Child protection law

[Garfield]

I am a law student interested in child protection law. I wanted to ask lawyers who practice in the area of child protection law some general questions: what your practice consists of, what you enjoy and do not enjoy about your practice, and whether practising child protection law is something you can do straight out of law school or whether you would have to practice another area of law first.

(I wish I didn't have to ask such basic questions. I would have certainly perused the older threads on lawstudents.ca first...)

[artsydork]

I'm heading into day 14 (non consecutive) and third part of a child protection trial. So I can answer these questions! All my info is relevant to Ontario, though there would be commonalities among all provinces. 

Child protection falls under the umbrella of family law. Most of us doing child protection do a mix of family litigation and child protection law. It's primarily legal aid work and many family lawyers won't touch it. There are also a decent amount of criminal lawyers with a Child Protection practice. On the other side are in-house lawyers working for the Society.

You likely won't be exposed too much to child protection law when articling, save for observing, if that. You can join the legal aid panel after your Call, but you'll need to find a mentor to sign on. And do a lot of unpaid training from Legal Aid. Any prior work in litigation and working with vulnerable clients would translate well. The Ontario Association of Child Protection Lawyers  has some Ontario superstars and great training seminars.

My CP practice is split in 2 ways: 1. Negotiating temporary care agreements/out of court work. It's generally where there are enough concerns that the Society has protection concerns and we either place with kin, or keep the kids with the parents Subject to a safety plan. This also includes meeting with the Society for family planning/safety planning or a proposed plan to mitigate safety concerns. Sometimes super great and help people through difficult times OR by helping get overzealous state intervention out. 

The second stream would be litigation where the Society is turning to the courts for relief. This ensures judicial oversight, which has its pros and cons. This sets timelines, and onerous conditions can be court imposed. As counsel, I still will sometimes attend family/planning meetings where I feel my presence may make a difference. My focus, generally, is on the litigation and client/Society management.

Emotions run high especially following the Society bringing a child to a place of safety. The matter must get to court in 5 days. We tend to have 30 days to bring the temporary care hearing (akin to bail) so there is a lot of action early on trying to build the case for return,/less onerous conditions/specified access. After that, it's moving through to either move towards trial or get a supervision order (with kin or one of the parents) or interim care order (foster care) while the parent (hopefully) works on addressing the child protection concerns. The rare case sees Society termination at this stage. Following that is the status review, and following the rest of the mandated timelines before a final final order can be made (return, custody to someone else or extended care, aka state taking child away). 

Child protection law can be highly enjoyable and over the top. Workers can be petty AF or angels. Some clients are unable to recognize the protection concerns either due to domestic violence, addiction, mental health or mental capacity. Helping clients overcome this is very rewarding. Trying to advocate a return of the child for a client that is an ongoing victim of domestic violence who can't recognize it or still in the throes of addiction, on the other hand, can be emotionally taxing. It's also difficult when you witness the system working against your client. They lose the kids so they lose that extra money from Ontario Works and the child tax benefit. They can't afford their vehicle and their 3 bedroom apartment. They miss access because they don't have a ride. Add in emotional regulation difficulties for extra challenge. Child are lost due to cycles of poverty. 

Clients tend to be more vulnerable, require more hand holding and have many structural barriers working against them (cycle of poverty, basic and financial literacy). Court is more relaxed until you're at trial - trials are more structured and delve deeper in law than the standard decisionmaking/parenting trial. Expert evidence, voir dires on child statements, medical evidence, lengthy cross-examininations can be really interesting for a litigator. And Legal Aid generally covers the trial. 

All in all, I like my CP practice and miss having it when it was around 30-40% of my practice. The acts have changed so there is more of an emphasis on early intervention outside of court so my present CP practice is smaller. My criticism of this is the lack of consistent legal advice for the parents as they navigate out of court.

Tldr: emotionally taxing and only sometimes rewarding. Vulnerable clients with systemic barriers. You got to like working with the underdog in a David and Goliath type situation. Always more challenging when your client doesn't have a phone too.

 

Edited June 19, 2021 by artsydork

[2345434]

This is somewhere where your mileage may really vary depending on the province, because aside from the new federal act all the relevant legislation is provincial. It’s very difficult to practice exclusively in the area of child protection as a junior lawyer. When I was articling I actually got quite a bit of exposure to child protection law because that is mainly what my principal practiced, but he was a very senior lawyer (20+ years) who had been in the trenches doing crim and family law before that.

Artsydork hit on almost all the points I was going to make so I will just add a few things, defence files are basically all done by Legal Aid staff lawyers or farmed out as certs here. Private child protection clients are are rare as blue diamonds. Likewise, CP trials are as rare as blue diamonds. Most of what defence-side CP work involves is making sure your clients are following the case plan by attending programming, gathering certificates, etc, while at the same time negotiating with agency counsel to lower their demands or ask for a shorter order. 
 

Agency work in MB is monopolized by a cabal of about 5 firms in Winnipeg, so if you don’t get on with one of them then you’re out of luck on that front. I think (someone correct me here if I’m wrong) that Children’s Aid Societies in Ontario hire in-house lawyers.

That being said, it’s not impossible, in theory, to practice exclusively CP straight out of the gate. LAM has a dedicated CP office in Winnipeg and Legal Aid BC has dedicated CP offices, called “Parents’ Legal Centres” throughout the province.

Guardianship applications are a whole different kettle of fish.