Federal Indigenous Child Welfare Legislation

An Act respecting First Nations, Inuit and Métis Children, Youth and Families

What steps did it take to develop the legislation? When did it go into effect?

bill C-92 - timeline

What is the purpose of the legislation?

With the legislation, the Federal government intends to address the overrepresentation of Indigenous children and youth in the child welfare system.

The Federal Act sets out:

  • New principles that need to be applied when working with Indigenous children, youth and families.
  • New standards that need to be met when delivering services to Indigenous children, youth and families. The standards provide direction in decision-making for workers and courts in areas such as placements decisions, the provision of prevention services, and providing notice to families and communities.
  • Affirming Indigenous Peoples’ inherent right to jurisdiction under the Federal Act.

The new principles guide the interpretation and administration of the Federal Act, and contribute to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP):

  • best interests of the child
  • cultural continuity
  • substantive equality

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.

What is the primary consideration in the case of decisions or actions related to child apprehension?

With the legislation, the Federal government intends to address the overrepresentation of Indigenous children and youth in the child welfare system. The best interests of the child must be the paramount consideration. Primary consideration must be given to the following:

  • the child’s physical, emotional and psychological safety, security and well-being
  • the importance of the child having an ongoing relationship with their family and Indigenous community
  • the importance of the child belonging to their Indigenous community and learning about and practicing their Indigenous traditions, customs and language
BC Foster Parents - Bill-C92

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 there is a conflict between the laws?

If there is a conflict or inconsistency, the provision that is in the law of the Indigenous group, community or people prevails to the extent of the conflict or inconsistency.

Where there is a coordination agreement in place between the Indigenous community, federal government and provincial government, or where a reasonable attempt had been made to develop a coordination agreement, the Indigenous law will prevail in the event of an inconsistency of conflict.

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.

How does the legislation impact placement decisions relating to Indigenous children?

When it is consistent with the best interests of the child, thefollowing order of priority must be followed:

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Bill C-92 - photo

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.

What is the role of foster caregivers in promoting attachment and emotional ties to family members when a child is unable to live with their family?

As part of the child’s care team, foster caregivers must:

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

How were the Resource Worker Policies updated in light of the new legislation?

Policy 1.1 – Working with Indigenous Children, Youth, Families and Communities – has been updated to reflect the requirements of the federal legislation. It supersedes other policies regarding Indigenous children. Other policies such as the Children and Youth in Care policies have been updated to reflect Policy 1.1.

Who should be notified before taking any significant measures in relation to the child?

  • Indigenous Governing Body

  • Care Provider

  • Parent

What would classify as a ‘significant measure’?

A significant measure is a step the Director would take when:

  • the Director makes an application for a court proceeding that requires notice to any party under the CFCSA (with the exception of applications for the director to have access to a child, access to a record or receive financial maintenance),
  • the Director removes the child or enters into/renews an agreement for the child to be in care,
  • the Director enters into/renews a Youth Agreement,
  • the child has a new placement or change in placement, or
  • the CFCSA Director consents to the child’s adoption,
  • the Director withdraws from court proceedings or returns the child to the 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.

How is the legislation going to change the care of Indigenous children currently in the continuing custody of a Director under the CFCSA?

Until Indigenous laws are in place — services to Indigenous children will continue to be provided by the Director under the CFCSA. However, every Indigenous child and family services provider will have to apply the best interest principles set out in the Federal Act.

This means, for example, that when an Indigenous child comes into care, child and family services providers will always have to consider:

  • the child’s physical, psychological and emotional safety, security and well-being;
  • the importance for that child having an ongoing relationship with their family and community; and
  • preserving the child’s connection to their culture.

Reassessment of safe placement with parents or family members will be conducted on an ongoing basis, including when:

  • A previously unknown family member is identified
  • A change of placement or legal status is being considered
  • Requested by the child’s Indigenous community
  • A care plan is reviewed

How can foster caregivers and resource workers get training on the Federal legislation?

There is online Federal Act training available to resource workers through MCFD’s Learning & Development Branch.

There is online PRIDE training available to caregivers. The Federal Act legislation will be woven throughout the various PRIDE curriculums –PRIDE Pre-Service, In-Service, and Kinship.

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If you think a child or youth under 19 years of age is being abused or neglected, you have the legal duty to report your concern to a child welfare worker. Phone 1 800 663-9122 at any time of the day or night. Visit the Government of BC website for more info.

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