Section 4 of the Child, Youth and Family Enhancement Act (“CYFEA”) is an exception to the general privacy rules. If any person has reasonable and probable grounds to believe that a child is in need of intervention then that person has a duty to report the matter forthwith to a director of Child and Youth Services (“CYS”).
It is important to know that the duty to report is a positive duty on the individual. A failure to report is an offence under the Act. If a person is a member of a profession a CYS director must report the failure to report to the person’s professional body. Fortunately, there is no liability for a person who makes a report in good faith.
What constitutes “reasonable and probable grounds” of a child in need depends on the circumstances; however, the belief that a child is in need must have some factual basis.
A child is in need of protection for the purposes of the CYFEA when:
If you are aware of a child who meets one of the above criteria, you must report this incident to CYFEA.
In October 2009, section 126 (4) of the Child, Youth and Family Enhancement Act was amended to clarify the circumstances in which a custodian and/or public body, such as Alberta Health Services, may release health/personal information to Children and Youth Services (CYS).
The amended section 126 (4) now states:
With this amendment, custodians/public bodies may release health/personal information to CYS for the purposes of conducting assessments, investigations or providing services under the Child, Youth and Family Enhancement Act. Although Alberta Health Services has the option (“may disclose”), AHS will usually disclose information when such circumstances exist. It is important to note that AHS is not required to disclose information under these amendments.
General privacy principles still require the disclosure of the least amount of information possible while still enabling CYS to carry out its intended purpose.
While the majority of requests for health or personal information occur after an individual has made a report to CYS that a child is in need of intervention services, the Child, Youth and Family Enhancement Act provides CYS with a range of options to assist children and families in other situations that require action by CYS. These options include court orders and agreements.
Court orders: There are four main types of court orders that CYS may apply for in Provincial Court: supervision orders, temporary guardianship orders, permanent guardianship orders and apprehension orders. Other courts orders that CYS may apply for are restraining orders and medical treatment orders.
To obtain these orders, CYS must be of the opinion that a child is in need of intervention and that the survival, security or development of the child cannot be adequately protected without such an order.
CYS may request health or personal information to reach an opinion on whether intervention is necessary and to act as evidence for such a decision.
Agreements: CYS may enter into an agreement to provide services to a child with the consent of a child’s guardian. Such agreements include family enhancement agreements and custody agreements.
While any health/personal information requested in such circumstances would usually be with the consent of the guardian, the agreements are still “services” and section 126 may apply.