Family Violence and Child Protection

Child protection issues

The provincial Ministry for Children and Family Development is authorized to protect children from neglect and harm under the provincial Child, Family and Community Service Act. Section 2 of the act sets out the guiding principles of the legislation:

This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:

(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;

(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;

(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;

(d) the child's views should be taken into account when decisions relating to a child are made;

(e) kinship ties and a child's attachment to the extended family should be preserved if possible;

(f) the cultural identity of aboriginal children should be preserved;

(g) decisions relating to children should be made and implemented in a timely manner.

Unlike the majority of the general rules governing how children are dealt with in family law, the best interests of the children is not the most important consideration under this act. The most important considerations under the Child, Family and Community Service Act are the safety and well-being of the children.

Reporting children to the ministry

Certain people, including mediators, parenting coordinators, doctors, teachers, psychologists and psychiatrists, have a positive duty to report children in need of protection to the ministry. Section 14 of the act imposes a similar duty on anyone who believes a child is in need of protection, and makes it an offence not to report a child to the ministry. In other words, anyone — including a parent — who thinks a child needs to be protected from abuse, neglect, harm or the threat of harm, must report the problem to the Ministry for Children and Family Development.

Once a child is reported as being at risk, the ministry will assess the report and determine whether an investigation by a social worker is necessary. The act gives the social worker looking into the alleged problem a fairly broad authority to investigate the complaint.

The consequences of a report

If the investigating social worker comes to the conclusion that there is a problem, he or she can do a number of things to protect the child or attempt to solve the problem. These include:

• providing support services to the family in the home, including referrals to outside social agencies,
• supervising the child's care in the home, including random unannounced visits by the worker, or
• removing the child from the home and placing the child temporarily or permanently with relatives, a foster family, or a group home.

Of course, removing the child from the home is the most extreme step the worker can take, and is normally only used as a last resort.

Information for reported parents

Sometimes, in the middle of a nasty family law dispute, one parent will report the other to the ministry, and claim that the child is suffering in the care of the other parent. Surprisingly, these claims often involve allegations of sexual abuse. Not surprisingly, many of these claims are unfounded.

Whether the complaint is justified or not, you must cooperate with the social worker who investigates the report. Obviously, you'll want to prove that there's no justification for the report, and it may help you to refer the worker to the child's family doctor, teachers, and daycare providers who can say that the child isn't at risk and hasn't been abused.

You cannot take any action against a person who has made a false complaint, such as suing them for damages, unless that person made a false report knowing it to be untrue.

Once the social worker has concluded that there is a problem, there's very little you can do to get the worker out of your hair except do what they want. It is critical that you comply with their "suggestions" about things like parenting courses, help from outside agencies, homemaking services, and so forth. If you don't do the things the worker suggests, you may be flagged as "resistant" to those remedies. This can trigger an escalation in the worker's involvement in your family and can lead to harsher conditions being imposed, such as the removal of your child.

The impact of a report to the ministry on your family law action will obviously depend on the circumstances and whether the investigation shows that there is actually a problem in your home. The simple fact that a report has been made will not give the other parent grounds to apply for a change in the child's residence; in fact, if the other parent reported you to the ministry and there was no substance to the claim, it may stand as further evidence of the other parent's unwillingness to cooperate with you in raising your child.

Information for parents making a report

Unless you are fairly certain that your child is being harmed by the other parent or stands in real risk of being harmed, you should not make a report to the ministry. There are a few reasons for this.

Firstly, there is no guarantee that if the worker removes the child from the care of the other parent, that you will get custody of the child. The worker may well discover problems in your own household and give the child into the care of someone else altogether.

Secondly, you run the risk of giving the other parent more ammunition in your family law dispute, allowing them to characterize you as mean-spirited and vindictive, and willing to stoop to anything to win. Worse, the other parent may be able to claim that you were using the ministry to make an end-run around the court process.

Thirdly, you run the risk of inviting the ministry's continued interest (and interference) in your family. Nothing is as unpleasant as being subject to random, unannounced visits by a social worker whose job is to critique your parenting abilities and the child's home environment.

What happens if a problem is found

If the worker investigating the report is sufficiently concerned about the child's living conditions and risk of harm, or the reported parent's willingness to cooperate with the ministry, the ministry may begin court proceedings.

If the ministry has taken a child out of the parents's care, the ministry must commence a child protection action and seek a court order approving the removal. All child protection proceedings are held in the Provincial Court, and are run under special rules of court, the Provincial Court (Child, Family and Community Service Act) Rules.

When your child is not removed

Among other things, the court can make, at the request of the ministry, protective intervention orders for the following relief:

• the on-going supervision of the child,
• the on-going supervision of the child on conditions, including things like daycare, services for the parent, and the right of the ministry to visit the child in the home,
• prohibiting a person from contacting and interfering with the child,
• prohibiting a person from living with the child or entering the child's home,
• a term requiring the police to enforce the order, and
• the removal of the child if the parent fails to comply with the terms of a supervision order.

The ministry must serve you with notice of the hearing of their application, and you are entitled to attend court and oppose the application. You may call witnesses and present other evidence against the ministry's application.

You are not required to have a lawyer at this hearing, although the help of a lawyer is strongly recommended.

When your child is removed

If the ministry has removed a child from your care, the ministry is required to set a "presentation hearing" within seven days, at which the ministry's action is either confirmed or overruled. The issue at this hearing is whether or not the child was in need of protection and was properly removed from the home. You will be served with notice of the presentation hearing and you may attend the hearing where you will be allowed to address the court and call evidence in support of your position.

At the presentation hearing, the court may make interim orders for the following:

• that the ministry have custody of your child,
• that the child be returned to you under the supervision of the ministry,
• that the child be returned to you, or
• that the child be placed in the care of someone other than yourself.

It is important to know that at a presentation hearing the ministry only has to show that there is a likelihood that the child was in need of protection to succeed and get an order that the child continue to live in their care. It can be very difficult to get your child back at a presentation hearing since the case the ministry must prove is so slight.

Within 45 days of the presentation hearing, assuming the ministry was successful at that hearing, a protection hearing is held. At this hearing the court may direct the parties (you and the ministry) to attend a case conference, if you and the ministry cannot agree on the terms of the order that the court should make at the beginning of the hearing.

A case conference is a relatively informal meeting between you, the ministry's representative, and the judge. Sometimes the social worker also attends. If you and the ministry cannot negotiate and agree on the terms of an order about your child during the case conference, the judge may make some directions about the conduct of the proceeding, such as the exchange of information and the scheduling of dates, and set a date for the continuation of the protection hearing.

A protection hearing is a formal hearing before the judge. The ministry will attempt to prove that the order they seek is necessary, and will call witnesses, such as relatives, teachers, and social workers, to give evidence about the facts of the case. Since this is a formal hearing, you are allowed to cross-examine the ministry's witnesses. You will then be able to present your own case and argue about why the ministry's request is not justified.

Remember that at the presentation hearing, the ministry only has to prove that there is a likelihood that the child is at risk and that the course of action sought by the ministry is reasonable. At the protection hearing, however, the ministry must prove that it is more probable than not that the child is at risk and that the course of action sought by the ministry is reasonable. This is a lot more difficult to prove than a mere likelihood of risk.

At the protection hearing, the court may make orders for the following relief:

• that the child be returned to you under the supervision of the ministry for a period of up to six months,
• that the child be placed in someone else's custody for a specific period of time,
• that the child be placed in the custody of the ministry for a specific period of time, or
• that the child continue to be in the custody of the ministry.

Again, while you are not required to have a lawyer at this hearing, the help of one is strongly recommended.

At the conclusion of the period of time specified in the court order, the status of your child will normally be reviewed. It may be critical that you use the intervening period of time to comply with any directions made by the court or the recommendations of the ministry about things such as special courses, programs or services that you should take, since the court will be looking to see whether the risks or deficiencies that caused the child to be removed are still there. If nothing has changed, the terms of the order will likely be continued.

To find out more about your rights when the ministry has concerns about a child's safety or plans to remove a child from the family home, you may wish to read the booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC.

Resources and links

Legislation

• Provincial Court (Child, Family and Community Service Act) Rules

Links

• Clicklaw resources for child protection
• Family Law in British Columbia website information on child protection/removal

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Gayle Raphanel and Samantha Simpson, August 10, 2017.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.