Post by litigator on Mar 12, 2007 11:04:52 GMT -5
The term "in need of protection" is found in Part ill of the CFSA appropriately titled Child Protection and refers to specific criteria upon which the Court can make a finding that the child is in fact, in need of protection. It is important to note that Part III deals only with children who are under the age of 16 or who are already subject of a court order under this Part. These definitions are set out in section 37(2) of the CFSA and refer to specific types of harm including among others, physical, sexual and emotional harm and the risk of these types of harm inflicted by the person having charge ofthe child or caused by or resulting from that person's failure to adequately care for, provide for, supervise or protect the child; or the above-noted types ofharm or risk of harm resulting from that person's pattern of neglect in caring for, providing for, supervising or protecting the child. There are also provisions relating to abandonment and children over the age of 12 whose parents are unable to care for them and who are brought before the court on consent of both the parents and the child. It is important to note that this is an exhaustive list and if the Society wishes to bring a child before the Court for a finding that he or she is in need of protection, the presenting circumstances must fall into one or more of these categories.
On the occasions where court intervention is required to carry out services to children and their families, the Society presents its case to the Superior Court of Justice of Ontario (FamilyBranch)or the Ontario Court of Justice (depending upon the location of the CAS) for direction on the particular case plan to be carried out by the Society.As is the case with any other applicant in family court, the Society is bound by the Ontario Family LawRules and the practice directions of the Court in the jurisdiction of that CAS. Specifically,Rule 33 of the Family Law Rules applies to child protection proceedings and sets out timelines for the stages of a child protection proceeding.
VOLUNTARY MEASURES
In terms of how a child and family would become involved with a CAS, most ofthe family files at the CAS are not actually litigated matters. Families become involved as a result of a self-referral
seeking assistance for admitted issues. Other times, a family will come to the attention of the CAS through a community referral prescribed by the duty to report abuse or suspected abuse to the CAS under section 72 ofthe CFSA. This duty to report obligates individuals who perform professional or official duties with respect to children to report abuse or suspected abuse to the CAS directly and not through a third party. It further imposes an obligation to make subsequent and ongoing reports as necessary in respect of a child. That underlined sentence is a killer for parents, it allows CAS to act on false allegations against you. At times the CAS has been challenged about how it can obtain confidential information from involved service providers without releases of information or warrants of information. This is the provision which allows this disclosure. The involved professionals are statute bound to report their concerns in the name of promoting the protection of the child despite the potential damage or effect on the clinical or therapeutic relationship established with their clients.
In these cases of self or community referral, the Society will attempt voluntary services with the family to address the protection concerns including measures such as provision of counselling, guidance, referral to community services or placement of the children with family, community members or in the care of the Society on a voluntary and temporary basis under a temporary care agreement. On some occasions, an involvement with the family may lead to involuntary removal of the child from the care and control of the parent or caregiver. This is known as an "apprehension". This happens in the most serious cases only -where all other voluntary or less intrusive options have been ineffective or where the presenting situation can not allow for a less intrusive option. Essentially it has to be a situation where the child or children are likely to suffer harm which is more probable than not if they are left in the care of the parent or caregiver.
ROLE OF CAS COUNSEL
As part of providing legal advice to the Society, CAS counsel reviews the legal position to be presented to Court and whether that position can be supported by the evidence of the Society. It is the duty of CAS counsel to advise the Society of the weaknesses and potential challenges to the evidence by both counsel and the Bench. As part of providing a legal opinion on when and how to initiate court proceedings under Part III of the CFSA, it is also incumbent upon CAS counsel to ensure that the CAS acts in accordance with the principles ofthe CFSA. These include not only the paramount principle of section I but also the secondary principles which mandate support for the autonomy and integrity ofthe family unit wherever possible on the basis ofmutual consent and the employment of the least disruptive course of action that is available and appropriate to help a child.
In short, CAS counsel have an ongoing obligation to ensure that prior to initiating court proceedings,
the Society has attempted all less intrusive manners of intervention in to the family unit. Of course, there are sometimes situations where there are presenting risk issues of an urgent nature which require an immediate response to prevent harm and where no less disruptive option will suffice. However, generally the cases which require court intervention are the cases that have a history of voluntary worker intervention which simply has been insufficient to address the protection issues raised.
As part of thel egislative mandate to use the least disruptive course of action that is available, where possible and in accordance with internal agency policies, the Society should consider the voluntary services provided for by the CFSA as a first alternative to address the situation. These are provided for by the CFSA under Part ll-Voluntary Access to Services and include the use oftemporary care agreements as alternatives to court proceedings.
In addition, before bringing a child into care, where the time to do so will not place the child at risk of harm, the Society should consider less disruptive options such as non-residential services, placement of the child with a relative, neighbour or other member of the child's community or extended family with that person's consent. Again there are special provisions under section 57 of the CFSA relating to Native children where the Society is required to place with a member of the child's native extended family, community, Band or another Indian or native family unless there is a substantial reason for placing the children elsewhere.
Furthermore, if an apprehension is deemed to be necessary to protect a child from a likely risk of harm, the Society is required by section 40 of the CFSA to obtain a warrant to carry out this very
intrusive process unless there would be a substantial risk to the child's health and safety during the time necessary to obtain warrant. It is the role of CAS counsel to remind the worker to fulfil this statutory obligation prior to effecting an apprehension as a safeguard to ensure that the Society is not acting over-zealously in its intervention.
As is the relationship between any legal counsel and client, CAS counsel will offer consultation services and provide a legal opinion to the Society in respect ofthe evidence. However, at the end of the day, the client still makes the decision in respect ofwhat course ofaction to take. Since the client is an institutional client, that decision may be the shared effort of many individuals at various levels of the organization. However, from a practical standpoint, the immediate client is the protection social worker with carriage of the file.
On the occasions where court intervention is required to carry out services to children and their families, the Society presents its case to the Superior Court of Justice of Ontario (FamilyBranch)or the Ontario Court of Justice (depending upon the location of the CAS) for direction on the particular case plan to be carried out by the Society.As is the case with any other applicant in family court, the Society is bound by the Ontario Family LawRules and the practice directions of the Court in the jurisdiction of that CAS. Specifically,Rule 33 of the Family Law Rules applies to child protection proceedings and sets out timelines for the stages of a child protection proceeding.
VOLUNTARY MEASURES
In terms of how a child and family would become involved with a CAS, most ofthe family files at the CAS are not actually litigated matters. Families become involved as a result of a self-referral
seeking assistance for admitted issues. Other times, a family will come to the attention of the CAS through a community referral prescribed by the duty to report abuse or suspected abuse to the CAS under section 72 ofthe CFSA. This duty to report obligates individuals who perform professional or official duties with respect to children to report abuse or suspected abuse to the CAS directly and not through a third party. It further imposes an obligation to make subsequent and ongoing reports as necessary in respect of a child. That underlined sentence is a killer for parents, it allows CAS to act on false allegations against you. At times the CAS has been challenged about how it can obtain confidential information from involved service providers without releases of information or warrants of information. This is the provision which allows this disclosure. The involved professionals are statute bound to report their concerns in the name of promoting the protection of the child despite the potential damage or effect on the clinical or therapeutic relationship established with their clients.
In these cases of self or community referral, the Society will attempt voluntary services with the family to address the protection concerns including measures such as provision of counselling, guidance, referral to community services or placement of the children with family, community members or in the care of the Society on a voluntary and temporary basis under a temporary care agreement. On some occasions, an involvement with the family may lead to involuntary removal of the child from the care and control of the parent or caregiver. This is known as an "apprehension". This happens in the most serious cases only -where all other voluntary or less intrusive options have been ineffective or where the presenting situation can not allow for a less intrusive option. Essentially it has to be a situation where the child or children are likely to suffer harm which is more probable than not if they are left in the care of the parent or caregiver.
ROLE OF CAS COUNSEL
As part of providing legal advice to the Society, CAS counsel reviews the legal position to be presented to Court and whether that position can be supported by the evidence of the Society. It is the duty of CAS counsel to advise the Society of the weaknesses and potential challenges to the evidence by both counsel and the Bench. As part of providing a legal opinion on when and how to initiate court proceedings under Part III of the CFSA, it is also incumbent upon CAS counsel to ensure that the CAS acts in accordance with the principles ofthe CFSA. These include not only the paramount principle of section I but also the secondary principles which mandate support for the autonomy and integrity ofthe family unit wherever possible on the basis ofmutual consent and the employment of the least disruptive course of action that is available and appropriate to help a child.
In short, CAS counsel have an ongoing obligation to ensure that prior to initiating court proceedings,
the Society has attempted all less intrusive manners of intervention in to the family unit. Of course, there are sometimes situations where there are presenting risk issues of an urgent nature which require an immediate response to prevent harm and where no less disruptive option will suffice. However, generally the cases which require court intervention are the cases that have a history of voluntary worker intervention which simply has been insufficient to address the protection issues raised.
As part of thel egislative mandate to use the least disruptive course of action that is available, where possible and in accordance with internal agency policies, the Society should consider the voluntary services provided for by the CFSA as a first alternative to address the situation. These are provided for by the CFSA under Part ll-Voluntary Access to Services and include the use oftemporary care agreements as alternatives to court proceedings.
In addition, before bringing a child into care, where the time to do so will not place the child at risk of harm, the Society should consider less disruptive options such as non-residential services, placement of the child with a relative, neighbour or other member of the child's community or extended family with that person's consent. Again there are special provisions under section 57 of the CFSA relating to Native children where the Society is required to place with a member of the child's native extended family, community, Band or another Indian or native family unless there is a substantial reason for placing the children elsewhere.
Furthermore, if an apprehension is deemed to be necessary to protect a child from a likely risk of harm, the Society is required by section 40 of the CFSA to obtain a warrant to carry out this very
intrusive process unless there would be a substantial risk to the child's health and safety during the time necessary to obtain warrant. It is the role of CAS counsel to remind the worker to fulfil this statutory obligation prior to effecting an apprehension as a safeguard to ensure that the Society is not acting over-zealously in its intervention.
As is the relationship between any legal counsel and client, CAS counsel will offer consultation services and provide a legal opinion to the Society in respect ofthe evidence. However, at the end of the day, the client still makes the decision in respect ofwhat course ofaction to take. Since the client is an institutional client, that decision may be the shared effort of many individuals at various levels of the organization. However, from a practical standpoint, the immediate client is the protection social worker with carriage of the file.