Dallas Miller, Q.C.

“While the state is a human creation, humanity is a creation of God”  -Vaclav Havel

This month, the world celebrates the tenth anniversary of the collapse of the Berlin Wall.  With the physical destruction of the Wall, came the destruction of the totalitarian world view that had as its roots the socialist/Marxist philosophy.  A philosophy that at its base contained the notion that the “state knows best” as against all institutions, be they family, church and private organizations.  The rise and fall of this statist philosophy in our century is simply another attempt in a long line of examples throughout history to build “utopian societies completely on man’s efforts and through the force of man made law”.

In a work completed ten years before the collapse of communism, the Soviet author Igor Shafarevich traced the futile attempt to create utopian socialist societies throughout history.  Shafarevich went back centuries and catalogued the historic tendencies of those who restructured societies by force to create the “perfected or utopian state”.  Studying these man made attempts to create “heaven on earth” through the state, Shafarevich detected three themes common to utopian societies. 

• First, religion was antithetical to the socialist state and must either be subordinated or abolished. 

• Secondly, private property gave people freedom, a liberty that was contrary to the goals of the socialist state and must therefore be eliminated. 

• Thirdly, the family as an institution needs to be abolished in order for the utopian state to succeed.[1]

Notwithstanding the fact that the [Soviet] socialist empire has been destroyed for 10 years and the world wide threat of communism is diminished, there lurks a similar attempt at creating a “utopian socialist state”.  This attempt seeks to create a utopian state by giving children autonomous rights and is best illustrated in the goals and ideals of the United Nations Convention on the Rights of the Child (UNCRC).  This child rights philosophy works itself out in the social policy of nations that have signed on to the UNCRC and through the judgements delivered by the committee of so called “child rights experts” who are charged with the responsibility of enforcing the terms of the UNCRC.

The author Shafarevich in his work, The Socialist Phenomenon unwittingly described how the child rights philosophy of the UNCRC manifests itself in day to day life.

In Canada, my law practice includes representing families who have taken on the task of teaching their children at home. The home school movement is a growing phenomenon in North America, these parents have chosen to home school their children and provide both an academic and moral education that their children cannot receive from a state school.  The vast majority of parents who choose to home school their children do so for religious reasons.  The commandment from Deuteronomy 6:5-7 is the heartfelt desire of parents from a wide spectrum of faiths.  However, in today’s statist and “autonomous child rights” climate, parents who choose to home school their children are singled out and harassed by those who pull the levers of power in state social service agencies.  Three recent court cases in Canada illustrate how the autonomous child rights philosophy which permeates through the UNCRC can negatively impact upon the family, sees religion as being in opposition to the state and its goals and ignores the right of private property.

Case Number 1: C.R.B. & S.G.B.  v. Director of Child Welfare (NFLD) [2]

This case involves a family in the province of Newfoundland, Canada, who have three children.  Two of whom were compulsory school age.  This family was a member of a sect of the Seventh Day Adventist Church and opted to educate their children at home, in large part to make sure their children received a faith based education from their parents.  The parents had approached two school boards in the province to have their home schooling program certified, but the boards denied their request and gave no reasons.  The parents were then charged with truancy and ordered to send their children to their local government school.  Upon their refusal to submit to the court order, the government obtained an ex parte order, which empowered a social worker to come onto their property and apprehend all three children and remove them from their parent’s care to place them in government foster care.  The court at the first instance (while the family had no legal representation) ordered that the children be placed in foster care for the period of four months for four reasons:

1. The family was deemed by the judge to not be providing a form of education “approved for children in the province of Newfoundland”;

2. The failure of the parents to provide immunization shots to their children and the families strict vegetarian diet.  The children by all accounts were healthy, but the court felt it was “fundamentally important that the children be immunized ... one of the most important areas of concern for those in the public health field”;

3. The possibility of abuse because of the strict adherence to the Bible by the father;

4. The dangerous religious zealotry and fervor with which the parents sought to pass on their beliefs to their children.

Without the benefit of legal counsel at the first trial and faced with their children removed by court order, the family then contacted our organization and immediate steps were taken to launch an appeal.  The appeal court judge did not have the same presumption in favor of state action and view of autonomous rights for children.  On the four grounds that the trial judge used to base his decision, the appeal court responded as follows:

• Education of the children- The appeal court found no evidence that the children’s religious education had impacted negatively upon them, nor had the state established that the family’s educational program was inadequate.  The judge ruled that in light of the fact that there was no evidence on this issue, the onus on the state director of child welfare, which was a substantial one had not been met.

• Health and medical considerations- Again, the state had not established by evidence that the refusal of the parents to immunize their children constituted any harm.   The parents had declared that their children were rarely, if ever ill which prompted the appeal court to comment that “this might lead one to the conclusion that the family’s dietary regime is in fact healthier than the standard North American diet!”

• Possibility of physical and mental abuse- The appeal court commented that Canadian law recognized corporal punishment as a parental choice where appropriate and that there was no evidentiary basis that the children were either physically or mentally abused.

• Religious zealotry and fervor- The parents rather strong apocalyptic beliefs did not fall outside of the purview of constitutional protection for freedom of conscience and religion.  Once again, in view of the lack of evidence, the appeal court was prepared to exercise its presumption in favor of the parents and not in favor of the state.  By exercising that presumption, the judge ruled in favor of the family unit on all four points and ordered the children be returned to the parent’s care immediately. 

Case Number 2: Family and Children’s Services of Cumberland County (Nova Scotia) v. G. C.  & C.C.[3]

The provincial family and children’s service department through one of its social workers attempted to gain entry and access to the private residence of the family and demanded an opportunity to interrogate their seven children because of certain “concerns” with respect to the welfare of the children.  The parents politely but firmly rebuffed the attempts by the state to intrude upon the home and interrogate children.  The parents did offer evidence that answered the social worker’s concerns in a less intrusive manner.  Nevertheless, the state proceeded to ask the Nova Scotia family court for an order to gain access and entry to the home and interview the children.  The principle concerns of the social worker included the fact that the children were being home schooled (religiously motivated), corporal discipline was used, and that the care, upbringing and neglect of the seven children was a concern because two of the children had problems with bed wetting.  The concern was also expressed about the delay in obtaining medical treatment for the children.  This concern was expressed to the court notwithstanding the fact that the family had submitted a doctor’s report verifying that all the seven children were in fine health.

In this particular case, the court heard both sides, and found that the parents were “different than many parents” because “they have elected to provide formal education themselves for the children: rather than send them to government schools”, but this difference did not warrant state intrusion upon their home, interruption of their family life and interrogation of their children.  Indeed, in dismissing the state’s application, the court quoted from a decision of the Supreme Court of Canada which encapsulates much of the western legal traditional view of the family: 

“... our society is far from having repudiated the privileged role parents exercise in the upbringing of their children.  This role translates into a protected sphere of parental decision making which is coated in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill equipped to make such decisions itself. Moreover, individuals have a deep personal interest as parents in fostering the growth of their children.”[4]

Case Number 3: Children’s Aid Society for Huron County v. R.B. & J.B.[5]

Ontario Children’s Aid Society received an anonymous letter which clearly showed a bias against the family’s choice to home school their children and commenced an extensive investigation against a family with 11 children and the mother expecting her twelfth in the month of August 1999.  The social worker had attended the home, the father consented to her viewing the home to satisfy her that there were no concerns.  The social worker insisted that she had the right to interview the children and interrogate them about the complaint which was based on hearsay and not independently verified. When the family insisted on their privacy and refused to cooperate, the reaction of the Children’s Aid Society was to bring an immediate court application for an order asking for the following:

• That the parents cooperate with the Children’s Aid Society.

• That the society have independent and private access to the children.

• That the parents allow the health unit and building inspector into their home.

• That the parents provide consents as requested by the society.

For religious reasons and to protect their children, this family refused to have them subjected to an interrogation process by Children’s Aid Society workers.  After providing substantial reference material on behalf of the family, medical information and positive character references the Children’s Aid Society continued to press the issue. 

The Court finally ruled on October 12, 1999, that because the family “appear to follow a path in life that would be seen by many to be different from the so called norm, and in that path in their life they resist intrusion by the Children’s Aid Society.  [The court] cannot draw a negative inference merely from the stance that they have taken”.  The court ruled that it should not draw an adverse inference when parents insist on exercising their constitutional rights and resist state intrusion which is not grounded in anything more than unsubstantiated hearsay.  It is significant that the original investigation included an interrogation by the social worker of the father concerning his religious beliefs and expressed concern that the church the family attended was “evangelical”.

The philosophy that the “state knows what is best” for children permeates the investigations of social workers of which the cases outlined above are only representative samples.  This same philosophy is illustrated in the judgements of the Committee of Child Rights Experts under the UNCRC.

As an example, in 1995 in its judgement against Great Britain, the committee was severely critical of Great Britain for what they viewed as more than 20 violations of the Convention.  The more prominent violations according to the committee were that Great Britain allowed parents to opt their children out of sex education classes in government schools without the consent of the child.  Great Britain was also criticized for allowing corporal punishment and allowing parents to home school their children.[6]

The reports over the years from the Committee of Ten have shown that the “autonomous child rights”  philosophy has become stronger and stronger.  Several themes have emerged as the Committee of Ten has passed judgement on the social policy of various countries:

1. Corporal punishment must be abolished in every institution, including the home -thereby making many parents criminals for applying reasonable corrective discipline;

2. Government enlarged monitoring mechanism should be established to oversee the implementation of the Convention;

3. Curriculum in schools must be changed so that principles of the "autonomous child" as set out in the Convention are taught throughout schools;

4. Government programs should be designed to sensitize all professional groups that deal with children as to the spirit and philosophy (autonomous view of the child) of the Convention;

5. Government programs should be designed to sensitize the general population at large as to the spirit and philosophy (autonomous view of the child) of the Convention;

6. Children must have complete freedom of expression;

The UNCRC is unique compared to other international human rights documents in that for the first time it sets up children as having independent rights as against their parents with the power of the State driving the wedge between children and their parents.  A recent article in the Harvard International Law Journal summarizes the significance in difference between this Convention and its approach in dealing with children and the approach taken historically by American and Canadian Courts:

"The 1989 Convention, on the other hand, consciously breaks new ground, creating 'an important addition to human rights jurisprudence;' namely, the notion of autonomy-based 'individual personality rights' for children, a concept that includes such adult-style civil rights as 'speech, religion, association, assembly and the right to privacy.'  This notion does not reflect prior United Nations approaches to children's needs or rights, nor did it originate in requests initiated by delegated from U.N. member nations.  Rather, during the 1980s certain nongovernmental organizations (NGOs) formed an ad hoc group that located governmental sponsors for the 'totally new right' of individual personality, which the NGO group promoted by taking an unusually direct role in helping to draft the Convention'.[7]

This approach brings about a state paternalism that replaces what has historically been viewed as family paternalism.  The principles of the Convention effectively seek to build a direct relationship between children and the State and this statist conception of community undermines other structures such as families, churches and other voluntary associations, but also speeds up the anti-democratic tendencies inherent in state-imposed concepts of child rearing.  The authors of the Harvard study state that:

"Children are inherently dependent persons - a concept less of law than of nature.  So the question is on whom will children depend, not whether they should be dependent.  In this 'struggle between the family and the state for the minds of the young' the pluralistic democratic tradition has looked to parents and families, not to the state, to teach children the values, beliefs and commitments that sustain an open society".[8]

"As parens patriae the Sovereign is the constitutional guardian of children, but that power arises in the community where the family is the social unit.  No one would, for a moment, suggest that the power ever extended to the disruption of their unity by seizing any of its children at the whim or for any public or private purpose of the Sovereign or for any other purpose than that of the welfare of one unable, because of infancy to care for himself . . the welfare of the child can never be determined as an isolated fact, that is, as if the child were free from natural parental bonds entailing moral responsibility."[9]

Indeed the philosophy of the UNCRC is contrary to the high value placed on families in other international instruments:

• UN Declaration of Human Rights-
  Article 16 (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

• The International Covenant on Civil and Political Rights-
  Article 23 (1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

• American Convention on Human Rights-
  Article 17 (1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

When one looks at the underlying philosophy and worldview that has protected the jurisdiction of the family from state intrusion, one realizes that it originates from the western Judeo-Christian tradition.  It was the Catholic natural law specialist Jacques Maritain who brought natural law principles into the drafting of the UN Declaration of Human Rights.  Assisted by a Lebanese Christian, Charles Malik who insured that the concept of “persons” and their identity being found in families which pre-existed the state was included in the original UN Declaration on Human Rights.[10]  Finally, Rene Cassin who was highly influential in the original Declaration and the origin of the United Nations clearly articulated that his motive for preparing an international standard for respect for human dignity was the Ten Commandments.[11]

Preserving and respecting the family from the “autonomous child rights philosophy” means working to preserve the right of freedom of religion (the right of parents to direct the education of their children), private property (the right not to have their homes intruded on by the state for capricious reasons) and the protection of the family (the right not to have the state interrogate children without just cause).  Advocates of pro-family social policy must use the traditions grounded in western legal systems which are ultimately grounded in the Judeo-Christian heritage to defend family autonomy and protect parental rights.  The highly philosophical and theoretical discussion in this area becomes intensely practical when an agent of the state such as a social worker, knocks on a family’s door and insists that they have a right to enter into the home and interview children because of a complaint made against the family.  This is what has precipitated the investigations that have resulted in the three cases outlined above. 

In terms of practical ways to resolve and avoid these types of cases, families need legal advice early in these investigations and more importantly in the long term, there needs to be a reform in the child welfare laws.  Areas that are in most need of reform are: 

1. Anonymous tips: Child welfare laws should be amended to require all reporters of child abuse to give their names, addresses and phone numbers.  This will curtail false reporting and end harassment using anonymous tips.

2. False reporting:  Child welfare laws should be amended to make it an offence for false and malicious reporting.

3. Reasonable and probable grounds:  Social workers must be held accountable to the same standard as that of police before they can enter the private homes of individuals when consent is not given.

4. Access to records:  Many times families who are the subject of an investigations by social workers are denied access to the records of the state concerning the investigation.  Child welfare laws should be amended to allow victims of the system  to inspect their records in order for them to make a decision based on all information available to seek recourse for infringement of their parental rights .

5. A respect for parents inherent constitutional rights:  Child Welfare legislation should specifically provide recognition for parental rights in order to create an even playing field during social work investigations.[12]

Countries are obligated by international law to protect the family as the “natural and fundamental group unit of society” and families can and should expect that their property, religious faith and the integrity of the family unit will be respected by state authorities.  By adopting the “autonomous rights” view, countries are in danger of embarking on a “utopian socialist” enterprise that disregards private property, opposes religion and works to undermine the family.  As we approach the new millennium, pro family leaders must fight to ensure that a new wall of socialism is not erected world wide and we are reminded of the importance of religious faith intertwined with the family life in this battle by C.S. Lewis:[13]

“Where the tide flows towards increasing state control, Christianity, with its claims in one way personal and in the other way ecumenical and both ways antithetical to omnicompetent government must always in fact (though not for a long time yet in words) be treated as an enemy.  Like learning, like the family, like any ancient and liberal profession, like the common law, it gives the individual a standing ground against the State”

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