Saskatchewan’s child protection laws are intended to promote the well-being of children “in need of protection.” Under child protection laws a child is any unmarried person under 16.
When there are concerns surrounding the care provided to a child that could result in the child being in need of protection, services that are designed to maintain, support and preserve the family unit are offered to families. The goal of child protection services is to maintain children in their family home whenever possible and, if a child must be removed for their protection, to reunite families as soon as possible.
In Saskatchewan, child protection services are provided by the Ministry of Social Services and by First Nations Child and Family Services Agencies (FNCFS). FNCFS agencies provide services to First Nations children and families living on-reserve. In this material Social Services and FNCFS agencies are called agencies.
In Need of Protection
Circumstances that may result in a child being found to be in need of protection include:
- Physical abuse — any action, including physical discipline, which causes injury to the child’s body
- Sexual abuse — any action that involves a child in any sexual activity including sexual touching, exposure to sexual activity, using a child in the making of/or viewing pornography, and/or involving a child in prostitution
- Emotional mistreatment — expecting a child to be able to do things he or she cannot do, embarrassing or insulting a child, making hurtful comments about a child’s appearance, intelligence, size, ability, etc.
- Neglect — failing to provide a child with enough proper food, clothing, shelter, health care, or supervision
Child protection workers are required to investigate reports of child abuse and neglect. The purpose of the child protection investigation is to determine whether a child is at risk of abuse or neglect and to determine how to keep the child safe. If a child is found to be in need of protection, the child protection worker will offer family services to help the family provide a safe environment for the child. At times, child protection workers and police conduct joint investigations where allegations of abuse could result in criminal charges (primarily instances of physical or sexual abuse).
When deciding what services are required to ensure the safety of the child, the agency will consider the likelihood of future abuse or neglect, the family’s willingness to accept supports and services and the family’s ability to ensure the safety of the child. Whenever possible the child will remain in the family home.
Removal of a Child
In some cases it may be necessary to have the child live apart from their family while the agency works with the family to develop a plan to address child protection concerns. A child can be placed in care of the agency in two ways:
- voluntary agreement (known as a Residential Services Agreement), where the family accepts services and agrees to have the child cared for outside of the home for a set period of time
- apprehension where the family does not agree with the child being placed outside the home but the agency has determined the child would be at-risk of neglect or abuse if they remained in the home
In cases where children are apprehended and remain in care for more than 48 hours, the agency is required to make an application to court for a child protection hearing. If a child protection agency removes a child the family must be:
- advised of the reasons for the decision to remove the child
- provided with contact information for the child protection worker assigned to the case
- offered services that could help to have the child returned to the home
- informed that it is advisable to consult a lawyer (See Getting Legal Help for information on finding a lawyer and options if you cannot afford a lawyer.)
A child who is removed must be returned to their family as soon as it is safe to do so. Families have the right to ask questions about their child and their case, and to participate with services that would reduce risk in order to have the child returned to their care.
If a child is removed from their home they can be cared for in a relative’s home or foster care. If the child is in need of medical attention they may be taken to a hospital. Families are entitled to regular visitation with their child unless there are severe safety concerns or the court has ordered that there be no contact.
Return of the Child
After the investigation, if the child is found to be in need of protection, the child may either remain in the home with supports and services in place, or the child may be placed in care through a Residential Services Agreement or by apprehension. Following the removal of a child, if safety threats that caused the child to be in need of protection no longer exist, the agency may return the child with a safety plan in place to address any remaining safety concerns.
Even when a child has been removed from the home and there is going to be a protection hearing, the agency is still required to continue their efforts to provide supports and services to the family that would allow for the child to be safely returned home. Family supports and services could include counseling, intensive in-home support services or participating with a parent-aide.
Where a child has been apprehended, and cannot be returned to their home within 48 hours, the agency must apply to a court for a protection hearing within 7 days (not including the day of apprehension). This type of hearing must begin within 14 days of when the child was apprehended.
Once a court date for a protection hearing has been set, each parent is provided with a ”Notice of Hearing” that includes the date, time, location of the hearing, why the child is considered to be in need of protection and what type and length of court order the agency is asking for.
Each parent must receive three clear days notice of the Protection Hearing. The day the notice is received and the day of the hearing are not counted towards the three days clear notice. If the child is a registered member of a band or is entitled to be a registered member of a band, the FNCFS agency that represents the child’s band is also notified.
Parents can have a lawyer to assist them at the protection hearing. See Getting Legal Help for more information. In some cases the Counsel for Children program may appoint a lawyer for a child or youth who is involved with the Ministry of Social Services or First Nations Child and Family Services agencies in proceedings under The Child and Family Services Act. The appointed lawyer ensures a child’s or youth’s voice is heard in child protection proceedings. The program can be accessed by court order or by referral from someone who knows the child or youth.
Persons of Sufficient Interest
Members of the child’s extended family, the chief of a band the child belongs to and any person who has a close connection to the child can ask the court to be designated as a person of sufficient interest. Once someone is found to be a person of sufficient interest they can participate in the protection hearing and can also ask to have the child placed with them.
If a person of sufficient interest is asking the court to have the child placed with them, the court will usually request a home-study. The home-study is usually completed by a child protection worker and includes an assessment of the home environment as well as things like criminal record and reference checks.
The case will usually be heard first in Chambers. Chambers is a court room. The agency will prepare an Affidavit which is filed with the court. An Affidavit is a written document that sets out the facts of the case. The Affidavit will describe the circumstances that resulted in the child being in need of protection and include recommendations for services that would assist the parent(s) in reducing risk factors that could allow for a child’s return home.
A parent is entitled to review the Affidavit before the Chambers appearance. If a parent does not have a lawyer they will be asked to go to the agency’s office to read these materials.
Parents who do not agree with the recommendations, type or length of order being sought by the agency do not usually need to prepare their own Affidavit. If parents do not agree with what the agency is planning for their child it is very important to attend court and voice their objections. In this case, the court will usually set another court date for what is called a pre-trial conference. A pre-trial conference is held in a court room with a judge, the agency and the parents. At the pre-trial the case will be discussed and the parents and the agency may be able to agree on a plan of care for the child. If there is no agreement following the pre-trial conference, the judge may set the matter for a trial.
Alternatives to Trial
There are ways to settle a child protection matter without proceeding to trial even if the family and the agency do not agree on a plan for the child. A mediator can be assigned to work with the parties to arrive at a solution that the family and the agency can agree upon. Other methods used to resolve child protection matters include the use of Talking Circles or Family Case Conferencing. Some jurisdictions within Saskatchewan have used an OPIK system (OPIK is a panel of three Elders who engage with all parties for the purpose of making recommendations regarding the child’s best interests) to help guide the courts in decision making.
Should the matter proceed to a trial, there are a number of ways in which evidence can be provided to the court. The court can hear oral testimony of witnesses (parents, caseworkers, supervisor, specialists, community supports) and/or written evidence put in an Affidavit. Depending on the age of the child, the court may want to hear the wishes of the child. Often evidence of the child will be heard without having to testify in court.
Evidence in a protection hearing is not the same as evidence in a criminal case. A court could find a child to be in need of protection even if a parent is not found guilty of a criminal charge relating to the incident (such as a physical assault).
Courts can also consider what is called hearsay evidence if the court finds that the evidence is credible and trustworthy and it would not be in the best interests of the child to testify about the event themselves. Hearsay is when someone testifies about something they do not have direct knowledge about but rather heard from another person. For example, the court might allow someone to testify about what the child told them, rather than have the child personally testify.
It can be several weeks after the protection hearing before the court will make a decision. The court will determine, based on the evidence, if the child is in need of protection. If the court decides the child is in need of protection the child will be immediately returned to the parent.
If the court finds the child is in need of protection the judge may order that the child be:
- returned to their parents
- placed with a Person of Sufficient Interest
- placed with the agency for a temporary period of up to six months
The court can place terms and conditions on any of these orders. For example, if a child is returned to their family the court may require the agency to supervise the child’s care. The court can also give someone, who the child is not living with, access to the child.
If the court finds that none of the above orders would be appropriate they can have the child permanently placed in the care of the agency.
Once the court has issued the order, a copy will be provided to the parents by either their lawyer or the agency caseworker.
When making an order, the court must consider the best interests of the child. In doing this the court will consider…
- the quality of the relationships that the child has with any person who may have a close connection with the child
- the child’s physical, mental and emotional level of development
- the child’s emotional, cultural, physical, psychological and spiritual needs
- the home environment proposed to be provided for the child
- the person the agency is proposing will look after the child and their plans for the care of the child
- where practicable, the child’s wishes, having regard to the age and level of the child’s development
- the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, and
- the effect on the child of a delay in making a decision.
The court and any agency arranging for a placement of a child outside of their home must consider whether it is possible to place the child with extended family and must, where it is practical, keep the child in an environment that is consistent with the child’s cultural background.
Unless a child has been permanently placed in the agency’s care and adopted or placed for adoption, parents or the agency can apply to have an order changed or ended.