Family Violence and Child Protection

Child protection issues

British Columbia's laws about child protection laws are found in the Child, Family and Community Service Act and its regulations. Child protection matters are heard in the Provincial Court, under the Provincial Court (Child, Family and Community Service Act) Rules, and may also be heard in the Supreme Court.

Unlike normal family law proceedings where two former spouses decide how to proceed with their case, it's the provincial Ministry of Children and Family Development, or an "Indigenous authority" under the CFCSA, that manages child protection proceedings. Once these authorities investigate a child protection concern, they have a legal duty to take steps, including possibly seeking court orders, to ensure the safety and well-being of children.

In J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308, the Court of Appeal made it clear that the Ministry of Children and Family Development, also called the "MCFD," can ask for child protection orders even if a family law orders about children's parenting arrangements already exist. The MCFD must make its decisions "regardless of the nature of the dispute between the parents in the family proceeding." This means that even if a family law order greatly restricts a parent's contact with a child, if the MCFD becomes involved and decides that parent should have broad access rights, the MCFD can seek that order in Provincial Court and that order will have priority over the other order. The CFCSA, and not the Family Law Act or the Divorce Act, directs how child protection matters are handled. (As a side note, the CFCSA still uses the terms custody and access, even though the Family Law Act and the Divorce Act have moved to talking about guardianship, parenting time, and contact.)

Section 2 of the CFCSA sets out the guiding principles for child protection matters:

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;

(b.1) Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children;

(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) Indigenous children are entitled to

(i) learn about and practise their Indigenous traditions, customs and languages, and

(ii) belong to their Indigenous communities;

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

Unlike the legislation in family law, the best interests of the children is not the most important consideration under the CFCSA. Instead, the most important considerations under are the "safety and well-being of the children."

The first principle under the CFCSA is that children are entitled to be protected from "abuse, neglect, harm, or the threat of harm." Most of the other principles center around keeping the child with or connected to their family if possible. These principles state that a child's family is the preferred environment for their care and upbringing, that the responsibility for protecting children rests primarily with the parents, and that kinship ties and a child's attachment to extended family members should be preserved if possible. The principles also say that if a family can provide a safe and nurturing environment for a child with the help of support services, then those support services should be provided.

Reporting a protection concern to MCFD or an Indigenous authority

Section 14 of the CFCSA says that any adult who has reason to believe that a child needs protection must report the situation to the MCFD. (Only lawyers in a solicitor-client relationship are exempt from this duty to report.) It is an offence not to report a protection concern to MCFD. In other words, anyone who thinks a child needs to be protected from abuse, neglect, harm, or the threat of harm, must report the problem to the MCFD.

In the case of Indigenous children, the CFCSA says that if a person has reported the protection concern to an Indigenous authority, then the person is not required to report the protection concern to MCFD, as long as the Indigenous authority confirms it will assess the report. An "Indigenous authority" is an organization that is authorized by an Indigenous governing body to provide child and family services according to Indigenous law.

Once they receive a report, the MCFD must assess the report and decide whether an investigation by a social worker is necessary. The CFCSA gives government social workers fairly broad authority to investigate reports and determine if a child is in need of protection.

Protection concerns

Section 13 of the CFCSA describes the situations that may cause the MCFD or an Indigenous authority to decide that a child needs protection. Under this part of the act, children require protection if they have been or may be:

• physically harmed by a parent,
• sexually abused or exploited by a parent,
• harmed, sexually abused, or exploited by another person, and the parent can't or won't protect the child, or
• physically harmed due to parental neglect.

Protection will also be required if:

• the child is emotionally harmed by a parent's conduct or by living in a situation with family violence,
• the child lacks necessary health care,
• the child's development may be seriously impaired by a treatable condition, and the parent refuses to allow treatment,
• the parent can't or won't care for the child and hasn't made adequate arrangements for care,
• the child has been in a situation that endangers their safety or well-being,
• the child's parent is dead and no adequate provision has been made for care,
• the child has been abandoned without adequate care, or
• the child is in the care of the MCFD director or someone else by agreement, and the parent won't or can't resume care when the agreement ends.

Section 13 of the CFCSA also says that:

• sexual abuse or exploitation includes being encouraged or coerced into prostitution,
• situations with family violence increase the likelihood of physical harm to the child,
• emotional harm means that a child shows severe anxiety, depression, withdrawal, self-destructive or aggressive behaviour, and
• a child does not need protection just because of socioeconomic conditions like poverty, lack of housing, or a parent's health condition.

Family violence as a protection concern

The CFCSA uses the term "domestic violence" instead of family violence. The MCFD has acknowledged, in its Policy on Best Practice Approaches: Child Protection and Violence Against Women, that women and children are disproportionately impacted by domestic violence. MCFD policies around the issue of violence against women are aimed at:

• keeping mothers safe by connecting the child's safety to the mother's safety whenever possible,
• keeping children with the non-abusive parent,
• providing the non-abusive parent with supportive services so they can safely care for the child,
• preventing further violence,
• offering an integrated approach for meeting a child's safety needs,
• providing supportive services to the non-abusive parent, and
• keeping their safety a parallel consideration through MCFD proceedings.

If a non-abusive parent, usually the mother, is concerned that the other parent may commit violence, they should prioritize their own safety and the safety of their children. If the non-abusive parent is in immediate danger they should call 911. The non-abusive parent can also contact VictimLINK at 1-800-563-0808 to access safety planning resources. The non-abusive parent also has an obligation to report the child protection concern to MCFD. In any of these cases, it is critical to obtain legal advice as soon as possible about the available options.

The child protection process

Legal Aid BC has helpful factsheets and other information about the child protection process. See the Resources and Links heading under this section.

What happens if you are reported to MCFD or an Indigenous authority

A parent may be reported to MCFD or an Indigenous authority because of a protection concern.

If the concern involves an Indigenous child, the local Indigenous authority may conduct its investigation under Indigenous law, customs, and traditions.

Legal help for reported parents

It is important that parents who are reported for a protection concern get legal advice as soon as possible. Getting legal advice about your rights with the MCFD early in the process is important, for sure, but getting legal advice in the later stages of an investigation is even more important!

You can contact Legal Aid BC to find out if you qualify for a free lawyer. Contact your local Parents Legal Centre at 1-888-522-2752, or find a lawyer who represents parents in child protection proceedings. If Legal Aid BC determines you are not eligible for a lawyer for your child protection matter, you may be able to apply to the courts and ask that a lawyer be appointed to represent you. This request for lawyer representation is called a JG application.

When a court considers a "JG application," it decides whether or not to appoint a lawyer for someone who was denied legal aid, but is facing a complicated child protection hearing and cannot afford to pay for a lawyer themself. You can find the necessary forms and application materials for a JG application on the Legal Aid BC website. The person applying must be found to be indigent in order to succeed in their application. Being found to be "indigent" is not limited to rare or exceptional cases, but does depend on the financial and other circumstances of the person applying.

Child protection investigations

A social worker's first step when starting an investigation is usually to contact the person who is the subject of the report. They may decide to visit the child's home, interview one or both parents, and interview the child. They may also ask the parent for the names of other people they can talk to about the parent's parenting abilities, called collaterals. These collateral witnesses could be the child's family doctor, teachers, daycare provider, counsellor, or family members. The social worker may reach out and contact some or all of these collateral witnesses in the course of their investigation.

At the end of the investigation, the social worker will reach one of three conclusions.

1. No concern: the social worker may close the file due to a lack of protection concerns, and give you a letter outlining this conclusion, which you should keep in a safe place.
2. Some concern: the social worker may start with a lower level of intervention, including providing support services to the family in the home and making referrals to outside social agencies.
3. High concern: the social worker may be concerned enough to take more control by supervising the parent's care of the child, starting a court proceedings, or even removing the child.

If the social worker concludes that there is a protection concern, you should contact a lawyer immediately to learn more about your rights.

What happens if a protection concern is found

If the social worker investigating the report is sufficiently concerned about the child's living conditions, a risk of harm, or a parent's unwillingness to cooperate with their investigation, then they may take further actions such as:

• supervising the parent’s care of the child with various terms and conditions that one or both parents must follow,
• beginning court proceedings, or
• removing the child temporarily or permanently from the parent’s care and placing the child temporarily or permanently with relatives, a foster family, or a group home.

If the MCFD has taken a child out of a parent's care, they must start a child protection action in court and seek a court order approving the removal. They need to serve the parent with court documents. All child protection proceedings are held in the Provincial Court and follow special rules called the Provincial Court (Child, Family and Community Service Act) Rules.

Remember that:

• it can be critical to get legal advice about your legal rights in relation to the MCFD as early in the process as possible, and getting legal advice becomes more important as the investigation goes on,
• if your child is removed, the Child Protection and Removal script from People's Law School's Dial-a-Law website talks about parents' legal rights and explains steps you can take, and
• Legal Aid BC's illustrated booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC outlines the child protection process.

Orders for supervision

The MCFD may ask the court to make a protective intervention order that:

• allows them to supervise the child's care on a continuing basis the on-going supervision of the child, imposes conditions like daycare, services for the parent, and allows the right of the MCFD to visit the child in the home,
• prohibits a person from contacting, interfering with, or living with a child, or entering the child's home,
• requires the police to enforce the order, and
• allows them to remove a child if the parent fails to comply with the terms of a supervision order.

Orders for child removal

Where protection concerns are more serious, the MCFD may immediately remove the child from the home and set a presentation hearing within seven days to have the court review that decision. At the presentation hearing, the court may order that:

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

To learn about the rest of the child protection process and the other hearings involved when the MCFD intervenes to remove a child, read Legal Aid BC's booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC

The Indigenous child protection process

In 2022, the CFCSA was changed to better respect the rights of Indigenous communities to provide their own child and family services, and to help keep Indigenous children safely connected to their cultures and communities.

The guiding principles in section 2 of the CFCSA include two provisions that are specific to Indigenous families:

• section 2(b.1) recognizes that Indigenous families and their communities share responsibility for the upbringing and well-being of Indigenous children, and
• section 2(f) says that Indigenous children are entitled to learn about and practice their traditions, customs, and languages and belong to their Indigenous communities.

Reported protection concerns can be investigated by an Indigenous authority in accordance with that community's Indigenous law, customs, and traditions. In these cases, the MCFD is not the authority dealing with Indigenous children. (Note that in older versions of the CFCSA, Indigenous peoples were referred to using the term Aboriginal, and you may still see that term in some child protection publications in the province, as well as online.)

If you or your child is Indigenous, and you have been reported to MCFD or are otherwise involved with MCFD, you can get a lot more information from Legal Aid BC. See the materials listed under the Resources and Links under this section, or visit the Aboriginal Legal Aid in BC website pages on child protection.

If you are reported to MCFD or an Indigenous authority, they might conclude there's enough concern to supervise your care of the child, start court proceedings, or remove the child. If this happens, you should contact the Parents Legal Centre or a lawyer immediately to learn more about your rights.

Resources and links

Legislation

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

Resources

• Legal Aid BC's Family Law website's information pages on Child Protection
• Legal Aid BC's Aboriginal Legal Aid in BC website
• Legal Aid BC's forms and self-help guide If You Can't Get Legal Aid for Your Child Protection Case
• Find a Parents Legal Centre on Clicklaw
• Legal Aid BC's Family Law website's information page on Child protection
• Legal Aid BC's booklet Parents' Rights, Kids' Rights: A Parent's Guide to Child Protection Law in BC

Links

• Ministry of Children and Family Development
• Clicklaw resources for child protection

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kim Hawkins, Vandana Sood, Elizabeth Cameron, and Rosanna Adams, 16 June 2023.

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.