Canadian Children's Rights Council - Conseil canadien des droits des enfants

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Safe Haven Laws on Child Abandonment by Mothers Seriously Flawed and Gender Biased

April 20, 2006, Position statement of the Canadian Children's Rights Council

Forty-seven U.S. states have passed Safe Haven laws which allow mothers tempted to abandon or kill their babies to deliver the children instead to emergency facilities for possible adoption. Safe haven proponents insist that the mothers relinquishing their children to safe havens remain anonymous. Researchers have criticized aspects of these child abandonment laws for several reasons. One of those is that they deprive biological fathers of their legal right to care for their children.

Such a legal right does not exist in Canada.  Case law in Canada is that fathers that found out they were a father within 30 days after a child's birth, that have immediately gone to court to claim their child, have been denied their children by family court judges. The judge found that the child would be better off being raised by a couple rather than by a single father.  We can't even imagine a Canadian judge stating that a child should be taken away from a mother solely based on the fact that she was a single parent.

Unfortunately, Canada has ratified the UN Convention on the Rights of the child which supports the right to relationships of  biological children and their biological parents. Some Canadian judges and even the Attorney General of Canada ( Liberals, Irwin Cotler and Anne McClellan) have made statements  stating that biological parents don't have right just "responsibilities".  The responsibilities are limited to financial support often and don't include parenting time.

William Pierce, founder of the National Council For Adoption in the U.S.A., in his response to American safe haven laws stated that such a concern evidenced an unrealistic threat to safe haven opponents because fathers would not take responsibility when they lacked knowledge of the pregnancy and had not supported the mother.

This marks the second time Pierce has been completely off-target in articles about how fathers rights and children's rights are not violated by child abandonment laws (safe haven laws). The absence of any meaningful statements regarding children's identity and relationship rights is an example of the author's lack of understanding of the most fundamental children's rights.

The first was in his rebuttal article to the American Evan B. Donaldson Institutes Research Report, wherein Pierce discussed using putative father registries to locate fathers.

Major errors in the article are:

  1. The assumption that fathers would not want to know about the pregnancy and thus not want to raise the child by himself or with other members of his family.
  2. The belief that enacting putative father registries would satisfy due process of law.

The biased portion that fathers would not wish to raise their own children and have a relationship with them.

In the most recent article, Pierce stated the following in response to concerns about fathers rights:

As if a man who was unaware of a pregnancy, unsupportive for nine months, and absent for the labour and delivery would suddenly develop a sense of responsibility or as if an abandoned woman is going to turn over her baby willingly to such a man.

Legally, in Canada, the man is not a father until the child is born and he has no say in anything to do with the woman's health issues. He has no right to even talk to the potential mother should she choose to eliminate him from the child's life. She can move away from him while pregnant without his knowledge or consent even when he has stated that he wishes to become a father to her child should she choose to give birth and have a baby.

In a  Saskatoon father's case heard in family court in late 2006, the facts of the case were that the father was advised by the pregnant woman's relatives that he would shortly become a father.  He notified the hospital

There are many many circumstances

This reasoning is faulty because Pierce makes an argument for abandonment per se; that is, that safe haven relinquishment is, in itself, proof of the fathers abandonment and failure to support, or proof that the father did not know of the pregnancy. But one cannot make such an absolute presumption. It is entirely possible that the father of a child relinquished to a safe haven knew of the pregnancy and contributed, or tried to contribute, support to the mother.

The term "unsupportive" refers to a feeling and as such is subject to a wide interpretation. The absence of a father at the time of labour and birth event is not evidence of anything. Taking the position that a father MUST be at the birth event and watch the delivery ignores different cultural and traditional needs of families. A birth could be missed by a father because of early unexpected delivery while he is providing financially for his family while on a business trip.

It is also entirely possible that the father, through no fault of his own, or again through the mothers own control, could not be present at the delivery or during labour. He could have been away in the military, for example. The Canadian Children's Rights Councils gets calls weekly from pregnant women attending universities great distances from their homes. They often choose to return to their hometown to give birth with their families and exclude the father. 

Another is when a woman and the father live separate but in the same small population community and the mother faces the high probability that the child will  discover her identity and confront her sometime in the future. She may feel guilt for not wanting a relationship with that child and for giving up the child to the raised solely by the father.

Some mothers want to avoid paying child financial support for 20+ years if they know the father will raise the child by himself. Statistically the vast majority of women who want to abandon a child to adoption change their minds and choose to raise the child themselves if the father wants to raise the child by himself. 

The position of the Canadian Children's Rights Council is that such laws in Canada that are similar, violate both the child's and father's rights to a relationship under the Canadian Charter of Rights and Freedoms provisions providing rights for the security of a person as well as the right provided in the U.N. Convention on the Rights of the Child.

Most Canadian provinces have laws which require parents having less than 40% of the parenting time to pay financial support to the parent with the majority of the parenting time regardless of the the recipient's income or financial resources. That means that a parent living in poverty and unable to spend any money for food and lodging for their child while living with them for say 35% of the time, and who's income is below the poverty level at $9,000 annual income, is required to pay child financial support payments to the another parent who is making $200,000 per year and has a net worth of millions of dollars.

Pierces incredulity at the idea of a man not knowing about the pregnancy suddenly developing a sense of responsibility is simply a value judgment based on prejudice. Either that or Pierce feels that safe havens fulfill a U.S. state interest so compelling (e.g. saving babies lives) that the laws override a fathers fundamental right to due process regarding his children and that safe havens provide the least restrictive way of achieving that interest. If safe haven proponents really believe that, then they should come right out and argue it in its proper legal context.

Otherwise, the U.S. case law is not devoid of situations involving men who lacked knowledge of a pregnancy and never supported the mother, but who, upon learning of the child's existence, wanted to raise their own child. Besides this, some courts have found that lack of knowledge about the pregnancy spoke against an argument of abandonment because abandonment required intent in the face of knowledge. Thus, while lack of knowledge may not be an excuse for not preserving ones right to notice, it is not a ground for termination of parental rights. Hence, Pierces argument amounts to an attitude of what biological fathers don't know wont hurt them--as long as were saving a baby. But the fact remains, even fathers who lack all knowledge of the child have a U.S. constitutional right to due process.

Canadian case law shows numerous cases of misandric judicial bias. In one such case the father immediately, upon finding out that he was a father,  went to court to seek custody of his child. Although the baby was only one month old child, the court ruled that it was in the best interests of the child to be left with an adoptive family. This violates the child's right to be raise by the child's own father as well as the father's right.

No where in the article does it mention the child's right to a relationship with BOTH biological parents expressed in the U.N. Convention on the Rights of the Child.

It is the position of the Canadian Children's Rights Council that the provincial governments of Canada should provided free identity testing at or before birth ( now available at 12 weeks into a pregnancy by non-invasive means) as part of our government paid universal heath plan.

This would enforced the identity rights of the child as soon as technologically practical and supported the child's identity rights by providing services to investigate the child's identity.

This would also ensure that fathers know that they are, in fact,  fathers and have the opportunity to raise their own children. Unfortunately, we have found substantial gender biased by female social workers in the adoption services industry in Canada. They often are gender biased and think it better generally that a child is better off being raised by adoptive parent(s).

The laws and public attitudes are changing and more single women are adopting children or raising children themselves after divorce. With a 50% divorce rate in Canada, there are many more children brought up in single parent households.

The Ontario Court of Appeal has, over the years, made 5 determinations that what's good for mothers is good for children, a position with which we do not agree. Children are individual human beings and have rights which can conflict with those of a parent. Even in divorce cases involving a father who has had daily parenting time with his child, the court has allowed a mother to move away and virtually cut off the child's contact and relationship with his or her  father.

False claims that "Safe Haven" laws save lives

Very few Canadian children of all ages are murdered by their biological or social parents. The number of newborns killed are extremely rare in Canada.

We wonder about the claims of some  American lawmakers that such laws have saved lives of any children.

The fact is that if a parent was intent on killing their newborn child, they easily could and make it difficult for the crime to surface.

The statements made by these politicians that children's lives have been saved are usually based on the number of children turned over under such laws. There is no solid  proof that any of these children were in danger of being killed.

In Canada, our researchers couldn't find evidence of any babies left in circumstances that would deliberately cause their death save and except for a handful of cases over the last 40 years and no child died.

The exception to this "rule" may be the newborn abandonment case in Saskatchewan of  May 2007 regarding the baby boy left in a Wal-Mart store washroom. Even in that case, many women per hour would probably have used that washroom in which the baby was found in such a high volume traffic store as Wal-Mart.  Store videos security tapes released by the police show a woman entering and leaving the store during a 15 minute period with many other people entering and exiting the store.

The facts of the case involving the "Wal-Mart baby" are under investigation at the date of writing this part of our web page.  The most disturbing part of this developing story is news that the baby was found head down in a toilet and needed assistance to start to breath.

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