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Difference between revisions of "Children and the Law (3:XII)"

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Children and the Law (3:XII) (view source)

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(Created page with "{{LSLAP Manual TOC|expanded = family}} == A. Relevant Ages == === 1. Age of Majority === The ''Age of Majority Act'', RSBC 1996, c 7, s 1 provides that the age of majority...")
 
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Under the ''Child, Family and Community Service Act'' [''CFCSA''], the Ministry for Children and Families has different options to deal with an unattended child (s 25), or a lost or runaway child (s 26). Pursuant to these sections, the Ministry can take the child for up to 72 hours without formally removing the childfrom his or her parents. Furthermore, the Ministry can take a child away to provide essential health care without legally removing the child, provided that the Ministry first obtains a court order under s 29 of the ''CFCSA''. In situations where there are reasonable grounds to believe that the child’s health or safety are in immediate danger, a police officer may take charge of the child (s 27).
Under the ''Child, Family and Community Service Act'' [''CFCSA''], the Ministry for Children and Families has different options to deal with an unattended child (s 25), or a lost or runaway child (s 26). Pursuant to these sections, the Ministry can take the child for up to 72 hours without formally removing the childfrom his or her parents. Furthermore, the Ministry can take a child away to provide essential health care without legally removing the child, provided that the Ministry first obtains a court order under s 29 of the ''CFCSA''. In situations where there are reasonable grounds to believe that the child’s health or safety are in immediate danger, a police officer may take charge of the child (s 27).


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=== 1. Removal Procedure ===
 
Under the ''CFCSA'', Directors are appointed to enforce the Act. A Director may, without a court order, remove a child if there are reasonable grounds to believe that the child needs protection and that the child’s health or safety is in immediate danger, or no other less disruptive measure that is available is adequate to protect the child (s 30). When removing a child, a Director must make all reasonable efforts to notify each parent of the child’s removal (s 31). Practically speaking, the Director delegates his or her duty to social workers who then carry out the removal procedure.
 
=== 2. Presentation Hearing ===
 
The Director must attend the Court within seven days of the removal for a presentation hearing (''CFCSA'', s 34) and present to the Court a written report that includes:
*the circumstances of the removal;
*information about less disruptive measures considered before removal; and
*an interim plan of care for the child, including, in the case of an Aboriginal child, the steps to be taken to preserve the child’s aboriginal identity (s 35).
 
A child who is removed under the ''CFCSA'' is put under the care of the Director until the Court makes an interim order about the child, the child is returned, or until the Court makes a custody or supervision order (s 32). A presentation hearing is a summary hearing and must be concluded as soon as possible (normally within 30 days) (s 33.3).
 
If the parents consent to the interim removal, an order will be made that the child remain in the custody of the Director pending a protection hearing (see below). If the parent(s) disagree with the removal, a presentation hearing will be scheduled as soon as possible (s 33.3) to determine where the child should live pending the full protection hearing. The presentation hearing may proceed by way of affidavits or viva voce evidence. At the conclusion of the presentation hearing, the child may stay in the custody of the Director, may be returned to his or her parent(s) or may be returned to his or her parent(s) under supervision(s 35(2)). It is important to note that the notice of the presentation hearing need not be formally served, and informal notice is adequate.
 
=== 3. Protection Hearing ===
 
A protection hearing must start within 45 days after the conclusion of the presentation hearing (''CFCSA'', s 37(2)). The purpose of the protection hearing is to determine whether the child needs protection (s 40(1)). The Director must return the child to the parent(s) as soon as possible if it is determined that the child does not need protection (s 40(2)). A child can be returned and still be under  minimum  supervision of the Director, or returned without supervision. If the child is returned without supervision, the proceedings are at an end (s 37(1)).
 
=== 4. Orders ===
 
Section 41 of the ''CFCSA'' outlines orders that can be made at a protection hearing:
*an order to return the child to the custody of the parents while being under the Director’s supervision for a period of up to six months;
*an order that the child be placed in the custody of a person other than the parent (e.g. a relative) with the consent of that other person and under the Director’s supervision for a specified period of time;
*an order that the child remain or be placed in the custody of the Director for a specified period of time; or
*an order that the child be placed in the continuing (permanent) custody of the Director. Continuing (permanent) orders should be made under s 49.
 
The parents may consent to or oppose the order. If the parents oppose the order, a Rule 2 case conference is scheduled as soon as possible and a judge will attempt to resolve any issues in dispute (see ''Provincial Court (Child, Family and Community Service Act) Rules'', BC Reg 533/95 for a complete description). If the matter is not settled at the case conference, a date is scheduled to determine whether the child needs protection.
 
The content of supervision orders is outlined in the ''CFCSA'', section 41.1. Terms and conditions that may be attached to a supervision order include:
*services for the child’s parent(s);
*day-care or respite care;
*the Director’s right to visit the child; and
*the Director’s duty to remove the child if the person with custody does not comply with the order.
 
Section 43 outlines the time limits for temporary custody orders and s 47 outlines the rights and responsibilities of a Director who has custody of a child either under an interim or temporary custody order. These rights and responsibilities include:
*consenting to health care for the child;
*making decisions about the child’s education and religious upbringing; and
*exercising any other rights to carry out any other responsibilities as guardian of the child, except consent to adoption.
 
Temporary orders can be extended under section 44.
 
When a continuing custody order is made, the Director becomes the sole guardian of the person of the child and the natural parents’ legal rights to the child are extinguished. The Director may then consent to the child’s adoption. The Public Guardian becomes the sole guardian of the estate of the child. The order, however, does not affect the child’s rights with respect to inheritance or successionof property (s 50(1)). In certain cases, the Director can seek a last chance order of up to six months (s 49(7)).
 
Parents can apply to set aside both temporary and continuing (permanent) orders under s 54. They are also entitled to full disclosure under s 64. For more information, see ''British Columbia (Director of Family and Child Services) v K(TL)'', [1996] BCJ No. 2554 (Prov Ct FD) (QL).
 
'''Note:''' Bill 13, ''Miscellaneous Statutes Amendment Act'' (No.2), 2011 was introduced on Thursday, May 19, 2011 and contains amendments to or related to the ''Child, Family and Community Service Act''  in Part 3, sections 12 – 30. The Bill is available at http://www.leg.bc.ca/39th3rd/1st_read/gov13-1.htm. If the Bill passes, temporary custody orders could be extended where a permanent transfer of custody is planned. 
 
=== 5. Access and Consent Orders ===
 
Section 55 of the Child, ''Family and Community Service Act'' [''CFCSA''] allows parents, or other persons, to apply for an access order at the time, or after, an interim or temporary custody order is made. Section 56 provides for applications for access by parents or other persons after a continuing custody order is made. This entitles parents to apply for access visits during any apprehension, whether interim or permanent, if the Director opposes access.
 
Consent orders under the ''CFCSA'' may be an advisable option for parents. A consent order is outlined in s 60, which provides that the Court may make any custody or supervision order without a finding of fact that their child actually needed protection, and without an admission of any of the grounds alleged by the Director for removing the child (ss 60(4) and (5)). A consent order requires the written consent of:
*a) the Director;
b)the child, if 12 years of age or older; c)each parent of the child; and d)any person with whom the Director may be placing the child in temporary custody.
 
Children 12 years of age or older must be given notice of the hearings, report copies, etc. 6.Rights of Children in Care of the Director Section 70 of the Child, Family and Community Service Act [CFCSA] sets out the rights to which children are entitled while in care of the Director. Children in care have the right to be fed, clothed, and nurtured according to community standards; be informed about plans regarding their care; be consulted with respect to decisions affecting them; reasonable privacy and possession of their personal belongings; be free from corporal punishment; and receive medical and dental care when required. For a complete list of enumerated rights, see s 70. 7.Priority in Placing Children with a Relative When deciding where to place a child, the Director must consider the child’s best interests (s 71(1)). The Director must give priority to placing the child with a relative before considering a foster parent, unless that is inconsistent with the child’s best interests (s 71(2)). Children under protection can be placed in the custody of extended family or other concerned parties (s 8). This is known as a “kith and kin” agreement. The Director may also refer the matter to a familyconference co-ordinator to allow the family to reach an agreement on a ‘plan of care’ that serves the best interests of the child (ss 20, 21). Until March 31, 2010 a relative caring for a child residing in his or her home may have been  eligibleto receive monthly Child in the Home of a Relative (“CIHR”) benefits from the Ministry of Social Development (previously the Ministry of Employment and Income Assistance).  As of April 1, 2010, these benefits are no longer available to new applicants.  In the absence of the CIHR benefits, relatives looking after a child in their home may be eligible for the child tax benefit, the B.C. family bonus, the universal child care benefit, and/or the child disability benefit.  For more information, see:  www.gov.bc.ca/meia/online_resource/verification_and_eligibility/cihr.  An alternative (but not a substitute) for relatives to consider is the Extended Family Program benefits available through the Ministry of Children and Family Development (see www.mcf.gov.bc.ca/alternativestofostercare/extended_family.htm). These benefits are intended to be temporary and the relative is not eligible if they have a guardianship order. The application for benefits must be initiated by the child’s parent. 8.Priority in Placing Aboriginal Children with an Aboriginal Family The Director must give priority to placing an Aboriginal child with the child’s extended family within the child’s Aboriginal community or with another Aboriginal family (s 71(3)). Section 39(1) mandates notification of the band. See also ss 2(f), 3(b) and (c), and 4(2) of the CFCSA. If a child is of mixed heritage, the Ministry will generally treat the child as an Aboriginal child and notify the band accordingly. Certain additional considerations are provided throughout the Act for an Aboriginal, Nisga’a or treaty First Nations child. F.Child Leaving Home or Parent Giving Up Custody of a Child Children may leave home before the age of majority, or alternatively, parents may voluntary give up legal custody of their children.  Please note that “emancipation”(a legal mechanism by which a person may belegally separated from his or her parents before the age of majority) is not a legal remedy for children in B.C. as it is in some parts of the United States.  1.Rights of the Child Children may leave home as soon as they are able to support themselves. The following
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