EXECUTIVE SUMMARY

Following the deaths of Ontario children while receiving child welfare services the Minister of Community and Social Services created a panel of eight experts to examine the Child and Family Services Act. The Panel was asked to indicate whether or not the legislation should be amended.

The panel determined that the declaration of principles and the criteria for best interests in the Act require revision to ensure that the safety, protection and well-being of each child are paramount. The needs of the child must be the dominant factors in making any decision.

The Panel gave careful consideration to whether the current legislation addresses adequately the issue of children suffering from neglect. The Panel concluded that while opinions vary as to whether neglect is included in the Act, practice regarding intervention in neglect is inconsistent. Even if the Act could be interpreted to cover neglect leading to physical harm, it does not cover neglect leading to developmental or emotional harm. The Panel. recommended that neglect be included in the Act with a definition and examples.

The Panel concluded that changes were necessary to the grounds for finding a child in need of protection. There should be more. focus on the characteristics, past conduct and behaviour of the caregivers when determining the risk of physical, developmental or emotional harm to a child. Exposure to family violence should be included as a separate ground for protection and the Act should authorize the removal of the perpetrator from the child's residence.

The Panel determined the requirement that the risk of harm be "substantial" was too onerous and did not always adequately protect children. A less onerous test, such as likelihood of harm, should be considered. The Panel recommended that assessments and information about past parenting be available and admissible at any stage of the court process.

The interpretation of the Act was found to be inconsistent within sectors and across all sectors. There is considerable variation in the interpretation and application of such key concepts as the least restrictive course of action, substantial risk and the autonomy and integrity of the family. Lengthy delays in the decision-making process are common. In the report, the Panel discusses these problems and recommends legislative changes.

The Panel determined that, for the most part, the legislation is clear with respect to roles and responsibilities. However, the provisions for duty to report and the provisions for information-sharing in the legislation are inadequate. There is also a wide variance in how roles and responsibilities are carried out. For example, there is lack of adherence to mandatory time limits and failure to enforce court orders. A number of legislative and non-legislative recommendations have been made to address these issues.

The Panel recognizes that legislative change is only one aspect of the solution. Of critical importance are the Panel's recommendations regarding the availability of adequate resources and the need for a mandated review of the interpretation, application and impact of legislative change.

BACKGROUND

The recent deaths of Ontario children white receiving child welfare services have raised concerns about child protection practices, policies and legislation in Ontario. The Child Mortality Task Force and Coroners' juries which examined these deaths raised specific concerns as to whether or not the legislation adequately protected children from abuse and neglect. The task force and individual juries recommended amendments to the legislation that governs child protection, the Child and Family Services Act.

At the same time the views of those working in the child protection system differed greatly as to whether the problem was the legislation itself or the way in which the legislation was being interpreted. There was also no consensus on what constituted neglect, and whether it was included in the present legislation.

To address these issues, the Minister of Community and Social Services, Janet Ecker, announced the creation of a. panel of eight experts to examine key aspects of the Child and Family Services Act The Panel was asked to provide a report which specifically indicated whether or not the legislation should be amended.

The Panel has recommended legislative changes. It is important to emphasize that legislative amendments are only one aspect of the solution to the current problems in. the delivery of child protection services. The Panel recognizes the importance of many other initiatives which intersect with and impact on these legislative recommendations.

The issues to be addressed are complex and require a careful consideration of many factors. The present lack of empirical data regarding practice and implementation issues was ascertained by the Panel. However, there was a broad consensus of experience and views from many sectors on the key issues examined by the Panel.

Critical to the successful implementation of any legislative change is the provision. of adequate resources. Throughout the review, the Panel was continually reminded that adequacy of resources affects the ability of service providers to intervene, assess and treat.

Equally important is the need to ensure that child welfare is addressed as a community responsibility affecting each citizen. Growing knowledge with regard to the importance of early childhood experiences supports the need to ensure that a range of community services are available to families from birth to adulthood. Members of all sectors expressed their desire and willingness to collaborate and plan as equal partners with child protection agencies to ensure the protection and well-being of vulnerable children.

METHODOLOGY

The Panel was announced on November 14, 1997. The eight members of the Panel were Judge Mary Jane Hatton (Chair), Justice Grant Campbell, Detective Hector Colantoni, Mr. Rick Ferron, Dr. Dirk Huyer, Ms. Theresa Johnson Ortiz, Dr. Harriet MacMillan and Dr. Nico Trocmé. The members were chosen based on their demonstrated experience, expertise and commitment to child welfare. Their collective backgrounds include frontline, management and professional experience in the fields of child welfare, social work, law, justice, education, foster care, Native service delivery, law enforcement, medicine, psychiatry, and forensic investigation.

As a guide to their activities the Panel was specifically asked to consider the following questions:

1. Do the provisions in the legislation reflect the right balance between protection of children and family preservation?
2. Is the legislation clear with respect to "child in need, of protection"?
3. Is the burden of proof for finding a child in need of protection from abuse or neglect at an appropriate level?
4. Is the legislation being properly interpreted and applied at key decision points, e.g., intake, type of service, court proceedings, planning for the stable and long-term placement of children?
5. Is the legislation clear about the roles and responsibilities of different service sectors?

The Panel was asked to examine selected materials including relevant court decisions, recommendations from Coroners' inquests, the report of the Child Mortality Task Force, recent research, practice in other jurisdictions and emerging themes from compliance reviews.

The Panel convened its first meeting in mid-November 1997 and moved through initial orientation into the development of an action plan within a four-month time frame as required by the Minister. The action plan called for a comprehensive review of selected materials and research. Panel discussion of this material was followed by twenty-six oral presentations to the Panel in late November and throughout December. Information developed during this two month period was compiled and used to guide focus group discussions held in communities across the Province. At these locations, the Panel also met with selected groups of individuals representing child welfare, justice, health, foster parents, parents, youth and varied community service providers. Ice storms in eastern Ontario necessitated a change in two of the planned visits; these two focus groups were later conducted via teleconference. In total the Panel spoke to over three hundred and fifty individuals between November and February representing all major geographic regions in Ontario, and a mix of urban and rural communities (see Appendix C). The Chair of the Panel was present at all meetings.

The Panel received written submissions from eighty-six individuals and organizations.

Throughout the course of its work the Panel encountered diligence, cooperation and commitment from all sectors. Individuals and groups went out of their way to accommodate the Panel's deadlines and schedules. The quality of the presentations and submissions was excellent.

In February, the Panel reviewed all written submissions and presentations. to formulate the recommendations and to prepare the written report for submission to the Minister in early March 1998.

OVERVlEW

The Child & Family Services Act, which was proclaimed in 1984, replaced The Child Welfare Act of 1978. The new Act afforded greater legal rights, both substantive and procedural, to parents and children. The Child & Family Services Act limited the intrusion of child protection agencies into the family, except in cases of clearly defined harm to children. A set of principles was introduced into the Act for the delivery of integrated. services to families and children and a best interests test was developed to guide the decisions and the planning for children.

Although the Child & Family Services Act achieved many of its goals, the Panel has concluded that key provisions in the current legislation have limited the ability of child protection agencies to protect children from serious harm or risk of serious harm. The legislative principles regarding the least restrictive or disruptive course of action and the autonomy and integrity of the family have been emphasized to the detriment of the child's safety, protection and well-being.

Where the rights of the parents have been in conflict with the needs of the child, the legislation has not always been interpreted in accordance with its apparent primary purpose to promote the best interests of the child.

The Child and Family Services Act did not anticipate the changes in society which have affected child protection. In the last decade. Since the writing of the Child and Family Services Act, there is increased recognition and understanding of the importance of early childhood development. There is also an increased awareness and appreciation of the needs of older children and young adults for continued care and stability.

After careful review, the Panel has reached the conclusion that the principles and best interests test require revision to ensure that the interests of the child predominate in any decision or in any action. The Act requires simple concepts and plain language which will contribute to a common understanding and interpretation.

The ability of protection workers to intervene early and assess the family's ability to meet the child's physical, developmental and emotional needs is crucial. The focus on non-intrusion into the family by the state has contributed to barriers in obtaining crucial information about a child. Accurate, timely reporting and information-sharing is necessary for the investigation, assessment and planning regarding the needs of children and their families.

Not only is information about the parent's current situation important but access to records related to past parenting of any child and past conduct in general is equally vital. This information is essential to a thorough investigation and early assessment by protection workers. It is also crucial that this information be made available to the judge at all decision-making stages of the court process.

Protection workers must be able to have access to the child and to have the authority to apprehend the child if required. The tests for apprehension and for seeking interim care of the child should be consistent and should focus on the safety and well-being of the child, in addition to the least disruptive intervention for the child.

The present grounds for determining when a child is in need of protection have limited the ability of agencies to protect children. The requirement that the child be at substantial risk of harm is too onerous.

There is new knowledge and understanding regarding the damaging impact of child neglect, emotional abuse and exposure to domestic violence. These developments need to be more explicitly reflected in the spectrum of legislative interventions.

It is hoped that earlier intervention will prevent or at least minimize the damage to vulnerable children and increase the opportunities for effective and earlier services to children and parents. Earlier investigation and assessment by protection workers is a key component of any child protection intervention.

The protection worker must receive specialized training and have the time, ability and resources to accurately assess the risk factors to the child as well as the parenting capacity of the primary caregivers. The evidence, knowledge, training and opinions that caused the protection worker's interventions should be admissible in court proceedings. Not only will the evidence of the protection worker be instructive, it will be subject to appropriate scrutiny and evaluation.

Provided the parents have the capacity and motivation to change, the appropriate available services should be provided. The intervention plan by the agency must establish realistic goals for the child, the parents and the service providers, and must include measurable outcomes. Where there is opposition to the agency's plan of care, the parents should prepare their own plan of care which sets out their parenting responsibilities and goals.

Each intervention should be the least disruptive for the child, rather than the least intrusive for the family. The over-riding consideration must remain the safety, protection and well-being of the individual child. If the child cannot be protected from harm nor provided with the necessary stability and continuity of care within the family, a plan for the child's permanent care must be developed. Any such plan must be child-focussed. The need for stability and permanency is particularly important for children in their earliest years.

If a permanent wardship order is being made, the issue of the child's need to maintain meaningful positive relationships with significant others and the need to secure permanency for the child through adoption must be carefully weighed. Both considerations may need to be accommodated.

All children, but particularly younger children, suffer from lengthy delays in planning and decision-making for their permanent care. Maximum time limits in the legislation must be geared to the age of the child. However, the legislation must clearly indicate that these are absolute maximums of the accumulation of all periods in care and not just continuous time in care on the most recent occasion. The maximum times are not appropriate targets in cases when earlier decision-making is warranted.

If a non-agency assessment is necessary and will address issues not already covered in the protection worker's assessment, the non-agency assessment should be arranged at the earliest possible stage in the proceedings. The referral or order should include specific instructions outlining why the assessment is needed and which clinical issues are to be addressed. Assessment reports should be provided to the agency workers, the parents and the judges at all decision-making stages of the court process. The assessments must be delivered within reasonable time frames to minimize delay for the child.

Procedural and evidentiary requirements of the court process appear to cause significant delay in permanency planning for children. There is a compelling plea for the legal system to address, in a comprehensive way, the need for timely decision-making This system should include effective caseflow management, efficient evidentiary procedures and a civil standard of proof. Judicial decisions should respect the child's need for stability, continuity and permanence as early as reasonably possible, taking into account the child's developmental stage. Court orders for supervision and wardship should reflect the plans of care and set out explicit goals, services and outcomes. These orders should be monitored. Non-compliance with these orders must be reported and consequences identified for such non-compliance.

Other alternatives to the potentially adversarial court process are available and should be considered by parties and judges. Mediation by trained and knowledgeable persons and other dispute-resolution strategies could be beneficial in certain cases and should be made available on a voluntary basis.

The legislation must clearly and unequivocally establish that the paramount objective of our society is to ensure each child's entitlement to safety, protection and well-being. The prevention of child abuse and neglect and the appropriate interventions to alleviate harm to children is everyone's responsibility. This shared goal begins with the timely reporting of abuse and neglect and the cooperative sharing of information across all sectors. It continues through the investigation and assessment stages and during the provision of family support services. When intervention and court action are required, there is a strong need for all of the participants in the justice system (including protection workers, service providers, assessors, lawyers, judges and administrators) to work together in a coordinated collaborative way to achieve the most fair, efficient and effective decision-making process for children and their caregivers. All of the sectors, including other service providers and other ministries, must be clear about their roles and responsibilities in ensuring compliance, consistency and accountability throughout the child protection system.

RECOMMENDATIONS

NATIVE CONSIDERATIONS

The Panel met with members from a wide range of Native communities. These communities were located both on reserve and off reserve, and included remote, rural and urban environments. The Panel encountered a diverse range of opinions during these consultations.

The Panel was made aware of a number of circumstances which might make implementation of the Panel's recommendations in some of these communities problematic. For example, the recommendations with respect to timeframes may be impossible to achieve in communities where a circuit judge visits only once a month.

Recommendations with respect to temporary care, access and adoption will need careful consideration in the context of the value placed on the responsibility of the extended community to support families and children.

Protection of Native children will at times require removal from their family home. The Panel was told that placement of these children in Native foster homes is made impossible by foster care standards not attainable in some of these communities. Similarly, in several areas, services to Native children and families are limited and difficult to access.

Many of the presentations expressed the hope that the Panel's review would cause the Province to reconsider current legislation and practice including the current legal system, as it relates to recognition of Native values and rights. Specifically the Panel was made aware of the need to resolve issues related to designation of Native child welfare agencies, the role of. bands and councils, customary care and treatment of off-reserve Native children.

The Panel does not. believe it is within its mandate or its timeframes to make carefully considered recommendations with respect to these very important issues. The Panel expects that the ongoing review of Native child welfare will also identify these, and other issues and make appropriate recommendations.

FURTHER CONSIDERATIONS

The Panel was asked to address both legislative and non-legislative recommendations which would improve the protection and well-being of children in Ontario.. The Panel is aware that the Ministry has initiated other actions which will address these issues. The Panel expects that these reports, and other Ministry initiatives, may address the following non-legislative recommendations. However, the Panel believes that the following recommendations are important and will serve to support and emphasize the need to implement these other efforts.

CONCLUSION

These recommendations are intended to improve protection of children through earlier intervention, more effective services to families and timely decision-making. The Panel supports the following statement in UNICEF's State of the World's Children 1990 Report:

"failure to protect the physical, mental and emotional development of children ls the principal means by which humanity's difficulties are compounded and its problems perpetuated".

The Panel's hope is that children will be safe from harm and that the opportunities for children to have secure, affectionate and nurturing care will be maximized.

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Appendix "D"

Biographies of Panel Members

Mary Jane Hatton is a judge in the Provincial Division of the Ontario Court of Justice. She has extensive experience in child protection and family law, as a judge and a lawyer. She Is a director of the Association of Family and Conciliation Courts, an international organization that promotes better ways to resolve family law issues. Judge Hatton was a presenter at the Second World Congress on Family law and the Rights of Children and Youth ln. San Francisco in June 1997.

Grant A. Campbell has been a judge for 14 years and Is presently a justice in the General Division, Family Court Branch of the Ontario Court of Justice in London. He is a member of. the Family Rules Committee which makes rules regarding practice and procedure in all family law proceedings in Ontario. Justice Campbell was a member of the Ministry's advisory committee on children's services from 1988 to 1990. He was also on the board of the Ontario Mental Health Foundation.

Hector Colantoni is a Detective with the Metropolitan Toronto Police, supervising investigations of child physical and sexual abuse for the 14 Division Youth Bureau. ████████████████ he is also co-chair of a district child abuse and neglect protocol committee children's aid society workers, educators and parole officers.

Richard Ferron is a public school principal in North Bay. He is a member of the Community Project for Children, a group of Nipissing District children's agencies that is working to promote healthy growth and development of children. He is also a member of Family First Forum, a community group dedicated to addressing family and children's issues. Mr. Ferron was a co-winner of the Leadership In Education Award from Reader's Digest Canada in 1995.

Dirk Huyer is a physician with the Suspected Child Abuse and Neglect (SCAN) program at the Hospital for Sick Children in Toronto and a lecturer with the department of pediatrics at the University of Toronto. He has extensive experience in diagnosing child abuse and providing expert opinion in legal cases concerning child abuse. Dr. Huyer Is also an Ontario Coroner.

Harriet MacMillan is a Hamilton pediatrician and child psychiatrist. She is an associate professor in Psychiatry and Pediatrics at McMaster University and is the director of the Child Advocacy and Assessment Program at the Hamilton Health Sciences Corporation. Dr. MacMillan is also Involved in a number of research studies related to child welfare and is a member of the Centre For Studies of Children at Risk.

Theresa Johnson Ortiz of Richmond Hill is a Master of Social Work with extensive experience in child welfare, including training foster caregivers for the Catholic Children's Aid Society of Metropolitan Toronto. ████████████████ she has been a member of the Board of Directors of the Catholic Children's Aid Society and Native Child and Family Services of Toronto.

Nico Trocmé is an assistant professor in the Faculty of Social Work at the University of Toronto and an associate of the Centre for Studies of Children at Risk at McMaster University In Hamilton. He has experience working with children and families as a social worker and as a child protection worker with the Children's Aid Society of Metropolitan Toronto. Dr. Trocmé has been involved in a number of studies related to child welfare.