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Daphne Bramham: Appeal court orders new trial in sensational family case

It was and remains a sensational case involving alleged sexual abuse of children by their father, coupled with allegations of misfeasance and breach of fiduciary duty to those children by the provincial Ministry of Children and Family Development.

In a scathing 2015 decision, B.C. Supreme Court Justice Paul Walker accepted all of the allegations as fact. It resulted in the four children being placed in the permanent care of their mother.

The finding of misfeasance against a social worker was a first in Canada and it sparked a controversial review of the ministry.

On Thursday, Walker’s rulings were resoundingly repudiated. The B.C. Court of Appeal ordered a new trial after concluding that the judge’s decisions were a miscarriage of justice and had “created significant procedural and substantive unfairness.”

Among the reasons cited by the three-person panel was the fact that the judge had improperly “seized” jurisdiction for himself over three related cases involving the family.

In a 133-page decision, the appellate court justices determined that American activist Claire Reeves, who had testified on the mother’s behalf, was no expert. Her three so-called academic degrees were purchased from “unaccredited diploma mills.”

Her biggest claim to fame — if not expertise — is that as the founder of Mothers Against Sexual Abuse she had frequently and publicly criticized pop star Michael Jackson.

They concluded that she had misrepresented her credentials and misled the court.

Writing for the unanimous panel, Justice Daphne Smith said: “The rules of evidence were not followed in this case.”

As a result, “The judge did not fulfill his gatekeeper role to ensure that the expert evidence sought to be adduced would enhance, rather than distort, the fact-finding process.”

The mother’s lawyer said Thursday that he has already been instructed to ask for leave to appeal to the Supreme Court of Canada.

There is little that’s good about this whole mess.

The case has already gobbled up hundreds of hours of court time, hundreds more hours of investigative and administrative work by police and social workers, and has cost hundreds of thousands of dollars.

But more importantly, Walker’s errors have compounded the chaos and confusion in the already impossibly troubled lives of these four poor children.

The youngest was only 14 months old when the mother first alleged in 2009 that some of the children had been molested by their father. The oldest was about seven.

(The parents’ names and other identifying details are under a publication ban to protect the privacy of the children.)

They have been poked, prodded, interviewed and counselled. They’ve been boomeranged from their family’s home to their mother’s custody to their uncle’s custody to foster care and back to their mother.

Through the years, they have been repeatedly asked whether they have been sexually touched or sexually abused by their father. They have been asked by a slew of experts and by their mother who audio- and videotaped their responses.

At one point, their mother — whose behaviour by then had already raised numerous red flags — shared with a wide variety of friends, family and acquaintances their taped answers to these most intimate of questions.

In their short lives — chronicled in the appellate court’s decision — the children have seen both of their parents jailed for brief periods.

The father was detained but never charged.

The mother was taken into custody, but never charged, after an incident in 2010 when the children were staying with their uncle. As she forced her way into her brother’s home, she pepper-sprayed the children along with her brother, sister-in-law and ex-husband, who was there for a supervised visit.

A few months before that, she had isolated and secluded herself and her children during the Christmas holidays, sparking fears among various people, including a Vancouver police detective, that the mother might either abduct the children or kill both them and herself.

The Court of Appeal’s decision is almost as scathing in its assessment of Justice Walker’s handling of the case as he was in his judgment of the ministry and the father (who had no legal counsel for much of the court proceedings because he couldn’t afford a lawyer).

It will come as a balm to those in the ministry whose reputations were left in tatters and may even help alleviate the chill that, as Justice Smith, noted would likely have descended on the ministry following the trial court’s ruling.

But pity those poor children for whom the bitter conflict between their warring parents has been one of the few constants in their short lives. The damage is unimaginable and possibly even irreparable.

They have been through hell already, and now a fresh one awaits them.

dbramham@postmedia.com

Twitter: daphnebramham

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http://vancouversun.com/opinion/columnists/daphne-bramham-appeal-court-orders-new-trial-in-sensational-family-case