Episode 3 of 7: SUGGESTED IMPROVEMENTS TO B.C.'S CHILD PROTECTION

Episode 3 of 7: SUGGESTED IMPROVEMENTS TO B.C.'S CHILD PROTECTION

The content derives from a ten-page document prepared by Ray Ferris for members of the B.C. legislative assembly. The segments for this blog are prepared with his permission. Ray has written many articles on this blog for the past decade.  Ray Ferris retired after a career that included significant years with the MCFD. He has written a book entitled 'The Art of Child Protection.' You can order Mr. Ferris' book entitled 'the Art of Child Protection' by contacting the author directly at rtferris@telus.net.

Written by Ray Ferris.

We've been dealing first the problems and then the suggested solutions. CURRENT PROBLEMS WITH B.C. CHILD PROTECTION

Today, Problem #3 of 4 WEAKNESSES OF THE CFCS ACT

           The Child & Family And Community Services Act has many flaws, but if used by well-trained professionals within a clear set of ethics, it can work well. The main weaknesses of the Act are due to the fact that it was theoreticians and not practitioners wrote it and they made the mistake of trying to legislate good practice, making the Act cumbersome and difficult. The strengths of the Act is that it was written by people with a good knowledge of child development and the damage that can be done by severance of the bond with principal caregivers. The Act has many clauses meant to give guidance on this and to forestall injury. Unfortunately the Act is not followed in a great many instances. This failure has become entrenched at every level.

Illustrations of Time Lines and Principles

            The Child & Family And Community Services Act (CF&CSA) is long and detailed but the working sections can soon be learned. When other sections become relevant, it is not difficult to look them up.

            It is important that all levels of protection staff understand not only the specific responsibilities of the Act, but also the spirit and intentions of the Act. The basic intention of the Act is that children can be made safe at home or in alternative care. This is simple in concept but complicated to achieve. Parental rights are invested in their children's rights. When due process is given high priority both rights are protected. The Act particularly focuses on young children and urges swift resolution of cases and restricts the time allowed for temporary orders. This is to avoid psychological damage caused by prolonged separation, which can result in lasting anxiety disorders as is born out in reputable child development literature.

            Here then are the principles of the Act relative to the best interests of children.

Section 2 emphasizes that the family is the best place to raise a child and they should be given help if that keeps them safe at home. Kinship ties should be maintained and decisions should be timely.

Section 4 describes the best interests of a child. These are guidelines and include safety, physical and emotional needs, continuity of care, quality of relationship with parents and others and the effect of maintaining it. It also speaks to the child's racial, cultural and religious heritage and the effect on the child if there is delay in making decisions.

Section 71 also emphasizes the making relative placement a priority. Also the child's right to privacy is mentioned.

Section 4 also emphasizes that no right is paramount and they must be judged overall. This means that when there are conflicts between rights a good professional judgement is needed. For example after years of continuity of care it gains importance over other rights.

            Next are the procedural sections of the Act.

Section 13 attempts to describe all the possible circumstances that define a child in need of protection. This section is problematic because many protection workers have not read it and because a number of sections are hard to prove with factual evidence. Many sections are subjective and rely on good judgement.

Sections 14 through 19 describe in great detail all the possible circumstances that can arise in receiving reports and in accessing children and evidence and how to deal with them. These do not arise in practice very often and can be looked up when needed.  This is one more attempt at prescribing practice and is meaningless if the staff is unfamiliar with the Act.

Sections 22, 23 and 24 deal with mediation and family conferencing.

Section 23 is problematic because it allows family conferencing to be repeatedly adjourned and this can cause long and damaging delays in the court process. In other words there is a built-in conflict in the Act. It also just does not work in the adversarial culture that commonly prevails in the ministry.

Sections 24 through 30 once more describe in great detail all the possible circumstances and actions necessary to protect children. One more attempt to prescribe practice and ineffective when the staff do not know the Act or how to look things up.

Section 31 begins a series of critical procedural responsibilities and this is where the training needs to be strict. This is after a child is taken into care and the case is presented at court. Parents must be notified of the removal and the child must be presented to court within 7 days. At the presentation hearing a written report must be made describing the circumstances and copies given to the parents, who are entitled to attend. There is usually very good compliance to this point. The main snag that I have noticed is that the evidence can be very vague on these reports. Also there is no time for parents to argue any evidence or interim custody at a presentation hearing and it can be a long time before they get the opportunity.

Section 37 and following detail numerous circumstances that arise following child apprehension. Protection staff must know the ACT as it pertains to dealing with these circumstances. For instance Section 37 specifies that a protection hearing must be set within 45 days of the presentation hearing and must be concluded as soon as possible. This is no longer done except in consented cases. It is very easy for the director to evade this section by calling in so many witnesses that there is not enough court time for months or even years. In my case examples I cite a case where one witness took a full week in court on opinion evidence and another where the case was before the court and in interim custody nearly three and one half years. There needs to be far more stringent vetting of evidence. I have sat through hours of testimony that was absolute rubbish, but the judge just let it roll on.

Section 38 spells out the duties for service of notice and it's vital that protection workers know this. It specifies that notice must be served at least ten days before a protection hearing and must state the time place, date and location. Also it must specify the order being sought as well as some other things. Note that this is an absolute legal requirement and failure to do this should negate the validity of a protection hearing. No longer is proof of service a court routine and notification has become whatever the director says it is. This is now treated as optional by protection staff, lawyers and judges. No judge should make an order without knowing that the law has been followed. No lawyer should agree to waive notice unless specifically instructed to do so by the parent.

            Section 41 specifies the orders that can be made when a protection finding is made. This includes the stringent requirements for making a continuing care order and the fact that the parents must be so unfit as to be virtually beyond redemption or else do not want the child.

            Section 45 specifies the time limits of temporary care.

            I am only trying to deal with the most important parts of the Act for the protection worker to know and I conclude with Section 64. This section covers the duty to disclose. This specifies that, if requested a party to an action, including the Director must disclose fully and in timely manner specific information. Timely means well before the due date of the hearing, so that defence counsel can prepare a proper defence.  The specific information falls short of what may really be necessary. There are a couple of problems with this because there is plenty of wriggle room for the director to avoid it.

            A good disclosure request will ask for all witnesses to be called and the gist of the evidence to be given. Also disclosure of all documents, reports and letters to be filed as evidence. This is what a parent's counsel should demand. Social workers ideally should provide it on request of disclosure anyway. The other snag is that it is hard to prove that disclosure has been requested. So defense counsel should be instructed in writing to make the request for disclosure in writing, so the proof is clear.

Tomorrow, Problem #4  Social Workers Ignorant of Their Duties