The Honourable Grace McCarthy
Minister of Human Resources
Victoria, BC V8V 1X4
Dear Mrs. McCarthy:
As we indicated in our letter of October 9, 1980, our Board of Directors believes that Bill 45, The Family and Child Service Act, has certain serious defects. We therefore urge you to delay proclamation of the bill until appropriate amendments have removed these defects or, failing this, to style the regulations to eliminate or reduce the dangers that these defects will produce.
Perhaps the most dangerous parts of the bill, from a civil libertarian point of view, are those that permit the Superintendent (of the Act) to apply ex parte to a judge by telephone for a search warrant (section 8), or to apprehend a child without warrant (Section 9), using force, if necessary.
While we realize that children are sometimes in considerable danger, we cannot agree that such massive invasions of privacy are warranted. At the very least, their use should be circumscribed by cautions, checks and required reports so as to make their use not only not routine, but likely to be carried out only where the intervention seems absolutely essential. The intervenors must be required to report, post-haste, to a senior court, explaining why the intervention seemed essential, what the intervention has comprised, and what were its results. In addition, guidelines (e.g. clear evidence of potential threat to the child’s life, impending attack or a recurrence of violence) should be set out governing the use of such procedures, and it should be mandatory that they be referred to in the reports that we suggest should be required.
In addition, our Directors believe that, under Section 11, the Superintendent should be required to report in person to the relevant court on the actions taken, not merely that he send in a report.
The lives of children should not be regarded so casually that massive intervention into their lives can be passed off with a written report. (Section 11(1)).
We support the motion that the confidentiality of the client-solicitor relationship (in this case child/solicitor or the parent/solicitor relationship) not be infringed upon (section 7(2)). Nevertheless, we do feel that the simple exclusionary clause should be extended to make at least the following clear:
- That any solicitor, as a professional person, is expected to do all that he/she can to stop violations of a child’s rights or person (or to preclude any future such violations) by his/her client, short of violating the client-solicitor relationship.
- No solicitor is bound by law or natural justice to remain silent on potential or impending violations by his/her client. The confidentiality of the client-solicitor relationship holds only for deeds previously done.
While we are pleased that the category of “incorrigible” will, in effect, be eliminated and that efforts will be made to help people between the ages of 17 and 19, to avail themselves of social services available to young persons, we strongly recommend that this latter provision not open the way to intrusive interference with the lives of such older persons who are at the margins of adulthood. As we indicated earlier, Regulations should be set which make it far from routine for any official to preclude the choices or actions of anyone, let alone people who have, at least on some legal criteria, reached the age of majority.
Our Board of Directors believes that much more thought and consideration should be given to this Act. Too many crucial terms are vague or equivocal; too many procedures are not clearly spelled out and too much unspecified power has been left to officials. For example:
- While right(s) to appeal for both children and parents are mentioned (section 20, 3(d)), the procedures to be followed to ensure these rights are not spelled out.
- While mention is made of the rights of children and parents and of the need to maintain a fine balance between them, the rights of either are not specified.
- Whereas penalties are referred to several times, none is outlined specifically (section 16(3)).
- Professionals operating under the Act will have far too much arbitrary power, because neither the limitations on their roles, nor their duties and relationships with the Superintendent are outlined in any detail (section 3(4)). A structure that clearly sets out and delimits these roles and relationships should be included. In addition, we suggest that all actions carried out by the Superintendent or his/her assistants under the aegis of the Act should be open to public scrutiny.
- Provisions under present legislation which require that an apprehended child be physically present in a court at least every seven days do not appear in the present Act. Apart from the abuses that the lack of this provision would leave children open to, it sets a very dangerous precedent for the treatment of all citizens.
While one would expect such an Act to set out certain rights of children, the present Act fails to do so in certain rather glaring ways. For example, no specific provision is made for legal representation for children. And while parents are assured of access to apprehended children, the children, on the other hand, have no such assurance regarding their access to their parents (section 11(4)). Nor does the Act require that children be consulted about the decisions and plans which affect them more than anyone else. Indeed, there is virtually no reference at all to the right to act, to participate in or to make decisions about their own futures.