CHILD PROTECTION & THE COURT PROCESS
Have you ever wondered what happens when someone makes a report to the Ministry of Child and Family Development ("MCFD") or a delegated Aboriginal agency? This guide lays out a quick summary of the court process and what happens when MCFD receives a report about a potential child protection concern.
MCFD will typically start by investigating the report to determine if there are active child protection concerns. This could include having a social worker visit your home, talk to you and any other family members at the residence and talk to your child.
If MCFD determines that there are active child protection concerns, they might attempt to create safety plan with you, to address these concerns without removing the child from your care. A safety plan lays out an agreement for how your child will be cared for during a child protection investigation. These plans are often one of the first steps after the MCFD receives a report of a child protection concern. If you do not comply with a safety plan, this could result in the immediate removal of your child.
If MCFD determines that immediate action is needed to protect your child, they might proceed with removing the child from your care. In that case, you should contact the social worker immediately to find out what you can about where your child will be placed and what their plan of care will be. You can also ask your social worker about your first court date (also known as the “presentation hearing”); the social worker should be able to tell you the date, time, and location.
Prior to the presentation hearing, you should also receive a copy of the Report to Court, explaining MCFD's protection concerns, the reason for the removal, the plan of care for your child and any conditions around your access.
Presentation Hearing
The Child, Family and Community Services Act[1] states that the presentation hearing must happen within 7 days of the removal. At this first appearance, the court will decide whether MCFD was right to remove your child and what the best place is for your child to live until there can be a full protection hearing.
If you consent to MCFD's plan, the presentation hearing ends, and the protection hearing takes place within 45 days. The court will usually make an interim order for supervision or custody of the child, detailing where the child will be staying from now until the end of the protection hearing.
If you don't consent, the judge will decide whether to return your child or proceed with a full presentation hearing, which is usually set several weeks later. At this stage, the court examines your situation in greater detail. This often includes hearing evidence from both sides' witnesses.
MCFD will usually call the social worker who investigated your situation and wrote the Report to Court as a witness. They might also call additional witnesses that will help their case, such as a police office, probation office, a doctor, etc. You will also have a chance to call any witnesses that you believe can help provide evidence as to why there are no protection concerns and the child should be returned to your care.
The court will then decide whether MCFD was right to remove your child. If they cannot prove this, the judge will order that your child to be returned to you. If MCFD can show that removal was the only possible option, the judge will make an order to set the start of the protection hearing within 45 days and usually a custody order about where the child should live until the conclusion of the protection hearing.
Protection Hearing
MCFD is required to give you notice at least 10 days ahead of the protection hearing. MCFD will also tell you what kind of order they are seeking and their plan of care for the child. This could include information about:
· Your child's current living arrangements;
· Any services, supports or other resources MCFD plans to provide for you and your child;
· MCFD’s plan for reunification, if possible or their plans for long term foster care
If you consent to the orders MCFD is seeking, the judge will make the order at the protection hearing. If you don't consent, the judge can order you and MCFD to have a case conference or to proceed straight to a full protection hearing.
A full protection hearing is essentially a longer version of a full presentation hearing. Both parties will have a chance to call witness to give evidence that supports their case. Then both parties will have a chance to explain to the judge why the order should or shouldn't be made.
The judge will either make an order right away or reserve the decision until they have had a chance to review all the evidence again. The judge's decision will always be made considering the best interests of your child.
If the judge decides your child doesn't need protection, your child will be returned to your care. If the judge decides your child does need protection, the judge will make an order setting out the specific terms and conditions for the child’s care and the length of the order.[2]
Case Conference
A case conference is an opportunity for you and MCFD to reach an agreement on how to ensure your child is protected, whether reunification is possible, and if so, under what conditions. The judge will not make any orders at the case conference unless everyone agrees. If you and MCFD cannot reach agreement at this stage, the judge will order a full protection hearing to be scheduled.
If you have a child protection concern, it is important to understand your legal rights and obligations. Contact us at info@mpeaklaw.ca or 604-746-3374 to schedule a consultation with a family law lawyer who can help you navigate the process.
[1] Child, Family and Community Services Act, RSBC 1996, c 46. s.34 (1): No later than 7 days after the day a child is removed under section 30, the director must attend the court for a presentation hearing.
[2] You can find more information about the types of orders that a judge might make at: https://www.familylawinbc.ca/children/child-protection/child-protection-court-orders.
