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Does the Director of Youth Protection (DYP) have an obligation to keep the child with his family at all costs?

In Quebec law, the overriding principle that DYP workers must respect is the interest of the child, not that of the parents. This principle is clearly recognized by the legislator, both in the Youth Protection Act (Article 3, YPA) and in the Civil Code of Québec (Article 33, C.c.Q.).

However, the principle of the best interests of the child remains abstract and the law therefore offers DYP workers various guidelines to guide them in their decision-making. Thus, when the interveners intervene in a family, all their decisions must tend to keep the child in his family environment. Even when it is not possible to remain in the immediate family environment, the DYP must ensure the continuity and stability of the child's ties with the people who are most significant to him. The child will then be placed with his grandparents or his distant family. This principle, better known as parental primacy, is enshrined in section 4 of the Youth Protection Act.

Currently, it is therefore only in situations where the application of the principle of parental primacy is not considered to serve the best interests of the child that the DYP will consider an alternative option to the family environment, such as a family of reception or a rehabilitation centre, better known as a youth centre. However, this legislative framework is about to evolve.

Indeed, on May 3, the Commission spéciale sur les droits des enfants et la protection de la jeunesse (CSDEPJ), chaired by Régine Laurent, nurse and former president of the Fédération interprofessionnelle de la santé du Québec (FIQ), releases its final report, Instaurer une société bienveillante pour nos enfants et nos jeunes. Formed following the tragic death of a young girl from Granby on April 29, 2019, the CSDEPJ focused on the concept of parental primacy within the Youth Protection Act. The objective of the Commission was then to modify the law so that it is expressly indicated that the interest of the child takes precedence over the objective of keeping him in his biological family.

On December 1, 2021, in the wake of the Laurent Report, Bill 15, the Act to amend the Youth Protection Act and other legislative provisions, was unanimously adopted by the National Assembly. With his bill, the Minister for Health and Social Services, Lionel Carmant, gives concrete expression to the legislative vision conveyed by the Commission.

The bill proposes that section 3 now indicate that “the interest of the child is a primary consideration in the application of this Act”. Article 4, meanwhile, will read as follows: "Any decision taken under this law must aim at the continuity of care as well as the stability of a child's ties and living conditions appropriate to his needs. and at his age. Consequently, the maintenance of the child in his family environment must be privileged provided that it is in the interest of this child.”

The message is clear. When the proposed changes come into effect, keeping the child in the family environment will certainly remain a fundamental consideration for the DYP workers. However, they must first consider the continuity of care and the stability of the relationships of this child when they have to determine what is in his best interest.

In conclusion, the primary obligation of DYP workers is towards children. The upcoming changes to the YPA make this statement all the more true. Although it is too early to assess the impact that this legislative change will have on families, the message from the legislator appears clear: when the situation of a child requires intervention by the DYP, the family has no right inherent in this child. All that matters is his interest.

WRITTEN BY:

Louis Cornillaut

Associate

Louis joined the firm as an articling student in August 2021 under the supervision of Me Jeffry Awwad and was called to the Bar in 2022. He obtained his bachelor's degree in civil law from the Faculty of Law of the University of Montreal in 2020 and passed the Bar exams in February 2021. Louis is also pursuing his master's studies in law at University of Montreal under the direction of Me Alain Roy, with the goal of completing a thesis on the Youth Protection Act.