Child Protection and Removal

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Michael Butterfield, Butterfield Law, and Viba Panchmatia, Viba Panchmatia Law Corporation in October 2018.

When someone reports that a child has been abused or is at risk, this sets a legal process in motion, aimed at keeping the child safe. Learn about child protection law.

What you should know

Get legal help if you are contacted by the Ministry

If a child’s safety is at risk, the Ministry of Children and Family Development has to investigate. If a child protection worker from the Ministry decides there’s a risk of harm and the child needs protection, the worker can remove the child from the home. They don’t need a court order to do so.

If the child protection authorities contact you or visit your home, you have the right to get legal advice. If you can’t afford a lawyer, you may qualify for a free lawyer from Legal Aid BC. Their website lists legal aid service locations. You can also call them at 604-408-2172 in Greater Vancouver or toll-free at 1-866-577-2525 elsewhere in BC.

The law protects children from abuse

In BC, a law called the Child, Family and Community Service Act protects children. Under this law, one person (or more) is appointed as director. They are responsible for applying the law — whether through the Ministry of Children and Family Development or another agency.

This law includes these rules to keep children safe and well cared for:

  • Children have a right to be protected from abuse, neglect, and harm or threat of harm.
  • The preferred place for children to live is usually with their families.
  • Parents are mainly responsible for protecting their children.
  • Child protection authorities should provide support services:
    • to help deal with identified child protection risks and
    • to help parents if they need help caring for their children.

The legal duty to report child abuse

Under BC law, a person who believes a child has been abused, or is likely to be abused, must report their suspicions to child protection authorities. Not doing so is against the law.

The law sets out circumstances when a child needs protection. These include when a child has been, or is at risk of being:

  • physically harmed, sexually abused, or sexually exploited by their parent
  • physically harmed because of a parent’s neglect
  • emotionally harmed by a parent’s conduct
  • deprived of necessary health care
  • living with a parent who’s unable or unwilling to provide adequate care or to arrange for care
  • exposed to family violence

How to report suspected child abuse

Someone can report suspected child abuse by phoning the Ministry of Children and Family Development’s screening line at 1-800-663-9122. The operators assess child protection reports from across the province, 24 hours a day.

For more details, see our information on reporting suspected child abuse.

When a report of child abuse is made

The Ministry of Children and Family Development takes reports of suspected child abuse seriously. When a report is received, a child protection worker assesses the information provided and investigates further. They ask questions, gather more information, and decide if they need to keep looking into the report. Then they make decisions about the best, least intrusive way to keep the child safe.

Under the law, the child's views should be taken into account when decisions about the child are made. How this is done, though, is different in each case.

If they decide the child is or may be at risk, the worker must consider less intrusive options for protecting the child. They might, for example:

  • Seek in-home supervision of the child’s care.
  • Suggest an agreement between the parents and the child to better care for the child. This may involve making a safety plan or an agreement that the child stay in someone else’s care during the investigation or while the caregivers resolve the child protection issue.

If the child is at risk of immediate harm, the director can step in and remove them from the parents’ care. The director may remove one or multiple children from the same home and will look at temporary placements with family or friends.

Child protection authorities may conduct an investigation

Where there are serious concerns about the child’s safety, the director may decide to carry out a child protection investigation. This involves asking many more questions to figure out how to best keep the child safe.

Each child protection investigation usually (but not always) includes:

  • seeing and interviewing the child as soon as possible
  • assessing the child’s living conditions
  • interviewing the parents
  • reviewing relevant documents and reports
  • getting information from people who know the family and the child

If you’re a parent being investigated, you should get legal advice about your rights and options as soon as possible. From a practical perspective, it’s important to cooperate with the Ministry of Children and Family Development. Otherwise, things can escalate and lead to the child’s removal. The Ministry can interview the child at school or daycare without telling you. This is often very upsetting for both you and your child. But while dealing with the Ministry, it’s important to remain calm.

After a child protection investigation

When an investigation is complete, there are two possible outcomes: either the child needs protection or doesn’t.

When the child doesn’t need protection

If the child protection worker decides the child isn’t at risk, no further action will be taken. But the worker can refer the parents to services available in the community if they so choose.

When the child needs protection

If the child protection worker finds the child is at risk of harm, the worker develops a plan with the family to keep the child safe. This might include:

  • providing services to help the parents safely care for the child
  • arranging for the child to live with relatives or someone who has a significant relationship with the child
  • getting a court order to allow the child protection worker to supervise the child

Removal of a child from the home

Under the law, there are situations in which a child needs protection, including where a child may be in danger of continued abuse or neglect. If there are no other ways of keeping them safe, the child may be removed from the home.

Child protection workers generally consult with both the family and the child when deciding where the child should stay. The workers may also consult with extended family and other adults who have significant relationships with the child. (But only those who come forward or who the legal guardian of the child directs.) This is because of strict privacy guidelines.

The child protection worker will try to place the child with a family member. But if this isn’t possible, the child will be placed in a foster home that’s been approved by the director.

After a child is removed

There must be a presentation hearing in Provincial (Family) Court within seven days of a child being removed from the home. At this court appearance, the director has to tell the court:

  • what led to the child’s removal, and
  • what other measures the director considered before removing the child.

The child’s guardians may disagree with the removal. The court has to decide if the child should be returned home. If the answer is “no,” the child stays in the care of the director until another court appearance, called a protection hearing, is set. This often occurs months later, and it is important that a child’s guardian get legal advice beforehand. At that hearing, the court decides whether the child needs protection.

If a protection hearing is arranged

At the presentation hearing, the court may decide that the director should have custody of the child until the protection hearing. There, the court decides if the child needs protection or not, and who will care for them in the future.

The protection hearing must start no more than 45 days after the presentation hearing ends. At least 10 days before the protection hearing, the child protection worker must give the parents:

  • a document saying what kind of court order they’ll be seeking, and
  • a plan of care saying how the child will be looked after.

If the parties can’t agree

If, at the beginning of the protection hearing, the parents and child protection worker can’t agree on what should happen next, the judge will adjourn the hearing and order a case conference. This is a meeting of the parents, the child protection worker, their lawyers, and a judge. All of them discuss the case and see if they can reach an agreement.

The judge may also adjourn the hearing to allow a mediation to take place. In this process, two people in conflict meet with a neutral person — a mediator — who tries to help them find a solution they agree on. Mediation is often faster than a case conference.

How a child’s guardian deals with a protection hearing will often depend on what order the director is asking for. The director must seek the least intrusive option, but can ask for protection orders of a certain length depending on the child’s age.

Common questions

What rights do parents have after a child abuse report is made?

While the child protection worker must tell parents what they are investigating, they are cautious about telling parents what’s in the child abuse report. The worker may tell the parents that the child will be interviewed. But if it’s thought that this might put the child at risk, they may not do so beforehand.

The parents have the right to tell their side of the story and to ask questions. They also have the right to bring a lawyer (or someone else) to meetings with the child protection worker. The family must be given as much information as possible about the investigation and the available support services.

What if the report of suspected abuse 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 them to develop supports and life skills. A child protection investigation is generally not the best response for a youth.

Will the police be informed?

The Ministry of Children and Family Development will inform the police if a report of suspected abuse suggests a child may have been:

  • physically harmed,
  • sexually abused, or
  • a victim of a criminal act that affects the child’s safety.

Police may accompany child protection workers to the family home. That’s more likely if the workers suspect the parents may not cooperate or may be a threat.

What if I think my child has been wrongfully removed?

In some parenting cases, one parent makes a false report to the Ministry of Children and Family Development. Once a report of physical or sexual abuse is made, the Ministry often reports it to the police. The child may have to undergo a medical examination to see if there’s any evidence of abuse. These steps are a regular part of the Ministry’s investigation process.

During the investigation, the accused parent will often have restricted access to the child. They may be allowed only supervised contact, or may not get to see the child at all.

If you believe you’ve been wrongfully accused of abusing your child, and have little or no contact with them as a result, you can:

  • Make a request under the Freedom of Information and Protection of Privacy Act to see the Ministry’s child protection file relating to the child.
  • Go to court and ask for an order for the police and the Ministry of Children and Family Development to produce their investigation records. But, you don’t have the legal right to know who made the report as this information is confidential.
  • Ask the court to order a report under section 59 of the Child, Family and Community Service Act. This is a report that would be written by a doctor or psychiatrist after an examination of your spouse or child to help figure out if a child needs protection or some other court order.
  • Ask the court to set down a hearing to determine whether a child is in need of protection.

Who can help

With more information

Legal Aid BC has publications for parents about child protection law, including booklets and brochures.

Legal Aid BC’s Family Law in BC website includes detailed information on child protection and removal.

The Ministry of Children and Family Development website has information on child protection services in BC.

Free and low-cost legal help

Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

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