So Phil, what were you thinking?

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The editorial writers at the Globe and Mail were clearly shocked and appalled when they published their Op-Ed pages in the Sept. 15 edition.

"What was Phil Fontaine thinking," they wrote, "when he sent a letter to an Ontario judge about the continuing case of two half-Native girls up for adoption?"

Surely, they sputtered, Fontaine must know "that judges are not to be lobbied as if they were civil servants or elected officials."

The nerve! The gall! Quel boorish behavior!

"Mr. Fontaine's error in judgment underscores all that is wrong with this child-welfare case. It is too much about politics, and too little about the children involved."

At least they got that right. It is too much about politics, but also bureaucratic bumbling by child welfare authorities, but not because of anything Fontaine has or has not done.

We haven't seen Fontaine's letter, sealed, unread, by the judge in question. An AFN spokesperson, however, said Fontaine's letter asks the judge to consider the children's heritage. The letter wasn't sent to the Globe and Mail. Nor to others that paper feels should have been on the mailing list.

"And why did Mr. Fontaine send a copy to the Squamish band and the CAS, but not to the foster parents or to the children's lawyer?"

Before it all gets too confusing, let's take a closer look at the editorial.

The Globe and Mail seems upset that Fontaine dared write the judge about a case he is hearing. It points to the example of Jean Charest, in 1991 a federal cabinet minister and now premier of Quebec. Charest resigned his post after calling a judge about a case affecting his department. Poor example. Lousy analogy. Two reasons why.

First, Fontaine has nowhere near the influence of even a junior cabinet minister. Hell, many chiefs at the AFN don't heed what Fontaine says. What makes the Globe and Mail think a provincial judge will?

Second, judges don't live hermetically sealed lives cut off from society. Like everyone else, they are shaped by their upbringing, education and community's attitudes.

They got where they are because of connections within the legal community and the political establishment that appointed them. I suspect that, like most of the working world, they hang about the office water cooler taking in gossip.

They watch TV, listen to radio, scan the Internet. They read newspapers, such as the Globe and Mail, which bills itself "Canada's National Newspaper" with more than "a million readers across the country daily."

Seriously, does anyone really believe anything Phil Fontaine writes will influence a provincial court judge any more than an editorial in the Globe and Mail? The judge is a big boy and can make up his own mind.

Now to the heart of the matter, the future of the two children at the centre of this dispute. The children are two and three years old.

"The girls had a disastrous start to their lives," continues the Globe and Mail. "They had substance-abusing parents-a Native mother, non-Native father-and one girl was found sucking on crack cocaine at the age of one; she developed behavioral problems that made her too hard to handle in her first two foster homes. The other girl has been with the same foster parents from her very early days."

Ontario's Office of the Children's Lawyer supports the two separate foster families that want to adopt the children.

The Children's Aid Society in Hamilton originally supported the foster families too, telling the Squamish band that the children were better off in the foster homes.

"There was a chance much earlier in the process for the Squamish Nation to intervene with a plan for the children," writes the Globe and Mail. "It was silent. Now it is too late. The children have a mom and dad, and losing them would cause unnecessary grief."

What chance to intervene? Hadn't the CAS already told Squamish to forget trying to get the children back?

Do the children's best interests really lay in splitting the children frm each other, removing them permanently from their community, their culture and their extended family? These are questions that need to be answered.

The problem with the child welfare system is that once children are taken into custody, often for good reason, it may be years before it faces these questions and then only when threatened with legal action. By that time, as in this case, foster parents may have formed emotional attachments to the children and the children relatively settled into new homes.

The Globe writes "it is easier to build in cultural supports for their current families than to create a whole new family for them."

The Squamish band clearly believes differently. Though the children would live with a white social worker near the reserve, they'd live together, would grow up together, have existing, extended family and cultural support waiting for them.

Overshadowing all are past abuses by the child welfare system. During the "Sixties Scoop," social workers took into custody thousands of Aboriginal children, sometimes for good reason, but also forcibly or with lies and deception.

In 1981, the Manitoba government commissioned Judge Edwin Kimmelman to investigate. In his final report, No Quiet Place, Kimmelman called the effects of losing so many Aboriginal children to the child welfare system nothing short of "cultural genocide."

Kimmelman wrote that the child welfare system was not acting maliciously. But good intentions, as in this case, were not enough. "The road to hell," Kimmelman summarized, was "paved with good intentions and the child welfare system was the paving contractor."

Now what was Phil thinking?