Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters

Chapter 2: Federally Sentenced Women (cont'd)

Chapter 2: Federally Sentenced Women (cont'd)

2.4 Child Apprehension Matters

While entitlement to legal aid for child apprehension cases has been constitutionally recognized by the Supreme Court of Canada in the G.(J) decision,[167] the ability for incarcerated women to actually avail themselves of this constitutional protection is fragile at best. Their ability to do so is contingent on child protection workers informing them of their legal rights, on being served with notice of a child protection hearing, on transportation to the hearing being made available to them, on their ability to contact legal aid, and on finding a lawyer who will agree to travel considerable distances to represent them.

At the time of her arrest, a woman is required to negotiate two complicated separate social systems – the criminal justice system and the child apprehension system – whose processes have, to date, not been co-ordinated nor made comprehensible to her. Concern about care arrangements can be an overwhelming distraction that can seriously hamper a woman’s ability to negotiate criminal legal processes.[168]

Focus groups were recently held with Aboriginal women in British Columbia whose children had been in state care.[169] While the participants were not incarcerated, their experiences are illustrative of the range of challenges women confront when dealing with the child welfare system.

Their comments underscore women’s need for legal information. Many mothers had not heard of, or were not familiar with the child apprehension process, their rights or their responsibilities:

She (social worker) didn’t let me know my legal rights, if I should go for legal aid or, didn’t offer very much at all.

I felt like I didn’t have any rights … I didn’t know my rights.

Focus group participants spoke of feeling discriminated against and intimidated by government social workers and others working in the child welfare system. Their observations correlate with broader Aboriginal experiences of racism in contemporary Canadian society. The participants provided many stories that were expressed with anger, hurt, outrage, and sadness:

I get so angry when I talk about the ministry. I feel that now I am labelled, I think because of who I am and what I am – Native. We should have the same rights as anyone else. Every nationality should be treated the same way. Just cause we are Native does not mean we are evil, bad and nothing but drunks.

I guess what I’m trying to say is they treat Aboriginal women with a lot of discrimination, or something like that, discrimination … they like to intimidate you and they don’t let you know you have rights.

A number of participants noted that they were advised to just be agreeable in order to speed up the return of their children, pointing to a broader systemic flaw in the justice process that encourages agreement rather than resistance:

… they more or less told me that the sooner I get it over with the least time it would be for me to have my children back. If I fought it and said you know this is totally unfair it’s wrong information you have, it would have taken over a year, or two years maybe.[170]

The experiences of Aboriginal women with the child welfare system must be understood within the broader historical context of colonization. The initial incarnation of child-apprehending institutions was the notorious residential school. The schools have been viewed as "a conscious, deliberate and often brutal attempt to force Aboriginal peoples to assimilate into mainstream society, mostly by forcing children away from their language, culture and societies.[171] Indian residential schools denied over 100,000 children the experiences of culture, parenting and the development of child-rearing skills and norms, and subjected them to physical, psychological and sexual abuse."[172]

Professor Marlee Kline noted that child protection workers and the judiciary tend to focus on the individual caregiver (mother) without connecting the challenges of supporting and nurturing children to the problems of poverty, violence and the legacy of cultural marginalization and racism, and the way in which these compounding experiences of oppression affect women’s lives.[173] Kline went further in her analysis:

The focus on individual "bad mothers" as the source of difficulties in First Nations child welfare cases effectively blames First Nations women for the effects of social ills that are largely the consequence of this history and present. Vivid illustrations of this individualized mother-blaming focus can be found in child protection cases, involving First Nations women who are dependant on drugs or alcohol, or involved in a relationship with a violent man.[174]

The number of Aboriginal children in care is disturbingly high. Equally disturbing is the fact that according to the Children’s Commission’s 1998 Annual Report, contrary to the law of British Columbia, only 2.5 percent of Aboriginal children are placed in Aboriginal homes. Further, only 30 percent of the plans of care for Aboriginal children include, as required by Ministry policy and provincial legislation, plans to address, honour and respect their cultural needs.[175]

It is easy to imagine how much more anxiety-producing this experience of having her children apprehended would be where the woman was also charged with a criminal offence.

2.4.1 Legal Aid and Other Legal Needs

Justice for women entering the correctional system is contingent on a number of factors, including access to legal information and advice about the implications of their incarceration for their dependant children.[176] The imprisonment of a female single parent can frequently result in instability for the children, characterized by frequent moves, too many caregivers, and the possibility of permanent separation from a parent.[177] It is hard to imagine a more stressful set of circumstances under which women are forced to make care decisions about their children than upon arrest.

Need for Legal Representation

Representation is required continuously from the point at which the mother is arrested through each stage of the child apprehension case. A lawyer working within the correctional institution would be well positioned to provide legal advice to incarcerated mothers, to take account of the best interests of the child and the restricted mobility of an incarcerated mother.

Legal representation at judicial hearings is critical to ensure that mothers have a full and fair opportunity to be heard in court. In particular, representation is needed to respond to the view that incarceration is often used as an indicator of parental fitness.[178] Judges may view the absence of the incarcerated mother at a hearing – despite her best efforts to attend – as a sign of default or indifference to the proceedings, and may proceed without her, often leading to tragic consequences for her and her children.[179]

Notwithstanding the constitutional entitlement to legal aid in child apprehension matters, women are frequently not able to attend protection hearings and assert their rights. The reasons for their non-attendance are varied, but their unawareness of their entitlements, their inability to access legal aid, and the correctional institutions’ non-facilitation of their participation are partly responsible. This suggests women will need legal representation to apply for court orders to enforce their constitutional entitlements as well as their rights under child protection legislation.

Need for Legal Advice

Women require legal advice prior to signing a voluntary consent form so that they can understand their rights and responsibilities, and the consequences for their children of voluntarily signing them into care.

Need for Legal Support

Persons providing legal support could assist with advising women of the child apprehension process as well as their rights and responsibilities when their children are in care. Paralegal workers could also communicate with child apprehending agencies to assist with visitation plans, attend case conferences and help access services available in jail.[180]

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