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Protection of children legislation

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Provisions of the Act

The draft Family and Child Services Actprovides for the appointment of a provincial Director of Family and Child Services. The Director is charged with:

  1. keeping a record of alleged child neglect and abuse
  2. apprehending children “where the child appears to be under the age of 17 years” who have been abandoned, neglected, abused or deprived (Section 7)
  3. returning an apprehended child within 72 hours when adequate arrangements have been made for the child’s future safety
  4. presenting the apprehended child to the court within seven days
  5. assuming guardianship under order of the court
  6. being responsible to the Minister for the administration of the Act and its regulations, and
  7. being responsible to the Minister for the establishment and development of family and child services.

The Provincial Court is responsible for making orders and hearing applications for apprehension and guardianship under the Act.

Such matters as evidence, presentation of the child, notice of proceedings, issuance of summons, attendance at proceedings, posting of bond or securities, establishment of panels to replace judges and all other matters falling under the Act are subject to regulations by the Lieutenant-Governor in Council.

“A parent having custody of a child shall take all reasonable measures to ensure that the child is not in need of apprehension.” Parents are liable to the government for the support and maintenance of children, even in cases where the court declares the Director of Child Services or the Crown to be guardian.

All persons having reasonable grounds for suspecting that a child is in danger “of abandonment, neglect, abuse, or deprivation” shall make a complete report to the Director and where subpoenaed give evidence at proceedings.

Shortcomings of the Act

  1. The draft Act ignores children’s rights. Clearly, the principle “that children are citizens, who do have certain social rights independent and separate of their parents and that these rights are rights that the state has a duty to protect” (England’s Protection of Children Act, 1889, paraphrased by J.V. Belknap, September 11, 1978) is absent from the proposed B.C. legislation. The child has no rights of due process, legal representation, appeal for protection, or appearance at proceedings. Grounds for apprehension fail to establish clearly whether children are possessors of rights or merely chattels of parents or the State.
  2. The draft Act has little to say about the responsibilities or rights of parents. The only parental right acknowledge by the Act is that of application to the court for rescinding or replacing a guardianship order “in light of changed circumstances”. Lack of specificity concerning administrative, regulatory, or judicial proceedings provides only minimal guarantees of due process to parents, children, and witnesses under the Act.
  3. The draft Act fails to provide for some form of advocate for children in proceedings involving government, parents, and/or the court. Such an advocate would have to be sufficiently independent of the Ministry of Human resources and the parent’s legal counsel to ensure that the child’s interests are protected. Other jurisdictions have mechanisms to ensure the presence of an advocate for the child in guardianship proceedings.
  4. Almost all matters of due process are subject to regulation by Lieutenant-Government in Council. As far as possible these should be embedded in the Act.
  5. The idea of a child abuse registry, unless carefully drafted, is dangerous and, perhaps, unworkable. Registration of reports of child abuse before investigation, lack of expungement procedures, and lack of registration and control of files present hazards which need to be addressed in the legislation. Such matters should not be left to regulation.
  6. Unlike the present Protection of Children Act, the draft legislation contains no statement of standards to guide the Director in selecting group care and foster homes or for developing ameliorative services. Furthermore, the Act contains no provision for the court to monitor the discretionary authority of the Director or the Ministry of Human Resources.

Conclusions

The draft Family and Child Services Act is a sketchy and retrograde piece of legislation, which cannot be made acceptable by minor amendments. The present Protection of Children Act should be retained until such time as detailed, workable, and principled legislation can be prepared.

The draft Act should not be presented to the next session of the legislature. Pressure should be applied to force the government to make public J.V. Belknap’s draft Child Services Act. Time must be provided for:

  1. full consideration of the merits of recommendations of the Berger Commission on Family and Child Law and Belknap’s proposed legislation
  2. public hearings, and
  3. the drafting of a new Act.

Recommendations

The BCCLA strongly urges that a comprehensive Family and Child Services Actembody the following features:

  1. A clear statement of the rights of children, based on those in Volume V of the Report of the Family and Child Law Commission, i.e.:
    1. The right to food, clothing and housing in order to ensure good health and personal development.
    2. The right to an environment free from physical abuse, exploitation and degrading treatment.
    3. The right to health care necessary to promote physical and mental health and to remedy illness.
    4. The right to reside with parents and siblings except where it is in the best interests of the child and family members for the child to reside elsewhere.
    5. The right to parental and adult support, guidance and continuity in the child’s life.
    6. The right to an education which will ensure every child the opportunity to reach and exercise his or her full potential.
    7. The right to play and recreation.
    8. The right to be consulted in decisions related to guardianship, custody and a determination of status.
    9. The right to independent adult counselling and legal assistance in relation to all decisions affecting guardianship, custody, or a determination of status.
    10. The right to a competent interpreter where language or a disability is a barrier in relation to all decisions affecting guardianship, custody, or a determination of status.
    11. The right to an explanation of all decisions affecting guardianship, custody, or a determination of status.
    12. The right to be informed of the rights of children and to have them applied and enforced.
  2. Compliance with the procedural rights (i.e. (h) through (k)) as necessary elements of any legal or administrative procedures concerning the custody, guardianship, or status of children
  3. Imposition of legal responsibilities upon both parents and the state to ensure the protection of children’s rights. Parents should be able to request services beyond their capability to provide, but which are necessary to meet the child’s rights. The separate and mutual responsibility of parents and government should be set out in legislation.
  4. Where any of the enumerated rights are ignored or denied, a judicial remedy of “declaration” should be available in Supreme, County, and Provincial Courts (see Report of Family and Child Law Commission). The declaration could be sought by the child or by an adult acting on her behalf.
  5. The Act should specify types of remedies for non-emergency and out-of-court support of children’s rights, including statutory provision for non-ward care, voluntary committal to state guardianship, short-term custody for emergency situation, and child care conferences to mediate agreements among major participants concerned with provision of child care and family services.
  6. Emotional neglect as a basis for child care and protection.
  7. In addition to the child’s right to legal advocacy, the Act should provide for a Director of Child Welfare with a sufficient independent of any particular cabinet minister to serve as an ombudsperson for children in the safeguarding of children’s rights.
  8. A statement of standards to guide the Director or Provincial Guardian in selecting group care and foster home and for developing ameliorative services
  9. Legislation, rather than regulation, of expungement, access, and investigation procedures governing the proposed Registry of Child Neglect and Abuse.

Given the importance of the proposed legislation to all children in British Columbia, we recommend that time be allowed to incorporate important provisions such as those we have enumerated (i.e. (1) through (9) above) into the draft legislation. To this end, we proposed referral of the Family and Child Services Act to an all-party, legislative committee for urgent attention.