No child protection for beaten girl
Syrian refugee punched, lashed for texting with a boy
A Yarmouth judge says there’s nothing she can do to protect a teenage Syrian refugee whose father allegedly punched her in the face five times and lashed her as many as 50 times with a belt for texting with a boy.
The young woman, identified only as S.H. in a written decision released Monday, came to Canada with her family in 2016 as part of a refugee resettlement program.
“Issues of domestic violence brought them to the attention of child protection authorities in 2017,” said Justice Michelle Christenson of the Nova Scotia Supreme Court’s family division.
“The … father was charged with an offence of violence against his wife. I understand she jumped from a second story window following an assault by her husband.”
The dad was sentenced to time served as he’d been jailed for 110 days before the trial. He was released with 18 months of probation.
“The parents reunited, or at least continued to live together in the same residence following these events,” said Christenson. “The child S.H., lived with them.”
The family came to the attention of authorities again last November after the young woman received a text message from a boy.
‘TOLD TO GO TO HER FATHER’S ROOM’
“The message was discovered by her brother, who brought it to the attention of her father,” Christenson said. “It is alleged that S.H. was told to go to her father’s room where she was disciplined for communicating with a boy without his permission.”
The young woman’s nose was broken during the subsequent beating and police took photos of her injuries.
“It is alleged she was punched five times in the face and lashed thirty to fifty times with a belt,” Christenson said. “The beating is alleged to have taken place over forty minutes.”
Police charged her father with assault and assault with a weapon.
Community Services Minister Karla Macfarlane stepped in, filing a child protection application, believing the young woman was born in 2007.
“I found there were reasonable and probable grounds to believe the child was in need of protective services,” Christenson said.
When the matter returned to court for a pre-protection hearing, the issue of jurisdiction was raised after a courtappointed child advocate reported the young woman may have been 16 at the time of the beating. If true, that would mean Christenson does not have the jurisdiction to deal with a child protection application.
“It was determined the matter would be set for hearing far enough down the road, to allow the parties the opportunity to secure the necessary documentation to support their respective views,” said the judge. “Except, no one bothered to do that. No orders of production were requested. No subpoenas issue(d) compelling persons to attend and bring with them evidence relevant to the issue I must decide.”
The birth date the young woman’s family gave for S.H. in immigration documents was Jan. 1, 2007.
“Despite asking for time to secure documentation to advance her position, the minister opted not to seek it, or have it produced,” Christenson said.
“Much to my surprise, the minister filed three affidavits and a brief, all of which argued this court lacked jurisdiction because they believed the child was born in 2005. That belief coming from various conversations had with school authorities and the respondent parents through a social worker who interviewed them.”
Macfarlane argued “the matter should be dismissed for lack of jurisdiction,” said the judge.
“The evidence before the court is not sufficient enough to prove on a balance of probabilities that the child was under the age of 16 when the application was filed, despite official documentation which would suggest otherwise.”
Her father didn’t make a closing argument.
“Based on his interview with the social worker however, I infer that he agrees with the minister’s request to have this matter dismissed,” Christenson said.
“He does so however, for slightly different reasons. He argues the allegations are false. In his interview with the social worker, he denied S.H. was lashed. He denied she sustained injuries; despite being advised of the photographs. He claimed ‘everything was a lie.’ He agreed with the minister that the child was 16 years of age at the time of the alleged event.”
The young woman’s mother also sided with Macfarlane.
“She too wants this matter done,” said the judge. “She wants nothing to do with the R.C.M.P. or the child protection authorities. They are not welcome at her home. She agrees the child was 16 years of age at the time of the incident. She agrees this court lacks jurisdiction.”
The young woman’s courtappointed guardian “alone, championed the cause of the child,” Christenson said.
She argued the court had jurisdiction because the young woman’s permanent residency documents and Syrian passport pegged her age at 14 at the time of the beating.
“She argued that unless and until that documentation was officially corrected, the court needed to continue acting in the best interests of this child,” said the judge.
Nobody involved in the case “introduced any evidence related to the official documentation,” Christenson said.
“No one attempted to present certified documents which illustrated the child’s year of birth as being 2007. No one was subpoenaed to attend court to produce this evidence. It exists, I have seen photocopies at least of the passport, it was attached to a brief, but no evidence to that affect was presented for my consideration.”
‘I FEAR THE PARTIES WERE NOT TRUTHFUL’
The victim’s parents chose not to give evidence about their daughter’s age.
“Instead they chose to have conversations with a social worker, who then prepared an affidavit about what she was told. But nowhere is there any indication that in giving their statements to that social worker, that they were under any obligation to be truthful,” Christenson said.
Despite photos of the young woman’s injuries, her father denies the beating ever took place and her mother “saw nothing,” said the judge.
“I fear the parties were not truthful about many aspects of their interview. I question their credibility, which makes it even more difficult to rely on their oral statements about their daughter’s birthdate.”
Her mother gave various explanations for the birth date confusion, including that they had changed S.H.’S due to a school cut-off.
A school principal “indicated he was told when the family arrived at the first settlement camp, the parents provided a false date of birth for S.H. in order to increase their chances at being able to immigrate,” said the judge. “This would suggest they have motive to lie when it suits their purpose.”
The young woman’s father “told the social worker it was the Lebanese government who made the mistake about the child’s birthdate,” said Christenson, noting the victim told a social worker she was 14 at the time of the beating.
“It appears to me the parents evidence shifted based on their desired outcome.”
‘EVIDENCE WAS NEVER TENDERED’
The application for child protection came from Macfarlane, said the judge.
“So it is her burden to establish that I have jurisdiction,” Christenson said. “She must do so on a balance of probabilities. It is not the parent’s burden to establish I do not have it.”
The judge said she could have relied on official documentation to determine the victim’s age.
“Had that been an option before me in this proceeding, likely I too would have, but that evidence was never tendered,” Christenson said.
“The minister who sought time to obtain those documents, never obtained a production order to secure them, nor subpoenaed parties to produce them.”
Three social workers testified it is their belief the victim was 16 years of age at the time, said the judge.
“That is really all that I am left with, by choice, but not by necessity.”
Christenson was not “satisfied that it has been established on a balance of probabilities based on evidence that ... S.H. was 14 years of age at the time of the incident which led to this child protection proceeding.”
If Macfarlane could obtain that evidence, she could make a new child protection application, said the judge. “The matter is dismissed for lack of jurisdiction.”