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The current Family and Child Service Act (FCSA) of British Columbia was proclaimed in 1981. This legislation replaced the earlier Protection of Children Act. At the time of its proclamation, it was believed that this new legislation would change the practice of child protection social work in British Columbia by placing extra value on family and by giving extra leverage to courts in settling child protection matters.

Several inquests and enquiries later, the government of Mr. Mike Harcourt in British Columbia found that the promise of the FCSA somehow failed to materialise. By 1994, the provincial legislature passed Bill 46, i.e., Child, Family and Community Service Act (CFCSA). Rumour has it that this new legislation will be proclaimed by the end of October 1995, after the bureaucrats have "exorcised" it of "demons" such as family conferences or plans of care. Incidentally, the CFCSA comes exactly a century after the Society for Prevention of Cruelty to Children received its royal charter in 1895 in Britain.

If most of what currently stands as Bill 46 is proclaimed, child protection social work will undergo yet another metamorphosis. The forthcoming CFCSA promises that policy, programme development and delivery of child protection services will be guided by the principles that children are entitled to:

• protection primarily by their families, failing this by the state
• experiencing natural family environment, failing this to experience kinship and extended family relationships
• being heard when decisions are being made regarding them
• timely decisions
• maintain their cultural identity.

Additionally, the CFCSA provides for family supports, mediation and other "non-punitive" and non-threatening ways in which to protect children. It looks like child protection social workers are set to receive the final nod from their employers to practice social work!

In this rather "changed" environment reflecting voluntary care agreements, mediations, possible family conferences, development of plans of care with measurable goals, partnership between the various "stakeholders" within a community, due regard and concern for cultural and ethnic background of a child, supervision orders, and recognition of the rights of children in care, the practice of child protection social work is about to experience yet another metamorphosis. This time, where will be the loci of this change? Is the change brewing at a structural or at an individual level or will it encompass both levels? In this short review article, I shall attempt to address court-specific aspects of the impending change and its impact on the practice of child protection social work in British Columbia.

The biggest structural, and perhaps individual change is the increasing recognition that raising children is a community enterprise. This is not a new realisation. An old African proverb says: "the village raises the child." Aboriginal communities in Canada have shown that communities raised children and provided supports to families efficiently prior to their contact with the "white man." It is a comforting thought that the move towards community-based, or better still community-driven child protection social work is due to our understanding of the primacy of community.

The fact is that the environment of shrinking fiscal resources has become the motor driving the change toward community-based, generalist and macro-level social work. The questions emerging from the increased understanding and decreased resources are related to the nature of social work: Is social work an instrument of social control or a vehicle for social change? As the "front-line executioners" of the CFCSA, are social workers at a disadvantage when attempting family-work? How much impact will the long-held public view of child protection social workers as "cops-in-plain-clothes" or "baby-snatchers" have on their ability to develop a truly "therapeutic relationship" with the parents whose child-rearing practices they are questioning? The answers to these questions will, in part, be decided by how child protection workers in BC conduct their court work. Possible answers to these questions can probably be found by reviewing current court-work practices of child protection social workers in BC.

As stated earlier, the FCSA, for reasons perhaps appropriate for its time, rendered courts as the primary vehicles for child protection. Due to the instrumental belief that child protection work is after all a legislated or statutory phenomenon, social workers have often used courts as the "first stop." Indeed, during the last 14 years, the court system has become an arena where child protection matters are inevitably settled by a judge who hears a social worker's case presented by a lawyer and the "opposing party view", often the child's parent/guardian's view, presented by yet another lawyer.

Ironically, while the child protection system has been struggling to cope with shrinking resources, the "primacy" of a lawyer in the child welfare system has not subsided. Neither has that primacy been exercised to advocate the rights of the child. Child protection instead of emerging as an exercise in social work and a tool for social change, has evolved as a highly litigated process of abject social control. A number of issues emerge.

Two or more contending views produce indeterminancy which in turn may lead to litigation. When a social worker's point of view is opposed by the parents of the child, courts have hitherto been resorted to for resolution. Although court involvement in the wake of indeterminancy is inevitable, what I am averse to is the primacy of judiciary in child protection.

We see pronounced reliance of social workers on lawyers who are trained to "win" in a highly adversarial court set up. Social workers who are entrusted with the task of finding what is in "the best interests of a child" have been susceptible to playing second-fiddle to a group of non-social workers who ultimately make the final determination on what is in the best interest of the child.

Since most legal knowledge and practice is contingent on local conditions, the "best interest of a child" has emerged as hand-maiden of those who can take better advantage of this contingency aspect. In the absence of a binding principle for an independent "advocate" or counsel to the child, the most logical beneficiary of the CFCSA - the child, is often on the sidelines of the processes determining what is in his/her best interest. The logical assumption is that social workers are the primary advocates for the child. Hence, their case represents the child's view. Despite this rather arrogant view, social workers have tended to use judges and lawyers to do social work. Judicial process is often the starting point of social work case management!

In such a set up, everybody loses. Social workers emerge as adversaries of the family that they are ostensibly trying to "help"; people become alienated from the legal system that is supposed to protect them. They develop a perspective which is repugnant to the fundamental interest of our legal institutions in fairness, egalitarianism and due process; children become suspicious of the "child welfare system", and; society pays the extra costs - both fiscal and social.

I am not suggesting that courts are irrelevant. Far from it. Our social contract is premised on the belief that we are all entitled to due process and that our judiciary acts as its dispenser. Hopefully, courts will continue to play a significant role in child protection matters. The shift in thinking that I am proposing is that child protection matters be referred to courts as a last resort and that every effort be made to make this system work in the least adversarial manner. One possible way of achieving continued relevance of judicial system in child protection is to change the way courts do their business. For example, instead of regular hearings judges, with the acceptance of all parties involved in a specific matter, may decide to dispose of such matters through a "circle hearing."

The concept of "circle hearing" does not divorce a "black-robed judge" from the judicial process but proposes a rather different role for judges. Instead of judging, they mediate. However, their mediation, achieved through processes of negotiation or conflict resolution, is binding. The child's parents who are disagreeing with a social worker's disposition have right to legal counsel. The child has the right to independent counsel. The social worker, however, does not need a lawyer.

The new CFCSA provides for mediation and perhaps encourages social workers to use courts as a last resort. The "co-dependency" of child protection social work on lawyers and the court system is a long-standing affliction begging intervention. Legal fees saved when social workers attend court without a lawyer in tow will probably be the "seed money" to facilitate training of social workers in court procedures as well as the development of a plain-language guide to court process including law of evidence, document filing and serving, and general court etiquette. There is enough technology available to inexpensively yet efficiently develop a compendium of the CFCSA, the Adoption Act, the forthcoming Advocacy Act, the Family Relations Act, and the Child Paternity and Support Act as well as child protection case law on a CD ROM or on some sort of bulletin board system.

The Canadian Charter of Rights and Freedoms recognises our right to due process. In judicial system, often the process is deemed sacrosanct. further, the process has at times overshadowed the outcomes. I have no issue with a judicial ruling annulling an adoption if the grounds were "best interests of child". I have difficulty when that decision is based on the grounds that necessary documents have not been "properly served." Our society values openness and fairness in the court system and adequate notice, to the relevant people, of a court hearing and what relief is being sought by the applicant. This emphasis on process, however, may compromise the spirit of the law. The judge's decision in the above case may enforce the process but it negates the principle of "best interests of child."

Since social workers are so afraid of "loosing the case" they are at times prone to hiding behind process. Often their "plan of care," or its lack thereof, is determined by a lawyer who may have a dangerously narrow understanding of the "case." But a lawyer's involvement is acceptable because she is the one who has the expertise of the legal process. She will do the leg work and the social worker will reap the benefits of "victory". What is being forgotten is that a judge's order is only as good as the piece of paper it is printed on if the stakeholders are not willing to take on its ownership. An increasing number of lawyers now agree that mediation works best in some matters particularly in family law. Such awareness in the child protection area is crucial.

Social work plans of care emphasise outcomes. These plans are best implemented when jointly produced by the client and his/her social worker. When imposed through the judicial system, they will perhaps satisfy process without achieving positive outcomes.

During the last 15 years we have seen an increasing politicisation of our judiciary. Many jurists or legal experts attribute this change to the Canadian Charter of Rights and Freedoms. Others argue that we have rather apishly emulated legal processes and institutions of our neighbours below the 49th Parallel. Historically, the critical perspective in sociology contends that law, as an ideological tool of the "ruling classes", serve the purpose of preserving the status-quo that favours the rich or the owners of capital. Hence, law is a vehicle for reification of the oppressive social order. The "value consensus model" or the functionalists interpret law as codification of major social values of a society. Hence, law facilitates functionalist harmony between the various components of a society.

No matter what perspective is "kosher" to an individual, laws and legal institutions reflect the nature of social organisation and the political economy of a society. Thus an increasing feeling amongst Canadian people that the process of a judges' appointment is political hence determined by fortunes or misfortunes of "special interest groups," including Aboriginal, women's, labour, or big business groups such as Business Council on National Interests. As such, our judicial system unfortunately helps raise unrealistic expectations and create "favourites" at will. And when these expectations are somehow not met or when the "favourites" no longer enjoy that status, we get a whole lot of unhappy people. Where does this take a social worker? Since, the practice of child protection social work is often tested by a highly politicised judicial system, the question of whether or not a "child's best interests have been safeguarded" continues to remain unanswered.

Human service systems that fail to provide answers have rarely enjoyed acceptance. In an ideal world, a child-in-need of services, his/her parents/guardians or significant others will make decisions respectfully facilitated by a social worker. The goal of these decisions would always be to ensure the safety, security and well-being of a child is maintained in the least intrusive manner. In this scenario, the social worker is not a decision-maker but merely a facilitator. Determination of child's best interest is not through a politicised judiciary that may be prone to "contingency effect" as stated earlier.

The liberating, helping or therapeutic intent of child protection social work is not entirely altruism. Child protection legislation with an interest in social control seeks conformity to the currently acceptable parenting or child rearing practices. Social work facilitation has potential for being a manipulative process. It may lead to denial of due process to the child or his/her parents. In such a case, perhaps the "highly politicised" courts are still the best alternatives available to families or children disputing a social worker's plan. The caveat I am proposing in such situations is that social workers should avoid seeking legal counsel and should present their own case. Furthermore, social workers working in the area of child protection would perhaps have to learn to balance the social control demands of their work place with the social change aspect of their profession.

Change is the only constant. Thanks to processes such as feminist scholarship, case law in child protection, constitutionalisation of freedoms, labour movement, multiculturalism and Aboriginal activism, a greater sensitivity to otherwise forgotten "causes" or entities is becoming a norm in our society. There is however a fine line dividing genuine sensitivity from political correctness. Moreover, we tend to swing from one extreme to another. The "swing phenomenon" is evident in sensitive issues such as disclosures of child sexual abuse, child support awards, or youth crime.

A politicised judiciary is prone to a fluid etiquette in our society - "political correctness". Notions, when in vogue, such as ethnicity and social work or child protection in Aboriginal communities have immense impact on child protection decisions. My experience has shown that at times children-in-protection have not been helped due to the constraints of this etiquette. And there have been times, when "protection" has been thrust upon children where it was not needed. For example, during the decade of the 1960's when residential schools were fast becoming "out of fashion", Aboriginal children were "scooped" out of their natural environs on a wholesale basis. Saving the "savage" was a politically correct thing to do then! During the 1990's, there is definite reluctance on the part of both social workers and their crutch, the legal system, to protect Aboriginal children. Often, the reason for inaction is "respect for the Band's self-determination." The question is will Aboriginal children be removed from their home en masse when a government not very sympathetic to Aboriginal causes is in place? Or when the "backlash" against the current treaty-making process is BC, takes an unfortunate turn to "Native-bashing"? Or what will be nature of judgements made by a "right wing" or a "left-wing" judge?

A social worker ought to know, in thorough consultation with the child's parent/s and the child himself, what is in the best interest of that child. Since, court process or litigation exudes indeterminancy hence the need for referral to that institution, the message to other stakeholders in a child's care is that judges alone know what is best for the child. Such projection is hardly a boon to confidence building. How can a social worker act in the wake of such non-confidence? A well-trained and confident social worker will probably be better able to work towards a genuine partnership with the bench and the bar.

Social work is not adversarial. The courts in child protection matters have no need to remain adversarial. The lawyers, while representing parents or the child, have several reasons to act as mediators.

The impetus for partnership between the bench, the bar and social workers is alive and real and perhaps will occupy the centre stage after the proclamation of the CFCSA. The BC Association of Social Workers has, just like any other social workers association throughout world, determined that the prime responsibility of a social worker is to her/his client. A child is the client of a child protection social worker. The best interests of child are of paramount consideration in the CFCSA. Judges as final arbiters also have an interest in ensuring that a child's best interests are the basis of their decisions. Lawyers have an interest in advocacy for their clients. New provisions contained in the said act, such as supervision orders and presentation of plans of care in court, will probably make social workers, courts and lawyers more responsive to a entering into a meaningful partnership.

Meanwhile, awaiting the transition of the FCSA to well-deserved irrelevance, social workers and lawyers will probably attempt to "duke out" who is better able to mediate; who has to adopt a problem-solving strategy to settle a dispute; who has to know fully well the CFCSA, and; who is better equipped to defend the CFCSA in a court?

Peace and Love