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February 1, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

An Ontario mother is suing a Toronto testing laboratory for negligence in the way it tested her hair samples after her ex-husband claimed she was abusing alcohol. The lawsuit seeks certification as a class action, and for good reason. Read about it here (Toronto Star, 1/22/16).

Yvonne Marchand’s only child was taken from her by the local child welfare authority after the Motherisk (interesting name) testing lab concluded, based on hair samples, that she had been abusing alcohol. Her ex-husband’s claim was false and Marchand got another lab to test her hair follicles. That lab concluded she was not abusing alcohol, but Marchand lost custody of her children anyway. More about that later.

What makes the Marchand case ripe for certification as a class is that the lab, located in the Hospital for Sick Children (“Sick Kids”), had a lengthy history of known malfeasance in its testing procedures and personnel. That likely led to many children being wrongfully taken from their parents. Motherisk is now out of business and its CEO promises to not re-open it.

“Although it is difficult for us to comment on any specific situation, we recognize that in some cases, families may have been impacted by the practices of the lab,” Sick Kids CEO Dr. Michael Apkon told the Star in a statement Thursday.

“We apologize deeply that this may be so and acknowledge responsibility for the hospital’s role. We appreciate that in some cases, we may need to participate in compensating impacted families.”

That’s at least an honorable acknowledgement of responsibility on Apkon’s part. But questions remain of just why Motherisk was allowed to remain in the business of forensic analysis for as long as it did and, more importantly, why its results were considered authoritative in court.

Ontario asked retired judge Susan Lang to investigate the testing practices at Motherisk. She looked at cases from 2005 to 2015 and issued a 344-page report that is damning to say the least.

She found the lab did not meet internationally recognized forensic standards, and that Sick Kids had not provided “meaningful oversight.”

“In the circumstances, I have concluded that the laboratory’s flawed hair-testing evidence had serious implications for the fairness of child protection and criminal cases,” said independent reviewer Susan Lang, a retired Court of Appeal judge…

The investigation showed that prior to 2010, Motherisk was testing hair using a methodology described by experts as falling short of the “gold-standard test.”

Lang said that while Motherisk’s hair tests were “forensic in nature,” and the service it offered police and child protection agencies was a forensic one, none of the lab’s leaders had formal training or experience in forensic toxicology…

“The result was inevitable: (Motherisk)’s testing and operations fell woefully short of internationally recognized forensic standards.”

That’s right, no one at Motherisk had training or experience in forensic toxicology. No one. And yet, that is precisely the service the lab was providing to Child Protective Services and courts adjudicating child custody, foster care and criminal cases involving children.

That also raises an obvious question: How is it possible that, over at least 10 years, no lawyer thought to ask Motherisk witnesses proffered by the Province what their qualifications were. As long as Ontario is investigating Motherisk, maybe it should investigate what goes on (or doesn’t go on) in courts when parents’ rights to their children are being adjudicated. It is beyond outrageous that such a standard of legal practice should exist year after year. Who were the lawyers who were supposed to be representing the parents? Who were the children’s lawyers? How could they have failed to do something as basic as demanding CVs of expert witnesses and asking them about the items listed?

For that matter, Yvonne Marchand’s case raises yet another question. Marchand represented herself in the suit that sought to take her children from her. She had the second hair follicle test that showed she wasn’t abusing alcohol, so she was confident of the outcome of the hearing. She shouldn’t have been.

But the judge at her court proceeding, about four years ago, refused to admit the independent test because the author of the test wasn’t present, Marchand claims. The lab’s manager was in court, but Marchand, who represented herself, didn’t know how to qualify the manager as an expert in order to testify, according to the statement of claim.

She claims the judge then relied on the Motherisk test result to strip her of custody of her daughter, whom she said she now sees only six hours a week.

Now, any judge with any sense of right and wrong would have at the very least adjourned the hearing to allow Marchand to bring the correct person to court to authenticate the test. After all, he had been presented with two hair follicle tests with opposite results. True, one hadn’t yet been admitted into evidence, but when something as important as child custody is at stake, isn’t it better to resolve the discrepancy between the tests than simply go with one and forget the other?

That’s particularly true given the fact, at the time of Marchand’s hearing, Motherisk was already known for malfeasance (Toronto Star, 12/17/15).

Her review brought back memories of disgraced pathologist Dr. Charles Smith, who was the first director of the Ontario Pediatric Forensic Pathology Unit at Sick Kids.

Many of his autopsies, which led to convictions in some cases, have since been called into question due to various errors. That led to a public inquiry in 2007 headed by Justice Stephen Goudge, whose report was released the following year.

In her review of Motherisk, Lang found that Sick Kids failed to apply several important lessons from the Goudge inquiry, particularly around forensic training and oversight.

“They should have fixed things (after the Goudge inquiry), and they didn’t. So it’s very disappointing,” Mary Ballantyne, chief executive director of the Ontario Association of Children’s Aid Societies, told the Star.

Yes, at the time Lang was conducting her investigation, there’d already been a previous investigation that revealed unacceptably bad practices at Motherisk. Worse, the managers there were supposed to have made needed changes, but did anyone think to check into whether they had? Given Lang’s findings, apparently not.

And that leads to the final question. Not only were lawyers and judges relying on the bona fides of an already discredited lab, so were child welfare authorities. Why?

“I think there’s a huge disappointment in an institution that we relied on, and I think that we will certainly be much more guarded on a go-forward basis to ensure that we really are getting the information that we need in the right way … It really is a disappointing breach of trust, for sure,” [said Ballantyne].

Yes, you did rely on that institution. You did so even though you knew it had been discredited. Yet it never occurred to you to wonder if it had changed its ways. And now you’re “disappointed” that it hadn’t. “Disappointed” isn’t the best description of how Motherisk’s willful incompetence impacted parents like Yvonne Marchand who went from being a full-time Mom to seeing her kid six hours a week based solely on the say-so of an untrained witness. Nor did it occur to you to simply use another lab, you know, the way Yvonne Marchand did.

Now it’s up to lawyers and courts to try to compensate parents for what Ontario and its “Children’s Aid” Societies did to them. Of course no one pretends that money can do that. The loss of one’s children and being publicly – and falsely - branded a bad parent aren’t things money can buy.

But at this point, that’s all that’s left to people like Marchand. She’s suing the hospital and its former director and manager, but there’s plenty of blame to go around, not just in her case but in who knows how many others?

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#childprotectiveservices, #childcustody, #classactionlawsuit

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