Child Protection and Removal (No. 141)

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.

If someone reports that a child has been abused (or is likely to be), it starts a legal process designed to keep the child safe. Learn about child protection law.

Understand your legal rights

Getting legal advice

The government has the power to remove (take) children from their home. They don’t need a court order to do that. If the child welfare authorities contact you or visit your home, you have the right to get legal advice.

If you cannot afford a lawyer, you may qualify for a free lawyer from legal aid. The Legal Services Society website lists legal aid service locations. Visit legalaid.bc.ca. You can also call legal aid 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. This law includes these principles 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 best place for children to live is usually with their families.
  • Parents are mainly responsible for protecting their children.
  • If parents need help to care for their children, child welfare authorities should provide support services.

The legal duty to report child abuse

Under this BC law, a person who believes a child has been abused, or is likely to be abused, must report it to the child welfare authorities. The law sets out circumstances of when a child needs protection due to abuse. They include:

  • a child has been physically harmed, sexually abused or sexually exploited by the child’s parent
  • a child has been physically harmed because of neglect by the parent
  • a child is emotionally harmed by conduct of the parent
  • a child is deprived of necessary health care
  • a child’s parent is unable or unwilling to care for a child and has not made adequate provision for the child’s care

Reporting 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 (no. 156).

When a report of suspected child abuse is made

A report of suspected child abuse made to the Ministry of Children and Family Development is taken by a child welfare worker. The worker assesses the information provided. This means they ask questions, gather information, and decide if they need to keep looking into the report. They will decide on the best way to keep the child safe.

If the child welfare worker determines the child may be at risk, they must consider less intrusive means of protecting the child. Examples include 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.

Child welfare authorities may conduct an investigation

Where there are more serious concerns about the child’s safety, the child welfare authorities may decide to conduct a child protection investigation. This 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 of child abuse
  • getting information from people who know the family and the child

It is important to cooperate 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 to remain calm when dealing with the Ministry.

After a child protection investigation

When an investigation is done, there are two possible outcomes: either the child needs protection or does not.

When the child does not need protection

If the child welfare worker decides 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 child welfare worker suggests it, the worker can refer the parents to services available in the community.

When the child needs protection

If the child welfare worker finds 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
  • getting a court order to allow the child welfare worker to supervise the child

Removing a child from the home

Children can only be removed from their home if nothing less disruptive will protect them. If a child is in danger of continued abuse or neglect and there are no other ways of keeping the child safe, the child may be removed from the home.

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 and uncles and grandparents, and other adults who have significant relationships with the child. The child welfare 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.

After the child is removed

Within seven days of a child being removed from the home, a presentation hearing must be held in Family Court. At this short hearing, the Ministry must report to the court the circumstances leading to the removal and any less disruptive measures the Ministry considered before removing the child.

At this hearing, the court decides 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.

If a protection hearing is arranged

At the presentation hearing, the court may decide the Ministry should have custody of the child until the protection hearing. At the protection hearing, the court decides if the child needs protection or not, and who will care for the child 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 welfare worker must give the parents a document saying what kind of order they’ll ask the court for and a plan of care saying how the child will be looked after.

If, at the beginning of the protection hearing, the parents and child welfare 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 welfare 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. Mediation is a process where the people in a conflict meet with a neutral person (a mediator), who helps them find a solution they agree on. Mediation is often faster than a case conference.

How you deal with a protection hearing will often depend on what order the Ministry is asking for. Often, the Ministry asks for three-month orders. This can be a problem because it often takes more than three months for a case conference to be held.

Common questions

What are the rights of parents after a child abuse report is made?

The child welfare worker must make sure the parents know the details of a child abuse report. The parents may also be told the child will be interviewed. However, the parents might not be told about this interview beforehand if the child welfare worker and their 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 child welfare worker. The family must be given as much information as possible about the progress of 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 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?

Child welfare authorities will inform the police if a report of suspected abuse suggests 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.

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

What if I think my child has been wrongfully removed?

In some custody cases, one parent makes false reports to the Ministry alleging 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 steps are a regular part of the Ministry’s investigation process.

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 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:

  • You can go to court to ask for an order to see all medical files relating to the child, including results of physical examinations.
  • You can ask for 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.
  • You can ask the court to order a section 211 report under the Family Law Act to be conducted by a psychologist into the emotional state of your spouse.
  • You can ask the court to set down a hearing to determine whether you abused your child.

Get help

With more information

Legal Services Society, the legal aid provider in BC, publishes a booklet “Parents’ Rights, Kids’ Rights: A Parent’s Guide to Child Protection Law in BC” and a brochure “If Your Child is Taken: Your Rights As a Parent”.

Web: legalaid.bc.ca

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

Web: familylaw.lss.bc.ca

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

Web: gov.bc.ca/mcfd




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