What happens when the Ministry removes a child in British Columbia?

When a child can be removed

Under the Child, Family and Community Service Act a director, in practice a Ministry social worker or a delegated Aboriginal agency, can remove a child without a court order if there are reasonable grounds to believe the child needs protection and either the child's health or safety is in immediate danger or no less disruptive measure would protect the child.

The Act lists when a child needs protection. The list includes physical harm, sexual abuse or exploitation, neglect, emotional harm from a parent's conduct or from living with domestic violence, being deprived of necessary health care, and a parent who is unable or unwilling to care for the child. The Act says a child does not need protection on the ground of neglect, or of a parent being unable to care for the child, solely because of poverty, inadequate housing or a parent's state of health.

The director must promptly make all reasonable efforts to notify each parent, in writing if practicable, with the reasons for the removal.

The presentation hearing, within seven days

No later than seven days after the removal, the director must attend court for a presentation hearing and present a written report: why the child was removed, an interim plan of care, and what less disruptive measures were considered.

At the end of the hearing the judge must make one of four orders: the child stays in the director's interim custody; the child goes home under the director's supervision; the child goes home with no supervision; or the child is placed for now with another person, such as a relative, who agrees, under the director's supervision.

The protection hearing, within 45 days

Unless the child was simply returned, the court sets a protection hearing, which must begin no more than 45 days after the presentation hearing ends. There the judge decides whether the child needs protection. If not, the child must be returned.

If the child does need protection, the judge must choose, in the child's best interests, among returning the child under supervision for up to six months, placing the child with another person under supervision, a temporary custody order in favour of the director, and a continuing custody order.

Time limits on temporary custody

A temporary custody order cannot be longer than three months if the youngest child in the case is under five, six months if that child is five to eleven, and twelve months if twelve or older. All temporary orders together cannot exceed 12, 18 and 24 months for the same age groups, unless the court extends the limit in the child's best interests.

Before a temporary order runs out the director can apply for continuing custody. The court can grant it if there is no significant likelihood that the circumstances behind the removal will improve within a reasonable time, or that the parent will be able to meet the child's needs. Under a continuing custody order the director becomes the child's sole personal guardian and can consent to adoption, so the months before those limits run out matter a great deal.

What a parent can do

Go to every hearing: a parent who appears at the start of the presentation hearing is entitled to be a party. Ask for access. When the parent who had custody applies, the court must order access unless it is satisfied access is not in the child's best interests. Put forward a relative or friend who could care for the child. Ask about a family conference or mediation, which the Act provides for, to settle a plan of care without a contested hearing.

Get a lawyer early. Legal Aid BC covers parents whose child has been taken or may be taken, and its income limits for these cases are higher than for other family cases.

Indigenous children

If the child is Indigenous, the director must, if practicable, tell the child's First Nation or the Indigenous organization designated for the child about the hearing, and it is entitled to be a party if it appears at the start. The interim plan of care must say how the child will be supported to learn and practise the child's Indigenous traditions, customs and language and to belong to the child's community. The director must withdraw from the case where an Indigenous authority confirms in writing that it is or will be providing child and family services under an Indigenous law and asks the director to withdraw.