At its March 1999 Board of Directors meeting, the B.C. Civil Liberties Association (BCCLA) examined the recommendations of the Secure Care Working Group to create an option for provincial authorities to create a secure care program in B.C.. This program would allow provincial authorities to remove children and youth, against their wishes from environments in which they are engaged in high risk activities—notably drug abuse/addiction and prostitution. This BCCLA position paper reviews the findings and recommendations of the Working Group, identifies the civil liberties principles at stake and highlights past BCCLA positions that are relevant to this present issue. After considering this information, the BCCLA concluded that a secure care option in B.C. is worthy of our support but only if stringent conditions are met, the most immediate of which is the condition that a strategic plan and continuum of services for children and youth at risk be in place before a secure care option is available in B.C.
The BCCLA also takes the positions that secure care option should only be available for children/youth 15 and under and that only minimally intrusive confinement measures be used.
In February, 1998, the Honourable Penny Priddy, who was at that time Minister of Children and Families, appointed a working group to consider the relative merits and risks of creating a program to allow the detention of children and youth who are at risk of immediate harm but are not mentally disordered and who have not committed a crime. The Report of the Secure Care Working Group (which uses the term “Safe Care” to emphasize safety rather than coercion—this paper uses the terms interchangeably) is the result of the efforts of this group.
The group’s proposals are intended to apply to those young people who cannot be detained under either the Young Offenders Act or the Mental Health Act, but whom service providers believe are in immediate danger of harm. According to the summary of the report, though children and youth are entitled to protection from harm, current legislation does not adequately deal with cases where that harm comes from a child or youth’s own actions: thus the rationale for Safe Care.
According to the Working Group, the major threats to the physical and emotional well-being of young people are abuse of alcohol and other drugs, and sexual exploitation. Secondary problems include: severe emotional trauma, violence, criminal activity, STDs, eating disorders, poor hygiene and lack of health care. The major obstacles to treating or preventing these problems are children and youth who resist help and a lack of appropriate and timely services.
The Working Group proposes to allow authorities to detain children and youth involved in high risk activities for up to 72 hours. The purpose of this detention would be to remove the person from the high risk environment and activity and to plan a course of action for reducing the risk of harm.
II. Perspectives of Youth, Parents and Service Providers Canvassed by the Working Group
The Working Group met with children/youth in custody centres, parents and service providers. Generally youth were opposed to the idea of secure care facilities that were essentially like jails. However, most youth agreed that it would be useful to have a facility and program that would take them out of dangerous situations and provide help. There was strong consensus that there should be a wide range of community based programs to assist youth before they are at risk or are involved in serious criminal activity. Many emphasized the need for intensive supportive counselling, especially by peers, as opposed to treatment in a locked facility.
Parents expressed intense frustration at a lack of support and services that they have sought for their children. They also felt that they were too often blamed and excluded from being a part of the solution to their children’s difficulties. As well, they believe that they have no rights or authority to intervene or take significant action to protect their children. Regarding services, parents felt that there is not enough early intervention, or access to services when urgently needed. There is a serious lack of detox facilities but also long term treatment programs. Parents now go to Alberta or the U.S. to get such services. Secure care was universally seen as necessary but only as an option of last resort.
Service providers are concerned that there are a growing number of children/youth at risk of significant and irreparable harm from involvement in prostitution and substance abuse, compounded by a variety of other problems such as eating disorders, learning disabilities, fetal alcohol syndrome, etc. However, the Working Group notes that there is no informed estimate of how many children/youth might fall into the category of high risk. There is also concern that those at risk are getting younger and younger (under 13). There is a real frustration about the “shortage or complete lack of appropriate services—specifically youth detox and long-term residential treatment afterwards” and that existing services are inappropriate (placing youth into adult detox).
Some service providers are using the criminal justice and/or mental health systems to deal with children/youth in dangerous situations, even if they know that such use is inappropriate, because they have no other alternative. Again, there was consensus among service providers that a secure care option is important as a last-ditch option but without safeguards and other services being in place, they were very concerned about the potential for abuse or inappropriate use of such authority.
Service providers felt that a continuum of services was essential to the well-being of children/youth at any risk but also for preventing the misuse of secure care:
“They [service providers] also said that safe care should only exist as part of a continuum of services—from prevention to safe care, and everything in between, including support groups, treatment day programs, and “light” residential programs. All of the services leading up to safe care must be firmly in place and adequately have adequate resources or safe care won’t work, because people will be placed in programs that don’t work for them and too many will therefore eventually end up in safe care. Appropriate and comprehensive post-safe care services also have to be part of this continuum, to avoid releasing children and youth to the same dangerous environment from which they were removed.” [at page 19, emphasis added]
The Working Group also reviewed available literature. According to the report, there is little academic literature regarding children/youth who are not in the criminal justice system. That literature tends to suggest that longer term residential care is not really helpful and can both exacerbate existing problems and create new ones. Instead, the literature suggests that “individualized” programs and home and community based services are preferential to psychiatric care and residential treatment.
The BCCLA treats the report’s review of the literature with caution. It appears that there is little research though what there is suggests that long term residential care is not necessarily helpful for at risk youth.
The BCCLA is very sensitive to the concerns of parents, youth and service providers. This is a serious issue where lives are at stake. The BCCLA seeks to be sensitive to the real emotional trauma that parents of and children/youth at risk experience.
III. Secure Care Option Proposed by the Working Group
The following is a summary of the recommendations by the Working Group:
- Aboriginal Consultation
That the Ministry undertake special outreach and further consultation with on and off reserve aboriginal communities on high-risk aboriginal children and youth and any specific measures they may require.
- Continuum of Services
That the Ministry:
- identify the services that are already in place for high-risk children and youth and their families
- identify and implement the services that are currently absent and that are needed to complete a continuum of services that will meet the needs of these children, children and youth and families in a timely and appropriate manner.
That the Ministry assess the need for new or transition resources for a continuum of services for high-risk children and youth. This assessment should include a determination of:
- How much is currently spent on existing services
- How much is being spent on intensive intervention for high-risk children and youth, including out-of-province services.
- Public Education
That the Ministry provide carefully targeted public education and special outreach on alcohol and other drug use, sexual exploitation of children and youth and the Ministry’s services for children, children and youth and their families. New resources will be required for these initiatives.
- Rights and responsibilities of parents
That the Ministry review existing legislation and case law to determine the legal rights and responsibilities of parents in regard to their children, and make required adjustments. The results of the review and adjustments should then be communicated to all areas of the service delivery system and to the public.
- Rights and responsibilities of Service Providers
That the Ministry review existing legislation and case law to clarify the director’s rights, responsibilities and duties when acting as a parent and specifically determine how and why these rights, responsibilities and duties may differ from those of parents. The results of this review should then be communicated to all caregivers and other service providers.
- High risk children and youth strategy
That the Ministry develop a comprehensive high-risk children and youth strategy, and use this strategy to guide the delivery of services for high-risk children and youth.
- Safe Care Option
That the Ministry develop a safe care option.
- Specialized Services for Sexually Exploited Children/Youth
That the Ministry develop a voluntary, specialized service for children and youth who are sexually exploited.
- Safe Care Review
That a review of these proposed changes occur within two years after they have been implemented.
Specific recommendations regarding safe care that affect civil liberties of young people
- The working group concludes that “a Safe Care option is required in B.C.”
- “Capacity to hold a child or children and youth for limited periods of time, on a repeated basis if necessary, to ensure that he or she receives the services required” (pp 38).
- Purpose of holding for 72 hours “assess the situation and make a plan for what to do next”(pp 39)
- Plan of care must “specify what should be done if the child or children and youth runs away or resists the services set out in the plan of care” (pp 39).
- “specify the services to be provided for the children and youth (such as detox and long term residential, alcohol and other drug treatment, or intensive counselling” (pp 39).
- “specify where the child or children and youth will live” (pp 39).
- “identify a case manager who will persistently track both the child or children and youth and the plan of care” (pp. 39)
- If a child or youth already has plan of care in place determine whether they are simply resisting and should be returned to his or her residence, or whether the plan needs to be revised (pp 39)
- if a child or youth “runs away” s/he would either be “actively searched for, or picked up as soon as his whereabouts are known.” She could then be brought back to services identified in plan of care, or held for another 72 hours. (pp 39)
- “The capacity to hold a child or youth for 72 hours may need to be used more than once, in order to protect the child or children and youth from immediate harm” (pp 39)
- Criteria should include “no other available measure is adequate to protect the child or children and youth from that harm”
- Rights of child or children and youth as set out in section 70 of Child, Family and Community Service Act would apply throughout. Children and youth able to access a review of the provision of services or any breach of his or her rights
- Children’s Commission Act requires amendment for the sake of review and appeal as above in (L)
- Without a continuum of care “safe care would risk becoming the default for a system lacking appropriate services” (pp 40)
- Risk of immediate harm may result from:
1. particular set of circumstances
2. pattern or history of high-risk behaviors and/or
3. diminished capacity to make decisions in his/her own best interest because of such issues as alcohol and drug use, or the effects of coercion by pimps.
- Children and youth must be able to move between Safe Care and the justice system.
- Recommendation 9: voluntary, specialized service for sexually exploited children and youth that is distinct from Safe Care.
IV. Civil Liberties Issues at Stake
The following is a list of general civil liberties and other principles that are relevant in considering this proposal:
- Individuals should be free to do as they wish as long as their actions do not unreasonably interfere with the freedom of others (Millian Principle).
- Parents principally and society generally are responsible for the welfare and safety of children and youth.
- Civil libertarians have traditionally treated children as a special case recognizing that they do not enjoy the same autonomy as adults and that parents/society may limit their “freedom” and impose requirements on their behaviour so that they can mature to make informed choices about their private lives and participate meaningfully in civil society. For example, civil libertarians support compulsory education on these grounds.
- Notwithstanding principle 3, children/youth retain some claims to autonomy. There is a continuum of autonomy for children/youth: the younger the child, the less compelling their autonomy claim and the more compelling are the claims of parents and society in influencing their development and conduct. However, as the child grows and matures into adolescence and young adulthood, their autonomy claims become greater and parents/society authority decreases; at a certain age, a young person is recognized as an adult and is free to do as she wishes (subject to the Millian Principle) even if that behaviour is harmful to herself.
- State coercion undermining the free will of individuals (including children/youth) can only be justified if there is a compelling public interest objective, there is an actual problem that needs to be addressed, the methods employed by the state will achieve the objective, there are no other less intrusive methods that will also achieve the objective and the beneficial effects of the methods in achieving the objective outweigh the negative effects of limiting free will.
V. Relevant BCCLA Positions
The BCCLA has recently developed several positions on issues that are relevant to our consideration of secure care.
In 1997, the Board adopted the position that “child prostitution raises civil liberties concerns and the grounds for the involvement of the BCCLA in part include that prostitution involving children compromises and undermines the capacity for the development of autonomous individuals.” This position was in the context of concerns about whether the state, through the police, were doing enough to enforce laws prohibiting child prostitution. There was vigorous debate about whether the value of autonomy was appropriately invoked to defend our position and whether taking this position would take us away from our traditional role as responding to proposed interference by the state into private lives. After the debate, the Board arrived at the resolution cited above.
Several years ago, the BCCLA took the position that child pornography which depicts real children in a sexual context may justifiably be prohibited by the state on the basis that children do not have the moral (and thus legal) capacity to consent to such activity. We have not yet defined who constitutes a child.
With respect to the issue of violent TV programming aimed at an audience of children, the Association took the position that it is reasonable for the state (through the CRTC) to restrict and regulate such programming on the basis that (i) it is reasonable to conclude that such programming does have negative effects on the development of children, (ii) children’s rights to free speech would not be violated because such rights are significantly attenuated and parents and society have a responsibility to ensure their development, and (iii) the free speech rights of creators and TV programmers would be minimally effected by regulation.
In sum, the Association now has several positions that recognize that it is acceptable for the state to limit the choices of children in the interests of protecting them from harm and at least one position that asserts that it is appropriate for the state to take certain action against adults to promote the development of children into autonomous adults. The secure care issue poses a related but somewhat new conundrum: how far are we willing to permit the state to interfere directly in children/youth’s lives in order to protect them from the harms resulting from their own behaviour?
Given these past positions, it appears that the BCCLA can approach this issue in either of two ways: (1) if there is a violation of the civil liberties of children, is it justified? or (2) the state’s use of secure care, if properly constrained, is not only is not a civil liberties violation but is justified as necessary in order to promote the civil liberties of children/youth.
With respect to the first approach, assuming secure care would violate children’s civil liberties (i.e. state interference in their own choices), is the state’s action justified? Following principle 5 in IV above, the state would have to justify its interference on the basis that there is a compelling public interest objective and a real problem to address, the state’s action will address the problem, there is no other less intrusive means and the beneficial action outweighs the negative impacts. In the case of children/youth at high risk of harm, the first two criteria are met: there is a significant public interest to act to ensure the best interests of the child given the risk of harm and, though there is no empirical information about numbers of children at risk, there is reliable anecdotal information that there is a serious problem.
Will the secure care option meet the objective of protecting children/youth at risk? This is difficult to answer. It is probably true that even the best efforts of society to assist children at risk might not always work, but the experts agree that this option is necessary. The secure care option seeks to remove children at immediate risk in order to assess the needs of the person and set up a program for addressing those needs; it is not an option for long term confinement of children to keep them away from external harm.
Are there other less intrusive means to achieve the goal of preventing serious harm to children/youth? The BCCLA recognizes that forcible confinement, even of young persons who are engaged in high risk behaviour, is a very serious action that must be carefully scrutinized. However, in this context, given the harm associated with this behaviour, the BCCLA believes that the ability to confine children/youth for a period of only 72 hours is a relatively constrained approach to preventing them from engaging in such behaviour. We are not aware of any other less intrusive means for in fact preventing exposure to this harm that will not include confinement. Clearly, the Working Group emphasized the necessity of a continuum of services as a precondition to making this work. If such a continuum existed, it is likely that secure care would not be an option that would be necessary very often. Without the continuum, there are likely to be real problems as there are now in the inappropriate use of the criminal justice and mental health systems to deal with children/youth at risk.
Finally, with respect to the balance between beneficial versus negative impacts, the BCCLA believes that the beneficial impacts of secure care clearly outweigh the negatives: the significant chance of creating a better future for children/youth at risk with a sincere and proper effort using appropriate resources by society outweighs the negative impact of forcing children/youth to forego behaviour that is clearly harmful. After all, we are considering the situation of very young persons who likely do not have the capacity or experience for understanding the short, medium and long term implications of their choices.
In sum, if the BCCLA approaches this issue with the traditional civil libertarian methodology, then the BCCLA should not oppose secure care subject to very stringent conditions proposed below.
Alternatively, following the BCCLA’s position on child prostitution and even child pornography, the BCCLA may take the position that the interference does not constitute a civil liberties violation but rather promotes civil liberties by promoting the development of children/youth into autonomous adults. As with child porn, we would take the position that children/youth do not have the capacity to consent to child prostitution/addictive behaviour that raises the need for secure care. Moreover, in order to “free” children from these harms, society needs to intervene in their lives so that these children/youth can develop in a way that they are able to make informed choices about their private lives and participate in civil society. Of course, thinking of this issue using this approach still requires careful consideration of the methods to be used for state action and thus requires the BCCLA to consider what safeguards must be in place to ensure that the secure care option is properly tailored to the needs of children. It is also raises the question about when and under what conditions do the autonomy claims of children/youth, even if they are engaging in self-destructive behaviour, outweigh society’s authority to “force them to be free”. These questions are addressed below. Taking this approach, subject to the discussion below, the BCCLA would more than just not oppose secure care, we would actively seek a secure care option.
VI. Conditional Safeguards
The BCCLA acceptance of the concept of secure care is strictly conditional. That is, the BCCLA is willing to recognize secure care as a legitimate response by the state to the plight of children/youth at risk, only if certain minimum conditions are met before the implementation of secure care. The BCCLA proposes the following conditions:
- Secure care should only be used in exceptional circumstances as an option for service providers to use when a child’s or youth’s safety is clearly and imminently at risk of serious harm and there is no other less intrusive means for effectively preventing the risk of harm to the child/youth. Specific criteria for invoking the secure care option should be explicitly articulated in law and should focus on the activities of substance addiction and prostitution.
The Working Group recognized that secure care should only be an option when a child is assessed “to be in extreme and immediate danger—in other words, it appears that the child or youth could be seriously harmed or even die if he or she is not immediately removed from the situation or environment”. The report refers to circumstances of such risk as serious harm from substance abuse and/or involvement in street prostitution. Any legislation permitting secure care should be carefully tailored to capture only this behaviour.
- Only the Director under the Child, Family and Community Service Act and his/her specific delegates should be authorized in law to use secure care powers. Specific authorization should be required for placing any particular child/youth in secure care.
The BCCLA is very concerned that safeguards are in place to ensure that secure care authority does not become abused or a default mechanism because no other less intrusive methods are in place to assist children or youth at risk. The Working Group also recognized this potential (see page 40). To prevent this abuse, only the Director under the legislation and his/her specific delegates should have the power to use secure care option for particular children. That is, the law should specify specific individuals who hold the authority to use secure care. There should be no general power for police or social workers to, at their own discretion, use secure care to apprehend children they perceive to be at risk.
- (a). The use of secure care option in any particular circumstances should only be available through prior authorization of a court. If the risk of harm is so great and imminent that prior authorization is not possible, then the Director of Children and Family Services or his designates should be required to justify the use of this option in the particular circumstances after the fact.
Clearly, the best safeguard for ensuring that secure care is not used inappropriately is to have a mechanism for either independent review through prior authorization or a requirement of review as soon as possible after this authority has been used. For example, under the new Protection of Children Involved in Prostitution Act in Alberta, police officers must get prior judicial authorization to use a secure care option (including by telephone) or, if exigent circumstances prevent this, then the Director under the Child Welfare Act must appear before a court within 3 days of the confinement to show cause why confinement was necessary.
(b). Alternatively, there must an independent review of the use of secure care in every particular case after it has been used.
The Working Group suggested that the Children’s Commission be given the responsibility of monitoring the use of secure care:
“A report would have to be submitted to the commission each time a child or youth is held, along with a copy of the resulting plan of care. The commission would be responsible for tracking and analyzing the use of safe care; statistics on the use of safe care could be published annually. The Children’s Commission Act would need to be amended to provide the commission with specific power to hear and respond to appeals related to safe care.” [at page 40]
There is significant merit to providing an independent agency outside the courts with the responsibility for ensuring that secure care would be used appropriately. As with any debate between whether courts or an administrative agency would be best suited to deal with disputes, the advantages of an administrative tribunal or agency solving them is that the tribunal would have specialized expertise to deal with the problem that courts, as general arbiters of rights, do not have. Furthermore, the issue in this case is not merely a clear cut case of “rights” but also of the best interests of children/youth. As many lawyers and others outside the legal system can attest to, the resolution of family disputes is better suited in alternative dispute mechanisms outside the courts.
Furthermore, if one accepts that secure care is an option that promotes the civil liberties of children/youth, then the BCCLA may also be concerned about the underuse of this option. Those familiar with child care issues will recognize that, depending on the latest public controversy, service providers are under pressure to either be more assertive in protecting children or more deferent to families. Courts will tend to be in a position to assess overuse or abuse of state authority like secure care whereas an agency like the Children’s Commission might be more sensitive to the difficult position service providers are in and the incentives to avoid reprimand from mistaken use of this option.
That said, the Working Group’s “suggestion” to provide the Children’s Commission with this authority is not fully explored. The Children’s Commission is not set up as a tribunal for adjudicating rights but rather an agency looking at broader policy questions. If the Children’s Commission is designated as the body to undertake independent review of the use of secure care, then its constituting legislation will have to amended to ensure that it has the authority to undertake such reviews and if appropriate make a determination that secure care is not appropriate in a given circumstance.
Whichever system for review and accountability is used, as the Working Group points out, a review of any particular case should ensure that secure care is only used if:
- service providers can demonstrate that using secure care would be more beneficial than harmful;
- the option is being used in a sincere effort to benefit the child/youth rather than as a convenience to service providers or parents;
- the services support rather than undermine a child/youth’s development into the autonomy of adulthood;
- that a plan of care be required that identifies what measures need to be taken to keep the child safe (e.g. restraining orders against pimps), a backup plan if the child resists, which services the child needs, where the child will live and who will be responsible for tracking the child through the implementation of the plan of care. (See pages 38 and 39 of the report)
- There must be a legal requirement for thoroughly documenting the use of secure care in every case.
In order to undertake a proper review of the use of secure care in a particular case, service providers must be under a legal obligation to thoroughly document the use of secure care and the basis on which it was used.
- There should be a legal requirement that service providers notify the parents/guardians of a child/youth who is subject to secure care.
It is critical to involve parents in the process of protecting children/youth at risk. The report cites academic literature, parental perspectives and service providers views that the involvement of parents and family is very important to the successful treatment of children/youth at risk. Parents can also play a role to ensure that the state does not overstep or abuse its authority. If the state has concerns about the parents and their being the cause of the child/youth’s problems, the state can seek protective custody through the regular legal means.
- Children and youth who are detained under secure care must be informed of their rights under the Child, Family and Community Services Act and must have access to independent advice and assistance to raise concerns about a violation of their rights.
The Working Group recognized that children and youth detained under secure care must be able to bring forward concerns and press for respect of their rights under the Child, Family and Community Services Act. The Working Group suggests that children and youth should have access to the Ministry’s complaint procedure, the Child, Youth and Family Advocate or the tribunal division of the Children’s Commission. The BCCLA agrees and recommends that as a condition of the implementation of secure care, measures be taken to ensure the rights of children and youth.
- Repeated Use of Secure Care
The secure care option would permit detaining a child/youth against her will for a maximum 72 hours. The Working Group recognized there may be circumstances in which a child/youth will return to an environment that again places that person at significant risk of imminent harm. Thus, the Working Group, though emphasizing the need for persistence by service providers to persuade a child from returning to or getting out of such an environment, also recognized that secure care “may be need to be used more than once, in order to protect the child or youth from immediate harm.”
The Working Group did not suggest that a limit be placed on the number of times secure care could be used with any particular child/youth. They appear to believe that an adequate review system and other safeguards should prevent abuse of secure care as an option for some children/youth.
Nevertheless, the BCCLA is concerned about the abuse or inappropriate use of secure care a repeated number of times with specific children/youth. We are especially concerned about using secure care as a means for preventative detention: using secure care to gate young people so that as soon as they leave the secure care facility the child/youth would be taken into custoday again at the doors. Additional safeguards should be considered to ensure that repeated use of secure care is in the best interests of a child or youth.
- Secure care as an option to assist children/youth at risk should not be implemented until a high risk children/youth strategy plan is developed and a continuum of services with adequate resources is available to children/youth and to service providers to assist those at risk.
The BCCLA opposes any implementation of a secure care option until an overall strategy plan has been developed and adopted and a continuum of services with adequate resources is available to children/youth. The Working Group emphasized the need for a continuum of services to be available to children/youth at risk. This makes sense for two reasons. First and foremost, such a continuum is necessary to ensure that we give children/youth the best possible chance to develop into adulthood. The earlier services are available to children/youth who are having difficulties, the greater the chance that they will successfully develop and avoid more intrusive state intervention. Second, in the context of secure care proposals, without this continuum, the Working Group rightly recognized that secure care risks becoming a default option for children/youth at risk and will likely be used inappropriately.
The BCCLA is very sceptical about the government’s authority to use secure care without adequate services being available. Indeed, the success of a secure care option is premised on the availability of the availability of adequate services. To be candid, the BCCLA would not have faith in the government meeting a commitment to create a continuum of services and a high risk strategy plan if it is able to use a secure care option before adequate services are available. Thus, the BCCLA is willing to support a secure care option only if adequate services and a strategy being is in place before the implementation of a secure option.
- If a secure care option is created, there should be a review of the legislative and policy basis for such an option and the actual experience of youth, parents and service providers within two years.
The Working Group recommended that a review of secure care occur in two years. Two years will provide time to gain experience and insights into what works and what doesn’t. The BCCLA supports a two year review to ensure that the program is working properly and children and youth are not being inappropriately detained.
VII. What’s Missing from the Report
- Secure Care — Elements of Security
The Working Group indicates that there is a need for care that would effectively eliminate autonomy choices for the child/youth due to imminent harm. Yet, some children/youth may resist such care and would choose to be elsewhere if possible. Thus, secure care will require some technique for persuasion/coercion when children/youth resist assistance. The Working Group emphasizes the need for “persistence” and “intensive supervision” in persuading/coercing children who would otherwise not choose to participate in services as the preferred method of security. They also recognize that “some security features may be needed in designated safe care facilities” to make the service effective but that locked doors should be used as little as possible.
Notwithstanding the report’s emphasis on intensive supervision and persistence as a means of security, there may be a danger that security features are used more than desirable and/or that certain restraining methods are used that are objectionable in principle. The model that the Working Group envisages requires significant resources and staff time. The temptation to use security may be great in given circumstances especially if there is a shortage of resources.
The BCCLA believes that coercive security features should be used as little as possible consistent with the objective of providing a safe environment for children/youth at risk. The BCCLA opposes the use of more coercive and restrictive security techniques such as being secured to beds, straight jackets and the use of drugs. In addition, the BCCLA recommends that the use of any coercive technique or restraint be documented with justification.
Furthermore, the use of such coercion should be independently monitored (perhaps by the Children’s Commission) to prevent the abuse or inappropriate use of such techniques.
- Definition of Child/Youth
There is no discussion in the report by the Working Group regarding a definition of children/youth to which a secure care option would apply. The provisions of the Child, Family and Community Services Act define a child as someone under 19 years of age including a youth.
The BCCLA opposes the use of secure care for any individual over the age of 15. Our opposition is based on the fact that a secure care option is untried and to a great extent would be an experiment.
Though we recognize that age definitions for the application of secure care is problematic because an age classification is a poor proxy for the assessment of the maturity of any person, the BCCLA is concerned that detaining older youth begins to cross the line into interfering with the legitimate autonomy interests of persons who are otherwise free to engage in many, even harmful activities.
VIII. Minority Recommendation of the Working Group: 30 Day Secure Care
One member of the Working Group felt that a 72 hours secure care option would not be adequate for some children/youth at serious risk especially in the case of addicted children/youth. Thus, the member suggested that a secure care option for 30 days be available if it is clear, based on competent assessment, that the risk of harm is so great that a child should not be released if they wish after 72 hours. Such an exception would require court authorization and the child/youth should have access to legal representation.
This position was taken by only one of the ten members of the Working Group. Nevertheless, the BCCLA understands that this option is favoured by many parents and some legislators and may be presented by the Ministry of Children and Families as an option to legislators.
The other members of the Working Group rejected this option on the basis that there is no conclusive evidence that long term secure care is beneficial (in fact, the literature review in the report as outlined above indicates that there seems to be more negatives than positives). In addition, the Working Group noted that there is no information about how many children/youth at risk might need this option.
The BCCLA opposes this option on principle. As set out in principle 5 in part IV above, there is no evidence that this option is needed at present or that it will achieve the goal of a net reduction in harm to children/youth at risk. Furthermore, there may be less intrusive options including using more than one 72 hour period to reduce the serious risk of harm to the child/youth.