Issue Alert:
Secure Care Act

VANCOUVER, B.C. — The new Secure Care Act of British Columbia gives the government extraordinary powers to detain a small segment of young people who are placing themselves at great risk of harm. British Columbia's Child, Youth and Family Advocate, Joyce Preston states that "it is shameful to introduce serious limits on a young person's rights while there are inadequate resources to provide help before these young people hit rock bottom. Current services to youth are inadequate. Early intervention and prevention programs are not in place. People have to be in an extreme crisis to get help".

This legislation should not be enforced without a firm commitment to provide the services needed to keep children and youth from reaching the desperate situations that might justify secure care.

The Advocate has concerns with the legislation — in particular — ensuring that the voice and views of young people detained are considered throughout the process and that their right to a fair hearing is ensured. Required changes include clarifying and strengthening the role of the Advocate. "This legislation is too important to have been passed with such significant flaws. I do not have full confidence that amendments will be made" states Preston.

The Advocate also supports the position of the Freedom of Information and Privacy Commissioner that the Secure Care Act must fall under The Freedom of Information and Privacy Act to ensure public accountability and to protect the privacy of the youth secured under this legislation.

The Advocate is providing recommendations to the Ministry for Children and Families for amendments to the Secure Care Act.

• Office of the Child, Youth & Family Advocate
  Phone: (604) 775-3203
  Toll-free: 1-800-476-3933
  Website: www.advokids.org

Child, Youth and Family Advocate's Recommendations Concerning the Secure Care Act

July 7, 2000

I. General Comments

Throughout these comments, please note:

• Act refers to the Secure Care Act
• director refers to the director of secure care
• board refers to the secure care board, unless otherwise specified.

Guiding Principles

The Act should have guiding principles similar to those contained in Section 2 of the Child, Family and Community Service Act. These would include principles regarding the necessity of interpreting and administering the Act in a way that includes the child's views, and emphasizing child-centred processes.

It is recommended that guiding principles, similar to those found in the Child, Family and Community Service Act, be included in the Act. These principles would ensure child-centred practice — in particular, the right of the child to be included and his or her views considered throughout the decision-making process.

Child's Right to Voluntary Services

The goal of this program is to provide safe, substantial, and long-term services both before and after detainment. The services available under this Act should also be made available on a voluntary basis, similar to the Mental Health Act.

It is recommended that the services and treatment centres provided through the Secure Care Act also be available as voluntary services.

II. Rights of Child or Youth in Proposed Secure Care Process

Application for Secure Care — Section 4

Child's Right to Apply Directly

A child over 12 years of age should have the right to apply directly to the board for secure care. For example, a 14 year-old under the control of a pimp may not have a parent and may have asked for protection from a director. If the director fails to respond, the child or youth should be able to apply to the board directly.

It is recommended that a new sub-section be added allowing a child to apply directly to the Secure Care Board.

Information About Counsel and Advocacy — Section 7

Child's Right to be Informed of the Advocate

Currently, the child or youth is provided with information about the Advocate by the board only. This section must be stronger.

It is recommended that:

1. the Act reflect the child's right to be informed of the Advocate verbally and in writing, and,
2. the child be informed of the Advocate not only by the board, but also by the director when the child is apprehended under the Act.

Issue of Secure Care Certificate — Section 8

Children Under the Age of 12

No child under the age of 12 should be admitted into secure care. The Young Offenders Act does not allow anyone under the age of 12 to be detained, for valid and important reasons. Furthermore, as the Young Offenders Act does not apply to those under the age of 12, the Secure Care Act may be used to inappropriately detain these children. Finally, a child should not be detained in a youth-oriented facility.

It is recommended that the Secure Care Act not apply to children under the age of 12.

Ministerial Involvement

Under Section 8-2, the board cannot issue a secure care certificate for children under the age of 12, without the minister's consent. This section creates a situation where the child's liberty depends upon the minister refusing his or her consent to a secure care certificate. This very important decision should not be political.

It is recommended that Ministerial involvement be removed.

The Child Has the Right to be Informed of Terms or Conditions

Under Section 8-3, the board may attach to a secure care certificate any terms or conditions it considers in the best interests of the child. This may include restrictions on the child's liberty.

It is recommended that when the child or youth has conditions placed on their certificate or restrictions placed on their liberty, they have the right to be informed of those restrictions, both verbally and in writing.

If Child is Absent

The Section 8-5 test for permitting the issue of a certificate in the child's absence is too low. The board could too easily find that it is in the child's best interests to have a certificate issued.

It is recommended that the legislation restricts issuing of the certificate in the child's absence, unless the danger to the absent child "significantly outweighs" their fundamental right a fair hearing.

If Child is Not Able to Attend

Currently, Section 8-5 does not explicitly state that the board should make every reasonable effort to gain the child's views if the child is not able to attend the hearing.

It is recommended that the legislation require the board to make every reasonable attempt to gain and consider the views of the child if the child is not able to attend the hearing.

Assessment of Child and Preparation of Intervention and Assistance Plan — Section 15

The Child's Right to Have their Views Heard and Considered

Currently, when assessing the child and preparing an intervention and assistance plan (Section 15-2), the director must consider the child's best interests. In Section 3, one of the criteria for determining the best interests of the child may be consideration of the child's views. Stronger assurances are needed that the child's views will be considered.

It is recommended that the child's right to have their views heard and considered be explicitly stated in Section 15 of the Act.

Health Care — Section 16

The Child's Right to Have Views Considered

Currently, there is no provision for the child to have their views be considered when health care is authorized.

It is recommended that Section 16 of the Secure Care Act acknowledge the child's right to have their views considered when health care is authorized.

Rights of Children Detained in Secure Care Facilities — Section 17

Right of Child to Further Information

Currently, the child or youth receives a copy of their secure care certificate.

It is recommended that the child is not only provided with a copy of their secure care certificate but also any conditions placed on it, any restrictions on their liberty, a copy of their placement and any changes, and copies of intervention and assistance plans. (should also be stated under section 10-1(b), 8-3 (b), 14-1, 15-3)

Right of Child to Education

While a child or youth is in secure care, they should be able to continue their education.

It is recommended that the child or youth have the right to receive education by reasonable means while in secure care.

Board May Vary Notice Requirements — Section 27

Dispensing with information

This section allows the board to dispense with any requirements of this act to notify people of proceedings, including the child.

It is recommended that section 27-1 include that the board is satisfied that the danger to the child "significantly outweighs" the requirement to provide notice.

III. Advocate 's Role in Proposed Secure Care Process

Notices and Information — Section 6 and Others

Advanced Notice of all Hearings

Currently, the wording of the legislation requires that the Advocate be informed of hearings with no timeframe specified. Best efforts must be made to reach the Advocate, and only in cases where this is not possible will the hearing continue prior to the Advocate being informed.

It is recommended that the legislation be amended to require that the Advocate, "where practicable", is informed at least 3 days in advance of any hearing.

Renewal of Certificates — Section 19 and 20

The Advocate's Role in Renewals

Currently, the Advocate is not necessarily informed in advance of hearings to renew or review secure care certificates.

It is recommended that the legislation be amended such that the Advocate, "where practicable," is informed at least three (3) days in advance of any hearing.

The Right of Others to Participate in Proceedings — Section 26

The Advocate's Role in Hearings

Currently, the Advocate is not entitled to attend and participate in any hearing under this Act. The Advocate should be entitled to attend and participate in any hearing under the Secure Care Act, similar to the Advocate's role concerning Children's Commission hearings.

It is recommended that a subsection be added stating that the Advocate is entitled to attend and participate in any hearing under this Act.

Board May Vary Notice Requirements — Section 27

Dispensing with information

This section allows the board to dispense with any requirements of this act to notify people of proceedings, including the child.

It is recommended that the legislation be amended so that the board is not authorized to dispense with providing information to the Advocate.

Confidentiality of Information — Section 37

Disclosure

Section 37 will limit the Advocates functions under The Child, Youth and Family Advocacy Act. For the purpose of performing the Advocate's duties, the Advocate may need to reveal certain information about the use of secure care. The Advocate supports the Freedom of Information and Privacy Commissioner's position on this issue.

It is recommended that, at a minimum, this section be amended to ensure information received by the Advocate is subject only to the confidentiality provisions in The Child, Youth and Family Advocacy Act.

Exceptions to Access Rights — Section 39

Disclosure

The Advocate should not be refused access to information.

It is recommended that the Advocate be added to Section 39 as a party that cannot be refused disclosure of information.

Disclosure Without Consent — Section 41 (g)

Disclosure

The Advocate should be added to this section in order to perform duties and exercise powers as Advocate of a child or youth under The Child, Youth and Family Advocacy Act. This would be similar to section 41(g) enabling the Public Guardian and Trustee to perform their duties.

It is recommended that a section be added to permit disclosure to the Advocate to enable her to perform her duties as Advocate under The Child, Youth and Family Advocacy Act.

IV. Procedural Fairness

Detainment Without Certificate — Section 11

Right to a Hearing

The moment that the director makes an application for a secure care certificate, he or she has authority until the board makes an order — potentially for a maximum of ten (10) days after the first day of detainment. Section 11-6 states that within 72 hours the director of secure care must complete an assessment and attend a hearing before the board. This hearing is different from the more formal hearing to issue a certificate. Then, the director may (and probably will) make an application for a secure care certificate (Section 4) which includes the more formal hearing. Section 11 (72-hour detainment) could be used frequently to detain children.

It is recommended that the following needs to be clearly articulated in the legislation, with regards to the 72-hour detainment hearing:

1. that the detainment hearing must always take place — otherwise a child could be detained for up to 11 days with no hearing,
2. that the legislation needs to clarify how this detainment hearing would work,
3. that the board must consider the same test for this hearing as that used to issue a secure care certificate under Section 8, and;
4. that the child's right to have their views heard and considered be mentioned explicitly.

Placement and planning — Section 14

The Right of Those Involved in a Hearing to Make Submissions

It is recommended that any party or person permitted to participate in the hearing be able to make a submission regarding placement and planning decisions.

Review Processes

Internal Review Process

There are currently no requirements in the Act for the secure care board or director of secure care to set up an internal review process.

It is recommended that an internal review process, similar to that contained in The Child, Family and Community Services Act, be articulated in the legislation.

Renewals and Reviews — Section 19 and 20

Renewals

currently, under Section 19-3, a certificate may be renewed if (1) it is in the best interests of the child, and (2) the child's behavioural or emotional condition would continue to present a high risk of serious harm or injury unless the certificate was renewed. This renewal process should incorporate the child's views. It should also require a submission from the director regarding the child's intervention and assistance plan. In turn, the board should consider renewal only if the resources are available to support the plan of care. In addition, detainment through the renewal process should be limited.

It is recommended that:

1. the child's right to have their views heard and considered be stated explicitly in this section,
2. the board be satisfied that a plan of care is documented and appropriate resources are in place to justify an additional period of secure detainment, and;
3. there be a cumulative maximum number of days (for example, 135) that a child can be detained under this legislation. This would exclude time spent voluntarily receiving services or treatment.

Jurisdiction and Nature of Hearings — Section 23

No Guarantee of an Oral Hearing

Deprivation of liberty, such as detainment, usually requires a full hearing. Sections 23 and 22 are attempts to allow the board to have informal hearings. These may be contradicted by the child's right to counsel under Section 25.

It is recommended that, in regard to hearings, the contradictory nature of the legislation be amended.

Panels of the Board — Section 23

Panels of the board

The chair of the board may assign up to three members to a panel to hear a request for a certificate.

It is recommended that a minimum of three board members be assigned to a hearing for secure care certificate under Section 4.

Regulation Making — Section 46

Reporting [Section 46 (j)]

The legislation should require detailed monthly reporting to the Minister with copies to groups such as the Children's Commission and the Advocate. This report should include the number of children in secure care, with non-identifying information on restrictions to their liberty, and details of programs and services provided. There is a heightened need for public accountability when vulnerable children are detained under such extreme legislation. These monthly reports should be open to Freedom of Information and Privacy requests.

It is recommended that amendments be made to Section 46 to require detailed monthly reporting to the Minister. These reports should be available to the public and copies should be forwarded to groups such as the Children's Commission and Child, Youth & Family Advocate. This report should include the number of children in secure care, and non-identifying information on any restrictions on their liberty, with details of programs and services provided.

Regulation-Making — Section 46

The Advocate needs to be involved in future regulation-making under this Act concerning procedures for hearings and disclosures, and access to information. As well, there needs to be a new regulation-making power that permits regulations "respecting the procedures of giving information or notice to persons entitled to notice for information under this act."

The Secure Care Board

It is recommended that the secure care board include two youth (under 25) members with relevant life experience involving high-risk activities.