ACT AMENDED BY PC

CHILD AND FAMILY SERVICES AMENDMENT ACT CHANGES

ISSUE The Child and Family Services Act has been amended and now has new requirements which affect recreation and parks service providers.

The duty to report to Children's Aid Society offices can no longer be delegated to more senior staff, but must be reported by the staff directly involved. In most of our cases in the recreation and parks field, this is more likely to be part time staff.

As well, CAS will now require the name of the child immediately. Anonymous, "what if" scenarios prior to formal notification is no longer possible

The changes to the act now include wider definitions of abuse including emotional harm.

BACKGROUND

On May 3, 1999, the Ontario legislature passed the Child and Family Services Amendment Act (Child Welfare Reform), 1999. This act amends the Child and Family Services Act (CFSA) to:

Make it clear that the paramount purpose of the CFSA is to promote the best interests, protection and well being of children;

Expand the reasons for finding a child in need of protection. For instance, the word neglect is specifically included and the threshold for risk of harm and emotional harm to children is lowered. This will encourage earlier action to protect children at risk;

Allow evidence of a parent s past conduct toward children to be used in child protection court proceedings;

Clarify the duty of professionals and the public to report that a child is or may be in need of protection to encourage more reporting of suspected abuse and neglect;

Make it easier for children's aid societies to get the information they need to protect children;

Promote earlier and more decisive planning for children's futures so that permanent arrangements for children can be achieved as soon as possible;

Ensure that access by relatives and other individuals to children who have been made Crown wards is granted only if it is beneficial to the child;

Provide for a mandatory review of the CFSA at least every five years.

Summary of proposed changes

In this summary, "currently" refers to the provisions of the CFSA prior to the proclamation of the amendments to the act.

1. Paramount purpose

Purpose: Make it clear that the paramount purpose of the CFSA is to promote the best interests, protection and well being of children.

Currently: The introductory section of the CFSA states that a paramount purpose of the act is to promote the best interests, protection and well being of children. However, it also sets out five other purposes. As a result, the paramount purpose is not always given primary importance in practice and was balanced against the other purposes.

One of the other purposes stated that "the least restrictive or disruptive course of action" should be followed. The term "least restrictive" has sometimes unintentionally resulted in children being kept in dangerous situations.

Change: The words "least restrictive" are removed to ensure that the "best interests" clause is clearly paramount.

2. Grounds for finding a child in need of protection

Purpose: Expand the grounds or reasons for finding a child in need of protection, including adding the word neglect to several of the grounds and lowering the threshold for risk of harm and emotional harm to children.

(a) Risk of harm

Currently: The CFSA sets out 12 grounds for finding a child in need of protection. Three of these deal with the "substantial risk" of harm to a child, including physical harm, sexual exploitation or molestation and emotional harm. The word "substantial" has created too high a test before action is taken to protect a child.

Change: The threshold for the risk of harm is lowered by replacing the words "substantial risk" with "risk that the child is likely to be harmed."

(b) Neglect of a child

Currently: Although the existing grounds for finding a child in need of protection can be used to deal with the effects of neglect, the word neglect is not specifically used in any of the grounds. There are conflicting views on whether the current wording effectively deals with neglect, resulting in practice that has been inconsistent across the province.

Change: The words "pattern of neglect" are added to the grounds dealing with physical harm, risk of physical harm, emotional harm and risk of emotional harm.

Currently: One of the grounds for finding a child in need of protection is emotional harm, demonstrated by "severe" anxiety, depression, withdrawal or self-destructive or aggressive behaviour. It is seldom used as a ground for protection because "severe" is too high a threshold.

In addition, the act focuses on the symptoms of the child without linking them to the behaviour of the parent or caregiver.

Change: The threshold for emotional harm is lowered from "severe" to "serious". "Delayed development" is added to the list of symptoms and the grounds are expanded to include situations where the emotional harm is caused by the parent.

3. Evidence of past parenting

Purpose: Allow evidence of a person's past conduct toward children to be used in child protection court proceedings.

Currently: The CFSA currently allows evidence about a person's past conduct toward any child in his or her care to be used, but there is confusion about when it is admissible in court proceedings. In addition, the act does not address conduct toward a child that has not been under the person's direct care.

Change: To make it easier to admit evidence of a person's past conduct toward children, the act clarifies that evidence can include conduct toward any child (not just a child in the person's care) and can be admitted at any stage in a court proceeding.

4. Duty to report

Purpose: Clarify the duty of professionals and the public to report that a child is or may be in need of protection.

Currently: Everyone has a duty to report when they believe, on reasonable grounds, that a child is or may be in need of protection. Professionals, such as doctors, health care workers and teachers, are subject to a penalty if they fail to report that they have reasonable grounds to suspect that a child is or may be abused. However, the current requirements are confusing.

Change: Professionals and the public are required to report if there are reasonable grounds to suspect that a child is or may be in need of protection. The penalty for professionals who fail to report is extended to all the grounds for protection, not just abuse.

The amendments to the act also clarify that professionals and the public cannot delegate the duty to report to another individual and that the duty to report is an ongoing obligation. In other words, any individual who suspects that a child is or may be in need of protection must report it directly to a children's aid society. They must report additional suspicions even if they have already reported a previous incident.

5. Improved access to information

Purpose: Make it easier for children's aid societies to get the information they need to protect children.

Currently: The act sets out a process by which children's aid societies can apply to the court when they need information that will help them to protect children. However, there are several concerns with this process. For one, it only covers information relevant to whether a child is or is likely to be abused and none of the other grounds for protection. For another, it requires the children's aid society to give notice to the person who has the information, even in emergency situations, which takes time. Also, it is not clear whether the process can be used to get information needed at the investigation stage.

Change: The act is extended to include all the grounds for protection, not just abuse. Children's aid societies would be allowed to ask the court for access to information without notice in emergency situations. For the first time, the act would also set out a process for getting information through the courts where the information is necessary to investigate allegations that a child is or may be in need of protection.

6. Maximum time for society wardship

Purpose: Promote earlier and more decisive planning so that permanent arrangements for children can be achieved as soon as possible.

Currently: A child can be in the care of a children's aid society for up to 24 months. At the end of 24 months, a child is either returned home or is made a Crown ward by the court. However, the 24 months is counted on a continuous basis. For example, if a child is in the care of a children's aid society for six months and then goes home, the clock is reset at zero. This leads to a "revolving door" situation for some children. This runs counter to the research which shows that children, especially young children, need permanency in their lives as soon as possible.

Change: The maximum time for society wardship would be reduced to 12 months for children under six years of age. For all children, time would be calculated on a cumulative basis. This means that any previous time spent in the care of a children's aid society would be counted toward the total. This would promote earlier and more decisive planning for children's futures so that permanent arrangements can be achieved as soon as possible.

7. Access to Crown wards

Purpose: Ensure that access by relatives and other individuals to children who have been made Crown wards is granted only if it is beneficial to the child.

Currently: A Crown ward is a child who has become a permanent ward of a children's aid society. A person can apply to the courts for access to the child, or the child may apply to have access to another person. However, Crown wards cannot be placed for adoption when there is an access order, even if the person who was granted the access has stopped contact with the child.

Change: The act requires the court, in ordering access to any Crown ward, to be satisfied that three conditions are met. These include: ensuring the access is in the best interests of the child; there is a "meaningful and beneficial" relationship to the child; and that the access won't impair the child's future opportunities for permanent placement. The changes will also make it easier to terminate access orders if they no longer meet these requirements.

8. Regular review of the CFSA

Purpose: Provide for a mandatory review of the CFSA at least every five years.

Currently: There have been no major amendments to the CFSA in over 10 years and there is no requirement for review.

Change: The Ministry of Community and Social Services would be required to review the CFSA at least every five years. The Minister would be required to announce when a review will take place and to release a report on the review after its completion.