Protection hearing

If the judge decides at your presentation hearing that your child shouldn't be returned to your home, you'll have a protection hearing next. The protection hearing is sometimes over after just one appearance in court; other times, you appear briefly the first time and are asked to come back to court for another longer hearing.

Tip: Before you begin see our Tips on what to do before you go to the protection hearing

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What happens the first time you go to court?

The first day you go to court for the protection hearing (sometimes called the "commencement date" or as "commencing the protection hearing"), you may not get a full hearing. The law says that the protection hearing must begin within 45 days after the interim order was made at the presentation hearing. Usually a protection hearing will take more than one day, and in busy courts, it may not be possible to schedule the days one after another.

Ten days before you have to be in court, the Ministry of Children and Family Development must send out a notice of the hearing date. It does this by sending out an "Application for an Order," which also sets out the kind of order being requested. A Court Plan of Care form ("Plan of Care") is usually included at this time.

The ministry must give notice of the hearing date to:

• each parent
• the child, if he or she is over 12 years of age
• the Aboriginal band to which the child belongs, if the child is Aboriginal
• any other person the court believes appropriate

The Plan of Care includes the same basic facts as the Report to Court that was filed at the presentation hearing. It must also contain additional information such as:

• what the child's current living arrangements are
• what services the ministry plans to provide to the child, to you, and to any other involved person
• the ministry's overall goal for the child (for example, returning the child or keeping the child in care)

It's extremely important that you go to court if you've received this notice or if your child has been removed. If you miss this court date, the ministry doesn't have to give you notice of any other court dates (except for an application to keep the child in care until he or she is 19 years old). Also, you won't have the right to be a "party" in the case if you don't attend. Being a "party" gives you additional rights. Talk to your lawyer or advocate about this.

The start of the protection hearing is similar to the first time you go to court for the presentation hearing — a kind of first appearance. In some courts, there won't be a hearing at this time. Rather, the judge will read the documents filed by the ministry, and listen to the ministry lawyer say what kind of order the ministry wants. The judge will then want to know whether you agree or disagree with the ministry.

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What happens if you agree with the ministry?

If you agree with the order that the ministry wants, the court will make the order on the day you're in court.

The order will start on the day it's made and last for as long as the court sets out. For example, if you're in court on January 3 and agree to a three-month order, the order will expire April 3, and your children will be returned if the ministry has no more protection concerns. If you adjourn your case for two weeks and an order is made January 17, the date for the children to be returned will be April 17. (In some cases, you might make an agreement for an earlier return date with the social worker, but you can't count on reaching such an agreement.)

There are two ways of agreeing in a protection hearing:

• Consent order
• Section 60 consent order

Consent order

The first way of reaching agreement is by a consent order, which is a two-part agreement, saying that you:

• agree with the view that the child is "in need of protection," and
• agree with the order requested by the ministry.

A consent order has important legal consequences. Talk to a lawyer before you make such an agreement. This kind of agreement will lead to a decision that your child needs protection, which means the child will stay in the temporary care of the ministry. Ask about a section 60 consent order (described below) instead.

If you agree to such a consent order, you're basically admitting that your child wasn't safe or was neglected while in your care, and that you were at fault or to blame in some way for the concerns the ministry raised about the child.

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Section 60 consent order

The second way to reach an agreement is by a section 60 consent order. Section 60 of the Child, Family and Community Service Act (CFCSA) allows the court to make an order that protects the child without proof that your child needs protection.

You may find this to be a good solution for you because your child will still be helped by the ministry, but you won't be admitting any fault.

You might want to agree to a section 60 consent order if you believe it's best for the child to remain in care, and you don't want to proceed with the protection hearing because you want the situation resolved quickly. This could be the case, for example, if your child is acting out and you believe he or she would be better off in care, or if your child has a mental illness and needs protection for that reason.

If you want a section 60 consent order, the social worker representing the ministry must agree to it before the judge will make such an order. You or your lawyer may have to ask for this option to be considered. The social worker may only agree to this step at the case conference stage (or not at all). Sometimes the social worker won't agree because he or she wants evidence on the court record that your child needed protection. That way, if the ministry goes to court again (say your child is removed a second time), the social worker can tell the court that your child has a history of needing protection.

If your child is over 12 years of age, he or she must agree to the section 60 order as well.

Important: It's vital to understand what you're agreeing to and to get legal advice before you agree to any consent order. In both a consent order and a section 60 consent order, everyone who's a party to the proceeding must agree.

What happens if you don't agree with the ministry?

If you and the ministry don't agree, or if there might be an agreement but there isn't enough time to settle the matter on the first date of the protection hearing, the judge must order you and the ministry to participate in a case conference. Depending on local court practice, the judge may give you the date of the case conference or send you to a judicial case manager who will give you a date. In some courts, the case conference may be held right then and there, in the same courtroom as the hearing.

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