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Brief on the Family and Child Services Act

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The British Columbia Civil Liberties Association (BCCLA) has received a number of complaints relating to the apprehension of children under the Family and Child Services Act.

The situations that have been brought to our attention have raised concerns with respect to the due process dimensions of the apprehension of children by the state. The Act must achieve a balance between protecting children and limiting the state’s interference, in appropriately, in family life. In order to achieve this balance, the BCCLA believes that the legislation must include the concepts of accountability and legislation-of-last-resort.

Mandatory warrant provisions

There is a need for a third party review before children are removed from their homes, except in clear emergency situations. Under the present Act the Superintendent is permitted apply ex parte to a judge by telephone for a search warrant (section 8) or to apprehend a child without warrant (section 9).

The requirement that a warrant must be procured would oblige the child protection worker to bring evidence of the situation before a trained third party, a Justice of the Peace, in order to be granted the sweeping power of apprehension.

Justices of the Peace are officers of the court trained to analyze reasonable and probable grounds on the sworn information of citizens. They are authorized to issue a warrant only where they are convinced that there are reasonable and probable grounds for the action or that a less restrictive and less intrusive course of action is not available or will not protect the child adequately. The requirement of a warrant, therefore, in itself, would serve to protect the child and the family from inappropriate intrusion, by the state by making apprehension of the child a ’last resort’ measure.

Warrantless apprehensions should be permitted only in emergencies, when there are reasonable and probable grounds to believe that a child needs immediate protection or that substantial risk to the healthy or safety of the child would result from taking time to get a warrant. The legislation should specify what constitutes an emergency situation.

The BCCLA does not object to the Superintendent being permitted to apply to a judge by telephone, because there are rural areas in British Columbia where this right would be essential. There must, however, be regulations in place to ensure that judges are more careful when application is made by telephone so that it does not become a ’rubber stamp’ procedure.

The best interests of the child

The BCCLA recommends that the test applied in the Family and Child Services Act be changed to “the best interests of the child”. The Family and Child Services Act addresses the “safety and well-being” of the child, but does not, as in the Family and Child Services Act, require that the best interests of the child be the paramount consideration.

The best interests of the child includes much more than safety and well-being; it includes, for example, the emotional well-being of the child, consideration of the bonds the child has established and the potential damage caused to the child by separation from her or his family.

Provision of services

The BCCLA believes that the Family and Child Services Act should provide for a broad range of family support Services, such as family support within the home or placement with an appropriate relative or friend, in order to meet the “best interests of the child” test and decrease the need for apprehension.

Shortened and strict time periods for court hearings after apprehension

The time periods for review should be lessened, and the Act should require all parties and the Courts to stay strictly within the time frames provided, in consideration of the best interests of the child and the child’s sense of time.

Two days after the apprehension, rather than seven, should be sufficient time in which to file a report to the court. The vast majority of civil litigation cases, some of which are quite complex, require only two days’ notice for a Notice of Motion. In a case of the apprehension of a child, the evidence would surely have to be so clear that a report on the event could be prepared very quickly.

The 45 days provided under the current Act for the protection hearing appears exceedingly long. Even a ten day period would leave the groundlessly apprehended child away from its parents for two weeks, which for a child is a painfully long period of time.

Under the Industrial Relations Act, the Industrial Relations Council must commence a hearing on an unfair labour practice complaint within five days of its filing, and render a decision on the complaint within five days of the completion of the hearing. The BCCLA sees no reason for the State to extend greater protection to workers with respect to their employment than to families with respect to their very existence as a family.

The BCCLA believes that five days should be provided for commencement of a protection hearing under the amended Act, and that a decision should be rendered within five days of completion of the hearing. In this way, a child will not be separated from her or his family for more than two weeks.

The Act should provide for abundant access as is reasonable, in the child’s best interests, during this initial period. The following case, which was brought to the attention of the BCCLA, serves as an example of the need for strict adherence to the time frames set by the Act:

The young children were apprehended by the Superintendent on 15 May, 1991. A five-day “interrupted” hearing was then held before a Provincial Court Judge, beginning on 26 June, 1991, and ending on 29 November, 1991. On 13 December, 1991, the judge ordered that the children be returned to their parents.

On the same day the Superintendent appealed the decision, and simultaneously obtained an order from a Supreme Court judge staying the Provincial Court Order to return the children to their parents until the outcome of the appeal becomes known.

To date (April, 1992) the appeal proceedings have been adjourned “pending further argument as to the exact form the appeal order should take.”

In the context of the “best interests of the child” criterion and its application to leaving the children in less than perfect families, the BCCLA recommends that the Act provide that when a trial judge orders the return of the children to their parents, the children be returned to the care of their parents, with appropriate support Services provided by the Ministry, even if the Superintendent appeals the decision. We recommend that the legislation be amended to the ability of the Ministry to stay a trial judge’s decision be taken away, or seriously limited.

Alignment of the Family and Child Services Act and the Family and Child Services Act

It is recommended that the Family and Child Services Act and the Family and Child Services Act be more closely aligned with respect to purpose and jurisdiction. At present, Family and Child Services Act proceedings are held in the Family Court, whereas custody applications can be held either in the Supreme Court or in the Family Court. Perhaps the jurisdiction of the Family and Child Services Act could also be broadened to include the Supreme Court so that applications of both sorts could be brought in either court, and thus more readily joined.

Among the case examples brought to the attention of the BCCLA were the following two, which illustrate both the need for the application of the “best interests” test and for the alignment of the two Acts:

  • a child, nine years of age, asked to go to his father when it was necessary for him to be removed from the care of his mothers; his wishes were ignored and he was kept in a foster home while his father, who already had an application for custody under way, was in court under the Family and Child Services Act
  • a father, realizing the mother was having difficulties and the child was going to be apprehended, requested that his child be given into his care and was told he could only have the child through application to the Supreme Court under the Family and Child Services Act.

Status and notification

In the context of the above two recommendations, we wish to recommend as well that the legislation should provide the following:

  • that the Ministry make family members aware of the fact that the Family and Child Services Act could be used to change custody of the child, to the benefit of the child and the family in general
  • that those who have status as “parents” under the Family and Child Services Act be expanded to include those who have cared for a child, whether or not they have “acknowledged a parental relationship to the child”
  • that all who meet the definition of “parents” must be given notice of child protection hearings and be informed of their status and
  • that anyone who comes forward, with whom the child has a relationship, be given all due consideration as a potential “parent”.

The following case that was brought to the attention of the BCCLA, serves as an example of the importance of these provisions:

The child had been in the care of her grandparents and her godparents (in another province) for most of the first three years of her life, during the latter part of which the godparents cared for the child full-time under a foster care agreement, until the mother absconded with the child to B.C.

When the mother became incapable of caring for her child again, she gave the child to a couple with whom the child had a close and happy relationship. The couple, as is required by the Family and Child Services Act, informed the Superintendent of their desire to foster and ultimately adopt the child. The child was then apprehended and placed in a foster home.

None of the people who had cared for the child was present at the protection hearing because they had not been informed. The child then remained in the foster home for one and a half years, until a trial was held to decide whether she should become a permanent ward. At the trial the Superintendent argued that the child had, in the interim, become a “special needs child”, so the judge gave the Superintendent custody.

Mediation and pre-trial conferences

There are situations in which mediation with a neutral, trained, third party could and should replace the painful and prolonged protection and custody hearings in court. The BCCLA recommends that reforms to the Family and Child Services Act should include a requirement for the Ministry to seek mediation and a provision that any party might apply. The mediation process would provide an opportunity for family members to be consulted in a non-adversarial context and enable them to arrange for the care and protection of the child within its own family with appropriate support.

As well, the BCCLA recommends the provision of pre-trail conferences, which could be set by any party. These are included in the Supreme Court Rules and are very useful in that court for settling matters and for managing them expeditiously.

Separation of support services from investigation and apprehension services

At present, the support services for families are provided by personnel who are also responsible for investigating child abuse allegations. This results in families being afraid that requests for help might lead to suspicions being raise for neglect or abuse and thence to formal investigations.

The BCCLA would recommend that there be established a very clear separation between the child, youth and family support services and the investigation and apprehension Services. In doing this, the Act should clearly indicate that the support of the family is of paramount importance and the apprehension of children a last resort.

An example of the need for a separation of these Services has been brought to the attention of the BCCLA as a result of its involvement in the issue of wife assault:

In Vancouver, VPD Car 86 responds to calls for help from battered women with children. However, it is difficult for battered mothers to accept Car 86 social workers into their homes when the police have had to be called, because of the mother’s very real fear that the children will be apprehended and lost in the system. Often Native women do not even call for help, in part because they know their children will be apprehended.

The focus of the social worker attending with the police should be on supporting the mother and children, their needs as a family, and the best interests of the children, rather than on the children being at risk.

At present, however, in order to ensure that the needs of both mother and children be met in a supportive way, members of the justice sub-committee of the Attorney General’s Wife Assault Coordination Committee have been examining the possibility of having transition house and crisis centre workers instead of social workers accompany policy to scenes of family violence where children are involved.

Appeal and administrative review

In the context of our recommendation that the Act require the Ministry of Social Services to offer the least intrusive services to families before they consider apprehension, we recommend that the Act allow families who are not offered or are refused these services the ability to have an internal administrative review and an external appeal to the Court available to them.

Costs

The legislation should set out the availability of costs against parties who have acted in bad faith or who fail to comply with the Act. Lack of money is a very real barrier to parents who suddenly find they have to disprove accusations against them. Only those with the necessary financial resources can succeed in doing so, and most people who come under the Family and Child Services Act are not in that category.

The BCCLA has received a complaint from a family who had to sell their home in order to pay $20,000.00 for appeals and legal fees. The Ministry unsuccessfully appealed, right up to the Court of Appeal, the order of the trial judge that their child should not have been apprehended and should remain in their home. The Ombudsman, after completing his investigation of apprehensions of children and his review of the Family and Child Services Act, recommended that this particular family be reimbursed for the cost of the appeals. To date, they have not received any money.

Malicious allegations

The Act properly encourages the reporting of abuse, but it does not provide protection or reparation for those who are maliciously and wrongfully accused. A person accused of child abuse suffers a profound loss of respect, of status, and of privacy.

If the Ministry were given the power to pursue malicious accusers, then not only could reparation be made, but the mere existence of the power would act as a deterrent to making such allegations.

Progress reports

The BCCLA recommends that the Act require regular progress reports on each child ’in care’ to the Minister or the Superintendent from the official who is responsible for the child. This would allow the child’s best interests to be regularly addressed.

In preparing these reports the child must be consulted, separately from those in whose care the child is living, and the child’s input must be given precedence.

Transitional support

It has been brought to the attention of the BCCLA in a number of cases, mentally disabled children have been cut adrift from the Ministry upon reaching 19 years of age. They are then no longer officially children, and so do not come within the child-aid program of the Ministry.

Perhaps this problem could be remedied by adding a section to the Family and Child Services Act that sets out what will happen when these children reach 19. For example, the Act could deem the Superintendent to be the committee of their persons and estates upon their age of majority, in the absence of applications from any other parties.

Burden of proof

There is no burden of proof specified in the Act. The BCCLA recommends that the Act should specify the burden of proof at protection hearing level, temporary custody level, and permanent custody level. At this last level, the burden of proof should be almost as high as it is in criminal matters.

Hearsay evidence

At present, the Act allows hearsay evidence, but in practice often double and trip hearsay is heard. Part of the hearsay problem is inherent in the fact that many of the children are too young to give evidence themselves. However, this problem could be addressed by eliminating anything more than single hearsay, until the child in question is of an age to be heard. At a certain age the child could be brought to court as is done in criminal matters.

Children’s rights

The BCCLA recommends that the amended Act should include the following provisions:

  • Legal representation for children
    At mediation and at court the child’s right to be heard should be honoured. The Act could make provision for a family advocate to speak on behalf of the child, or a guardian ad litem program could be set up.
  • Right to access to family
    The Act should set out the child’s right to access to the parents and family after a permanent order has been made. The Act should provide for continued involvement with the parent(s), including regular contact, information, and even parental input into major decisions regarding the child. As things stand, children taken into permanent care are denied access to a potentially critical and life-long support system.
  • Consultation
    The Act should ensure that children be consulted about the plans and decisions that affect them so profoundly. In particular, children in care should be enabled to activate an independent review of administrative decisions that affect them, especially regarding placements.
  • Children of children in care
    The Act should provide that children of children in the care of the Superintendent be treated no differently from those in the general population.

Receipt of benefits

The BCCLA recommends that families continue to receive benefits where their removal would jeopardize reunion. For example, protection workers should be encouraged to approach B.C. Housing and financial assistance workers so that families on social assistance whose child has been temporarily apprehended do not lose the child’s shelter allowance and family social housing. When these are lost, the possibility of successfully reuniting the family is greatly decreased.