4th Session, 40th Legislature
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Bill 25
THE CHILDREN'S ADVOCATE ACT
| Table of Contents | Bilingual version (PDF) | Explanatory Note |
(Assented to )
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
PART 1
INTRODUCTORY PROVISIONS
DEFINITIONS
The following definitions apply in this Act.
"agency" means a child and family services agency as defined in The Child and Family Services Act. (« office »)
"authority" means a Child and Family Services Authority established in The Child and Family Services Authorities Act. (« régie »)
"child" means a person under the age of 18 years. (« enfant »)
"children's advocate" means the person appointed under section 3 to be the Children's Advocate and includes a person appointed under subsection 9(1) to act as the Children's Advocate. (« protecteur des enfants »)
"director" means the Director of Child and Family Services appointed under The Child and Family Services Act. (« directeur »)
"fiscal year" means the period beginning on April 1 of one year and ending on March 31 of the following year. (« exercice »)
"group home" means a group home as defined in The Child and Family Services Act. (« foyer de groupe »)
"guardian" means a guardian as defined in The Child and Family Services Act. (« tuteur »)
"minister" means the minister responsible for The Child and Family Services Act. (« ministre »)
"parent" means a parent as defined in The Child and Family Services Act. (« parent »)
"publicly funded" means, in relation to a service, a service operated or provided by the government or by an organization that receives funding from the government for the service. (« financé sur les fonds publics »)
"record" means a record of information in any form, and includes information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means, including by graphic, electronic or mechanical means, but does not include electronic software or any mechanism that produces records. (« dossier »)
"treatment centre" means a treatment centre as defined in The Child and Family Services Act. (« centre de traitement »)
BEST INTERESTS OF THE CHILD
In carrying out responsibilities and exercising powers under this Act, the paramount consideration of the children's advocate must be the best interests of the child. In determining best interests, safety and security must be the primary considerations of the children's advocate. After that, all relevant matters must be considered as set out in
(a) subsection 2(1) of The Child and Family Services Act, in relation to matters under that Act; and
(b) section 3 of The Adoption Act, in relation to matters under that Act.
Subsection (1) applies to all persons employed under, or acting as a delegate of, the children's advocate.
PART 2
OFFICE OF CHILDREN'S ADVOCATE
Appointment of Children's Advocate
The Lieutenant Governor in Council must, on the recommendation of the Standing Committee of the Assembly on Legislative Affairs, appoint a Children's Advocate.
Recommendation of Committee on Legislative Affairs
When
(a) the office of the children's advocate is vacant;
(b) the term of the children's advocate in office will expire within 12 months; or
(c) the children's advocate has tendered his or her resignation to take effect within 12 months;
the President of the Executive Council must convene a meeting of the Standing Committee of the Assembly on Legislative Affairs, which must consider persons suitable to be appointed as the children's advocate and make a recommendation respecting an appointment to the President of the Executive Council.
The children's advocate is an officer of the Assembly.
The children's advocate must not hold any other public office or engage in any partisan political activity.
The children's advocate is to hold office for five years from the date of appointment, unless he or she sooner resigns, dies or is removed from office.
The children's advocate may, after a review by the Standing Committee of the Assembly on Legislative Affairs, be re-appointed for a second term of five years, but the children's advocate must not hold office for more than two terms of five years.
The children's advocate may resign at any time by notifying the Speaker of the Assembly or, if there is no Speaker or the Speaker is absent, the Clerk of the Assembly.
The Lieutenant Governor in Council may suspend or remove the children's advocate from office on a resolution of the Assembly carried by a vote of 2/3 of the members voting in the Assembly.
Suspension when Assembly not sitting
If the Assembly is not sitting, the Lieutenant Governor in Council may suspend the children's advocate for cause or incapacity, but the suspension must not continue in force beyond the end of the next session of the Legislature.
The Lieutenant Governor in Council may appoint an acting children's advocate if the office of children's advocate is vacant or if the children's advocate is suspended or removed or is absent for an extended period because of illness or another reason.
Responsibilities of acting children's advocate
An acting children's advocate must carry out the responsibilities and may exercise the powers of the children's advocate.
Term of acting children's advocate
An acting children's advocate holds office until
(a) another person is appointed under section 3;
(b) the suspension of the children's advocate ends; or
(c) the children's advocate returns to office after an extended absence;
as the case may be.
The children's advocate must be paid a salary fixed by the Lieutenant Governor in Council, which is to be charged to and paid out of the Consolidated Fund.
The salary of the children's advocate must not be reduced except on a resolution of the Assembly carried by a vote of 2/3 of the members voting in the Assembly.
The children's advocate must be paid for travelling and out-of-pocket expenses incurred in carrying out responsibilities.
Application of Civil Service Superannuation Act
The children's advocate and all persons employed under him or her are employees within the meaning of The Civil Service Superannuation Act.
Civil Service Act does not apply
The children's advocate is not subject to The Civil Service Act.
The children's advocate is entitled to the privileges of office, including holidays, vacations, sick leave and severance pay, of a member of the civil service who is not covered by a collective agreement.
Employees under children's advocate
The Civil Service Act applies to persons employed under the children's advocate.
Before beginning to perform his or her responsibilities, the children's advocate must take an oath before the Speaker of the Assembly or the Clerk of the Assembly to faithfully and impartially perform the responsibilities of office and to not, except as provided in this Act, divulge any information received by him or her under this Act.
Every person employed under, or acting as a delegate of, the children's advocate must, before beginning to perform his or her responsibilities, take an oath before the children's advocate to not divulge, except as provided in this Act, any information received by him or her under this Act.
The children's advocate may, in writing, authorize a person to perform any of the responsibilities or exercise any of the powers of the children's advocate except the power
(a) to delegate under this section; and
(b) to make a report under this Act.
PART 3
RESPONSIBILITIES AND POWERS
IN RELATION TO THE
CHILD AND FAMILY SERVICES ACT
RESPONSIBILITIES AND POWERS
Matters under Child and Family Services Act
The children's advocate has the responsibilities and powers as set out in this Part in relation to matters under The Child and Family Services Act.
Reviewing and investigating complaints
Subject to subsection (2), the children's advocate must review and investigate complaints that he or she receives relating to
(a) children who receive or may be entitled to receive services under The Child and Family Services Act; or
(b) services provided or available to children under The Child and Family Services Act.
Refusal to investigate complaints
The children's advocate, in his or her discretion, may refuse to investigate or may cease to investigate a complaint if the children's advocate is of the opinion that
(a) the complaint is frivolous or vexatious or not made in good faith or concerns a trivial matter; or
(b) the circumstances of the case do not require investigation.
Notice of refusal to investigate
The children's advocate must notify the complainant if he or she decides not to investigate or stops investigating a complaint.
Conducting inquiries, investigations and reports
The children's advocate may conduct inquiries, investigate, report on, and make recommendations regarding any matter relating to
(a) children who receive or may be entitled to receive services under The Child and Family Services Act; or
(b) services provided or available to children under The Child and Family Services Act.
In response to a request, the children's advocate must, other than as legal counsel, represent the rights, interests and viewpoints of children who receive or may be entitled to receive services under The Child and Family Services Act.
Representing a child who is receiving services
The children's advocate may, other than as legal counsel, represent the rights, interests and viewpoints of an individual child who is receiving services under The Child and Family Services Act when decisions relating to the child are being made under that Act.
The children's advocate must advise the minister on matters relating to
(a) the welfare and interests of children who receive or may be entitled to receive services under The Child and Family Services Act; or
(b) services provided or available to children under The Child and Family Services Act.
Reviewing reports about children and families
The children's advocate may solicit, accept and review reports from individuals or organizations concerned or involved with the welfare of children or families.
REVIEW OF SERVICES AFTER DEATH OF CHILD
Review of services after death of child
After the death of a child who was in the care of, or received services from, an agency within one year before the death, or whose parent or guardian received services from an agency within one year before the death, the children's advocate
(a) must review the standards and quality of care and services provided under The Child and Family Services Act to the child or to the child's parent or guardian and any circumstances surrounding the death that relate to the standards or quality of the care and services;
(b) may review the standards and quality of any other publicly funded social services that were provided to the child or, in the opinion of the children's advocate, should have been provided;
(c) may review the standards and quality of any publicly funded mental health or addiction treatment services that were provided to the child or, in the opinion of the children's advocate, should have been provided; and
(d) may recommend changes to the standards, policies or practices relating to the services mentioned in clauses (a) to (c) if, in the opinion of the children's advocate, those changes are designed to enhance the safety and well-being of children and reduce the likelihood of a death occurring in similar circumstances.
The purpose of the review is to identify ways in which the services under review may be improved to enhance the safety and well-being of children and to prevent deaths in similar circumstances.
Pending criminal investigation into child's death
If a criminal investigation is pending into a child's death, the children's advocate must, before proceeding with the review, contact the law enforcement agency in charge of the investigation to determine whether the review may jeopardize the criminal investigation.
Information from chief medical examiner
The information provided to the children's advocate by the chief medical examiner under subsection 10(2) of The Fatality Inquiries Act may be used for the purpose of the review and report under this section, but the information must not be disclosed except as necessary to support the findings and recommendations made by the children's advocate in that report, or in accordance with subsection (7).
Report of findings and recommendations
Upon completing the review, the children's advocate must prepare a written report of his or her findings and recommendations and provide a copy to the following:
(a) the minister;
(b) the Ombudsman;
(c) the chief medical examiner under The Fatality Inquiries Act;
(d) the director;
(e) an agency referred to in subsection (1);
(f) the mandating authority of an agency referred to in clause (e).
Children's advocate not to determine culpability
The report must not express an opinion on, or make a determination with respect to, culpability in such a manner that a person is or could be identified as a culpable party in relation to the death of the child.
The report is confidential and must not be disclosed except as required by subsection (5). But the children's advocate may disclose information from the report in a special report or annual report, in accordance with section 35.
Independent review in case of conflict
If services provided by the children's advocate come within the scope of a review under this section, the children's advocate must arrange for that part of the review to be conducted and reported on by an independent person qualified to conduct that review. Subsections (5) to (7) and section 16.1 of The Ombudsman Act apply with necessary changes to that report.
No effect on Fatality Inquiries Act
Nothing in this section limits the power or responsibility of any person under The Fatality Inquiries Act.
REFERRAL BY COMMITTEE OF ASSEMBLY
Referral by committee of Assembly
The Standing Committee of the Assembly on Legislative Affairs may refer to the children's advocate for review, investigation and report any matter relating to
(a) the welfare and interests of children who receive or may be entitled to receive services under The Child and Family Services Act; or
(b) services provided or available to children under The Child and Family Services Act.
Report to committee by children's advocate
Upon receiving a referral under subsection (1), the children's advocate must
(a) subject to any special directions of the committee, review and investigate the matter to the extent that it is within his or her jurisdiction; and
(b) make any report to the committee that the children's advocate considers appropriate.
REFERRAL BY MINISTER
The minister may refer to the children's advocate for review, investigation and report any matter relating to
(a) the welfare and interests of children who receive or may be entitled to receive services under The Child and Family Services Act; or
(b) services provided or available to children under The Child and Family Services Act.
Upon receiving a referral under subsection (1), the children's advocate must
(a) subject to any special directions of the minister, review and investigate the matter to the extent that it is within his or her jurisdiction; and
(b) make any report to the minister that the children's advocate considers appropriate.
CARRYING OUT RESPONSIBILITIES
For the purposes of carrying out responsibilities or exercising powers under this Act, the children's advocate may do all or any of the following:
(a) at any reasonable time enter the premises occupied by the director, an authority, an agency, or a group home or treatment centre, or other home or place in which a child is placed in accordance with the provisions of The Child and Family Services Act;
(b) inspect a group home or treatment centre, or other home or place in which a child is placed in accordance with the provisions of The Child and Family Services Act;
(c) examine and obtain a copy of a record or any other thing in the possession or under the control of
(i) the director, an authority, an agency, or the person in charge of a place mentioned in clause (a), or
(ii) in the case of a review under section 22 (review of services after death of child), a person or organization referred to in subclause (i), or any other person, government department or organization;
(d) communicate with and visit a child who is receiving or has received services under The Child and Family Services Act, or a parent or guardian or other person who represents the child.
The children's advocate may require a person who the children's advocate believes is able to give information about a matter being reviewed or investigated
(a) to provide the information to the children's advocate; and
(b) to produce a record or any other thing that, in the opinion of the children's advocate, relates to the matter being reviewed or investigated and that may be in the possession or under the control of that person.
Nothing in subsection (1) abrogates any privilege that may exist because of the relationship between a solicitor and the solicitor's client.
No action or proceeding may be brought against a person by reason of his or her compliance with a requirement of the children's advocate to provide information or produce a record or any other thing, or by reason of answering a question in a review or investigation by the children's advocate.
PART 4
RESPONSIBILITIES AND POWERS
IN RELATION TO THE ADOPTION ACT
Application of Act to adoption matters
This Act applies, with necessary changes, in relation to matters under The Adoption Act.
Carrying out responsibilities and powers
The children's advocate has the same responsibilities and powers, with necessary changes, in relation to matters under The Adoption Act as he or she has in relation to matters under The Child and Family Services Act.
PART 5
REPORTS ABOUT INVESTIGATIONS,
SPECIAL REPORTS AND ANNUAL REPORTS
REPORTS ABOUT INVESTIGATIONS
Reporting conclusions after an investigation
After completing an investigation under this Act, the children's advocate must prepare a written report of his or her conclusions as to the matter being investigated and the reasons for the conclusions and may include recommendations in the report that the children's advocate considers appropriate.
Reporting conclusions to director, authority and agency
The children's advocate must provide a copy of each report prepared under subsection (1) to the director and to any authority or agency involved with the investigation.
Reporting results to place involved in investigation
If an investigation involves a group home or treatment centre, or other home or place in which a child is placed in accordance with the provisions of The Child and Family Services Act, the children's advocate may report the results of the investigation to the person in charge of that place, in any manner the children's advocate considers appropriate.
Report about complaint to parent, guardian and child
If an investigation is of a complaint received under section 16, the children's advocate, in any manner he or she considers appropriate,
(a) must report the results of the investigation to the parent or guardian of that child;
(b) must report the results of the investigation to the child if he or she is 12 years of age or more; and
(c) may report the results of the investigation to the child if he or she is less than 12 years of age and the children's advocate considers it appropriate to do so.
The children's advocate may report the results of an investigation to a complainant in any manner the children's advocate considers appropriate.
This section does not apply to a report made under section 22 (review of services after death of child).
SPECIAL REPORTS
In order to improve the effectiveness and responsiveness of services provided under The Child and Family Services Act and The Adoption Act, the children's advocate may prepare and publish special reports for the public that relate
(a) generally to the performance of responsibilities or the exercise of powers under this Act; or
(b) specifically to a review or investigation made under this Act.
Subject to section 35 (confidentiality), a special report may include
(a) information for the purpose of identifying and analyzing circumstances and trends relating to children and services provided under The Child and Family Services Act or The Adoption Act;
(b) conclusions, reasons for the conclusions, and recommendations relating to investigations undertaken by the children's advocate;
(c) findings and recommendations from reports made during the year under section 22 (review of services after death of child); and
(d) information about any other matter which, in the opinion of the children's advocate, is of concern to children who receive or may be entitled to receive services under The Child and Family Services Act or The Adoption Act.
ANNUAL REPORTS
The children's advocate must prepare and submit to the Speaker of the Assembly an annual report for each fiscal year respecting the performance of responsibilities and the exercise of powers under this Act.
Subject to section 35 (confidentiality), the annual report of the children's advocate
(a) must include
(i) aggregate information that relates to the reviews and investigations undertaken by the children's advocate during the year, and
(ii) information regarding the work of the children's advocate with aboriginal children and their families; and
(b) may include a summary of
(i) conclusions, reasons for the conclusions, and recommendations relating to investigations undertaken by the children's advocate during the year,
(ii) findings and recommendations from reports made during the year under section 22 (review of services after death of child), and
(iii) findings and recommendations from special reports under section 31 published during the year.
Submitting annual report to Speaker
The annual report for each fiscal year that begins after this Act receives royal assent must be submitted to the Speaker of the Assembly by November 30.
The Speaker must table a copy of the report in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.
Referral to standing committee
The annual report of the children's advocate stands referred to the Standing Committee of the Assembly on Legislative Affairs. The committee must begin considering the report within 60 days after it is tabled in the Assembly.
PART 6
GENERAL
COMMUNICATION BY CHILD
If a child in a group home or treatment centre, or other home or place in which he or she is placed in accordance with the provisions of The Child and Family Services Act asks to communicate with the children's advocate, that request must be forwarded to the children's advocate immediately. The child is entitled to communicate with the children's advocate privately and in confidence.
CONFIDENTIALITY
The children's advocate must maintain confidentiality in respect of all matters that come to his or her knowledge in the performance of responsibilities or the exercise of powers under this Act and must not disclose any matter except as permitted by this Act.
Disclosure re responsibilities and powers
In the performance of responsibilities or the exercise of powers, the children's advocate may disclose any matter that the children's advocate considers necessary, unless this Act provides otherwise.
Public reports — disclosure with consent
In a special report or annual report, unless the individual consents, the children's advocate must not disclose the name or any information that could reasonably be expected to reveal the identity of any of the following individuals:
(a) a child;
(b) a parent of the child;
(c) a guardian of the child, if the guardian is an individual;
(d) an individual who provides, or has provided, care and supervision to the child;
(e) a complainant.
Providing information to be disclosed
The individual whose consent is requested must be provided with the information proposed to be disclosed.
Parent or guardian consenting on behalf of a child
A parent or guardian of a child may provide consent on behalf of a child in the following circumstances:
(a) the children's advocate is not satisfied that the child understands the nature and consequences of giving consent to the disclosure;
(b) the child has died.
If a complainant is a child, the provisions of this section with respect to a child giving consent apply.
Public reports — if disclosure already made public
Despite subsection (3), if the child's name or other identifying information about the child has already lawfully been made public by other means, the children's advocate may, in a special report or annual report, disclose the name of a child, or any information that could reasonably be expected to reveal the identity of the child, but only the minimum information necessary for the purpose of the report.
Public reports — disclosing identifying information of other individuals
In relation to an individual who has come to the attention of the children's advocate as a result of an inquiry, review, investigation or complaint — other than an individual listed in subsection (3) — the children's advocate may disclose in a special report or annual report information that could reasonably be expected to reveal the identity of the individual, but only the minimum information necessary for the purpose of the report. The individual's name must not be disclosed.
Prohibition re disclosure from adoption records
Despite anything in this Act, the children's advocate must not disclose the name of, or any information that could reasonably be expected to reveal the identity of, a person in relation to the granting of an order of adoption under The Adoption Act.
A record made or obtained under this Act is confidential and a person must not disclose or communicate information from the record in any form to any person, except as otherwise permitted by this Act, or in accordance with the following:
(a) if giving evidence in court;
(b) by order of a court;
(c) to the director, an authority or an agency, or a lawyer acting on their behalf;
(d) to a person employed by the director, an authority or an agency;
(e) to a person retained or consulted by the children's advocate;
(f) to a person retained or consulted by the director, an authority or an agency, other than a lawyer acting on their behalf, with the written approval of the children's advocate;
(g) to a student placed with the children's advocate, the director, an authority or an agency by agreement with an educational institution;
(h) where the disclosure or communication is required or authorized for the purposes of this Act.
PROTECTION FROM LIABILITY
No action or proceeding may be brought against the children's advocate or any person employed under, or acting as a delegate of, the children's advocate for anything done, or omitted to be done, in good faith, in the exercise or intended exercise of a power or responsibility under this Act, including
(a) disclosing or communicating information from a record made or obtained under this Act; or
(b) any consequences that flow from the disclosure or communication.
NOT COMPELLABLE AS WITNESS
Children's advocate and staff not compellable
The children's advocate and any person employed under, or acting as a delegate of, the children's advocate must not be compelled to give evidence in a court or in a proceeding of a judicial nature with respect to anything coming to his or her knowledge in the performance of responsibilities or exercise of powers under this Act, except with respect to a prosecution for perjury.
OFFENCE AND PENALTY
Every person who
(a) without lawful justification or excuse wilfully obstructs, hinders, or resists the children's advocate in performing responsibilities or exercising powers under this Act;
(b) without lawful justification or excuse refuses or wilfully fails to comply with a lawful requirement of the children's advocate; or
(c) knowingly makes a false statement to or misleads or attempts to mislead the children's advocate in performing responsibilities or exercising powers under this Act;
is guilty of an offence and liable to a fine of not more than $1,000 or to imprisonment for a term not exceeding three months, or both.
RULES AND PROCEDURE
The Assembly may make general rules for the guidance of the children's advocate in the performance of responsibilities and the exercise of powers under this Act.
Procedure of children's advocate
Subject to this Act and any rules made under subsection (1), the children's advocate may determine his or her procedure.
CONSULTATION RE IMPLEMENTING RECOMMENDATIONS OF COMMISSION OF INQUIRY
Consultation re implementing recommendations of commission of inquiry
No later than six months after this section comes into force, the minister must initiate a consultation process respecting the implementation of the recommendations relating to the children's advocate that were made by The Honourable E.N. (Ted) Hughes in the report of the Commission of Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair. In particular, the government departments responsible for education, health, and justice must be consulted.
Consultation re expansion of mandate
The consultation process must address the expansion of the mandate of the children's advocate to advocate for all children and youth who receive, or are entitled to receive, publicly funded services from the government or an organization that receives funding from the government for the service.
No later than 15 months after this section comes into force, the minister must make a report to the Speaker of the Assembly and include recommendations relating to the expansion of the mandate of the children's advocate.
PART 7
TRANSITIONAL PROVISION, CONSEQUENTIAL AMENDMENTS, C.C.S.M. REFERENCE AND
COMING INTO FORCE
TRANSITIONAL — CHILDREN'S ADVOCATE
Transitional re Children's Advocate under Child and Family Services Act
The Children's Advocate appointed under The Child and Family Services Act continues in office as the Children's Advocate under this Act as if appointed under this Act but for a term that expires on the day the appointment under The Child and Family Services Act would expire.
AMENDMENTS TO THE CHILD AND FAMILY SERVICES ACT
The Child and Family Services Act is amended by this section.
The definition "children's advocate" in subsection 1(1) is replaced with the following:
"children's advocate" means the Children's Advocate within the meaning of The Children's Advocate Act; (« protecteur des enfants »)
Subsection 2(1) is amended by striking out "the children's advocate,".
Part I.1 (Children's Advocate) of The Child and Family Services Act is repealed.
The following is added after section 8 as part of Part I:
The children's advocate has the responsibilities and powers in relation to matters under this Act as set out in The Children's Advocate Act.
Clause 76(3)(d.2) is amended by striking out "section 8.10" and substituting "The Children's Advocate Act".
AMENDMENTS TO OTHER ACTS
The Adoption Act is amended by this section.
The definition "children's advocate" in subsection 1(1) is amended by striking out "The Child and Family Services Act" and substituting "The Children's Advocate Act".
Section 8 is replaced with the following:
The children's advocate has the responsibilities and powers in relation to matters under this Act as set out in The Children's Advocate Act.
The Fatality Inquiries Act is amended by this section.
Subsection 10(1) is amended by striking out "under The Child and Family Services Act" and substituting "under The Children's Advocate Act".
Subsection 10(2) is amended in the part before clause (a) by striking out "section 8.2.3 of The Child and Family Services Act" and substituting "section 22 of The Children's Advocate Act".
Subsection 10(3) is repealed.
Subsection 16.1(1) of The Ombudsman Act is amended by striking out "section 8.2.3 of The Child and Family Services Act" and substituting "section 22 of The Children's Advocate Act".
C.C.S.M. REFERENCE AND COMING INTO FORCE
This Act may be referred to as chapter C95 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on the day it receives royal assent.