What changes come with the legislation?

The legislation reforms the way child welfare services are delivered to Indigenous children, youth and families. We are moving from a model where only provincial/territorial laws have typically been applied to one in which the laws of multiple jurisdictions apply: this includes different Indigenous laws along with provincial/territorial laws (Child, Family and Community Service Act or CFCSA in British Columbia).

As the legislation affirms the inherent right of Indigenous peoples to exercise jurisdiction over child and family services, it provides an opportunity for Indigenous peoples to choose and implement their own solutions for their children and families and emphasizes the need to shift from removal to prevention. Indigenous communities will be free to develop policies and laws in the provision of child and family services based on their particular histories, cultures, and circumstances.

How is the ‘best interest’ of an Indigenous child determined?

To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including:

• the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
• the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;
• the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;
• the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;
• any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

What happens if the conflict is between two Indigenous laws?

The provision that is in the law of the Indigenous group, community or people with which the child has stronger ties prevails to the extent of the conflict or inconsistency. The child’s habitual residence as well as their views and preferences, their age and maturity, unless they cannot be determined, and the views and preferences of their parent(s) and the care provider will all be taken into consideration.

Who is considered the “care provider”?

Under the CFCSA, care providers would include those to whom the parent has directly given care of the child or those individuals other than the parent who have custody of the child under the Director’s supervision. In these situations, the Director does not have care or custody of the child.

The Director has primary responsibility for children in the custody, care or guardianship of the director, with the director authorizing, via the Family Care Home Agreement, for the foster caregiver to carry out the Director’s rights and responsibilities. Foster caregivers are considered as key service providers working on behalf of the Director but not care providers who have guardianship responsibilities independent of the Director’s responsibilities. This means that foster caregivers are not parties to court proceedings and are not provided notification of significant measures like parents.

• Arrange access and visitation with family members
• Promote and support ongoing contact
• Support a child through changes in placement or transitions out of care

• Indigenous Governing Body

• Care Provider

• Parent

*Significant measures do not include processes for obtaining, gathering or assessing information, leading up to the director making a decision. They also do not include agreements where the Ministry’s role is mainly to provide financial support. Foster caregivers, although caregivers are not included in a notice of significant measure.