Childhood

http://chd.sagepub.com The Responsibility Dance: Creating neoliberal children

Gerald Cradock Childhood 2007; 14; 153 DOI: 10.1177/0907568207078325 The online version of this article can be found at: http://chd.sagepub.com/cgi/content/abstract/14/2/153

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THE RESPONSIBILITY DANCE Creating neoliberal children

GERALD CRADOCK University of Windsor Key words: family, foster children, responsibilization, rights Mailing address: Gerald Cradock Department of Anthropology and Sociology, University of Windsor, 401 Sunset, Windsor, ON, Canada, N9B 3P4 [email: gcradock@uwindsor.ca]
Childhood Copyright 2007 SAGE Publications. Los Angeles, London, New Delhi and Singapore, Vol 14(2): 153172. www.sagepublications.com 10.1177/0907568207078325

Governmentality scholars conceive freedom as characterized by individuals self-governance through responsible and prudent subjectivities. However, scholars have paid little attention to children and whether childhood subjectivities are equally subject to the neoliberal expectation of responsible self-governance. This article analyses two Canadian juridical examples of the perceived relationship between government, foster families and foster children. It shows the perception of children as free understood as rights-bearers is undermined through a conception of children as family members. Children are shown to have no direct relationship with government due to juridical assertions that only families can turn children into (self-) responsible citizens.

The past several decades have seen a resurgent discourse on both the political left and right for the need for government understood as the welfare state to withdraw from its tendency to intrude into citizens private lives because of its assumed damaging effects on citizens subjective experience of freedom (Etzioni, 2000; Offe, 1996; Rose, 1999). Specifically, the welfare state is conceived of either as a Nanny State, robbing its citizens of self-reliance and prudence while substituting dependency and moral laxity, or as an insensitive and bureaucratic apparatus utilized as an instrument of social control and repressive of citizens empowerment (Garland, 2001). In either critique, whether the result is dependency or disempowerment, the central concern is with the formation of a citizenry composed of self-responsible and self-acting subjectivities. Typically, children are conceived as members of families or communities who are acted upon, rather than active agents of their own subjectivity. Yet, children are also conceived as rights-bearers, whose claim upon personal freedom is increasingly entrenched in convention and law (UN Convention on the Rights of the Child, 1989). Within neoliberal and communitarian discourse the bearing of rights necessitates the acceptance of responsibilities (Blair, 1996; Etzioni, 2000) and therefore it is useful to ask what new kinds of children are being created by orders of rule premised upon the extension to

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children of rights and responsibilities within the neoliberal order and advanced capitalism. The ideal of self-responsible citizens is inevitably bound up with a preoccupation with norms. However, norms are subject to looping effects (Hacking, 1995) in which human beings are capable of creating various kinds of humans; but these kinds of humans are also capable of redefining the characteristics of their kind. This article is concerned with several kinds of humans and human relations. In particular, it is interested in a discernible shift in normative values associated with the terms child, family and the state in the context of foster care. The article argues that this shift is not a consequence of a planned shift in governmental or legal philosophy but, following Donzelots method, the article traces two specific little lines of mutation in recent juridical conceptions of the appropriate relationship between the state, family and childhood. These lines act upon the family not that the family is itself incapable of being a motive force of evolution, but when this is the case, of necessity it is by virtue of a coupling with other vectors, just as the other vectors enter into relations of coupling or intersection in order to act on the family (Deleuze, cited in Donzelot, 1979: x). The article focuses on two specific situations both from British Columbia in which various apparatuses of governance have sought to order the position of foster children within foster families through emerging and mutating conceptions of the proper balance of rights and responsibilities between families, children and the state. Of the two, the ruling in K.L.B. is the most significant since it is a judgement rendered by the Supreme Court of Canada Canadas final arbiter on the relationship between the Canadian state and its citizens. Further, K.L.B. is judge-made law in the sense that it extends common law legal doctrine rather than interpreting extant statute. In short, the principles pertaining to the relationship between foster children, foster parents and the state stand until and unless the Supreme Court of Canada chooses to reverse itself.1 Hence, this article relies heavily on the K.L.B. because, as the Court asserts, K.L.B. represents the current state of the vicarious liability doctrine in Canada. However, the principles articulated in K.L.B. can also be found in an earlier quasi-judicial ruling of the Childrens Commission of British Columbia. Taken together, these cases are indicative of lines of mutation in contemporary neoliberal conceptions of the rights and responsibilities of families and children within the state. The Supreme Court of Canada: K.L.B. The Supreme Court of Canada brought down its judgement on K.L.B. in early December of 2003. At issue were several legal doctrines including non-delegable duty, direct liability, fiduciary duty and vicarious liability. I concern myself only with the issue of vicarious liability, both because it is the most germane to my analysis but also because the court was self-consciously attempting to clarify the 154
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doctrine.2 Moreover, K.L.B. is actually the centrepiece of a trio of cases3 concerned with vicarious liability as applied to the ill-treatment of children and has since been cited by the Court in John Doe v. Bennett (March 2004). K.L.B. was one of four siblings who initially came into the care of the Superintendent of Child Welfare under the authority of the Protection of Children Act (PCA) and with their mothers consent. Subsequently, and due primarily to their fathers alcoholism and violence towards the mother, the Superintendent took sole custody and guardianship of the children on the basis of court-approved protective action.4 The Superintendent successively placed the children in two foster homes. Both homes were abusive but K.L.B. was also subjected to inappropriate sexual contact and sexual abuse by the adopted children of the second home. In the subsequent court action, both the trial judge and the BC Court of Appeal found the Crown vicariously liable for the childrens abuse. The Supreme Court of Canada reversed this finding and dismissed the action. Chief Justice Beverly McLachlin wrote the majority decision with only Justice Louise Arbour dissenting.5 The Supreme Court distinguishes between direct and vicarious liability in the following way:
Direct liability in negligence law requires tortuous conduct by the person held liable, in this case the government. The doctrine of vicarious liability, by contrast, does not require tortuous conduct by the person held liable. Rather, liability is imposed on the theory that the person may properly be held responsible where the risks inherent in his or her enterprise materialize and cause harm, provided that liability is both fair and useful. (K.L.B., para. 18).

The Court articulates two primary tests. First, the relationship between the tortfeasor and the person from whom redress is sought must be sufficiently close for the claim to be appropriate.6 Second, the tort must be sufficiently connected to the tortfeasors assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise (K.L.B., para. 19). For the Court to disallow vicarious liability under its first test, it must demonstrate that foster homes are not sufficiently close to the government for liability to attach.7 It asserts the closeness of relationship is usually articulated within an employeremployee relationship and on the question of whether a finding of liability will result in the deterrence of future harm. These principles apply in contracting situations where there is a functional relationship. The Court sums up the analytic problem by stating: the focus of the inquiry will be simply on whether the tortfeasor was acting on his own account or acting on behalf of the employer (K.L.B., para. 21). The determinative factors are: whether foster parents provide their own equipment, hire their own helpers, and whether foster parents have managerial responsibilities. By casting the issue within the context of employment, the Court elides discussion of the guardianship responsibilities and duties owed to the children by the Superintendent. More precisely, if foster parents act on their own 155
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account, the Superintendents duty is limited to the placement of children within foster homes. The Court concludes foster parents do act on their own account. For while foster families serve a public goal the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society they discharge this public goal in a highly independent manner, free from close government control government does not supervise or interfere (K.L.B., para. 23). Foster parents use their own equipment, are responsible for determining who will interact with the children and when and have complete control over the organization and management of their household; they alone are responsible for running their home (K.L.B., para. 23). This independence and freedom from government supervision is essential to the governments goal of providing family care. This is because only highly independent foster homes are able to deliver the spontaneous, loving responses and guidance that the children need (K.L.B., para. 24). Foster families:
. . . must deal with day-to-day challenges and problems by working them out within the family, and by sharing responsibility for doing this, demonstrating to foster children that it is possible to resolve difficulties by working together. Moreover, foster children must know that their foster parents have this responsibility. Only in this way can foster children come to understand that authority figures can be loving and consistent and worthy of trust. . . . Hence, while foster parents act in furtherance of a public purpose, they must operate independently of day-to-day state control if they are to meet the goals of foster care. (K.L.B., para. 24)

Yet, while the Court is adamant that foster homes are independent, this independence is largely predicated on the belief that fostering is a non-profit enterprise (K.L.B., para. 21). Foster parents are located within what the Court defines as a government administered foster care system (K.L.B., para. 21). It is difficult to grasp how foster parents can further a public purpose, through a public non-profit enterprise administered by government and, at the same time, be independent of government purpose and administration. This is to claim the fostering system exists independently of the actual people whom it administers. In other words, the fostering system is not just the sum of its parts, nor greater than the sum of its parts; it is independent of its parts. The Court also claimed finding vicarious liability would be unlikely to deter future harms. Indeed, the Court found the application of vicarious liability might create more harms since it might deter governments from placing children in foster homes in favour of less efficacious institutional settings (K.L.B., para. 26). However, the Court does not articulate why institutional settings are less efficacious than foster care. What the Court seems to have in mind is a belief that institutions cannot love children and love is what children need. The Court concludes: It is inherent in the nature of family-based care for children that foster parents are in important respects independent, and that the government cannot exercise sufficient control over their activities for them to be seen as acting on account of the government (K.L.B., para. 29). 156
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As noted earlier, the problem with this observation is that the Court never articulates the childrens relationship to their state-appointed legal guardian. Instead, the Court assumes that if foster parents are independent of governments apparatus, so too are foster children. Further, this independence is crucial if children are to develop into confident and responsible members of society. The Childrens Commissions Tribunal Panel: the Smiths On 1 June 2000 the British Columbia Childrens Commission Tribunal Panel Decision PD00-08 was released. At the time, the Tribunal Panel was the body responsible for adjudicating actions brought under the Rights of Children-inCare provisions of the Child, Family and Community Services Act (CF&CSA).8 The following is a brief introduction to the circumstances as described in the Tribunal Panel Decision. In March 1990, four siblings were placed in the Smiths foster home.9 Their ages were 1, 3, 9 and 10 years respectively. Initially, the placement was meant to be short term although it is unclear if this was related to long-term planning or the legal status of the children at the time. In any case, within months the Smiths were being referred to in official records as a long-term placement. In March 1996, the Smiths began to consider what might happen if, due to their age, they were no longer able to care for the children. They suggested a 3-year plan (the Director of Child Welfare claimed it was a 5-year plan) under which, should they become incapable of caring for the children (the Director uses the term retirement), the Smiths own children would collectively undertake to continue fostering the children.10 In March 1997, one of the older children was removed from the home at the Smiths request because of behaviour problems. The following December, the second oldest sibling left the home under similar circumstances. At the same time, one of these older siblings alleged abuse of the children by the Smiths. There were further allegations from an elder sibling during the following year. Meanwhile the Director, mindful of both the abuse allegations and the possibility of the Smiths becoming unable to care for the children, began to search for an alternative placement. Initially, it seems the Smiths children were considered but, in the event, by April 1998 the Director had decided to move the remaining two children to the youngest childs aunt and uncles home. This home would represent a clear break in the childrens lives since it was located in a distant town and with people the children had had little contact with. At this point, events begin to get murky. On 14 April 1998, the Smiths wrote to the Director suggesting that the plan to move the children breached several sections of the Rights of Children in Care. The following day, the Smiths wrote a second letter detailing a number of complaints about their treatment and the treatment of the two children remaining in the home during the course of the Directors investigation of the older siblings allegations. From 157
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this point the Tribunal Decision attempts to create a story out of what was obviously a deteriorating situation in which allegations flew back and forth and the parties became increasingly involved in formal procedural protocols. Nevertheless, what emerges from this story is the employment of two strategies on the part of the Smiths. First, they argued the Director had, in effect, breached his contractual duty to them through the course of the investigations into the home and by not giving sufficient weight to their opinions as to the best interests of the children. This strategy eventually emerged as an argument that since the children were, indeed, members of the Smiths family, to remove the children was, in effect, to undermine the family and community values the Director was supposed to uphold. Second, the Smiths invoked the Rights of Children in Care as a means of accusing the Director of failing in his statutory duty to act as a lawful guardian. By November 1998, the dispute had become an impasse so the Director hired a psychologist to render an expert opinion. This opinion was completed in the following June. The Smiths rejected the psychologists report as biased and several days later the Child, Youth and Family Advocates office contacted the Director to inform him that a complaint of breaches of the childrens rights under section 70 of the CF&CSA had been made. In response, the Director contracted with another psychologist to do a more thorough and, presumably, unbiased report. The Director received this report in November 1999 and by 15 December 1999 the children had been moved. Eventually, the Childrens Commission created a Tribunal Panel to hear the case. Its decision overturned the Directors action and subsequently the children were returned to the Smith family. The Director strenuously objected to the Panel Decision (Ministry Response) but was eventually forced to comply by the Minister for Children and Families an unprecedented interference by an elected official into the inner workings of the Directors guardianship functions. Rose (1999) suggests the distinction between liberal and neoliberal notions of the family rests upon neoliberalisms recognition that family denotes a complex of affective rather than biological relations. Further, neoliberalism recognizes that while families should be locations of moralization, they can also be sources of danger to their members. Thus, while neoliberalism, like liberalism, prefers to utilize tutelary techniques to resolve familial moral failures it also recognizes each familys members as individual rights-bearers.11 For neoliberal welfare policies, rights-bearing individuals are seen as possessing rights of protection from the hazards created by abusive families. Indeed, this is clearly the principle upon which all child protection statute bases its legitimacy. The Smiths case turns this assumption on its head in that the argument advanced and accepted by the Tribunal Panel asserts children have an overriding right to family membership defined solely by affective relations. A central tension within the Tribunal Panels deliberations is the proposition that children have rights with respect to both family membership, while

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also being individual rights-bearers capable of forming their own opinions. Hence, the psychologists contracted by the Director express these concerns:
(Psychologist No. 1) It appears that the [childrens] behavior is controlled by their understanding of their external cues and demands from the (complainants), rather than how they individually feel and think. (Childrens Commission, 2000a: para. 138) (Psychologist No. 2) They [the children] do not appear to feel that they can express their own opinions or views, and particularly, as in the case of [the oldest child] do not even appear to know what these may be. (Childrens Commission, 2000a: para. 137)

The psychologists claimed the children were not capable of forming their own opinions and therefore the Director, as the legal guardian, was responsible for ensuring their best interests.12 However both the Child Advocate and the Tribunal Panel claimed the children were capable. The Tribunal Decision makes no mention as to what normative standard was used to determine the childrens capacity. If it was only a matter of appropriate levels of decision-making capacity, then the Smiths case would simply be a disagreement between experts and Panel members over whether the children deserved an independent voice and how much weight should be placed upon their opinions. However, throughout the drama of the Smith family, individual rights were never the sole issue. Rather, enfolded within the concept of children as rights-bearers is the question of relationships of which relationships matter. Indeed, the Directors response to the Tribunal Panel Decision criticizes it by reference to statutory standards (Childrens Commission, 2000b, Ministry Response). The Director argued that the Tribunal Panel erred by applying standards of child protection that severely curtail state interference into the family. The Director claimed foster families do not constitute families within the meaning of statute. He therefore argued the appropriate standard was the best interests of the child test against which the Smith family had no overriding interests. Instead, he asserted the determination of the childrens best interests fell to their guardian the Director. The Childrens Commissions response was to assert that, given the established affective relationships, the children were, indeed, members of the Smith family. There is one further point. In her discussion of the English Gillick competency test, Bell (1993) traces the question whether childrens rights are positively or negatively held. That is, the distinction between childrens right to grant consent vs their right to deny consent in the context of sex education. With this in mind, there arises the question of what, if any, rights are borne by the older siblings who were removed from the Smith family at the Smiths request. The Directors rationale for moving the younger children was informed by the younger children approaching the age at which their elder siblings had begun to present difficulties for the Smiths and, by inference, it was only a matter of time until the Smiths could be expected to request the removal of

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the younger children too. The Tribunal Panel does not address the question of whether the elder siblings could also claim membership in the Smith family as a right. Families as independent moralizing institutions The two examples given indicate a mutation of foster families from temporary havens to permanent webs of affective relations. Where the Tribunal Panel Decision is more of an indicator of contemporary ideological constructions of fostering, K.L.B. carries the full force of Canadas court of last resort. Children, it seems, expect to belong to a family but, more importantly, children require families if they are to develop into morally competent social beings. Note that neither of these decisions reflect upon the position of childrens biological relations K.L.B.s mother disappears after her initial appearance as morally suspect victim and the Tribunal Panel says nothing at all about the Smiths foster childrens biological relations. To justify its position, the Tribunal Panel makes the following remarkable statement:
The Advocate takes the position that children in permanent life placements expect to stay in those placements ideally until the age of majority; that long term stable placements are the community standard for all children whether in care or not; that children expect to stay in their families even when their parents separate or divorce; and that children should only be removed from their families when it is determined that they are in need of protection. (Childrens Commission, 2000a: para. 83)

Here there is a clear conflation of foster families with all other types of families. It is remarkable that nowhere is there recognition of the particular legal relationship between children in care and the Director into whose care they have been entrusted. In law, children in care are in the care of the states representative in this case the Director of Child Welfare who is the childs guardian and therefore responsible for ensuring the childs best interests. Foster parents have no specific statutory relationship to children in care. The Tribunal Panel obviated the legal responsibility held by the Director towards children in care by referencing a vague notion of community standard and itemized several characteristics of this standard for which it gives no evidence. For example, one might ask how the Advocate determined that children expect to stay in their families even after divorce and what sort of family persists after divorce?13 One cannot fail to notice that in neither of these decisions is the problem of abuse adequately examined.14 The prime juridical concern is to protect the family from government interference, which is consistent with the traditional liberal concern with too much intervention into the private world of families. The decisions in the Smiths situation and K.L.B. remove the Directors responsibility for children in care and replace it in the hands of families who have no legal relationship to those children. Both decisions claim that children are best served by honouring (or requiring) their right to family participation, but neither decision 160
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speaks to whether this right supersedes foster parents practice of removing children when they become inconvenient or beyond the coping capacity of foster parents. Further, by articulating in need of protection as the standard for removing children, these decisions imply that the childs best interests are secondary to the interests of foster parents or, more exactly, that foster childrens best interests can only be served within a family even if that family is constructed by a government administered foster care system. A further curious effect of this articulation of foster families is to shift claims on the Director for support from children in care to foster families. In other words, programs for support are not directed at supporting children, but preserving families. The family becomes the gatekeeper of government tutelary activity which for all practical purposes means gatekeeping parents and the object of this activity is family preservation. Indeed, in the wake of the childrens return to the Smiths, their lawyer claimed the girls are now getting better government services than they did before the controversy, thanks to the publicity (CBC, 2000). Similarly, while the Supreme Court is cautious about requiring government to provide supports it speaks approvingly of foster parent support programs. Clearly, neither the Tribunal Panel nor the Supreme Court envisions foster families as entirely independent of government. Instead, they want to reconfigure the power relations between foster parents and government apparatuses through a valorization of the moral necessity of family life. The decisions are framed within a discourse of empowerment of the family against the state. Families require support because no family is immune to the possibility of family breakdown. When families break they usually break up through divorce. Young children do not have much choice about this sort of situation although older children may break up a family by running away. In any case, the relations of affective and legal responsibility are generally contained within the fragmenting family. Foster families are different because when foster families encounter difficulties the usual form of breakup is the removal of the foster child. The lack of attention to the movement of children in care from one home to another is perhaps the single greatest omission within both the Tribunal Decision and K.L.B. The simple fact is that if children in care truly do have a moral claim on family membership it begs the question of why so many children are moved so often.15 Events in the Smith family subsequent to the Tribunal Panel Decision give a hint as to why foster children tend to move. In 2002, a former child in the Smiths foster home was identified as a victim of Robert Picktons alleged murderous rampage through the sex trade workers of Vancouvers Downtown Eastside. Once again the Smiths found themselves the object of press attention except, in this instance, it was necessary for them to explain how their close family failed this foster child. A foster brother put it this way: Unfortunately, [the child] was already abused before she came to our home. Thats why she was in care . . . she was abused every imaginable way and so that really set her 161
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future. And this is what she had to deal with every day of her life the mistrust and everything else (Bolan and Fong, 2002: A1).16 Much like the children subject to the Tribunal Panel Decision, this child had entered the Smiths home at an early age:
When [the child] was 17, her behaviour was so out of control the [Smiths] were forced to ask the ministry to remove her from their home . We had to make a choice. Things had happened and we had to make a choice to make sure the two other kids would not be hurt. We asked them to remove her, [Smith] said, declining to be specific. We felt the safety of the other children had to be protected.17 (Bolan and Fong, 2002: A1)

Discursively, the Smiths son is removing the Smith family from responsibility. The girls problems were pre-existent and despite being raised by the Smiths virtually throughout her formative years there was little the Smith family could do. When, as a teen (and like the elder siblings that concerned the Director) her behaviour exceeded her new familys moralizing capacity the Smiths effectively returned her from whence she came not to her family of origin, but to her legal guardian the Director of Child Welfare. True, the Smiths claim to have objected to the type of placement the young girl went to, but not the necessity of her removal from what was supposed to be her family. The Smiths claimed the factors that drove the girl onto the street, and eventually to her death, were either present before her sojourn in the Smiths family or the result of government bungling after she left. The integrity of the Smith family as a benign (if not therapeutic) naturalized family remains intact. Neoliberal subjectivities and responsibility Richard Ericson once remarked to me that the neologism responsibilization really means irresponsibilization. If this is the case, then the neoliberal project is not so much a project to responsibilize citizens for their own conditions, but a project to irresponsibilize institutions created by the collective vision of the welfare state. Ewalds (2002) story of the growth of the welfare state is a story of the pooling of hazards for the purpose of compensation. Ewald claims modernity creates moral hazards as necessary conditions of its possibility. For example, industrialism creates industrial accidents statistically predictable rates of harms are known even though the precise location of those harms is unknowable. Similarly, the atomization of social relations remarked on by classical sociologists creates the moral hazard of child abuse and neglect. In turn, child abuse and neglect have created a vast apparatus with the responsibility of detecting abuse and ameliorating its harms. State guardianship of children and the foster care system are parts of that apparatus and each creates its own moral hazards. Insofar as the child protection apparatus pools hazards and the resources for ameliorating harm, it reflects the overall principles of the welfare state. 162
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As such, ultimate responsibility for children rests with government more precisely, with specific state apparatuses created by statute. However, the instances referred to here suggest a kind of erosion of the welfare state ethos in child protection by removing state responsibility for children in governmentadministered systems of care. But this is not simply a downloading of responsibility by the monstre froid of the state. While it is true K.L.B. can be read as a cynical attempt to free state functionaries from responsibility, the logic of K.L.B. combined with the Tribunal Panel Decision demonstrates a desire on the part of foster parents to utilize a discourse of the family (conceived as networks of affect) to free families from state interference. Hence, foster families are complicit in their own responsibilization. The two juridical decisions align because in K.L.B. the Crowns interest was best served by minimizing its own responsibility for foster children. Meanwhile, the Smiths (with considerable peer support from other foster parents) were intent on redefining foster family as permanent family based upon affective relationships. I believe this is an example of what Hacking (1995) calls a looping effect of dynamic nominalism. Foster families exist because they were created by a historical demand of an expanding and statesanctioned child protection project. In this sense, foster families are a product of state policy. However, foster parents have played their part in defining the characteristics of what counts as a foster family. The triumph of the Smiths was to anchor this redefinition in a quasi-juridical decision. However, while foster families may want to limit state interference, they are far from willing to accept total responsibility for children in care. Foster families have created a double discourse of foster children as family members, and foster children as moral hazards. This suggests that while the issue of foster families independence appears to be settled, it is by no means clear where responsibility for children has come to rest. One might argue the Smith decision does not weaken state responsibility but instead confirms its responsibility because the Director provided more and better supports. However, these supports are not directed at children because they must be mediated through the ethos of family preservation. K.L.B. reinforces this ethos because while the judgement approves foster parent training and other policy initiatives it asserts the overriding necessity of foster parent independence. Indeed, K.L.B. does not require the childrens legal guardian to have any private or independent relationship with children in his or her care because this would be inconsistent with foster parents necessary independence. Alternatively, one might argue that these decisions shift responsibility for children in care wholly from government apparatuses to foster parents. In the context of K.L.B. this would mean that in the absence of vicarious liability as a claim on government, abused children would only be able to argue direct liability on the part of foster parents. One effect of this belief would be to delay responsibility insofar as it is difficult to see how a child could sue its foster parents while still in that foster parents independent family at least not without 163
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running the risk of being blamed for not working out their problems. On the other hand, nothing in the Tribunal Panel Decision suggests children have a positive claim on family membership. Instead, the overall effect is to give foster parents a positive claim on the possession of foster children. However, this claim is selective insofar as it may be acted upon or waived depending upon the conduct of children. Should children become moral hazards then foster parents have a positive claim on the state to preserve the family, but in the event this proves impossible then it is clear it is the child in cares family membership that is revoked not the parents membership nor, presumably, the foster parents biological childrens. The actual effect of these two decisions is to rest responsibility for children with children themselves. Both decisions isolate children within foster families where the need to protect families against state interference is the paramount value. Effectively, both decisions sever the legal relationship between children in care and their legal guardian and replace it with an affective relationship with foster parents. In a sense, the decisions suggest children do not, in fact, have any legal rights other than those realized within the context of family membership and articulated by that family through claims of affection. Put another way, the decisions presume a failure of the welfare state to utilize policy and law in the best interests of children. Perpetually unfinished business Foucaults (1991) insight into governance rests upon his observation that government is by no means as monolithic as often assumed.18 Instead, it is more like one of Tinguelys machines:
Programmes and technologies of government, then, are assemblages which may have a rationality, but this is not one of a coherence of origin or singular essence. Foucault suggests that the French legal system was like one of the machines constructed by Tinguely full of parts that come from elsewhere; strange couplings, chance relations, cogs and levers that arent connected, that dont work, and yet somehow produce judgements, prisoners, sanctions and much more. To analyse, then is not to seek for a hidden unity behind this complex diversity. (Rose, 1999: 276)

K.L.B. and the Tribunal Panel Decision reflect their differing constituencies. K.L.B. clearly seeks to protect the Crown from vicarious liability within a context of tens of thousands of vicarious liability claims on government.19 For the Supreme Court of Canada, foster parent independence is a useful principle on which to base this protection. The Tribunal Panel Decision seeks to protect foster parents from perceived unwarranted and untrustworthy interference by the state into foster families. Both decisions use a discourse of the private family to imply that only the affective webs of relations prevalent in families can produce the necessary moralizing effects for children to work out their own problems and become responsible members of society.

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The discourse of the family may be similar for both forums, but the ends sought are different. This suggests at least two inferences that may or may not become central to future fostering discourse. First, there is no reason to assume the decisions will remain permanent. This is particularly true of the Tribunal Panel Decision since the Childrens Commission (under whose auspices the Panel deliberated) no longer exists. The Childrens Commission and the Office of the Child and Youth Advocate were both abolished in 2001 by an incoming government a government that also proposed slashing spending on child welfare by some 23 percent. Since the Tribunal Panel did not establish that foster parents have a legal right to support services, whether the ethos of family preservation survives is largely irrelevant in the absence of available government funding. The Smiths victory may yet turn out to be hollow if not dangerous for them. For if the ethos survives without government support then it is possible the Crown may be able entirely to evade responsibility. Moreover, the protection afforded the Crown by the K.L.B. ruling may expose foster parents to considerably more liability. An obvious reason for pursuing vicarious liability is the pursuit of deep pockets. If the Crowns exposure to vicarious liability is limited, then it will be foster parents who will be correspondingly more exposed. It is an irony of K.L.B. that the Court believed it was discouraging institutional care of children by limiting vicarious liability, yet the Court does not seem to have contemplated the possibility that foster parents will now experience increased direct liability exposure for which insurance may be extremely difficult to obtain.20 This means the Court has potentially made the fostering project too expensive and risky for families to participate in. Lack of foster parents inevitably means either fewer children in care (meaning, in turn, a higher threshold of what constitutes abuse) or more institutionally oriented living situations. A second inference one might draw from K.L.B. and the Tribunal Panel Decision concerns the absence of children in care as a human kind. While the Tribunal Panel did consult with the children in question, the reader will recall two psychologists were of the opinion that the children either did not know what they wanted, or were unable to articulate what they wanted. By contrast, childrens voices were entirely absent from the Supreme Courts deliberations in K.L.B. (In part, this was because the children who brought the suit were no longer children but adults.) However, children in care are not a silenced group. For example:
The National Youth in Care Network exists to voice the opinions and concerns of youth in and from care and promote the improvement of services for them. We help our members find their voices and regain control over their lives through support, skill building, and healing opportunities. (National Youth in Care Network, 2005a)

The Network discursively positions itself as deploying expertise that only children in care possess. We believe that youth in care have the expert

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knowledge to make the system more humane (National Youth in Care Network, 2005a). Part of this expert knowledge is in the form of advice to children in care. The advice includes these two maxims:
To ensure that the place where you live is safe and the placement runs smoothly there are rules to follow. These rules may vary and in some places they are stricter than in others. It is your responsibility to know what the rules of your residence are. It is also your right to know what will happen if you break those rules. You can then take responsibility for what you choose to do. You can live in a foster home until you are 18 unless you have worked out a different arrangement with your social worker and the foster parents. (National Youth in Care Network, 2005b)

Notice the term foster family does not appear in these maxims. The foster home is described as a residence and the relationship between child in care and foster parents is couched in terms of rights and responsibilities. Furthermore, children in care can live in a foster home until 18 unless you have worked out a different arrangement with your social worker and the foster parents (National Youth in Care Network, 2005b; emphasis added). In this formulation, children have an assumed rights-bearing and responsible subjectivity in which the decision as to whether a child is removed from a foster home is a tripartite decision. As the network emphasizes, the issue for foster children is control; of regain[ing] control over their lives. The National Youth in Care Networks discursive positioning of itself as a voice of rights and responsibility-bearing experts suggests children in care are capable of being informed and active agents co-resident with foster families but not necessarily in foster families as assumed by K.L.B. and the Tribunal Panel. In part, the de-emphasis of the role of foster parents is consistent with the Networks assertion that children in care have a right to contact with their family of origin. In this sense, foster care is seen as a residential alternative to living with ones own family but not a substitute for that family. Therefore, the Advocates claim that foster children expect to remain in their own family is undermined by the question of how many families children in care belong to. The National Youth in Care Network was founded in 1985 and is by no means the only such organization. For example, a similar organization existed in British Columbia in the early 1990s and contributed to two major government inquiries into child protection and the child welfare system (Cradock, 2003). It is therefore necessary to recognize that children in care do have an alternative and independent voice to their foster parents. Moreover, this voice is not posited upon family membership but on its representation of a kind of child. If the looping effect has caused foster families to redefine what is meant by foster parents, no less can be said of children in care. These children do not represent themselves as foster family members, but as members of a government-administered system in much the same way the Supreme Court claims foster parents are. 166
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Differing voices are a truism of liberal and neoliberal forms of governance. Consequently, different forums create different forms of discourse. These differing discourses may compete but are as likely to exist in isolation of one another depending as much on chance as conscious attempts to create coherent social policy. The National Youth in Care Network creates its own discourse, the Supreme Court of Canada creates another, while the Tribunal Panel creates yet another. They are, as Rose aptly notes, not so much disconnected but working independently, as each tries to advance its own interests through the creation of a discourse particular to its own situation. This is not to say there are no similarities. As we have seen, the discourse of family is woven through K.L.B. and the Tribunal Panel Decision, but this does not mean their use of the discourse necessarily seeks the same ends. With respect to responsibility, it is noticeable that the National Youth in Care Network places a high degree of importance on youth acting responsibly which includes knowing their rights and responsibilities. One might argue this is similar to the Supreme Courts belief that children need to work out their problems with foster parents. However, there is a clear distinction about the grounds upon which this working out takes place. The National Youth in Cares advice is couched in terms of childrens knowledge and capacity for rational argumentation while the Supreme Court relies upon the affective basis of foster care. According to the Supreme Court, foster children do not need to rationally argue their rights and responsibilities but are brought to an appreciation of the loving and trustworthy nature of foster parents. By far the biggest distinction between, on the one hand, the National Youth in Care Network and, on the other hand, the Supreme Court and Tribunal Panel is the relationship between children and government. The National Youth in Care Network assumes the presence of social workers as active participants in decision-making and presumes social workers have a responsibility to listen to childrens wishes. The relationship between children in care and social workers is independent of whatever residence children in care may find themselves in. By contrast, the Supreme Courts and Tribunal Panels desire to protect families from state intervention assumes government representatives (i.e. the Director and his delegates) relationship to children in care must be mediated through a moralizing family. Indeed, without this mediation children cannot grow up to be responsible citizens. This assumption seems quintessentially neoliberal insofar as it is implied that if children in care have a direct relationship to the state they will run to the state every time they have a problem. The Court fears that rather than take responsibility for working out their problems, children in care will require the state to do it for them. Yet this ethos is incompatible with an assumption that, given the special hazards created by children in care, foster families require state support to preserve their familial integrity. Children may not be able to call on the Nanny State to solve their problems but, at least according to the Tribunal Panel, foster families can expect the state to perform precisely this function. If nothing 167
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else, foster families unable to cope with children in care are always able to return those children to their legal guardian because children in care have no overriding claim on foster families. Conclusion It is likely a truism that without foster homes the child protection project would founder. Nothing in this article is meant to detract from this observation or to suggest foster families do not deserve the highest degree of respect for the difficult tasks they undertake. Rather, the goal of this article has been to draw attention to recent legal and quasi-legal developments that may undermine the fostering project by placing unrealistic demands upon foster parents and children. No matter how attractive it may be for foster parents to posit their homes as free from state interference; freedom has a cost. In the neoliberal universe, freedom is always accompanied by increased responsibility. Yet, this article has also attempted to show that responsibility in neoliberal governance tends to a downward spiral. That is, responsibility is increasingly shifted from the state to the individual. The Supreme Court of Canada phrases this as children in care learning to act as (self-) responsible citizens. The National Youth in Care Network posits youth responsibility as a simple a fact of life for children in care. The Network is well aware of the tenuous claim children in care have on foster families and therefore encourages selfresponsibility as a subjective necessity for personal survival rather than a duty of citizenship. No matter how much the Supreme Court of Canada or the Tribunal Panel may valorize family membership as providing for a place of loving instruction, the simple fact is children in care are being abandoned by their guardian. The Supreme Court has disavowed the states responsibility for its wards and replaced that responsibility with foster families. The Tribunal Panel confirms the primacy of the family with the expectation of sufficient state supports available to ensure the preservation of foster families. As we have seen, if the state does not provide family-approved supports, then children in care cease to be family members but, instead, removable moral hazards. If children in care have no direct relationship to their legal guardian, and if they have no overriding claim on the families they have been placed in by that guardian, then all talk of childrens rights seems spurious. Children in care have no right to determine where they will live except negatively: to act out to fail to work out their problems in the hope they will be removed. This strategy may save them from fostering situations that do not meet their best interests or, worse, actively abuse them, and give them a modicum of selfdetermination. Alas, such self-determination comes with a price. The freedom children in care purchase through acting out also brings responsibility for the self. One cannot help but conclude that in neoliberal forms of governance, responsibility settles on the weak and unprotected.

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The erasure of the direct relationship between children in care and the government apparatuses that retain their guardianship is a small example of the tendency of neoliberalism to govern from a distance. In these examples, we see how juridical decisions assume that children are not best served by direct state action and responsibility, but by utilizing the mechanism of the family as a form of moralizing intermediary between children and the state. Childrens subjectivities formed by this tactical arrangement are either acquiescent in the sense of being able to work out their problems, or isolated and self-responsible if they are not. In effect, far from being embraced into the bosom of affective networks predicated upon guarding childrens best interests, children in care are alone and reliant upon their own capacity to control their own lives. The faces of their guardians are ever out of reach; and the border between self-reliance and reliance on family ever dependent upon their moralization. For the state, and perhaps for society as a whole, children in care are ever silent and compliant. The behaviour of the Smiths foster children demonstrates they cannot know what they want because to do so is to expose themselves to the ultimate neoliberal penalty the penalty of being removed from family and therefore outside society altogether. Notes
1. A legislature may choose to pre-empt common law rulings through statute. However, common law doctrine can prove remarkably resistant to such attempts. See Klein (1992) for an account of such resistance. 2. The issue of direct liability will be addressed briefly later in the article. However, it should be kept in mind that the Court would have ruled the Superintendent directly liable for the abuse of K.L.B. and siblings because the Superintendent possessed information indicating the foster parents were abusive before the placements took place. Hence, the Superintendent was directly liable for the placement decision. Unfortunately, direct liability was denied by the Court because the children had waited too long to bring the action, hence breaching statutory time limitations. K.L.B. argued for vicarious liability because this form of liability would have obtained even if the Superintendent had not known the foster parents were abusive either before or after the placement. 3. The other cases are M.B. v. British Columbia and E.D.G. v. Hammer. 4. Under the PCA, the Superintendent could transfer custody and guardianship to one of the several Childrens Aid Societies then operating in some parts of British Columbia. However, this was not done in this case. Legal colleagues inform me the Supreme Court probably misread the applicable section of the PCA and erroneously believed placement in a foster home was equivalent to placement in the care of a Society. This issue is primarily technical and legal in nature and, therefore, outside the scope of the present article, which is less concerned with fine legal points than with the ideological assumptions underlying the Courts reasoning. 5. The role and importance of dissent were discussed by LHeureux Dub (2000) shortly before her retirement from the Supreme Court of Canada. The gist of her argument is that dissents can form a basis on which the Court may reverse itself at a future date. Hence, while K.L.B. is the current state of the vicarious liability doctrine, Arbours dissent may yet form the basis of a further mutation in the doctrine. 6. A tort is defined by the Oxford English Dictionary as injury, wrong. A tortfeasor is one who is guilty of a tort; wrong doer, trespasser.

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7. The Court uses government in a rather imprecise way. Technically, K.L.B. was suing the Crown in right of British Columbia. The Crowns representative was the Superintendent, whose authority and duties were defined in statute. When the Court refers to a governmentadministered foster care system it appears to mean the specific branch of government within which the Superintendent was located, and the bureaucratic apparatus composed of social workers delegated by the Superintendent to carry out his or her authority and duties. 8. These rights are based upon the UN Convention and are articulated in Section 70 of the CF&CSA. 9. At the time, the real name of the foster parents was widely known. However, the Tribunal Panel omits names and sufficient time has passed that names may now be forgotten. However, the curious reader will discover their real identities in referenced newspaper articles. In any case, my interest is general so I do not refer to any of the participants by their correct names. 10. With the passage of the CF&CSA the title Superintendent was replaced with Director. 11. Following Locke (1963), I understand a liberal rights-bearer as a property owner. Neoliberalism understands rights-bearing as fully independent of property ownership. 12. It is worth noting that this is consistent with Rawlss (1972) view that those who are incapable of acting as independent citizens should have decisions made for them based on what they would want, if they were capable. 13. This is the central issue examined by Smart and Neale in Family Fragments (1999). 14. An anonymous reviewer expressed the belief that I am claiming abuse in foster homes is not investigated and foster children are not removed from abusive foster parents. This is not my position. My point is rather that these decisions fail to assert that the Director, as the childrens guardian, ought to know whether the children in his or her care are abused. I argue that this knowledge can only be ensured if the Director has an independent relationship with the children entrusted to his or her care. 15. Social work literature has a number of accounts of the frequency of foster childrens moves from home to home. See, for example, Fernandez (1996), James et al. (2004), Minty (1999) and Webster et al. (2000). 16. As an aside, press accounts refer to this foster brother variously as foster brother, half-brother and brother. This confusion of nomenclature and the discursive slippages it allows is, I think, significant. 17. Given the Advocates position that children should only be removed from their families when they are in need of protection this argument is invalid. Strictly speaking, the other two children should have been removed because they needed protection, not the child in question. Of course, such an action would have been a breach of those childrens expectation of remaining in their family. 18. For example, the Supreme Court rejected vicarious liability on the grounds that foster parents are not government agents. However, during debate of the Parent Responsibility Act in the British Columbia Legislature in 2001 the Solicitor-General made this statement: The fact of the matter is that these children are in the care of government. Government takes certain levels of responsibility for children in care. For the member to advocate, as Im hearing right now, that we now tell foster parents who are sometimes provided with children in the middle of the night in dire and difficult circumstances coming from abusive situations that in addition to this, were going to capture them in an act relative to parental responsibility, when theyre acting as an agent for government to take care of those children. (Hansard, 2001) In other words, the Crowns defence against vicarious liability contradicts statements by its ministers in the Legislative Assembly. 19. This refers to vicarious liability claims with respect to abuse in Indian residential schools. This was specifically brought to the Supreme Courts attention by intervener Chief Stan Beardy (2002).

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20. One could argue that this is no different from any biologically constituted family. However, many foster parents spend years fostering scores of children. Hence, foster parents exposure is a risk calculus many times larger than biologically constituted families.

References
Beardy, Chief Stan (2002) Affidavit of Chief Stan Beardy. SCC, File No. 28612. Bell, Vikki (1993) Governing Childhood: Neo-liberalism and the Law, Economy and Society 22(3): 390405. Blair, Tony (1996) New Britain: My Vision of a Young Country. London: Fourth Estate. Bolan, Kim and Petti Fong (2002) A Troubled Life, But She Always Called Home, The Vancouver Sun A.1. CBC (Canadian Broadcasting Corporation) (2000) Publicity Pays Off, CBC Archives; at: vancouver.cbc.ca/regional/servlet/View?filename=bc_Draayers000711 (accessed 25 May 2005). Child, Family and Community Services Act (1980) Revised Statutes of British Columbia [1996] Vol. 1, Chap. 45. Childrens Commission (2000a) Tribunal Panel Decision Complaint Case #PD00-08 (photocopy in possession of the author). Childrens Commission (2000b) Complaint Case #PD00-08 Ministry Response to Orders/ Recommendations (photocopy in possession of the author). Cradock, Gerald (2003) Governing Through Vague Terms: Child Abuse, Community, Government and Group Interests, PhD dissertation, University of British Columbia. Donzelot, Jacques (1979) The Policing of Families, foreword by Gilles Deleuze, trans. Robert Hurley. Baltimore, MD and London: The Johns Hopkins University Press. Etzioni, Amitai (2000) The Third Way to a Good Society. London: Demos. Ewald, Francois (2002) The Return of Descartess Malicious Demon: An Outline of a Philosophy of Precaution, trans. Stephen Utz, in Tom Baker and Jonathan Simon (eds) Embracing Risk: The Changing Culture of Insurance and Responsibility, pp. 273301. Chicago, IL: University of Chicago Press. Fernandez, Elizabeth (1996) Significant Harm: Unraveling Child Protection Decisions and Substitute Care Careers of Children. Aldershot: Avebury. Foucault, Michel (1991) Governmentality, in Graham Burchell, Colin Gordon and Peter Miller (eds) The Foucault Effect: Studies in Governmentality with Two Lectures by and an Interview with Michel Foucault, pp. 87104. Chicago, IL: University of Chicago Press. Garland, David (2001) The Culture of Control. Chicago, IL: University of Chicago Press. Hacking, Ian (1995) The Looping Effects of Human Kinds, in Dan Sperber, David Premack and Ann James Premack (eds) Causal Cognition: A Multidisciplinary Debate, pp. 5568. Oxford: Clarendon Press. Hansard, British Columbia Legislature. (2001) Parent Responsibility Act, Second Reading, 23 August Afternoon Sitting, 2(26): 7956. James, Sigrid, John Landswerk and Donald J. Slymen. (2004) Placement Movement in Out-ofHome Care: Patterns and Predictors, Child and Youth Services Review 26: 185206. Klein, Marlee (1992) Child Welfare Law, Best Interests of the Child Ideology, and First Nations, Osgoode Hall Law Journal 30(2): 375425. LHeureux Dub, Claire (2000) The Dissenting Opinion: Voice of the Future, Osgoode Hall Law Journal 38: 495517. Locke, John (1963) Two Treatises of Government, introduction by Peter Laslett, rev. edn. New York and Scarborough, Ontario: New American Library. Minty, Brian (1999) Annotation: Outcomes in Long-Term Foster Family Care, Journal of Child Psychology and Psychiatry 40(7): 991999.

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National Youth in Care Network (2005a) at: www.youthincare.ca/bio/index.html (accessed 27 May 2005). National Youth in Care Network (2005b) The Real Deal: Rights, Resources and Opportunities for Youth in and from Care in Ontario; at: www.hri.ca/realdeal/ (accessed 27 May 2005). Offe, Clause (1996) Modernity and the State: East, West. Cambridge, MA: MIT Press. Protection of Children Act (1943) Statutes of British Columbia [1943] Ch. 5. Rawls, John (1972) A Theory of Justice. Oxford: Oxford University Press. Rose, Nikolas (1999) Powers of Freedom: Reframing Political Thought. Cambridge: Cambridge University Press. Smart, Carol and Bren Neale (1999) Family Fragments. Cambridge: Polity Press. UN Convention on the Rights of the Child (1989) UN General Assembly Document A/RES/44/25. Webster, Daniel, Richard P. Barth and Barbara Needell (2000) Placement Stability for Children in Out-of-Home Care: A Longtitudinal Analysis, Child Welfare 79(5): 61432.

Cases Cited
E.D.G. v. Hammer 2003 SCC 52. John Doe v. Bennett 2004 SCC17. K.L.B. v. British Columbia 2003 SCC 51. M.B. v. British Columbia 2003 SCC 53.

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