| Mar 27, 2008

Legalese - March 27, 2008

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Legalese - March 27, 2008 Children at RiskSusan Irwin, Lawyer/Executive Director, Rural Legal Services

The following column is based on materials made available by Family Law Education for Women. (www.familylawforwomen.com)

Adults in an abusive relationship are not the only victims when there are children involved. Even though the children may not be the direct or even the intended target of the abuse, their unsettled home environment can be considered as putting them at risk of harm and in need of protection by provincial child welfare authorities.

Parents are expected to protect their children from harm in addition to providing for their basic needs, such as food and shelter. Failure to protect a child or to provide or consent to services or treatment to prevent, remedy, or alleviate harm, or the risk of harm to a child, can result in an investigation of the family by the Children’s Aid Society (CAS). If after an investigation the CAS believes that a child is in need of protection, it can remove the child from the home.

Under Ontario’s Child and Family Services Act, (CFSA) a child can be “in need of protection” if he or she:

is left alone, is uncared for or is neglected;

has been abused or is likely to be abused. Abuse includes physical, sexual and emotional abuse. Even if the parent is not abusing the child, the Children’s Aid Society (CAS) can investigate if the parent knew about the abuse, or should have known about it, and did not try to stop it;

sees abuse between adults in the home which affects or could affect the child’s safety and sense of well-being if his or her parent or the person in charge of his or her care does not take steps to protect the child from such risk.

Anyone who reasonably believes that a child may be in need of protection has a duty to report the suspected abuse or neglect to the CAS. Although the duty to report applies to all of us, the onus on professionals (including teachers, social workers, day care workers, doctors and religious leaders) is even greater because their failure to report is an offence under the CFSA.

The duty to report is ongoing. This means that even when a person has already reported suspected abuse, they must report any other time they reasonably believe the child is being abused or neglected.

When the CAS receives a report of suspected abuse or neglect it will record and assess the information to see if it needs to do anything else. If it determines that an investigation is necessary the CAS may visit the family home and talk to the child and the parent or parents. The CAS can also talk to people outside the home such as family members, teachers or neighbours.

An investigation by staff of the CAS is to decide if a child is in need of protection. Their primary focus is the protection of children and the promotion of the child’s best interests and wellbeing. In doing so it is also the role of the CAS to provide support for families and to pursue the least disruptive course of action, provided this can be done while protecting the child and the child’s wellbeing and best interests.

An investigation by the CAS is very serious and if a parent or the person in charge of the child’s care does not address the concerns of the CAS, the CAS may become more involved. Consequently, it is very important for the parent to show that they are taking steps to try to deal with the problems identified by the CAS.

At the end of an investigation if the CAS decides that a child does not need protection, they will not take any further action. However, if it is decided that a child is in need of protection, the CAS must first consider whether the least disruptive course of action, (i.e. leaving the child in the home and working with the family) is appropriate. If not, the child will be removed from the home and taken to a place of safety. A place of safety can be the home of an extended family member or friend.

If a child is removed from the home, the CAS must bring the case before a Judge within 5 days. Child Protection proceedings are complicated. They move quickly and it is important to get legal advice right away.

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

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