Should children be removed from racist parents?

In March 2009, Child and Family Services in Winnipeg, Manitoba seized an eight-year-old girl and her younger half-brother after she went to her Winnipeg school with a swastika and other racist messages drawn on her body.

A swastika was the Nazi sign that was on Germany’s flags and the armbands of Nazi officials between 1933 and 1944. It became illegal to display a swastika in Germany after the Second World War. Neo Nazis and skinheads often carry such flags and tattoo them on their bodies.

After she was seized, the child told a social worker how to kill black persons by whipping them with a ball and chain. This she learned from her parents. Her stepfather is a ‘white pride’ supporter with drinking issues.

The girl's biological father begged a judge not to give his daughter back to her former stepfather. He told the judge who was presiding at the court that his daughter still has a chance for a happy future if she's lives with a foster family.

September 2nd 2009 was the final day of arguments over a Manitoba Child and Family Services application for a permanent order of guardianship for the children due to allegations they were neglected and emotionally abused through exposure to their parents' beliefs. The judge, at the time of this writing as reserved his decision.

The children's mother now lives in another province. Her estranged husband, who is the girl's stepfather and boy's biological father, has remained in Winnipeg and waged a legal battle to keep the children. He told court recently that he has found work as a security guard and lives with his parents for support.

The controversial custody case has raised questions over just when the state should be able to seize children from parental control. The stepfather is arguing seizure of the children violates his freedom of expression under the Canadian Charter of Rights and Freedoms. The man's lawyer, Catherine Dunn, said he should be able to care for the children if Child and Family Services plays a supervisory role. She said the agency over-reacted by seizing the children immediately.

Let me first deal with the issue of freedom of expression under the Canadian Charter of Rights and Freedoms. Section 2(b) states that ‘everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.’

So what in essence the stepfather is saying is that when he placed an image of a swastika and racist messages on his stepdaughter’s body, he was doing it as an expression of his thoughts and that under our constitution, he has a right to express those thoughts in any way he so chooses.

In actual fact, he went beyond his right to express himself when he displayed the expression of his thoughts on the skin of his stepdaughter. The swastika was not an expression of her thoughts but rather those of her stepfather. His act was no different than had he painted a swastika and racist messages on the side of a building that was not his own. Even if the child consented to it being drawn on her body, that didn’t make it right. The child is subservient to her stepfather so in reality, she didn’t have any real say in the matter.

However, one could argue that his communication, via the use of a swastika and racist messages drawn on his stepdaughter’s skin were offensive and propagandistic, but they did not constitute threats in the usual sense of that word. If he also wrote on her skin, the words; ‘Kill all Jews’ or Kill all blacks’ that would be advocating genocide for racist reasons and that would be a crime. But that isn’t what he did. Further, to suggest that speech, like hate propaganda, which undermines the credibility of speakers belonging to particular groups does not fall within s. 2(b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable. In other words, he has the right to say what he wants or write what he wants so long as he isn’t advocating genocide or hatred of a specific group of people.

In R. v. Keegstra, a 1990 case heard before the Supreme Court of Canada, the court dealt with the issue of a school teacher in Alberta who was charged with promoting hatred by communicating anti semitic statements to his students.

While in the Keegstra case, (as in the case being heard in Winnipeg) it may be easy to achieve near unanimous consensus that the statements contributed nothing positive to our society, experience shows that in other cases it may be difficult to draw the line between speech which has value to democracy or social issues and speech which does not. Attempts to confine the guarantee of free expression only to written or spoken content which is judged to possess redeeming value; strikes at the very essence of the value of the freedom and reduces the realm of protected discussion to that which is comfortable and compatible with current conceptions.

Now having dealt with the issue of the stepfather’s right to express himself in any manner he wishes other than drawing or painting his thoughts on the child’s body or on property not belonging to him, I will turn your attention to the issue of whether the racist should have custody of a child, be it his stepdaughter or his own son.

Decisions granting summary judgment in family matters emphasize the need for caution and for attention to the principles of justice and most importantly, what is in the best interests of the children.

Is it in the best interest of his stepdaughter and his own son that they continue to be brought up as racists by him? I think not. The consequences of being brought up that way can have a devastating effect on both children when they become adults. Their racist thoughts will become common knowledge and they will be shunned by decent people who abhor racism in any manner that it is expressed by them. They would grow up with a warped opinion of other races. They simply wouldn’t fit in a Neapolitan society where everyone accepts others as fellow human beings.

For this reason I not only believe that the stepfather should not have custody of the two children, he should also be denied access to them. To permit him to be around the children will be counter productive as there is much that has to be done to correct the wrongs that have been brought upon these children by this man. Hopefully, they will be sent to a foster home or foster homes in which they will be loved and taught the difference between right and wrong, a task that their parents chose not to exercise.

Years ago when I was practicing law, I represented a woman whose husband denied her access to her two sons. Worse yet, he poisoned the relationship between them and their mother. No man should bring up his children to hate their mother. I argued that not only should the sons be turned over to their mother for permanent custody, but also I argued that their father should not have any access to then until they turn at least 16 years of age. The court agreed with me and the mother got sole custody of her two sons and their father was denied access to them.

Once a child is found to be in need of protection, the court is obligated to consider which order would be least disruptive to the child, while providing the child with adequate protection. Admittedly, removing the boy and girl from their home, is to some degree, disruptive but their protection has to take precedence.

If the man wants visiting rights to see the children, the onus is on him to prove on a balance of probabilities that (1) the relationship between him and the children is meaningful to the children, (2) the relationship between him and the children is beneficial to them and (3) access to them will not impair their future opportunities of being brought up properly by the foster parents.

Considering the fact that he is a bigot and racist and that his racism isn’t just skin deep; it goes right to the bone, I doubt that this man will get visiting rights.

I will keep my readers abreast as to the final outcome of this interesting case.

UPDATE: In February 2010, the court ordered that the children should be removed from their parents and live apart from their parents with no visiting rights.