Syl Apps: A child’s best interests are paramount

On Friday, July 27, 2007, the Supreme Court of Canada (“SCC”) released the much anticipated decision in the case of Syl Apps Secure Treatment Centre v BD, [2007] 3 SCR 83. The SCC considered whether a new duty of care should be imposed on a treatment centre and its social workers to the family members of a child ordered by the court to be placed in the treatment centre.

Since this case has been discussed in blogs by Julian Ho and Eric Baum on May 3rd and July 26th, 2007, respectively, I will bypass the factual circumstances and delve directly into the SCC’s decision and analysis. In a 9-0 unanimous ruling, the SCC allowed the appeal by Syl Apps and Douglas Baptiste, finding that no legal duty exists toward R.D.’s family by the treatment centre and its social workers, and thus the statement of claim against Syl Apps and Baptiste disclosed no reasonable cause of action. In arriving at this conclusion, the SCC explained that in order to establish such a duty the test developed in Anns v Merton London Borough Council, [1978] AC 728 (HL) [Anns] must be satisfied. In order to satisfy this prima facie duty of care test, the harm must be reasonably foreseeable; there must be a relationship of sufficient proximity between the plaintiff and defendant; and there must not be any residual policy considerations for not imposing the duty.

The alleged “harm” is that the treatment that R.D. received rendered her incapable of being reintegrated back into the family. The first branch of the Anns test, reasonable foreseeability, is not considered by the SCC, as the parties agreed that it was not in dispute. The problem surfaces with the second branch of the test, the relationship of proximity between plaintiff and defendant. The family argued that ss. 1 and 37(3)5-7 of the Child and Family Services Act, RSO 1990, c C.11 and court orders recognizing the importance of the family unit form the basis of a relationship of proximity. The SCC, however, on examination of this statute, determined that while the legislation does reference family, the Act focuses on the promotion of the best interests of the child, rather than that of the family. Abella J., for the SCC, explains:

The statutory references to parents and family in the Act, which the family seeks to rely on to ground proximity, are not stand-alone principles, but fall instead under the overarching umbrella of the best interests of the child. Those provisions are there to protect and further the interests of the child, not of the parents and therefore, in my view, cannot be relied upon for finding a relationship of sufficient proximity.

Thus, while the views of a family are not irrelevant, it was determined that their “wishes are entitled to less deference than the child’s best interests.” The family also argued that s. 2(2) of the Act places obligations on the providers of services to ensure that the voices of both the children and their parents are heard; the SCC concluded that this does not merit the finding of proximity, as these are essentially procedural rights. Further, a duty of care owed by the child’s court-ordered service providers to the family may result in conflicting duties, as the provider’s supreme duty is to guard the best interests of the child in their care. A further potential conflict may exist in the medical realm. Syl Apps and Baptiste provided treatment services to R.D, which involve obligations of privacy and confidentiality.

The SCC found problematic the family’s use of court orders to ground a proximity claim, as the court had never ordered R.D’s reintegration back into her family. A child’s treatment may very well be a success even if he or she does not return to his or her family. Further, not only does the Act provide options to families who wish to challenge the way their child is treated, but workers in the child protection field are clearly legislatively protected from potential liability stemming from the good faith exercise of their statutory duty. This is present in s. 15(6) of the Child and Family Services Act, as well as s. 4(3) of the Ministry of Community and Social Services Act, RSO 1990, c M.20 and s. 142 of the Courts of Justice Act, RSO 1990, c C.43. This legislative policy and immunity confirms that no relationship of proximity exists between the family of a child receiving care and the individuals ordered by a court to protect the welfare of that child. Thus there is “no basis for recognizing a prima facie duty of care towards the family on the part of the Syl Apps Secure Treatment Centre or Mr. Baptiste.”

As explained by Abella J. in paragraph 64 of the decision,

Child protection work is difficult, painful and complex. Catering to a child’s best interests in this context means catering to a vulnerable group at its most vulnerable. Those who do it, do so knowing that protecting the child’s interests often means doing so at the expense of the rest of the family. Yet their statutory mandate is to treat the child’s interests as paramount. They must be free to execute this mandate to the fullest extent possible. The result they seek is to restore the child, not the family. Where the duties to the child have been performed in accordance with the statute, there is no ancillary duty to accommodate the family’s wish for a different result, a different result perhaps even the child protection worker had hoped for.

This decision serves as a victory for the Canadian child welfare system, as court-appointed service providers for children in need of protection will now be able to perform their work-related responsibilities without fear of litigation. More importantly, this judgment confirms the primacy of the best interests of the child and recognizes the potential for conflict if dual duties are owed to both the child and the child’s family. While the wishes and interests of a family are certainly not inconsequential, ultimately, the primary focus in any similar circumstance, should be the welfare of a child. If a new duty to the family of a protected child were to be recognized, this could well compromise a service provider’s ability to achieve an outcome which is in the best interests of that child.