From ‘custody’ to ‘probation': Why are children in CAS described like criminals?

Thousands of Ontario children and youth are apprehended, placed into custody or put on probation every year without ever committing a crime.

And yet those are some of the terms Ontario’s child welfare legislation uses to describe how children’s aid societies treat kids who are neglected or physically and emotionally abused in their homes.

Advocates for children hope Ontario’s current five-year review of the provincial Child and Family Services Act will change this “archaic” terminology, using as a guide the United Nations Convention on the Rights of the Child.

“Every organization has a culture, and the language used within its services reflects that culture,” says the Children in Limbo Task Force, in its submission to the review.

“It is time to modernize and humanize the language by eliminating demeaning terms such as ‘apprehend,’ ‘custody,’ and ‘runaway,’ thus effecting a positive change to the act and to the culture in which we all live,” says the task force, a coalition of lawyers, social workers, academics and children’s aid officials.

The group partnered with former and current youth in the care of children’s aid societies. The young people’s views are also included in the submission.

They noted that children and youth in foster care and group homes already feel stigmatized because they aren’t living with their birth parents. The legal language used to describe their experiences adds to the pain, the task force said.

The review, launched last fall, specifically highlights modernizing and clarifying language in the act as a key goal for the province. Children’s Minister Tracy MacCharles is scheduled to report on the review in April.

“We must change the lexicon,” said task force member Marv Bernstein, policy adviser for UNICEF Canada. “These children are not offenders, victims, or the property of others, but rather individuals full of potential for achievement and success in each of their own ways.”

Bernstein was Saskatchewan’s independent children’s advocate from 2005 to 2010 and chief legal counsel for the Toronto Catholic Children’s Aid Society from 1980 to 2000.

As a lawyer, he said he recognizes that changing legislative language may open the system to legal challenges. “However, as a task force we feel it’s important to convey a strong message to children and families that they are respected, that we want to humanize their situation,” he said.

“Apprehension” seems to be the most objectionable term, the task force found. In New Brunswick and British Columbia the term “removal” is now used in the legislation to indicate the non-consensual removal of a child from his or her home, Bernstein said.

Another option would be to say that a child has been “given into care” or “placed into care” of a children’s aid society without the consent of the parent or caregiver, he said.

“Custody” implies punishment and control, the task force heard. Instead, the legislation should say a child has been “placed in the care of a child welfare agency or residence.”

It is also important to look at language used in child welfare practice, the task force says. Young people don’t like being referred to as “cases” or “files,” Bernstein said.

When asked for their impressions of the act, youth were particularly upset about the term “runaway,” because it automatically labels them delinquent when they may be running away from a dangerous situation involving physical or sexual abuse.

“It takes away from the story of why the young person might want to escape from where they are,” said Cheyanne Ratnam, 27, a former youth in care who advised the task force.

“I know because I ran away before coming into care,” said Ratnam, who ran away because of “domestic issues” and chose to go into group care at age 13.

“The language is very stigmatizing and very disempowering,” she said.

“Crown wardship” and “society wardship” are outdated terms not used anywhere else in Canada, said task force member Gail Aitken, a former Ryerson University social work professor.

One of the youth who participated in the task force focus group wondered if becoming a Crown ward meant getting a crown, she said.

Instead, the act should refer to children “being placed into the temporary or permanent care of a children’s aid society,” she said.

The negative language persists even when children are adopted and put under “probation” before the arrangement is finalized, the task force said.

Instead of using such a quasi-criminal term, the task force suggests the act should say a child is in the “initial” or “first phase” of an adoption placement.

Youth should be consulted province-wide on any language changes to ensure they don’t find the new language equally offensive, Bernstein added.

The task force said it hopes addressing the language problems will open the door to a more thorough review that looks at the legislation through a children’s rights lens.

“We see this as a golden opportunity.”