M. L. M. and F. M. remain in foster care to date, further details of which are discussed in the balance of these reasons. The Status Review Application was issued by the Society on March 28, 2019 returnable on May 7, 2019. The Society’s Notice of Motion is at Volume 6, Tab 1 of the Continuing Record.
3Today, the Society seeks an order that M. L. M. be placed in the temporary care and custody of her biological father, I. B., in Edmonton, Alberta under terms of supervision. Father was not involved in the original protection litigation. His parentage of M. L. M. was discovered when he contacted the Society in early 2019 after hearing rumours through his community and confirming the whereabouts of Mother and M. L. M. through maternal grandmother. On March 2, 2019, DNA testing confirmed that he is M. L. M.’s father.
4The Society proposes to retain discretion over access between M. L. M. and Mother; and between M. L. M. and her four other siblings who are the subject of this proceeding. To ensure that access between M. L. M. and her family in Waterloo Region is prioritized, the Society asks the court to consider specific minimum provisions. The Society asks that M. L. M. have a right of access with her siblings inclusive of a provision that Father will ensure a minimum of bi-weekly contact by telephone and/or video conferencing. The Society undertakes to facilitate in-person access visits between M. L. M. and her family members inclusive of funding same.
5Father supports the Society’s motion. Mother does not. Counsel for the children caution the court to take a very careful approach that prioritizes inter-sibling access and minimizes further trauma to the children. M. E. takes no position on the motion and consequently his counsel of record did not appear.
6Procedurally, this motion has been outstanding since the original version thereof (found at Volume 5, Tab 10 of the Continuing Record) was served on October 15, 2019. The first scheduled argument date was October 29, 2019, at which time an adjournment was granted to provide a timeline for the service and filing of updated affidavit materials from the Society and responding materials from Mother. The subsequent argument date, namely November 27, 2019, was vacated by the Society through communication with the Trial Coordinator’s office. The motion was re-scheduled thereafter from the return date of the Application (being December 10, 2019) to February 12, 2020 when it came before Piccoli, J. for argument. Mother’s counsel sought a further adjournment of argument over the Society’s objections for three reasons as set out in Piccoli, J’s Endorsement on that date: (1) Mother’s counsel did not advise her client of the motion date; (2) she did not believe that the motion was set to be argued; and (3) she had not read or received Father’s affidavit. Her Honour permitted one final adjournment, with filing terms for affidavits from all concerned, and made today’s argument peremptory on all parties.
7As a final procedural matter, Father served the Society with his Answer and Plan of Care in June of 2019, but that document has never been filed with the court. The Society has undertaken to file it, but the whereabouts of the signed original is unknown, and leave is therefore granted permitting the filing of a photocopy which bears Father’s signature and is dated June 5, 2019.
Legal Test and Analysis – Placement Change for Child in Interim Society Care
8As preliminary evidentiary notes, Section 94 (10) of the Act, which sets out the procedure on a Temporary Care and Custody Hearing, also an interim proceeding, permits the court to admit and act on evidence that it considers credible and trustworthy in the circumstances. The court is mindful of the many challenges faced by parents who are involved in the child protection system. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. The court therefore reviewed the entirety of Volumes 5 and 6 of the Continuing Record, including the Answer and Plan of Care from Father dated June 5, 2019, through this lens in preparation for the hearing of this matter. Similarly, despite its inherent nature as double hearsay, I further accept the content of the Psychological Assessment Report 2 of M. L. M. conducted last year (when M. L. M. was 7 ½) by Ms. Jenna Dawson, intern, under the supervision of Dr. Karen MacLeod, Child Psychologist, as being both necessary and reliable for the purposes of this motion. 3 The same consideration has been applied to comments attributed to M. L. M. recited by others as contained in the affidavit material filed, namely that such evidence is both necessary and reliable for the purposes of this motion for interim relief. I note that counsel made no objections to the receipt of any of this evidence which was referenced in argument.
9Section 113 of the Act governs status review following a Final Order for society supervision or interim society care. Section 113(8) is exactly consistent with Section 64(8) of the former Child and Family Services Act , and reads:
113(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.
10The test is understandably less onerous than is set out for a Temporary Care and Custody Hearing under section 94 of the Act as protection findings have already been made. In theory, some modicum of stability has arisen from the Final Order and therefore the statute creates a presumption that a child should remain where she has been placed until her best interests require otherwise.
11The caselaw is divided at the present time with respect to the Legislature’s use of the word “require.” While some have interpreted that word to import a threshold test of a material change in circumstances justifying a review 4 , others have held that “child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order.” 5 A specific finding that a material change has taken place to the circumstances of the child seems redundant in the context of section 113(8), as practically-speaking some circumstance must have changed to trigger a reconsideration of the child’s placement. Obvious examples could include: a parent’s success in addressing protection concerns; a parent’s loss of housing; a parent’s incarceration; a kin or foster placement breakdown; a change in a child’s diagnosis necessitating a different treatment approach; or a new kin placement plan coming forward. Likely all professionals working with court-involved families would see any of these as examples of a material change in circumstances justifying a review. Although it is my view that such a threshold finding is unnecessary, if I am wrong then I find that the discovery of M. L. M.’s biological father is a material change in her circumstances justifying a review of her placement.
12The Society’s argues that M. L. M. ’s interests would be best served by moving her out of foster care and into the care of her father. The governing legislative framework is found at section 74(3) of the Act :
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) [not applicable]; and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
(a) Views and Wishes of the Child
13The first consideration is M. L. M.’s views and wishes having regard to her age. Importantly, Dawson-MacLeod Report concluded that M. L. M.’s cognitive skills were largely meeting expectations and that she has shown herself to be resilient in spite of the challenges that she has faced. M. L. M. struggles with aspects of her emotional functioning, leading the Dawson-MacLeod Report to note that her presentation “is consistent with a Developmental Trauma Disorder presentation, a relatively new term proposed by experts to describe the effects of repeated negative early life events on development.” There is no suggestion in the Dawson-MacLeod Report that M. L. M. is incapable of accurately expressing her views.
14Evidence regarding M. L. M.’s views and wishes, and observations of her demeanour during interactions with her family members, is contained in the affidavits of Margaret Ngaling and of Rachel DeVos, both sworn January 31, 2020. Ms. Ngaling and Ms. DeVos attest that she:
a. enjoyed the visits with Father and paternal grandmother both here in Waterloo Region and in Edmonton; b. was initially nervous to stay in Father’s home in Edmonton but felt positive about the first visit afterwards; c. said that weekly telephone calls with Father have been going well and that she would like to speak with him on both of Saturday and Sunday in every week; d. enjoys her visits with her four siblings, usually attended by Mother; e. would be “OK” with moving to Edmonton and that she would feel “good” about it but has mixed emotions.
15Ms. Swaby was appointed for M. L. M. following the Order for same made by Piccoli, J. on February 12, 2020. Although she has not had time to develop a deep rapport with her client, her instructions are to advise the court that M. L. M.’s wish is to remain in Kitchener where she can spend time with her siblings and her Mother. 6 Ms. Swaby argued persuasively that, particularly having regard to the children’s shared lived experiences, M. L. M.’s siblings cannot become a post-script to her life. Ms. Ruoso, counsel for two of M. L. M.’s siblings, echoed this sentiment, noting that the children are closely bonded to one another and have already been forced apart due to changes in placement.
(b) Other Circumstances Relevant to the Analysis
(i) Child’s Physical, Mental and Emotional Needs
16M. L. M. does not demonstrate special needs associated with a physical disability or any form of mental illness, but as noted above presents as having some developmental delays (cognitive and emotional) arising from on-going trauma experienced throughout her childhood. The recommendations of the Dawson-MacLeod Report include that M. L. M. continue to receive therapy from someone trained in working with children who have experienced trauma and involvement with the foster care system. M. L. M. currently sees Dr. Alexa Kane for trauma counselling and Ms. Amanda Ferrara to work on processing past sexual trauma and understanding body safety. Both of these professionals confirm that they would be happy to support the continuity of care for M. L. M. by connecting her with corresponding professionals in Edmonton if the move takes place. 7 Father has indicated not only his support for counselling for M. L. M. but also his willingness to “take any counselling that may benefit me or my daughter.”
(ii) Child’s Development
17As noted above, the Dawson-MacLeod Report concludes that M. L. M.’s development is progressing well, considering her lived experiences to date. The following quote from page 20 describes M. L. M. ’s overall development:
The assessment highlighted many cognitive and academic strengths for M. L. M., which is a testament to her resilience given that she missed a significant amount of early school exposure, and that she has dealt with many stressors during her life. In addition to these strengths, M. L. M. has had a lot of success in social situations. She has also shown herself to be a helpful, kind, considerate, resilient, and independent girl, who has a strong and determined personality. Her caregivers have also highlighted that she is very adaptable and has many interests. These strengths bode well for [her] future success and positive development.
18There is no evidence to suggest that M. L. M.’s development requires any professional involvement other than the trauma-informed therapy noted above. Father has a family doctor and family dentist and is “willing to access any services required to meet [her] needs.”
(iii) Child’s Race, Ethnicity and Gender Expression
19As the MacLeod-Dawson Report notes: “[M. L. M.] is continuing to develop a healthy cultural and racial identity, with the support of those around her, and it is important that she continue to have the opportunity to do so.” As a Black youth in a community with largely European heritage, she may already have experienced institutional bias. The evidence is that she experienced racist comments in one of her foster placements, resulting in a move from that placement and detachment from caregivers.
20Father is Black and resides with his mother in Edmonton, Alberta’s largest and probably most ethnically-diverse city. In contrast, M. L. M.’s racially-matched foster parent was unable to care for her after February 3, 2020 for personal reasons, and no alternative match could be found. Consequently, M. L. M. is now residing with a Caucasian foster family and told her lawyer that she had not attended any Black History Month events. Ms. Swaby underscored that encounters with racism are not just long-lasting but life- lasting, and that experiences shared with her siblings could provide a source of strength as M. L. M. develops her own world-view. Presumably, Father and paternal grandmother have had to develop their own strategies in contending with racism which could provide guidance to M. L. M. from a perspective of wisdom that she would not receive from her siblings.
(iv) Child’s Cultural Heritage
21Of course, skin colour is only one aspect of personal identity. Both of M. L. M.’s parents’ families are from Sierra Leone, but there is no evidence before the court regarding any connection that Mother may feel to her cultural heritage. M. L. M.’s cultural heritage through her Father is expressed by language and faith. Father and paternal grandmother speak Creole, part of a family of languages that is itself incredibly diverse. Father is a member of two church congregations: Solid Rock Evangelical Church and St. John Bosco Catholic Church. Through these congregations, M. L. M.’s network of cultural connections would undoubtedly flourish. There is no similar plan available for her through foster care here.
(v) Secure Attachment and Place in a Family
22Simply stated, M. L. M. and her siblings have had absolutely no security of attachment to any caregiver. Mother has been unable to provide consistent care for her since she was three years of age. After her first three-month sojourn in foster care at that age, M. L. M. and her siblings returned to Mother’s care for approximately two years, during which time they experienced considerable violence in the home. On May 23, 2018 M. L. M. and two of her siblings were brought into foster care and have remained there since. M. L. M.’s two younger siblings have been able to find secure attachment and a sense of place in the care of their father. A similar possibility has now been presented for M. L. M.
23To maintain her place in her sibling constellation, the Society has undertaken to ensure that M. L. M. visits Waterloo Region every two months at the Society’s expense. She would arrive in the company of her Father or paternal grandmother, likely on a Saturday, and live at an apartment-style hotel. She could visit with her siblings at the hotel or elsewhere depending upon their schedules on such exact terms as would be arranged in advance of each visit. She would attend the scheduled Monday bi-weekly visit with Mother and her siblings, which could be extended beyond its current 90 minutes in recognition of the reduced frequency of her attendance. She would miss a couple of days of school which is a proportionate exchange for the important goal of maintaining in-person connections. Although he requires the Society’s financial assistance, Father is very supportive of this plan. Further, Father has purchased a tablet for M. L. M.’s own use and she will be able to communicate with her siblings by telephone or video conferencing using that device. To ensure such access takes place, both the Society and Father ask for specific terms in any order made on this motion with which they will have to comply.
(vi) Child’s Relationships and Emotional Ties
24References to descriptions of M. L. M.’s relationship with her siblings are found in the history sections of the Dawson-MacLeod Report. Although mindful of the triple hearsay issue associated with those descriptions, it is important to note that counsel did not object to references made to them in argument and all concede that the five children are closely bonded. The Dawson-MacLeod Report notes:
a. There were periods of stability for M. L. M. and her siblings while living with her biological mother… Ms. Ngaling described that [Mother] was affectionate with the children and let them know she loved them; b. M. L. M. and her siblings were always together playing and seemed inseparable; c. After visits with Mother and her siblings, M. L. M. seemed to have a very hard time managing her emotions … [she] is more emotional and is generally more overwhelmed … [she] would have nightmares and [bedwetting] after visits; d. M. L. M. has suffered significant loss in being separated from her biological mother and, increasingly over time, her siblings. … she had a very close relationship with these family members.
25M. L. M. misses Mother and her siblings and told her lawyer that she wants to return to live with them. She is sad when Mother misses visits (currently scheduled for 90 minutes bi-weekly on Mondays) and is always happy to spend time with her siblings. There is no question that any plan to transition her away from these family members must be carefully crafted so as to maintain these connections for M. L. M. and minimize further trauma.
26M. L. M.’s touchpoint of stability has been her continued attendance at the same school throughout her young life. Although her teachers change annually, she has friends at school including a best friend. Disconnecting from this school community would undoubtedly impact her negatively in the short term but, having regard to her resilience, there is no reason to believe that she could not find a place for herself in a new school.
27It is important to note at this point that M. L. M. has been denied the development of any emotional bond with her father. Mother lied on her Affidavit of Parentage regarding this child, stating that she knew nothing about Father other than his race. Mother’s own affidavit filed in response to this motion confirms her full knowledge of Father’s identity. Rather than providing the court with her perspective on her relationship with M. L. M., she uses the affidavit as a platform to denigrate Father, paternal grandmother and even M. E. It is nothing more than an obvious attempt to externalize blame for her own choices and shows a complete disregard for the best interests of her children. Critically, her Affidavit of Parentage set up a status quo whereby Father did not have the opportunity to put in a plan of care when M. L. M. was brought into care on May 23, 2018. Almost two years have gone by, time that M. L. M. and Father could have spent reconnecting.
(vii) & (viii) Continuity of Care and Comparison of Options
28As noted above, there has been no continuity for M. L. M. She has been in five placements since May 23, 2018, none of which could accommodate all five siblings. Initially, she was alone. She then joined her two brothers at their placement which broke down due to allegations of racist comments in the home. She was then placed with her younger brother, F. M., whilst her older brother resided elsewhere. She has since been moved from that placement and is once again alone. The Society is embarrassed by its inability to provide continuity for M. L. M. but argues that this further underscores the need to fully explore the possibility of placement with Father, whose plan includes a request for custody under section 102 of the Act .
29Father’s plan has been approved by the Society and he has passed criminal background and home study checks. Paragraphs 43 through 53 of Ms. DeVos’ affidavit set out Father’s updated plan, as he and paternal grandmother have moved into a three-bedroom apartment since his Answer and Plan of Care was prepared. Ms. Meghan Dziak, a worker with the Society’s sister agency in Edmonton, has been assigned to monitor the placement in Edmonton. She has met with Father at least three times in his home and they have developed a working relationship, as shown by the fact that she assisted him by commissioning his affidavit filed on this motion. Should the placement with Father break down, Ms. Dziak and Ms. Ngaling will work collaboratively to bring M. L. M. back to Waterloo Region.
(ix) Effects of Delay
30As noted above, Mother lied on the Affidavit of Parentage, thus blocking Father from participating in the original Child Protection Application proceeding and delaying his eventual reconnection with M. L. M. The effect of further delay can only cause M. L. M. – and all of her siblings – further harm.
(x) Risk of Harm to the Parent/Child Relationship
31An analysis of this point is premature having regard to the fact that M. L. M. has only had the opportunity for a meaningful relationship with one of her parents. An assessment of this factor will be available to the court addressing this matter on a final basis. This court notes only that Mother has told Society Worker Ms. DeVos that she will side with her former partner against M. L. M. in fighting the charges of sexual assault that he is facing. She specifically told Ms. DeVos that M. L. M. is lying and that the incident alleged did not happen. Mother has not attended scheduled visits with anything approaching consistency, such that the bi-weekly Monday visits continue in her absence so as to maintain inter-sibling access. Mother has stated twice that she doesn’t want to continue visiting with the children, and on December 30, 2019 she told Ms. DeVos that her children should all die. It is Mother’s own choice to reduce her contact with the children and to side against M. L. M. that places her parent/child relationship at risk of harm.
(xi) Degree of Risk Justifying the Finding
32In the absence of written reasons from Rogers, J. it is difficult to approach this factor. Having said that, concerns about physical abuse by Mother and sexual abuse of M. L. M. by one of Mother’s partners were verified to the Society’s satisfaction. Such abuse allegations took place after the finding was made on December 12, 2018. Criminal charges are pending. For the purposes of this motion, it is clear that the children were at significant risk in Mother’s care.
Conclusion
33M. L. M. has been in five different foster homes since May 23, 2018. Further trauma arising out of placement instability is inevitable for her: M. L. M. will never again reside with her two youngest siblings, who have now been living with their father for eighteen months. Having regard to the placement insecurity to date, there is no reason to hope that she would have a permanent foster placement with her two other siblings. Even a theoretical return to Mother at the conclusion of this litigation will fracture any attachment that she may develop in her current foster placement. Unless she is given the chance now, by way of this motion, to see if placement with Father will succeed, it will be extremely difficult for the court to evaluate the strength of his plan at a trial or on summary judgment motion. In his Answer and Plan of Care, Father writes: “I would like for [M. L. M.] to be in a safe and nurturing environment so that she can grow up to be the best person she can be. I hope for her to have the opportunity to have a childhood.” In a situation where an estranged parent has come forward and been approved by the Society to offer safe harbour to their child, the court must provide that opportunity on a temporary basis, even where other aspects of the child’s life may be negatively impacted. Simply stated, if we don’t try now, we may never know whether M. L. M. could succeed in Father’s care.
Temporary Order
34The following Temporary Order shall issue:
- Per paragraphs 1 – 3 (a) of the Notice of Motion at Volume 6, Tab 1 of the Continuing Record.
- The transition to Father’s care shall take place over the months of March and April 2020. Mother shall not communicate the outcome of this motion to the child, M. L. M. OCL counsel for the child shall be directly involved in communicating the outcome of this motion to M. L. M., and Father and the Society shall work collaboratively in consultation with Dr. Alexa Kane and/or Ms. Amanda Ferrara to generate a transition plan for the child with a view to minimizing further trauma.
- The Children’s Aid Society of the Regional Municipality of Waterloo will facilitate in-person access visits between the child and her mother and siblings once in May 2020 and at least twice during the school vacation break in the Summer of 2020, after which time a continued access schedule can be determined, with in-person access visits to take place not less than once every ten weeks thereafter, based on the needs and schedules of all parties and children.
- The Society shall have leave to amend its Application, with the amendment to be served and filed by Friday, April 3, 2020.
- The Society shall serve and file the Answer and Plan of Care of the Respondent Father, I. B., by Friday, April 3, 2020, and leave is granted to file the photocopy version of same signed and dated June 5, 2019.
- Approval of the draft order by Respondent Fathers, I. B. and M. E., is waived.
J. Breithaupt Smith J
Date: March 6, 2020
Footnotes
Footnotes
- Two older children reside outside of the jurisdiction and are not the subject of this matter. There is no evidence that the five children concerned in this litigation have any relationship with their older siblings who reside in the U.S.A.
- Hereinafter “the Dawson-MacLeod Report,” being Exhibit “A” to the affidavit of Rachel DeVos found at Volume 6, Tab 3 of the Continuing Record.
- R. v. Khan , [1990] 2 S.C.R. 531 at (page 546 paragraph h – page 547 paragraph c).
- See for example Children’s Aid Society of Toronto v. S.G. , 2001 ONCJ 746 at paragraph 23.
- Per Nicholson, J. in Durham Children’s Aid Society v. J.L. et al. , 2016 ONSC 5925 at paragraph 26 .
- Ms. Swaby for M. L. M. has had less than three weeks to aid her client and to the court. She advises that she met with M. L. M. twice, once two weeks ago and once the day before this hearing, and that her client expressed the same wish consistently. Having regard to the very short turnaround time connected with this matter, no evidence was placed before the court but no other party raised any objection to Ms. Swaby advising the court of her client’s views directly.
- This evidence is hearsay as the statements attributable to the professionals have been presented to the court through the Society workers’ affidavits. While there is no evidence as to the necessity of presenting the professionals’ evidence via hearsay, the court has no reason to conclude that the evidence is unreliable and a principled approach to the hearsay exception should be employed in order to ensure that important considerations directly relevant to M. L. M. ’s best interests are not disregarded. Having said that, the court reminds the Society that it must “lead trump or risk losing” by presenting evidence directly from professional persons working with children to minimize hearsay concerns.
