Child Welfare: Be Familiar With The Child Protection Process

Answers to Questions About Child Protection

Q: Why am I involved with Child Protection?

Under the Child and Family Services Act there is a required duty to report for;

A. Everyone
B. Professionals (Teachers, police, doctors, etc.)

One or more of those individuals made a referral to Child and Family Services that your child or children may be in need of protective services. Failing to report is an offence under section 23(3) of the Child and Family Services Act.

Q: Do I need a lawyer?

It is recommended to seek legal advice at any stage of the process. You may contact any family lawyer in your area. If you cannot afford a lawyer you may also contact Nova Scotia Legal Aid at www.nslegalaid.ca or by calling the tollfree number at 1-866-420-3450.

Q: What can I expect?

Child and Family Services will investigate the allegation and determine if a child or children is in need of protective services.

Q: Can they talk to my child or children without my consent?

Yes, under section 12A of the Children and Family Services Act, a social worker has the authority to:

1. Attend the residence of the child.

2. Interview and examine the child.

3. Interview any person about the child.

4. Interview people about past parenting.

5. Interview professionals.

6. Interview other persons and gather evidence.

Q: Is a social worker allowed to enter my house?

A social worker has the authority to enter a house in various ways:

1. By court order under section 34(1).

2. On reasonable and probable grounds that the child is in immediate jeopardy and in need of protective services using section 34(3) of the Act.

3. By consent.

If consent is withheld, a social worker can apply for a court order stating a parent or guardian has refused the social worker’s request. However, alternative locations and times to comply with requests could be made and are not unreasonable given the context given to section 8 Charter rights.

Q: What happens if my child or children are found to be in need of protective services?

At this point several different scenarios are possible.

Scenario 1 — The child or children may be left in your care or in the care of a relative pending a finding that there are no substantial risks.

What is substantial risk?

In section 22(1) of the Child and Family Services Act, and further elaborated in case law, substantial risk is defined as: “There a real chance of physical harm, emotional harm or neglect based on evidence, and that future physical harm, emotional harm or neglect is a probability.” (Basically, is there a chance that a child or children might need protection based on evidence.)

Scenario 2 — A social worker makes a finding that your child or children is in need of protective services.

What happens now?

1. If there is presence of imminent danger, the child or children can be immediately taken into custody under section 33 of the Children and Family Services Act.

2. In the vast majority of cases, a social worker makes an application to court. This application is based on the social workers belief based on evidence your child or children are in need of protective services.

Q: What happens in court?

A social worker must convince a judge there are reasonable and probable grounds that your child or children is in need of protective services.

What is Reasonable and Probable Grounds?

These are grounds centered on a fair and sensible belief which is not based on personal feelings, but on facts and evidence. A child may be returned if the agency fails to meet this threshold.

5-Day Hearing: A 5-day hearing must take place within five working days. Weekends or holidays do not count.

30-Day Hearing: This hearing is a continuation of the 5-day hearing. This hearing takes place when the parties cannot agree on a plan for the child or children and do not agree on a placement. Now the court has to decide.

90-Day Hearing: This hearing takes place 90 days after your child or children was taken into care. Again, weekends and holidays do not count. At this hearing a court will:

1. Decide if your child or children are in need of protective services.

2. Assess the order/conditions and make adjustments if necessary.

Disposition Hearing: Takes place three months after the protection hearing. Approximately six months after your child or children have been taken into care. At this hearing a judge will:

1. Assess how the plan/services are going.

2. Determine if your child or children are still in need of protective services.

Throughout the process there could be several disposition hearings. The paramount consideration at each stage is the BEST INTEREST OF THE CHILD(REN).

The Final Disposition Hearing: This is the final stage because the statutory timelines have run out.
If your child or children are 14 years or younger, you have 18 months to address the issues/risks that have been identified by the social worker and by the court.

If your child or children are 14 years or older, then you have 12 months to get your act together.

Q: What else can I do?

At any stage during the court process, you can contest the allegations and order made against you. This is called a Contested Hearing. If you dispute any part of the proceedings you should bring supporting evidence that challenges the claims made against you.

Q: I am entitled to disclosure?

Yes, under section 38 of the Children and Family Services Act, you are entitled to full and timely disclosure as long as the information is not protected by privilege.

Q: Are there any services that can help me through this process?

Yes, if your band has appointed a Band Designate. A Band Designate can:

1. Link you to culturally appropriate services.

2. Link you with a family lawyer.

3. Remind you of your appointments/court dates.

4. May provide transportation.