Canadian Child Welfare Law

by BALA, NICHOLAS; Zapf, Michael Kim; Williams, R. James; Vogl, Robin; Hornick, Joseph P.

• ISBN13: 9781550771442
• ISBN10: 1550771442
• Format: Paperback
• Copyright: 2004-06-30
• Publisher: Thompson Educational Pub

Summary

Canadian Child Welfare Law: Children, Families, and the State (2nd edition) provides students in social work and law with an introduction to child welfare law. This complex, demanding and important area of law and social work practice receives relatively little attention in professional schools and academic journals. For practicing lawyers and social workers who have not had the opportunity to study child welfare law, this book provides a useful overview of a complex area, as well as serving as a reference work for busy practitioners in the child welfare field. This second edition substantially updates material in the 1991 edition, including consideration of the impact of new legislation and the Charter of Rights. It also includes new chapters on liability issues for child welfare workers and agencies, and on the perspectives of social workers with respect to the legal process. The final chapter offers the personal views of four judges on the challenges that they face in dealing with child welfare cases.

Table of Contents

Foreword by George Thomson	xi
Preface and Acknowledgements	xiii
Editors and Contributors	xv
1. Child Welfare Law in Canada: An Introduction	1	(26)
Nicholas Bala
The Role of the State in the Raising of Children	1	(1)
The History of Child Protection in Canada	2	(3)
The Legal Revolution	5	(2)
Balancing Parental Rights and Protection Concerns	7	(3)
Legal Contexts and the Protection of Children	10	(2)
The Role of the Child Welfare Agency	12	(3)
The Law and the Child Protection Process	15	(1)
Child Welfare Legislation in Canada	16	(6)
Who Speaks for the Child?	22	(1)
Child Welfare in a Social Context	23	(4)
2. Initial Involvement: Reporting Abuse and Protecting Children	27	(32)
Robin Vogl and Nicholas Bala
Reporting Abuse and Neglect	27	(6)
Jurisdiction to Investigate and Intervene	33	(3)
Investigation and Apprehension	36	(13)
Appearing in Court	49	(6)
Voluntary Arrangements	55	(4)
3. The Child Protection Hearing	59	(52)
Marvin M. Bernstein and Kristina J. Reitmeier
Forum and Jurisdiction	60	(5)
The Stages of a Proceeding	65	(1)
The Threshold Finding of Need for Protection	65	(8)
The Legal Framework of Protection Proceedings	73	(9)
Finding That a Child Is Not in Need of Protection	82	(2)
Dispositional Stage	84	(1)
Types of Disposition Orders	85	(3)
Selecting the Dispositional Order	88	(4)
Dispositional Principles	92	(4)
Ancillary Orders	96	(6)
Status Reviews	102	(4)
Alternative Dispute Resolution Mechanisms	106	(3)
Appeals	109	(1)
Conclusion	110	(1)
4. Children in Care	111	(28)
Bruce MacLaurin and Nicholas Bala
Factors Associated with Child Welfare Placement	113	(3)
Approaches to Child Welfare and Foster Care	116	(6)
Types of Child Welfare Placements	122	(5)
The Placement Decision	127	(2)
The Scope of Wardship and Rights of Parents	129	(2)
Placement Changes	131	(2)
The Rights of Children in Care	133	(1)
The Rights of Foster Parents	134	(3)
Conclusion	137	(2)
5. Juvenile Prostitution and Street Kids: Challenges for Protection Workers and the Justice System	139	(16)
Augustine Brannigan and Erin Gibbs Van Brunschot
Prostitution: Nuisance versus Exploitation	140	(2)
The Extent of Juvenile Prostitution in Canada	142	(1)
Legal Approaches to Juvenile Prostitution	143	(6)
Alternative Measures	149	(3)
Conclusion: Changing Societal Perceptions	152	(3)
6. Adoption	155	(44)
Theodore G. Giesbrecht
The Social and Historical Context of Adoption	155	(1)
The Legal Framework for Adoption	156	(2)
Best Interests of the Child	158	(10)
Types of Adoption	168	(1)
Eligibility to Adopt	169	(1)
The Placement Process	170	(4)
Consent to Adoption	174	(10)
Finalization: The Adoption Order	184	(2)
Effects of Adoption	186	(8)
International Adoptions	194	(2)
Conclusion	196	(3)
7. Aboriginal Child Welfare	199	(46)
Murray Sinclair, Nicholas Bala, Heino Lilles, and Cindy Blackstock
Historical Background	201	(6)
Cultural Issues	207	(9)
Jurisdictional Responsibility for Child Welfare	216	(2)
Contemporary Aboriginal Child Welfare	218	(24)
The United States: Tribal Agencies and Courts	242	(1)
Conclusion	243	(2)
8. The Lawyer's Role	245	(46)
A: Representing Children	245	(16)
Dan L. Goldberg
Child Representation in Ontario	246	(2)
The Role of Child's Counsel	248	(3)
Views and Preferences of a Child	251	(3)
Confidentiality and Reporting Obligation of Child's Counsel	254	(1)
Counsel for the Child Withdrawing from a Case	254	(5)
Child Representation across Canada 255
Rights of Children in Child Protection Cases to Notice and Counsel	259	(1)
Conclusion	260	(1)
B: Representing Parents	261	(18)
Mary Jane Hatton, Nicholas Bala, and Carole Curtis
The Constitutional Rights of Parents to Legal Representation 262 Who Are the Parents Involved with Child Protection Agencies?	267	(2)
A Lawyer's Personal Framework for Representing Parents	269	(1)
Investigation of the Agency's Case	270	(1)
Conducting an Independent Investigation	271	(1)
Developing the Parents' Plan	272	(3)
Advocating the Parents' Position	275	(3)
Conclusion	278	(1)
C: Representing the Agency	279	(12)
Gordon R. Kelly
Provision of Legal Services	280	(1)
Context of the Provision of Legal Services	281	(1)
Obligations/Duties of the Lawyer	282	(2)
Definition of Roles	284	(1)
Lawyer's Role in the Early Stages	284	(1)
Alternative Dispute Resolution	285	(1)
The Trial Process	286	(3)
Administrative	289	(1)
Conclusion	289	(2)
9. Abuse and Neglect Allegations in the Context of Parental Separation	291	(20)
Nicholas Bala
The High Conflict Parental Separation	291	(1)
The Resolution of Disputes between Separated Parents	292	(1)
Resolving Parental Disputes: Terms and Concepts	293	(5)
The Role of the Child Protection Agency	298	(1)
Parental Disputes Raising Abuse Issues	299	(9)
Family Law Court Orders	308	(3)
10. Criminal Prosecutions for Abuse and Neglect	311	(22)
Shelley Hallett and Nicholas Bala
Criminal Justice and Child Protection	311	(2)
Commencing a Criminal Prosecution	313	(1)
Judicial Interim Release (Bail) Hearings	314	(3)
Guilty Plea	317	(1)
Disclosure	318	(1)
Plea Bargaining	319	(2)
The Preliminary Inquiry	321	(1)
Trial	321	(2)
Evidence	323	(2)
Accommodation of Child Witnesses in Criminal Court	325	(1)
Sentencing	326	(3)
The Criminal Process and Child Protection Proceedings	329	(4)
11. Rules of Evidence and Preparing for Court	333	(46)
D.A. Rollie Thompson
The Courtroom from the Witness's Perspective	333	(1)
What to Do after the Subpoena Is Served: Your Rights and Obligations	334	(3)
Preparing for Court: The Witness's Right to Adequate Preparation	337	(4)
The Basics of Witness Examination: A Primer for Witnesses	341	(10)
The Cardinal Principles of Evidence Law	351	(3)
Opinion Evidence	354	(7)
The Hearsay Rule and Its Exceptions	361	(10)
Evidence of Past Parenting	371	(1)
Privilege	372	(4)
Coping with Evidence Law: A Lawyer's Plea to Witnesses	376	(3)
12. Preparing Children for Testifying in Court	379	(14)
Wendy van Tongeren Harvey
Dynamics of the Child Sexual Assault Prosecution	380	(5)
The Status of the Child Witness in Criminal Court	385	(1)
Principles of Trial Preparation	386	(1)
Who Prepares the Child for Testifying in Court?	386	(2)
Developing a System for Child Witness Preparation	388	(1)
Sample Preparation	389	(2)
Role of Crown Counsel in Court Preparation	391	(2)
13. Liability for Child Welfare Workers: Weighing the Risks	393	(16)
Marvin M. Bernstein, Cheryl Regehr, and Karima Kanani
Sources of Liability for Child Welfare Workers	395	(8)
Legal and Statutory Protection for Child Welfare Workers	403	(1)
Strategies for Protection against Liability	404	(3)
Conclusions	407	(2)
14. Concluding Thoughts from Social Work	409	(12)
Michael Kim Zapf
A Matter of Style	410	(1)
Professional Identity	411	(1)
Social Work Education	412	(1)
Gender Stereotypes	412	(1)
Frustration with a Residual System	413	(1)
Micro/Macro Practice Perspectives	414	(2)
Paradigms	416	(2)
Implications	418	(3)
15. Child Protection Proceedings: Some Concluding Thoughts from the Bench	421	(18)
A: The Paucity of Resources	421	(1)
Justice Lynn King
B: The Failed Promises	422	(5)
Judge Patricia Kvill
C: Reflections on Child Protection - Looking for the Best Available Outcomes	427	(6)
Judge Thomas J. Cove
D: The Judicial Role in Child Protection Proceedings	433	(6)
Judge James C. Wilson
Table of Cases	439	(6)
Table of Statutes	445	(7)
Index	452