Revisiting the Relationship between Parents and Child Protection Agencies in JP v British Columbia

There is an inherent tension in the relationship between parents and child protection agencies. Interactions often occur under the threat of litigation and apprehension. In JP v British Columbia (Children and Family Development),
 2015 BCSC 1216 [JP], Justice Walker of the Supreme Court of British Columbia considered whether child protection agency workers owed a duty of care to parents in child protection cases. The central issue was whether a novel duty of care owed to the parents is antithetical to the statutory duty owed to children. Unfortunately, Justice Walker did not find that a duty flowed for the Director to the parent on policy grounds.

Factual Basis for the Negligence Claim

Like many child protection cases, divorce proceedings led to the involvement of the local child protection agency. At the beginning of the divorce proceedings, J.P., the mother, alleged that B.G., the father, had physically assaulted her and their eldest daughter. The West Broadview office, the local Ministry of Children and Family Development’s office, investigated and found no wrongdoing. After the initial investigation, J.P. noticed a tear in her infant daughter’s labia. She asked her older children whether they had any sexual encounters with B.G. To J.P.’s horror, the children described sexual interactions and acts of which children at that age would be unaware. Mr. Strickland, the caseworker, questioned the veracity of the claims; it was his opinion that J.P. was mentally unstable, and he believed that she was motivated by the ongoing custody dispute. Rather than investigating, Mr. Strickland wrote a letter in support of B.G.’s claim for custody. When J.P. confronted Mr. Strickland about the letter, he apologized and promised to investigate the allegation of sexual abuse. Instead, Mr. Strickland contacted the Vancouver Police Department’s sexual offences unit to disparage J.P. When J.P. continued to insist that her children had been sexually abused, Mr. Strickland took it as a sign of J.P.’s mental distress and apprehended the children. They remained in foster care for over two and a half years. While in foster care, B.G. was allowed unsupervised access with his children.

The Legislative Framework

The Child, Family and Community Service Act, RSBC 1996, c 46 [CFCSA] sets out the legislative framework for child protection in British Columbia, and provides the Director of Children and Family Development, and her agents, with their obligations and mandate. Unsurprisingly, the primary duty of the Director is to protect children from physical and emotional harm. As per section 4 of the CFCSA, a child is in need of protection where he or she has been, or is likely to be, sexually abused.

Along with the CFCSA, the Ministry of Children and Family Development (“Ministry”) has developed and adopted policies and procedures set out in various documents. For example, “The Child, Family and Community Services Manual” (“Manual”) sets out social workers’ obligations and duties. There are additional documents that set out the services standards (“Standards”), which “apply to anyone providing service under the [CFCSA]” in order to support child welfare within the province. Both the Manual and Standards operate under the “best interest of the child principle.”

Unable to Find a Duty of Care

The novel issue in JP was whether the Director owed a duty of care to J.P. All parties to the matter agreed that the Director owed a duty of care to the children. The test for establishing a duty of care was outlined in Anns v Merton London Borough Council, [1978] AC 728 [Anns], which was modified in Canadian law in Cooper v Hobart, [2001] 3 SCR 537.

The first stage of the test considers whether the relationship between the Director and J.P. falls within a settled category. While jurisprudence has not established a duty of care flowing from child protection agencies to parents, the Supreme Court of Canada (“SCC”) touched on the relationship between parents and child protection agencies in Syl Apps Secure Treatment Centre v BD, [2007] 3 SCR 83 [Syl].

The Province submitted that Syl precluded a child protection agency from owing a duty of care to a parent since the SCC did not find a duty of care existed as it “would pose real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child” (Syl, para 20). Oddly, Justice Walker held that Syl was not determinative precedent, only to then adopt the analysis in Syl.

Per Anns, once the court determines that the relationship between the parties does not fall within a settled category, the second stage of the test required the court to consider whether there was a sufficiently close relationship between the parties to justify the imposition of a duty of care. At this stage the court ought to consider both proximity and foreseeability. Unfortunately, Justice Walker skipped this stage of the test, and went straight to countervailing policy analysis.

Arguably, Justice Walker could have found there was sufficient proximity and foreseeability. Proximity could be easily established. Parents under the supervision of child protection agencies have regular contact with the Director’s agents, often in court and at their home.

Foreseeability of harm is also easily established. A child protection agency has broad investigative powers, and can apprehend a child; their activities, if conducted negligently, could be reasonably expected to cause harm to the parents involved. In the case at bar, failure to investigate the veracity of the alleged sexual abuse, and the unfounded presumptions made about J.P.’s mental health led to her children being apprehended.

Justice Walker held that countervailing policy reasons precluded a finding of a duty of care. The CFCSA, along with the Standards and Manual are unequivocal that its purpose is promoting child welfare. There is a risk that in future cases, there could be a tension between the duty owed to the child and the duty owed to parents. It is possible, on a different set of facts, that a duty to a mother or father would prevent the agency from rigorously investigating a case.

While Justice Walker is correct in his countervailing policy analysis, the holding is deeply dissatisfying in resolving the dispute in JP. The Director’s agents had a blatant disregard for J.P., took active steps to undermine her claim with local law enforcement, and took her children from her through misleading the court. The correct application of the law seems to offend natural justice. The Director’s agents had an appalling disregard for both J.P. and her children’s welfare. A finding that she was not owed a duty of care, while a correct application of law, is unpalatable. Additionally, if a duty is not found on these sympathetic facts, it is unlikely that parents will be successful in establishing a duty in the future.

Conclusion

Justice Walker held that no duty existed between the Director of Children and Family Development and parents who were involved in ongoing child protection agencies. Thankfully, there were several other issues raised in this case, that are not consider in this blog post, on which the plaintiff was successful.