Child Protection and Removal (Script 141)
|The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. This script gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.|
This script discusses investigating a child protection report, what the results can be (including removing a child from home), and the court hearing that occurs when a child is removed.
- 1 Know when you need a lawyer
- 2 There is a legal duty to report suspected child abuse
- 3 The Ministry looks into all reports of suspected abuse or neglect
- 4 Investigations by the Ministry
- 5 What if the report of suspected abuse or neglect is about a youth?
- 6 Will the police be advised?
- 7 What rights do parents have during a child protection investigation?
- 8 What happens after a child protection investigation?
- 9 When the child doesn’t need protection
- 10 When the child needs protection
- 11 Removing the child from the home may also be considered
- 12 Where will removed child stay?
- 13 If the child is removed, there will be a “presentation hearing”
- 14 What if a protection hearing is arranged?
- 15 The protection hearing must begin within 45 days after the presentation hearing
- 16 If the parent believes his/her contact with the child has been wrongfully removed by the Ministry
- 17 Where can you get help or find more information?
Know when you need a lawyer
If the Ministry of Children and Family Development becomes concerned regarding the welfare of your child or has removed your child, you should talk to a lawyer as soon as possible. You should consult with a lawyer at any time during a child protection investigation or a subsequent court hearing. If you cannot afford a lawyer and your child has been taken into care, you may be able to get a free lawyer from the Legal Services Society (LSS). To find a legal aid location near you, go to the LSS website at www.legalaid.bc.ca and under “Legal aid,” click “Legal aid locations”. Or contact the LSS call center at 604.408.2172 (Greater Vancouver) or 1.866.577.2525 (toll free, elsewhere in BC).
There is a legal duty to report suspected child abuse
The provincial Child, Family and Community Service Act says that anyone who believes that:
- the child has been, or is likely to be, physically harmed by the child’s parent;
- the child has been, or is likely to be, sexually abused or exploited by the child’s parent;
- the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child’s parent is unwilling or unable to protect the child;
- the child has been, or is likely to be, physically harmed because of neglect;
- the child is emotionally harmed by the parent’s conduct;
- the child is deprived of necessary health care or necessary consent to health care if refused by the parent;
- the child’s parent is unable or unwilling to care for the child;
- the child is or has been absent from home in circumstances that endanger the child’s safety or well-being;
- the child’s parent is dead and adequate provision has not been made for the child’s care;
- the child has been abandoned and adequate provision has not been made for the child’s care, etc;
must promptly report the matter to the Ministry. The 24-hour toll free Children’s Help Line for reporting suspected abuse can be called at 310.1234 anywhere in BC. You don’t need to dial an area code. Callers can remain anonymous if they wish.
The Ministry looks into all reports of suspected abuse or neglect
When suspected child abuse is reported, a social worker assesses the information in the report and determines if the child may be at risk. If the child is at risk, the Ministry must consider less intrusive means of protecting the child such at in-home supervision, coming up with plans to better care for the child or suggesting an agreement between the parents and the child to better care for the child. If the child is in imminent risk of harm, the Ministry can remove the child from the parents’ care.
Investigations by the Ministry
A child protection investigation is done when there are more serious concerns about the child involved. It involves a more detailed enquiry to determine if the child needs protection, and the sort of protection that is best in the circumstances. Each child protection investigation includes:
- seeing and interviewing the child as soon as possible;
- checking out the child’s living conditions;
- interviewing the parents;
- reviewing whatever documents and reports are available and relevant to the report; and
- getting information from people who know the family and the child.
What if the report of suspected abuse or neglect is about a youth?
If the concern is about a “youth” – a child aged 16 to 19 – services may be provided to keep the young person safe and help the youth develop supports and life skills. A child protection investigation is generally not the best response for a youth.
Will the police be advised?
Social workers will advise the police if a report of suspected abuse suggests that a child may have been physically harmed or sexually abused, or that a criminal act may have occurred which affects the safety of a child.
What rights do parents have during a child protection investigation?
The social worker must make sure the parents know the details of the report. The parents may also be told that the child will be interviewed, however the parents might not be told about this interview beforehand if the social worker and his or her supervisor believe this might put the child at risk.
The parents have the right to tell their side of the story and to ask questions. They also have the right to have a lawyer or someone else with them at meetings with the social worker. The family must be given as much information as possible about the progress of the investigation and the available support services.
What happens after a child protection investigation?
When an investigation is completed, there are two possible outcomes: a decision that the child doesn’t need protection or a decision that they do need protection.
When the child doesn’t need protection
If the social worker decides that the child isn’t at risk, the parents will be advised and no further action will be taken. If the parents ask for voluntary help or the social worker suggests it, the social worker can refer the parents to services available in the community.
When the child needs protection
If the social worker determines that the child needs protection, but isn’t in immediate danger, a plan is developed with the family to keep the child safe. This might include:
- providing voluntary services to help the parents to care safely for the child;
- arranging for the child to live with relatives or someone who has a significant relationship with the child; and
- getting a court order to allow the social worker to supervise the child in the home.
Removing the child from the home may also be considered
Removing the child is considered only when the child is or may be in immediate danger or if, after fully exploring all available options, there is no other way to keep the child safe.
Where will removed child stay?
As much as possible, the decision about where the child should stay will be made in consultation with the child, family, extended family like aunts, uncles or grandparents, and other adults who have significant relationships with the child. The social worker will try to place the child with a family member, but if this isn’t possible the child will be placed in a Ministry-approved foster home.
If the child is removed, there will be a “presentation hearing”
A presentation hearing is a short hearing in family court that must be held within seven days of child being removed. The Ministry must report to the Court the circumstances that led to the removal and any less disruptive measures that were considered by the director before removing the child. This hearing is to decide whether the child should be returned to home or remain in the care of the Ministry until another hearing, called the “protection hearing”, is held to decide whether the child is in need of protection.In specific circumstances, it may be in the parent’s interest to set a hearing date at the presentation stage in order to determine the interim placement of the child, if no agreement with the Ministry is anticipated. (For example, placement of the child with relatives or friends.)
What if a protection hearing is arranged?
The court may decide that the Ministry should have custody of the child until the protection hearing. Usually the Ministry encourages contact between the child and his/her family members, but if a family member poses a risk to the child, the visits may not be allowed or may be supervised by someone approved by the Ministry.
The protection hearing must begin within 45 days after the presentation hearing
If, at the beginning of the protection hearing, the parents and social worker can’t agree on what should happen next, the judge will order that a case conference take place. A case conference is a meeting of the parents, the social worker, their lawyers and a judge to discuss the case and see if an agreement can be worked out. Mediators can also assist with reaching agreements.
If the parent believes his/her contact with the child has been wrongfully removed by the Ministry
In many child custody cases, one parent may make false reports to the Ministry alleging that his/her child has been physically or sexually harmed by his/her partner. In some cases, these allegations are not true. Once a report of physical or sexual abuse is made to the Ministry, the Ministry often reports it to the police or has the child undergo a medical examination to see whether there is any evidence of such abuse. These are all a part of the Ministry’s investigation.
During this investigation period, the accused parent will often have no right to see the child or will have the liberty to have supervised contact with the child.
If you believe that you have been wrongfully accused of abusing your child and have no or little contact with her/him as a result, the following are steps you can take to ensure contact is reestablished with the child:
- Seek a Court Order to see all medical files relating to the child including results of physical examinations;
- Seek a court Order that the police and the Ministry produce their investigation records to see what reports your spouse has made and how the investigation was done;
- Ask for a s.211 report under the Family Law Act to have a psychologist assess the emotional estate of your spouse who made such allegations;
- Immediately apply to the Court and set down a Hearing to have a judge determine whether your child was or was not abused by you;
Where can you get help or find more information?
- See the link on “Protecting Children” on the Ministry of Children and Family Development’s website at www.mcf.gov.bc.ca.
- See the Child, Family and Community Service Act, found at your local library and on www.bclaws.ca.
- Refer to script 156 on “Reporting Suspected Child Abuse”.
- Read the booklet “Parents’ Rights, Kids’ Rights: A Parent’s Guide to Child Protection Law in BC” by the Legal Services Society of BC, available for free on their website at www.legalaid.bc.ca. To find it, click “Our publications” then under “I want to find a publication by subject,” click “Family law”.
- Read the brochure “If Your Child is Taken: Your Rights As a Parent” by the Legal Services Society of BC, available for free on their website at www.legalaid.bc.ca. To find it, click “Our publications” then under “I want to find a publication by subject,” click "Family law".
- Also see the Legal Services Society’s Family Law in BC website at www.familylaw.lss.bc.ca — under “Your legal issue,” click “Child protection/removal”.
[updated April 2017]
The above was last reviewed for accuracy by JP Boyd and Ronak Yousefi.
|© Copyright 2017, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.|