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.

The post Spotlight on child protection: Incorporating children’s views in proceedings first appeared on British Columbia Law Institute.

Brief description of the issue

The Child, Family and Community Service Act contains a large number of provisions that declare people to be parties to specific court proceedings under the Act. In the vast majority of these provisions, children (if 12 years of age or older) are required to be served documents in the proceedings but are not parties to the proceeding. Since having the status of a party has implications for a child’s role in the proceedings and for access to a lawyer, should these provisions, or some of them, be amended to provide that a child (if 12 years of age or older) is entitled to be a party to the proceeding?

Discussion of options for reform

The options to address this issue range from systematically amending all the listed provisions to add language making children parties to child protection proceedings to proposing to amend only some of the listed provisions to supporting the status quo.

The main advantage to amending the legislation and adding children as parties to child protection proceedings is that it ensures children’s voices are heard in those proceedings. Arguably, giving children the status of parties is the strongest possible way to achieve that outcome, as party status gives a person some measure of control over the proceeding. Party status for children would also have to go hand in hand with legal representation, which would give children a valuable safeguard for their rights in child protection proceedings.

The downside of amending the legislation is that it would put in place an idea that doesn’t have much of a track record and that could add significant administrative and financial costs to the child protection system. As a commentator has noted, “[i]n most instances of CLR [children’s legal representation], the child does not have party status.” There may be more limited tools that achieve results for children without imposing added costs and uncertainty.

The committee’s tentative recommendations for reform

The committee favoured a middle approach to this issue, one that would fall between automatically making children a party to child protection proceedings and retaining the status quo.

While children value participation in proceedings, having their views taken seriously by decision-makers, and legal representation (topics that are addressed later elsewhere in the consultation paper), party status goes well beyond these concerns. Party status requires a person to be an active player in litigation. Many children do not want to play this role. This reluctance is reflected in child protection legislation across the country, which contains few examples of legislative provisions that automatically make children parties to a child protection proceeding.

That said, the committee decided that there are ways to improve the status quo. A provision could be added to section 39 to deal substantively with the special case of a child applying to the court to become a party.

In discussing this issue, the committee noted that section 39 (like many other provisions in the Act) relies on an age cut-off. The committee noted that these references to a child’s age function as proxies for assessing a child’s capacity to participate as a party. This approach is open to question, as it excludes mature children, who don’t meet the age cut-off but who may have the capacity to benefit from this legislative provision. A better approach might be to carry out individual assessment of a child’s mental capacity, coupled with a legislative presumption of capacity. That said, the committee was aware that this issue was outside its mandate. It felt constrained to accommodate its tentative recommendation within the terms of the statute on this point. But further study of this issue (by an organization that has the mandate to directly take it on) would be welcome.

The committee tentatively recommends:

Section 39 of the Child, Family and Community Service Act should be amended to add a new subsection (2.1) that reads as follows: “A child, if 12 years of age or older, who appears at the commencement of a hearing is entitled to be a party, subject to the court’s discretion.”

In addition to proposing legislative reform, the committee decided that there were changes to practice that could help support its proposed new legislative provision. This support would come from the development of a new form, which could be used to record the child’s views on applying to become a party to a child protection proceeding.

The committee tentatively recommends:

A form should be developed for use by lawyers who give independent legal advice, which requires the lawyer to confirm whether or not the child wishes to be a party to a hearing.

The lawyer who gives independent legal advice to a child should provide to the social worker the new form that records whether or not a child wants to be a party, to be maintained on the child’s file, and made available to be filed with the court at the request of the child or any other party.

To respond to these tentative recommendations or to read more about issues like this one, please visit the Modernizing the Child, Family and Community Service Project webpage.

The post Spotlight on child protection: Party status for children first appeared on British Columbia Law Institute.

Brief description of the issue

Section 64 of the Child, Family and Community Service Act sets out the general disclosure obligations for child protection proceedings under the Act. The section’s provisions are rather skeletal. As a result, a body of case law has developed, which has interpreted the section and elaborated on its requirements. Should any of these case-law stipulations on disclosure be incorporated directly into section 64?

Discussion of options for reform

The main advantage to amending section 64 to incorporate case-law stipulations on disclosure is that it would help to clarify the law in this regard. This section is potentially deficient, as it requires disclosure in a broad sense and does not necessarily encompass the full scope of what the courts have mandated that a director must disclose in child protection matters. Amending section 64 can help alleviate fair-trial concerns by providing a greater sense of clarity and transparency to one of the main disclosure provisions in the Child, Family and Community Service Act. In addition to helping practitioners on both sides of a child protection matter, parents should know the case they need to meet. This is vital to correct the power imbalance of power that pits a parent, who is typically relying on legal aid or is self-representing, against the greater resources of the ministry of children and family development, and who is facing the possibility of permanently losing guardianship of a child.

A disadvantage of amending section 64 to encompass what courts have mandated a director must disclose is that it would alter a status quo that appears to be working. Currently, the courts have worked out how to resolve the deficiency in this section of the Child, Family and Community Service Act. The legislation has provided a general outline with respect to disclosure requirements and the courts have taken it upon themselves to fill in the details, such as the 11 general principles noted in a leading case, providing guidance for practitioners in this area. This could simply be an example of the law working as it should.

The committee’s tentative recommendations for reform

The committee noted that the case law is well-settled. It has helped to fill in some of the details that are lacking in the minimal requirements set out in section 64. That said, it would be difficult to incorporate all of the stipulations found in the case law. Some of the items on the lengthy list set out in the leading case, for example, would be too onerous to comply with in practice. Others would not translate easily into legislation.

The committee favoured a targeted approach to amending section 64. In its view, the section is clearly deficient in some areas. One of these areas relates to the timing of disclosure. In the committee’s view, it would be preferable for the section to clearly spell out that disclosure is required before a case conference. Currently, the section calls for disclosure “if requested”—language that the committee viewed as problematic. It sets up a rote requirement for experienced lawyers. But it may also prove to be a stumbling block for self-represented litigants, who may not be aware of the need to make a request.

There were other aspects of section 64 that the committee favoured clarifying. In the committee’s view, the section should clearly spell out that all relevant documents must be disclosed, even those that are adverse to the director’s position. Even though child protection proceedings are semi-adversarial in nature, the committee was of the view that the director should not withhold such documents and that the legislation should expressly set out this requirement.

The committee also decided that the reference in subsection (1) (c) to “the party’s intended evidence” could be clearer and more prescriptive. The committee favoured replacing this provision with a requirement to disclose all documents to which a party intends to refer at trial. This language should be familiar to most practitioners in this area because it is used in the Supreme Court Family Rules.

The committee tentatively recommends:

Section 64 of the Child, Family and Community Service Act should be amended by striking out the words “If requested” and substituting “Prior to a case conference under rule 2 of the Provincial Court (Child, Family and Community Service Act) Rules, or at least 30 days prior to a contested hearing, except when a hearing is scheduled within these 30 days, then as soon as practicable.”

Section 64 (1) (c) of the Child, Family and Community Service Act should be repealed and the following substituted: “all documents to which the party intends to refer to at trial.”

Section 64 of the Child, Family and Community Service Act should be amended to add a new subsection (1.1), which should read as follows: “The director must disclose to the other parties all documents that are or have been in the director’s possession or control and that could be used by any party at trial to prove or disprove a material fact.”

Section 64 (2) of the Child, Family and Community Service Act should be amended by adding “or subsection (1.1)” between “under subsection (1)” and “is subject to any claim of privilege.”

To respond to these tentative recommendations or to read more about issues like this one, please visit the Modernizing the Child, Family and Community Service Project webpage.

The post Spotlight on child protection: Disclosure first appeared on British Columbia Law Institute.

Brief description of the issue

The Child, Family and Community Service Act employs the expression domestic violence, most notably in a key provision of the Act setting out the grounds for determining when a child needs protection. But the Act doesn’t provide a legislative definition of domestic violence. In contrast, the Family Law Act contains an extensive definition of family violence, which was explicitly developed as a common point of reference for participants in the family-justice system. Should the references to domestic violence in the Child, Family and Community Service Act be replaced with a defined term modelled on the Family Law Act’s expression family violence?

Discussion of options for reform

This issue for reform potentially poses two distinct elements for consideration.

First, there is the question of whether to retain domestic violence in the Child, Family and Community Service Act as a term without a legislative definition. This is essentially a yes-or-no question.

The status quo relies on the ordinary, everyday understanding of the expression domestic violence. It could be argued that this term is commonly understood and that it’s acceptable for purposes to which it is put in the Child, Family and Community Service Act. But an undefined term will always be seen as lacking precision in comparison with a term that’s given a legislative definition. The expression domestic violence has a significant role in an important section of the Act, which establishes the grounds for protection of a child. Clarity is a major concern in applying this section. Another concern with the term domestic violence is that it may be seen as outmoded. Domestic violence is increasingly being superseded by terms like intimate-partner violence and family violence. The latter term has already been put to use in the Family Law Act. An argument could be made that domestic violence is another term in need of modernization.

Second, there is the question of how to define any replacement term for domestic violence. This question only arises if a decision to depart from the status quo is made in response to the first question.

One obvious option is to use the legislative definition for family violence in the Family Law Act and to add that definition to the Child, Family and Community Service Act. This option would have the advantage of promoting consistency across legislation in British Columbia. It would also give readers of the Child, Family and Community Service Act access to the well-developed body of case law that has interpreted and applied the Family Law Act’s definition of family violence.

The potential downside of this option is one that has been encountered in earlier issues for reform considered in this chapter. There may be problems in adopting a term that was developed for one statute in a related, but distinct, area of the law and applying it to the area governed by the Child, Family and Community Service Act. The Family Law Act has both a definition of family violence and a detailed legal framework applying the term to court orders dealing with family violence. The Child, Family and Community Service Act lacks these features. But this Act must also address issues that don’t arise under the Family Law Act. These considerations might call for a definition that is modelled on the Family Law Act’s definition but is also tailored for concerns that arise under the Child, Family and Community Service Act, even if such an approach undercuts other goals, such as consistency across statutes.

The committee’s tentative recommendations for reform

The committee gave extensive consideration to this issue. It was concerned about the current state of the law. Because domestic violence isn’t defined in the Child, Family and Community Service Act its scope is unclear. Given that domestic violence appears in a key provision of the Act (setting out the grounds for when a child needs protection), there may be challenges with the vagueness of this term.

The committee was also concerned about retaining the status quo for the Child, Family and Community Service Act in the face of the advent of the Family Law Act, with its defined term family violence. The two Acts are currently out of sync both in the choice of term (domestic violence as opposed to family violence) and, more importantly, in the approach to defining that term (undefined versus a detailed legislative definition). In the committee’s view, this is an undesirable state of affairs.

With these points in mind, the committee gave the Family Law Act’s definition of family violence a careful examination. While the committee found much to admire with the definition, it did have concerns about the breadth of its reach and what this very broad conception of family violence would mean within the child protection system.

In particular, the committee was concerned about the aspects of the definition that related to financial abuse (“unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy”) and damage to property (“intentional damage to property”). Given the role a definition of family violence will play in setting out the grounds for protecting a child, the committee had reservations about including these forms of abuse in a definition that has such an impact on the actions that may be taken under the Act. It could have the effect of importing poverty into the grounds for protection. In the committee’s view, poverty shouldn’t be a ground for determining that a child requires protection.

The committee was also concerned about the open-ended nature of the Family Law Act’s definition of family violence (which introduces a list with the word includes). This approach allows for further development of the definition through court cases and opens up the possibility that an already-broad definition could be expanded even further in scope. In the committee’s view, such an approach isn’t appropriate for the child protection system. A closed list (introduced by the word means) would be a better approach.

In brief, the committee decided that leaving a key term in the Child, Family and Community Service Act undefined was a real problem for the legislation. Violence is an important issue and it should be addressed with a defined term. The Family Law Act provides a good model of such a definition. But some of the elements of its definition, while appropriate in family-law legislation, don’t translate well to child protection legislation. A legislative definition for the Child, Family and Community Service Act should be tailored to the purposes of this Act, in particular the important role it will play within the grounds for determining when a child needs protection. It is important to guard against an expansive definition that could have the effect of having more children placed in care. It is possible to develop a legislative definition that is broadly in accord with the Family Law Act’s definition of family violence but that also takes these distinct child protection concerns into account.

Finally, the committee noted that there may be challenges in choosing the best term or terms for its conception of violence and in integrating those terms into the sections of the Act that currently use the expression domestic violence. While the committee was primarily focused on the policy implications of its conception of violence, and was aware that decisions on legislative drafting will ultimately be in the hands of legislative counsel, it did think it would be helpful to set out its thoughts on this issue.

The committee discussed a number of replacement terms for domestic violence. It considered using family violence, but quickly rejected this option. In the committee’s view, if the Family Law Act and the Child, Family and Community Service Act each had legislative definitions of family violence that differed significantly in their details then confusion in practice would be the result.

The committee considered redefining domestic violence. In the end, it chose not to pursue this option because the term appears to be considered outdated.

The committee came to favour a combination of the terms violence and violence in the home. The committee noted that, standing alone, these terms individually raise some concerns. Violence appears to be very broad in its reach. Violence in the home, on the other hand, would on its face appear to limit the application of the legislative definition to violence that only occurs within the family home. This interpretation would introduce a limitation on the concept that doesn’t appear in the way the Act currently uses the term domestic violence. In two of the key provisions using the expression domestic violence the Act goes on to add the phrase “by or towards a person with whom the child resides.” This phrase makes it clear that domestic violence isn’t limited to violence that takes place within the home. In the committee’s view, this concept should be preserved in the implementation of its defined terms. The committee believes that it can achieve this result by defining the term violence and using the expressions violence in the home and violence by or towards a person with whom the child resides in the presence of a child in the substantive provisions of the Act.

The committee tentatively recommends:

The Child, Family and Community Service Act should be amended to add the following definition: “ ‘violence’ means

(a)  physical abuse, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b)  sexual abuse,

(c)   attempts to commit physical or sexual abuse,

(d)  psychological or emotional abuse, including

(i)    intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, and

(ii)    stalking or following, and

(e)   in the case of a child, direct or indirect exposure to violence.”

The Child, Family and Community Service Act should be amended to add the following definition: “ ‘violence in the home’ means violence.”

The Child, Family and Community Service Act should be amended by striking out “domestic violence” wherever it appears and substituting

(a)  “violence in the home, or”

(b)  “violence by or towards a person with whom the child resides in the presence of a child.”

To respond to these tentative recommendations or to read more about issues like this one, please visit the Modernizing the Child, Family and Community Service Project webpage.

The post Spotlight on child protection: Definitions and terms—“family violence” first appeared on British Columbia Law Institute.