Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective

II. Institutional Context: The Child Protection Perspective

The first child protection agencies (CPAs) were established late in the nineteenth century to provide protection and care for children who were abused, neglected, orphaned or abandoned.  While these agencies were originally private charities, they are all now effectively regulated and funded by provincial and territorial governments.  They have a legislative mandate to exercise state powers to investigate suspected cases of abuse and neglect, and, if appropriate apprehend children from parental care and place them in the temporary or permanent guardianship of the agency, with the potential placement in a foster or group home, or adoption.   These agencies have significant state powers to enter premises, search for evidence and obtain records, but they operate subject to the control of the courts, primarily through the child protection process. 

While child protection agencies have very significant powers to intervene in the lives of parents and children, and exercise state powers (subject to judicial control), their function and operation is very different from the police.  The mandate of these agencies is not to punish or hold accountable parents who may have abused or neglected their children, but rather to protect children and promote their welfare.  Legislation governing CPAs in Canada states that the mandate of these agencies includes the promotion of the “best interests of children,” though as will be discussed, there is a presumption in child protection proceedings that the best interests of children is promoted by their being cared for by parents or relatives.  There is an onus on the CPAs to justify intrusions into parental care.   

Approaches to child protection vary somewhat across Canada as under the Constitution Act, child protection is an area of provincial/territorial jurisdiction, with each province and territory having its own governing legislation and distinctive institutional structures and policies.   While many of the basic concepts are the same in all jurisdictions, such as a focus on the protection of safety with a presumption that it is in best interests of the child to remain in parental care, there are significant differences between the statutes and institutional structures.

In most provinces and territories, child protection is the responsibility of a government department with local offices that deal exclusively child welfare matters.  In Quebec, however, child protection services are provided through regionalized Youth Centres that also provide family counselling, services for families with custody disputes and services to young offenders. In Ontario, children’s aid societies are regionally based non-profit organizations; they are subject to provincial regulation and funding, but have a significant degree of operating autonomy.  For historical reasons, in Ontario there are agencies for Catholic and Jewish families in a few large cities.  Relatively recently a number of Aboriginal communities across the country have established Aboriginal child protection agencies, a process known as devolution.Footnote 5 

The provinces and territories have responsibility under the Constitution Act for child protection. There are also some Treaty First Nations which have developed their own child welfare legislation. With respect to child protection on reserves, the Government of Canada provides funding to the provinces and territories through the First Nations Child and Family Services (FNCFS) Program. This program funds and promotes the development and expansion of child and family services agencies designed, managed and controlled by First Nations. Since child and family services is an area of provincial and territorial jurisdiction, these First Nation agencies receive their legal mandate and authorities from provincial or territorial governments and function in a manner consistent with existing provincial or territorial child protection legislation. In areas where First Nations Child & Family Services agencies do not exist, Aboriginal Affairs and Northern Development Canada (AANDC) funds services provided by child protection agencies operated by provincial and territorial governments.

Across Canada there are similar statutory provisions, policies and guidelines for the assessment of risk and determinations of what is in a particular child’s best interests.  However, agency culture, history, resources and the level of training and experience of workers, supervisors and the lawyers who act for them will all affect the child welfare response to an individual case. 

Of the three legal processes that are used with families dealing with violence issues, the child protection response often holds the most promise for effective intervention and prevention that focuses on protection of children. This is because CPAs have staff and policies that are intended to support parents as well as children, and a statutory mandate focused on meeting the best interests of the child.  While involuntary involvement and court proceedings are always a possibility, the most common CPA response is through the voluntary provision of supportive services.   In some cases the CPA and parents will enter a voluntary agreement for provision of services to parents and children to help address possible protection concerns.  In either scenario, the CPA and, if involved, the court will be able to engage in ongoing monitoring of the family for months or, if necessary, years.  However, the child protection system is often hampered by a lack of resources, lack of effective training of staff on family violence dynamics, and few intervention options for families affected by violence.  Further, despite their mandates to assist families where appropriate, child protection agencies are, not surprisingly, often seen as being in an adversarial relationship with parents.  There has, for example, been a tendency in cases involving children’s exposure to IPV to place responsibility on the mother to protect the children, and to focus on separation from the violent partner as the only acceptable means of keeping children safe, resulting in resistance from parents to child welfare involvement.  An approach to child protection cases which focuses on harm reduction, communication between agencies and courts, and working with the perpetrator – with an understanding of the challenges and opportunities associated with those concurrent legal proceedings - may be the best means for reducing children’s exposure to family violence.

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