Spotlight on child protection: Incorporating children’s views in proceedings
6 January 2021
By Kevin Zakreski
BCLI is running a public consultation (closing date: 15 January 2021) on child protection. It is asking for public input into its proposed changes to the Child, Family and Community Service Act. For information on how to participate in the consultation please visit the Modernizing the Child, Family and Community Service Act Project webpage.
This post is part of a series that spotlights issues discussed in the Consultation Paper on Modernizing the Child, Family and Community Service Act . To read other posts in the series please click here.
Brief description of the issue
The Child, Family and Community Service Act relies on broad statements of principle, a court’s inherent powers, and judges’ interpretations of legislation to establish the means by which a child’s views may be incorporated into a child protection proceeding. In contrast, other statutes contain provisions that directly provide for how a child’s views are to be incorporated. Should the Act be amended to adopt enabling provisions that expressly set out how a child’s views are to be incorporated in a child protection proceeding?
Discussion of options for reform
There’s potentially a large number of options that could be considered in response to this issue. To organize the discussion of them, these options may be put into two groups.
The first group of options draw on existing legislation in British Columbia and elsewhere. For example, one proposal to consider would be to adopt language in the Family Law Act’s provision on assessments (section 211), notably its express reference to the views of the child. Another proposal would be to adopt provisions that enable specific methods of bringing the child’s views into a child protection proceeding, such as those found in Saskatchewan’s Act (judicial interviews at section 29) or Newfoundland and Labrador’s Act (judicial interviews, oral testimony, written submissions, other means at the discretion of the court, all at section 56).
The main purpose of this group of proposals is to create clarity and certainty in the law. Express enabling provisions make it clear that a given procedure may be used to introduce the child’s views in a child protection proceeding. In their absence, there may be uncertainty about the availability of a given method. For example, one commentator has noted that some people “have suggested that since the CFCSA does not have a counterpart to s211 FLA, there is no authority for the court to order views of the child reports.” Even though the commentator rebutted this suggestion (saying that general provisions in the Act, article 12 of the UN Convention, “and the court’s inherent powers over its own procedure should fill any perceived gap”), having enabling provisions in the legislation would circumvent the need to consider this argument in the first place. Another advantage of this group of options is that they likely wouldn’t prove to be disruptive or to have any unwanted effects, because these proposed reforms are based on provisions already in force, with a track record in British Columbia and other jurisdictions.
But this last advantage also points to the main downside of this group of options. They represent modest reforms, at best. In fact, a case could be made that they don’t really introduce anything new in British Columbia’s child protection system. Assessment alternatives (such as views of the child reports) and court procedures (such as judicial interviews) appear to be available, even though they lack a foundation in the Child, Family and Community Service Act. This point raises the question of whether it’s desirable to amend the Act to include methods of obtaining the child’s views that are already being used in practice.
This leads potentially to a second group of options, which are options that don’t simply involve clarifying the Child, Family and Community Service Act by adding enabling provisions based on provisions already in force in other legislation. It’s possible to consider developing new procedures, through consideration of the UN Convention and the advice given in official commentary on implementing the convention’s rights. This is a more difficult option to evaluate, as it could potentially take many forms. It would carry the risk inherent in implementing untested legislative provisions, which is that such provisions could have unwanted effects.
The committee’s tentative recommendation for reform
The committee favoured the approach of amending the Child, Family and Community Service Act to include express provisions for incorporating a child’s views in a child protection proceeding. In the committee’s view, other legislation provides useful models to draw on in amending the Child, Family and Community Service Act.
The committee favours this approach because it would clarify the law. An enabling provision in the Child, Family and Community Service Act would give the court greater certainty about the options that are available for incorporating a child’s views into a child protection proceeding. The current approach, which leaves a great deal to judicial interpretation, runs the risk of options being overlooked or, in the worst case, a failure to incorporate a child’s views into a proceeding.
In the committee’s view, the trend toward incorporating a child’s views in decision-making that affects the child is one that should be encouraged. Adopting an express enabling provision in the Child, Family and Community Service Act is an important way to support developments in this area of the law. Such a provision should be wide ranging. It should provide judges with a detailed list of options and should preserve their discretion. The provision shouldn’t become a means to limit a court’s options.
The committee did believe that the provision should also provide some guidance for judges in exercising their discretion. It favoured directing judges to consider the best interests of the child, the child’s safety and wellbeing, and the child’s preferences in deciding on the method of making a child’s views known in the proceeding. The committee was particularly sensitive to the possibility that testimony in court could be harmful in certain cases and for certain children.
Finally, the committee was aware that full implementation of its tentative recommendation will involve changes that go beyond amending the Child, Family and Community Service Act. There will likely need to be a policy developed to support the legislation. Such a policy will be needed to assist in determining whether a child wishes to have views put before the court and how the child’s decision on expressing views is made known to the court.
The committee tentatively recommends:
The Child, Family and Community Service Act should be amended by adding a new section providing that if a child who is the subject of a proceeding under this Act requests that his or her views be known at the proceeding, the court must, after a consideration of the child’s best interests, the safety and wellbeing of the child, and the preferences of the child,
(a) meet with the child with or without the other parties and their legal counsel,
(b) permit the child to testify at the proceeding,
(c) consider written material submitted by the child,
(d) appoint a family justice counsellor, a social worker, a psychologist, a lawyer or another person approved by the court to assess and report on the views of the child in relation to the application before the court, or
(e) allow the child to express his or her views in some other way.
To respond to this tentative recommendation or to read more about issues like this one, please visit the Modernizing the Child, Family and Community Service Project webpage.