Child Protection and Removal (Script 141)

From Clicklaw Wikibooks

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.

Know when you need a lawyer

If the Ministry of Children and Family Development becomes concerned about 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 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). Its website lists Legal aid locations. You can also call the LSS at 604.408.2172 (Greater Vancouver) or 1.866.577.2525 (toll free, elsewhere in BC).

Duty to report need for protection

Section 14 of the BC 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 as 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. In a home of more than one child, the Ministry may remove one or more of the children. The Ministry will consider the wishes of older children. It will also look at temporary placements with family or friends.

What rights do parents have after a report is made?

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.

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.

It is important to co-operate with the Ministry. Otherwise, things can escalate and lead to removal. The child may be interviewed by the Ministry at their school or daycare without the parent’s knowledge. This is often very upsetting for parents and their children, but it is important that parents remain calm when dealing with the Ministry.

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 informed?

Social workers will inform 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.

Social workers will often have police accompany them to the family home if they suspect that the parents may not cooperate, or they may be a threat.

What happens after a child protection investigation?

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

When the child doesn’t need protection

If the social worker decides that the child isn’t at risk, the parents will be informed 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 finds 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 be an option

Removing the child is considered only when the child is or may be in immediate danger or if, after fully exploring all options, there is no other way to keep the child safe.

Where will a 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 a child being removed. The Ministry must report to the Court the circumstances that led to the removal and any less disruptive measures that the director considered 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 needs protection. In specific cases, it may be in the parent’s interest to set a hearing date at the presentation stage to decide 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 their 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 adjourn the hearing and 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. The Judge may also adjourn the hearing to allow a mediation to take place. It is often faster than a case conference.

How you deal with a protection hearing will often depend on what application the Ministry is making. Often, they are asking for three-month orders. This can be a problem because it often takes more than three months for a case conference to be held. Meanwhile, the social workers may not be very co-operative. You should get legal advice on how to proceed.

If a parent thinks their contact with a child has been wrongfully removed by the Ministry

In many child custody cases, one parent may make false reports to the Ministry alleging that their child has been physically or sexually harmed by their partner. 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 if there is any evidence of abuse. These are all a part of the Ministry’s investigation.

During the investigation, the accused parent will often have no right to see the child or will have only supervised contact with the child.

If you believe that you have been wrongfully accused of abusing your child and have little or no contact with them as a result, you can take the following steps to reestablish contact with your child:

  • Seek a court order to see all medical files relating to the child, including results of physical examinations.
  • Seek a court order for the police and the Ministry to produce their investigation records to see what reports your spouse has made and how the investigation was done.
  • Ask for a section 211 report under the Family Law Act to have a psychologist assess the emotional state of your spouse who made the allegations.
  • Immediately apply to the Court and set down a hearing to have a judge determine whether you abused your child.

More information

[updated October 2018]

The above was last reviewed for accuracy by Michael Butterfield and edited by John Blois.

© Copyright 2018, 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.

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