Privacy Considerations for Families Involved with Child and Family Services - LawNow Magazine

Privacy Considerations for Families Involved with Child and Family Services

information privacyParents involved with Child and Family Services (“the Director”) may not want extended family members, friends, and the general public to know. The Child, Youth, and Family Enhancement Act (“CYFEA”) is the legislation under which intervention services are provided by the Director in Alberta. CYFEA contains provisions outlining how and when information that a child is involved with the Director may be made public.

CYFEA allows publication of identifying information of a deceased child who had current or previous involvement with the Director.Section 126.2 of CYFEA bans the publication of the name or photograph of a child or the child’s parent (“the child’s identifying information”) in a manner that reveals that the child has had involvement with the Director. However, CYFEA also allows for the child’s identifying information to be made public in certain circumstances:

  1. the Director may publish or consent to the publication of the child’s identifying information or any other information related to the child if the Director believes it is in the best interest of the child or necessary for the proper administration of justice;
  2. a child who is 16 years of age or older is allowed to publish or consent to the publication of the child’s name or photograph in a manner that reveals that he or she has had involvement with the Director; and
  3. the court may grant permission to publish the child’s identifying information on application by a child, a parent or guardian, or any other interested party if the court is satisfied that publication is in the child’s best interest or in the public interest.

…the publication ban specifically names the deceased child and the family members whose name and photograph may not be published so service of the order on the media may actually alert the media to the story. This provision of CYFEA applies to news media. It also applies in circumstances where family members, foster parents or other individuals involved with the child publish the child’s identifying information online in a way that identifies that the child is involved with the Director. Individuals are permitted to make reference to or post photographs of a child or the child’s parent online so long as those comments or photographs do not identify that the child is receiving intervention services. For example, a grandparent posting the name and photograph of a grandchild on a public Facebook page or online forum would be permitted to do so as long as the posting does not disclose that the child is involved with the Director. If the photograph is accompanied with a comment indicating that the child was apprehended and placed in foster care, the grandparent would be in contravention of CYFEA. CYFEA states that if any person publishes the child’s identifying information in a manner that reveals that the child is or has been involved with the Director without the legal authority to make that information public, that person is guilty of an offence. They may be fined and, if the fine is not paid, imprisoned for a term of not more than six months.

CYFEA states that the ban on publication does not apply in respect of a deceased child. In July 2014 changes were made to CYFEA with respect to the publication of information identifying a deceased child who was receiving or had received intervention services from the Director. This amendment to CYFEA coincided and likely resulted from newspaper reports that the Director was not being forthcoming about deaths of children in care in Alberta. This change to CYFEA provides more transparency to the public about children who have died in the care of the Director and allows families to speak out publicly after a death occurs if the family wishes to do so. Deaths are now automatically disclosed on the Alberta Human Services website shortly after they occur.

To apply for the publication ban, the family member is required to file a court application.CYFEA allows publication of identifying information of a deceased child who had current or previous involvement with the Director. This includes services provided to a family voluntarily through a Family Enhancement Agreement where the child resided in the care of a parent or guardian at the time of death. Publication is also permitted regardless of the cause of death. Identifying information may therefore be published even if the child is no longer receiving intervention services and dies of natural causes while in the care of a parent. Section 126.3 of CYFEA provides that a family member of the deceased child who does not want the media to be able to publish the child’s identifying information in a way that discloses that the child was receiving intervention services can apply for a publication ban. A publication ban may be ordered by the court to prohibit the publication of names and photographs, but the ban does not stop the media from publishing a story disclosing other non-identifying details surrounding the child’s death, such as the age of the child, the date the death occurred, and the type of involvement the child had with the Director.

CYFEA states that the ban on publication does not apply in respect of a deceased child. The family members permitted to make an application for a publication ban under CYFEA include a parent, guardian, grandparent, or sibling of the deceased child, or someone who stands in the place of a parent within the meaning of section 48 of the Family Law Act. The Director may also make the application and CYFEA allows any other person to make the application with permission from the court. To apply for the publication ban, the family member is required to file a court application. The judge may grant an order banning publication of the name and/or photograph of the deceased child, the child’s parent or guardian, or any other person in a way that reveals that the child received intervention services. If an order banning publication of this information is granted, the order must be served on the parents of the deceased child, the guardians of the deceased child, all other individuals identified in the order, and the Director. To alert the media that a publication ban is in effect, the publication ban must also be served on all members of the media. This can be complicated and difficult to achieve as there are many diverse forms of media outlets in Alberta. Additionally, the publication ban specifically names the deceased child and the family members whose name and photograph may not be published so service of the order on the media may actually alert the media to the story, which is contrary to what the family is hoping to achieve.

Section 126.2 of CYFEA bans the publication of the name or photograph of a child or the child’s parent (“the child’s identifying information”) in a manner that reveals that the child has had involvement with the Director.CYFEA does not provide any timelines for applying for a publication ban. The family is entitled to apply at any time after the death of a child. The media is free to publish any identifying information until such time as a publication ban is obtained, so it is prudent for a family member desiring a publication ban to apply at the earliest opportunity. Child and Family Services caseworkers are aware of this issue. They will typically notify the family that the Director is obligated to disclose the information to the public and alert the family to the option of applying for a publication ban. This, therefore, requires that the grieving family member determine whether they wish to file a court application immediately after learning of the death of the child.The amendment to CYFEA allowing publication of a deceased child’s identifying information may benefit the public interest and the interest of those family members who wish to speak publicly about the death of a child. However, it forces those family members who may prefer privacy to consult a lawyer and proceed to court while still processing the profoundly sad loss of a child. This demonstrates the difficult balance between transparency and privacy that must be struck when trying to address diverse and complex interests.

Authors:

Riley Gallant
Riley Gallant is a lawyer with the Family Law Office at Legal Aid Alberta in Edmonton, Alberta.
 


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