Sunday, February 08, 2009

Ontario Provincial Child and Youth Advocate Responds to Public Request

The Foster Care Council of Canada wrote an open question to Irwin Elman, Chief Advocate of the Provincial Child and Youth Advocate's Office which read as follows:

"What is the current status of the legal action taken by your office in connection with the Ministry of Children and Youth Services, how was that status reached and what is the intended outcome of its current status"

Irwin Elman took the time to formulate the following detailed response.

"Good information is essential for the operation of the Advocate’s Office. We need it to help resolve issues that youth have contacted us about, to know how to respond to incidents involving children and youth in care, and to investigate any deaths among our charges.

But we have found that good information is difficult to come by, and our legislative powers do not extend broadly enough to assure that persons with good information will make it available to our office, even on a confidential basis. We do not want this information in order to accuse any individual or institution but to help us take the most positive action to benefit children and youth in care. We believe that people involved with such children have their best interests at heart but are often limited by rigid systems, poor information, and other obstacles that lead to breakdowns in care. Good information would help us discover where there are snags so we can advocate for change.

The issue came to a head at the end of July, when the Office received a complaint from a youth in detention. He cited physical abuse, and we set out to investigate. The detention centre was already the subject of a review by our Office because of other complaints.

Our staff contacted the appropriate person in the Ministry of Children and Youth Services and attempted to get the relevant reports and photographs of his injuries. Those attempts were rebuffed over the next three months, as the Ministry took the position that under its guidelines we were not entitled to the information. Obviously, then, we were unable to advocate well for this particular individual. In late November, we commenced an application in the Ontario Court of Justice to obtain the information from the Ministry of Children and Youth Services.

Another part of our struggle, referred to in court documents though not part of the application itself, was to obtain information regarding the death of children and youth in care. The relevant Children’s Aid Society is required to prepare, in the case of such a death, a Child Fatality Case Summary Report and an Internal Death Review Report, which are submitted to the Coroner and provided to the Ministry. These are obviously very critical documents for the understanding of the events leading to the death of the child or youth, and entirely necessary for the work of the Advocate’s Office. The Ministry’s position regarding its ability to release this information has changed over time, but ultimately it took the position that it could not legally release the reports to our Office. Our request for the reports remains unfulfilled.

At the same time as communication was ongoing with the Ministry on these matters, the Government introduced Bill 103. Bill 103 proposed amendments to the Child and Family Services Act and unrelated changes to our statute, the Provincial Advocate for Children and Youth Act, 2007, which established the Advocacy Office as an independent office of the Legislature. In light of the difficulties we experienced in obtaining information that would enable us to advocate for children and youth, we appeared before the Standing Committee on Social Policy and proposed an amendment to Bill 103. The amendment would ensure that information sought in the court motion would be available to our Office as of right. The amendment did not pass.

The application to the Ontario Court of Justice and our proposed amendment proceeded in lockstep. After our application was served but before a court hearing was held, the Government released to us the report requested in respect of A.B.’s complaint. Our Office engaged in further discussions about a protocol between the Ministry and our Office for the requesting and release of other information. At the time of the writing of this report, the good news is that we are near agreement on draft protocol with the Ministry. While details of the protocol are not yet finalized our concern is that the Protocol speaks to the process through which information will be requested and delivered not the information itself. The proof will be in the pudding. We are aware of the obligations of Government to protect personal information, however access to information provides our Office with the tools to keep children and youth safe. The more information our Advocates have access to, the more meaningfully they can advance the rights of young people.

We will continue to seek an amendment to the Provincial Advocate for Children and Youth Act that will allow for easier access to information for our Office. In the meantime, we will continue to strongly use all avenues available to us to obtain the information we need to fulfill our mandate.
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