It is that call every parent dreads; the call from a child protection officer. No matter the extent of the allegation, a chill settles over the parent like a wet blanket.

Regardless whether the allegation has a semblance of truth behind it or it is a result of an empty, vexatious complaint, every parent must obtain the government record on the child protection complaint.

The inclination may well be to take the high road and leave the manure in the past but in any event, this is rarely a wise legal decision.

Any parent should obtain the full record of a complaint from the child protection office, forthwith if contact is being withheld or if, in any other fashion, the child protection agencies are wielding their extraordinary powers and influencing contact between a child and a parent, or even if nothing or little comes of it.

You need to know what forces are out there, ready to jeopardize your most sacred time: time with your children.

Your Child's Records: None of your Business?

The reality of disclosure in child protection matters is that it does not fit nicely into the rules of disclosure of either criminal or other civil claims. Information on the circumstances of the child protection ageny's involvement could be used to intimidate witnesses or the child, or to otherwise manipulate it to effect harm on the child by an unsophisticated parent, or breach the confidentiality of a well-intentioned informant.

child protection recordsAs early as 1979, in Re S, at ¶26, the court noted:

"Since the immediate health and/or life of a child may hang in the balance, the ordinary rules of evidence as to admissibility should be modified to reflect the gravity of the situation consistent with as fair a hearing as is possible."

As Justice Beilby of the Alberta Court of Queen's Bench wrote at ¶43 in SDK v Director of Child Welfare, Alberta:

 "... the disclosure process adopted in child protection matters must reflect the circumstances of that situation, neither the criminal nor civil disclosure process in their entirety meet its requirements. Rather, any disclosure procedure adopted should reflect the unique features of child protection matters, in particular the addition of consideration of the rights of children which might be negatively affected by disclosure of all relevant information."

But disclosure to the parent's of the child protection agency's file must be forthcoming to the fullest extent possible.

In SDK, the Court of Queen's Bench wrote of the general process of disclosure in a child protection matter as follows:

"Upon receipt of a request for disclosure from the parent or guardian of a child who is the subject of a child protection proceeding, departmental personnel should vet their file, identify and removing any irrelevant information and any information which might tend to identify an informer or which might, if disclosed, harm a child’s physical, mental or emotional health to a degree that such harm outweighs the entitlement of his or her parent to disclosure of that information.

"The balance of the information should be copied and forwarded to the parent or her counsel. The Department must advise when it has declined to disclose any information because of a concern that its disclosure might reveal the identity of an informer or hurt the interests of the child, and of the general nature of that information."

In 1993, in Children's Aid Society of Peel v J, judge Wolder wrote:

"... full disclosure is required in ... protection applications ... and ... the Supreme Court's decision in Stinchcombe constitutes authority for this proposition. ... (F)ull discovery of documents in child protection cases is requred.

"... in a day and age, when making photocopies of documents is no longer an onerous burden, subject to a Society's objection to produce a copy of any particular documents based on relevance, privilege or public policy, the Society's obligation to make full disclosure and full discovery of documents should include an obligation to provide counsel for a party adverse in interest with photocopies of any such documents requested by counsel and not objected to by the Society on the grounds of relevance, privilege or public policy. To do otherwise would limit and fail to give proper meaning to the wordfull in the context of full discovery of documents."

Most child protection statutes provide for disclosure, not wishing to leave the matter up to judicial evolution or reference to a criminal law standard (i.e. the Stinchcombe case).

By way of example, British Columbia; this at §64 of the 2009 Child, Family and Community Services Act:

"If requested, a party to a proceeding under this Part, including a director, must disclose fully and in a timely manner to another party to the proceeding the orders the party intends to request, the reasons for requesting those orders, and the party's intended evidence.

"The duty to disclose ... is subject to any claim of privilege.

"Evidence may be excluded from a hearing ... if no reasonable effort was made to disclose the evidence in accordance with this section."

In Re S, Judge Gove of the British Columbia Provincial Court faced an application of a parent not just for the formal records of the director of child protection but also, quite reasonably, the computer record (aka running record) and the social worker's notes.

The director was ordered to disclose both but first, it was enabled to redact information it felt was not related to the proceeding (! - why would it be in this particular running record otherwise?).

In Director of Child Welfare, Alberta v RM, Judge Goss had before him a mother's application to disclose the notes of a psychologist's retained by the Director. The judge refused some of the notes and insisted in vetting the remainder before letting the mother have any of it, stating that:

"... the material requested be produced may potentially harm the three M. children’s physical, mental or emotional health to a degree that such harm outweighs the entitlement of Mrs. M. to disclosure of that information."

Requests for disclosure will only go so far. In KW, the mother's custody of her daughter was removed and she demanded of the child protection ministry all records related to the "possible future care" of the child. The judge refused the application; the ratio decidendi: it was "highly speculative in nature".

In Children's Aid Society of Haldimand-Norfolk v C, the child protection agency sought to withhold the child's private diary and a form of autobiography she had prepared as part of school project.child protection diary

The court ordered the disclosure of the school project but not the diary, stating:

"... because of the stated purposes of the Act and the necessity of using child-produced information in order to garner evidence for court purposes, the threshold with respect to introduction of child-generated documentation must consequently be very low.
"However, to say that the threshold is so low as to be non-existent is to ignore stated wishes and the emotional well-being of the very person that the Act and the activities arising from implementation of the Act are intended to protect."

When a child protection matter has been elevated to the courts, most jurisdictions have court rules which apply to child protection cases.

For example, Rule 19 of the Family Law Rules of Ontario require each party to disclose any relevant document to the other side and:

"The other party is entitled, on request, to examine any document listed ... unless it is protected by a legal privilege; and to receive, at the party’s own expense ... a copy of any document that the party is entitled to examine."

Other jurisdictions may provide rules specific to child protection hearings. For example, British Columbia has codified disclosure at Part 5 of the child protection statute, entitled Child, Family and Community Service Act (CFCSA). Under that statute, whether child protection litigation has been initiated or not, the provincial freedom of information statute is amended to give child protection documents and records special protected status. The cross-reference design of the statute (see §74 of the CFCSA) is not user-friendly and a challenge to summarize.

The best advice is for parents to make a request in writing to the government's child protection agency requesting full and complete disclosure pursuant to the freedom of information statute. This then forces the government to disclose what it can and for each and every redaction, statutory justification must be stated.

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