Which courts handle youth protection matters?
There are three courts that do this work: the Court of Quebec (Youth Division), the Superior Court and the Court of Appeal.
When the Director of Youth Protection (DYP) wants to go before a judge about a child's situation, she must appear before the Youth Division of the Court of Quebec. A judge of that division will determine if the child's safety or development is in danger and what steps must be taken to put an end to that situation.
If the child's situation changes afterwards, the DYP must apply to the same judge for a decision about whether the steps the judge ordered should be continued or changed or if the file should be closed.
The decision of the Youth Division judge can be challenged by making a request to "appeal" the decision to the Superior Court or, in certain cases, to the Quebec Court of Appeal.
You should know that most DYP matters do not end up in court.
What happens before the Youth Division judge?
First, the DYP's representative will explain how she views the child's situation and what solutions the DYP considers appropriate.
Then, if the parents or the child wish to speak, the judge will listen to them.
The parents and the child (if the child is 14 years of age or older) are sworn in as witnesses. Children under 14 can speak if they promise to tell the truth. But if the judge feels that a child under 14 is unable to understand and answer the questions, that child will not be allowed to testify.
Of course, if testifying would harm the child's mental or emotional development, the judge will make an exception and decide that the child does not have to testify.
The court session is held behind closed doors to protect the child's privacy.
What is the role of the Youth Division judge?
First, it is important to understand that the Youth Division judge does not work for the youth centre or for the DYP.
Like any other judge, she must apply the law in a neutral way. The judge's role is to evaluate the child's situation and decide if the child's safety or development is in danger.
The Youth Division is not a criminal court and there are no "accused" persons. This means that, for example, the Youth Division judge cannot order the person who physically abused a child to serve time in prison. However, that person could still be required to go through a trial in a criminal court.
What can the judge do if she decides that a child's safety or development is in danger?
If the judge decides that the child's safety or development is in danger, she will order that steps be taken to improve the child's situation. For example, the judge can do the following:
- Order a social follow-up, namely order the parents see a social worker.
- Order the parents to participate in community-based services (CLSC, community organizations, better parenting skills course, etc.).
- Recommend that the child and/or the parents go for therapy.
- Recommend that the parents or the child do random drug testing.
- Prohibit the person who physically abused the child from contacting the child and ensure that the child sees a psychologist to minimize the effects of the abuse.
- Take away certain rights of the parents (custody, supervision, education) and recommend that measures be taken to name a tutor for the child. A tutor is a kind of guardian.
The DYP must make sure that the steps ordered by the judge are carried out without delay.
What happens if the judge does not agree that a child's safety or development is in danger?
If the judge decides that a child's safety or development is not in danger, the Youth Division case will be closed and the DYP must immediately stop his intervention with the child and the child's family.
Even if the DYP decides to challenge the decision of the Youth Division judge before the Superior Court or the Court of Appeal, the DYP must still stop his intervention until a judge of either the Superior Court or Court of Appeal gives him permission to intervene.
Obviously, the DYP can intervene if he gets another report about the same child.
Can the child be represented by her own lawyer?
Yes, this can happen, for example, if the judge decides that the child's interests conflict with the parents' interests. This would be the case, for example, if the parents were abusing the child. In fact, most children are represented by a lawyer. For children under 14 years of age, the judge will appoint a lawyer. Children over 14 can choose their own lawyers.
When the DYP has intervened in the case of a child, the lawyer representing the child cannot also represent the child's parents.
What happens if the actions putting the child's safety or development in danger are criminal acts?
To answer this question, let's take the example of a child who is being sexually abused by her parents.
The parents will be charged with a crime and will be put on trial in criminal court. That court will determine if the parents actually committed a crime and will decide on a punishment, such as time in prison or a fine.
If a child is the victim of a crime, who must get involved first ? the DYP or the police?
Often they will both get involved.
When a child is the victim of a crime ? violence, for example ? the child's safety or development would probably be considered to be "in danger". If the police learn about this crime, they must inform the DYP of the situation. The DYP must then analyze the situation and determine if the child's safety or development is in fact in danger. If the DYP is informed of a situation involving a crime against a child, he must inform the police.
To be efficient and to avoid making children answer the same questions over and over, the DYP, the police and their partners (e.g., schools, day care centres) have an agreement. The agreement says that:
- If the police get a complaint that a child is the victim of violence, they must automatically report it to the DYP.
- If a police officer needs to question the child, she must do so in the presence of a DYP representative, who will evaluate whether the child's safety or development is in danger.
Ideally, this questioning is filmed. The videotape can be then be used if necessary in the Youth Division case and in the criminal trial. This avoids making the child testify in several courts.
What is the role of the Commission des droits de la person et des droits de la jeunesse du Québec?
The Commission des droits de la person et des droits de la jeunesse du Québec plays an important role in youth protection. It supervises everyone working with children, such as the DYP or social workers. This supervision is important because everything involving youth protection is confidential and no one wants to see children abused.
The Commission must therefore ensure that children's rights are respected. For example, it can examine complaints that a child is being mistreated in a foster family or in a rehabilitation centre and conduct an investigation.
It can enter places where the children are living, and it has access to all records concerning those children.
It can even go before a judge of the Youth Division on behalf of a child to resolve a problem involving that child.
A parent or a child can also file a complaint with the Commission. This complaint could concern, for example, how the DYP handled their case.
However, if a child or a parent objects to steps taken by an organization responsible for child protection, the parents must apply to a Youth Division judge, and not the Commission. For example, this could be the case if the DYP decides to place a child with a foster family and the parents object.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.