Focus On

Family Law - Child protection - Practice and procedure - Parties - Independent representation of children - Standing - Appeals and judicial review

Thursday, December 22, 2016 @ 7:00 PM  

Appeal by two children, represented by counsel appointed under the Public Guardian and Trustee Act, from an order striking the father’s appeal as moot. The appellants were the youngest of six children apprehended from their father’s care in 2011 and 2012. The Ministry commenced protection proceedings in Provincial Court, citing a long history of alcohol abuse and child neglect. The children’s mother passed away prior to the hearing. The Provincial Court found all six children in need of protection. The three youngest children were the subject of a permanent order. One child was placed with a person of interest. The two remaining children were returned to the father’s care under a supervision order. The father appealed to the Court of Queen’s Bench. Two lawyers were appointed as counsel for the three youngest children. The children indicated a preference not to return to their father’s care. Prior to the appeal, the Ministry indicated during a teleconference with the judge and counsel for one child that it no longer had protection concerns related to the father, and that there was a possibility of an application for custody by the children’s foster parents. Following conclusion of the call, the Queen’s Bench judge issued a fiat striking the appeal as moot and, in the absence of any protection concerns, ordering the return of the children to the father. Counsel representing the two youngest children obtained leave to appeal the order to the Court of Appeal.

HELD: Appeal allowed. The legislated representation of a child in child protection matters under s. 6.3 of the Public Guardian and Trustee Act, was not incongruent with s. 29 of the Child and Family Services Act. Therefore, the children here had standing to bring their appeal, despite lacking formal party status. Despite non-party status, a child’s right to participate in child protection proceedings through a designated legal representative was broad and meaningful. The issuance of the fiat striking the appeal as moot without consideration of the children’s wishes undermined the basis for appointment of counsel and was contrary to principles of fairness and fundamental justice. The matter was returned to the Court of Queen’s Bench for the hearing of the appeal.