Child Welfare (1-5): Current Problems

BC


March 17, 2022


Court Challenges

Class Action Lawsuit for government use of Birth Alerts to apprehend Indigenous babies

Assembly of Manitoba Chiefs – Earlier this week, a class-action lawsuit was filed in Winnipeg against the province of Manitoba regarding the controversial and discriminatory practice of Birth Alerts. The basis for the claim is that Birth Alerts are unconstitutional and are a Human Rights violation.

“The Assembly of Manitoba Chiefs (AMC) has been a strong advocate in taking countless actions to end the practice of Birth Alerts and Newborn Apprehensions.” stated Grand Chief Arlen Dumas. This includes:

  • The Executive Council of Chiefs passing a resolution in 2016 calling for the end of the apprehension of First Nation babies.
  • The Chiefs also expanded the mandate of the Women’s Council to include Child and Family Matters, advocating for the inclusion of child welfare in the National Inquiry into Missing and Murdered Indigenous Women and Girls (the Inquiry).
  • As well, the First Nations Family Advocate participated in the Inquiry as an expert witness calling for governments to examine the legality of Birth Alerts and to end the practice of Birth Alerts,”

Chief Betsy Kennedy, Chairperson of the Women’s Council stated “The Women’s Council lends a strong voice for the issues that impact First Nations women. Since the inception of the First Nations Family Advocate Office, we have witnessed the injustice and inhumane actions of the provincial government and the rooted impacts on First Nations families involved with the Child Welfare system, particularly on First Nations expectant mothers. For too long, we have had the provincial government telling us what is in the best interest of our children and families. This has led to the destruction of our families and Nations. This is evident as seen through the suffering of mental health, addictions, homelessness, and poverty.”

In 2021, a class-action lawsuit was brought against British Columbia seeking justice for the practice of Birth Alerts that have separated hundreds of parents and newborn infants, with First Nations families disproportionately affected.

“Despite the apparent end of Birth Alerts in July 2020 that the Manitoba government announced, our office still receives calls from mothers experiencing a Birth Alert and/or Newborn Apprehension. Newborn Apprehensions and the removal of children is an extremely traumatic practice that has long-lasting physical, mental and emotional effects for First Nations families. Today, the lawsuit is a step in the right direction to help address this discriminatory practice and ensure families receive justice,” stated Cora Morgan, First Nations Family Advocate.

Previously, section 9(4) of the Manitoba Child and Family Services Act identified two types of birth alerts: one issued for women over the age of 18; and one for unmarried minors (mandatory in Manitoba), particularly if they are deemed to be high risk. In both instances, the Agency that issued the Birth Alert had the legal right to apprehend the newborn infant under the premise of acting in “the best interests of the child.”


January 19, 2021


Child and Youth Advocate Reports

Detained: Rights of Children and Youth under the Mental Health Act”

CityNews 1130 – BC Child and Youth Advocate report “Detained: Rights of Children and Youth under the Mental Health Act” found involuntary detentions of B.C. youth rose 162 per cent between 2008 and 2018. In fact, B.C. is the only province in Canada where a capable, involuntary patient has no right to make psychiatric treatment decisions. The unique significance of how First Nations, Métis, Inuit and urban Indigenous people experience mental health detentions is also considered in this report, given the multitude of ways in which the rights and freedoms of Indigenous peoples have been limited and interfered with throughout colonization, residential schools and the child welfare system. Although the involuntary detention of First Nations, Métis, Inuit and urban Indigenous children and youth under the Mental Health Act may be intended for their safety and protection, it can be seen and experienced as another link in a long chain of oppression imposed by the state on Indigenous peoples. Of concern to the Representative is the racism experienced by First Nations, Métis, Inuit and urban Indigenous children and youth in hospitals, as documented in the recent report In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in B.C. Health Care, and the absence of culturally safe and relevant services and supports.

This report found that the number of children and youth who are receiving involuntary mental health services has increased alarmingly. In the 10 years between 2008/09 and 2017/18, these admissions rose from 973 to 2,545 – or 162 per cent. This raises troubling questions about the adequacy of the voluntary, community-based system of care and treatment and its ability to avoid unnecessary involuntary detention. Clearly, the time has come for government to devote special attention to how the Mental Health Act can be improved in its operation and administration to better protect and respect the voice and the interests of children and youth it affects in such profound ways.

The report identifies 14 specific recommendations, a number of which apply specifically to First Nations, Métis and Inuit children and youth.
https://rcybc.ca/wp-content/uploads/2021/01/RCY_Detained-Jan2021.FINAL_.pdf


March 29, 2022


Child and Youth Advocate Reports

Discriminatory practices in Indigenous child Welfare funding

NationTalk – British Columbia’s Representative for Children and Youth (RCY) is calling upon the provincial government through the Ministry of Children and Family Development (MCFD) to end discriminatory funding practices and adopt Canadian Human Rights Tribunal principles for Indigenous child welfare funding in B.C. in a report released today.

The report, “At a Crossroads: The roadmap from fiscal discrimination to equity in Indigenous child welfare“, which sought to map child welfare funding and service delivery in B.C., highlights funding practices by MCFD that, at the federal level, have already been deemed discriminatory through a Canadian Human Rights Tribunal ruling. It also points out the need for the ministry to update its fiscal management system so that public funds allocated to First Nations, Métis, Inuit and Urban Indigenous child welfare can be aligned with stated spending objectives and declared government and ministry priorities regarding reconciliation.

“The findings of this report are troubling,” said Representative Jennifer Charlesworth:

  • “First, the level of child welfare services a First Nations, Métis, Inuit or Urban Indigenous child or family receives depends on where they live – on- or off-reserve, due to differing funding sources – and who they are served by. This leads to gaps and inequities that have no place in a province committed to reconciliation.
  • “Second, MCFD’s system for allocating funding is so broken that it is not possible to link ministry funding with the commitments to reconciliation government has made or to outcomes for kids. Without knowing how much money is spent on Indigenous child welfare and what the outcomes of those expenditures are, how can any assessment be made of how well First Nations, Métis, Inuit and Urban Indigenous children and families are being supported in B.C.?”

The intent of the report was to map the fiscal ecosystem of funding to services in order to reveal gaps and to create a comprehensive picture of how – and how much – money is being spent on First Nations, Métis, Inuit and Urban Indigenous compared with non-Indigenous child and family services, how that spending translates into services being delivered, and what kinds of outcomes are being achieved for young people.

From the data gathered, the Representative made two startling findings:

  • first, that resource allocation to a young person depends on where they live – on- or off-reserve. This is because funding sources differ depending on residency. Funding for on-reserve child welfare services for those First Nations who work with Indigenous Child and Family Service (ICFS) Agencies comes from the federal government which, as a result of the 2016 Canadian Human Rights Tribunal ruling, funds services – including culturally rooted, needs-based prevention services – at actual costs.
  • For off-reserve services, funding comes from the provincial government for child welfare and does not include prevention services. It is funded at lower rates and is also not based on needs.
  • A third category of funding exists for on-reserve services for those First Nations who do not have their own ICFS Agencies. For these children, the federal government provides funding for services, but it relies on a different methodology that pre-dates the Canadian Human Rights Tribunal ruling and the funding is transmitted through MCFD, which cannot definitively say how much of it reaches the First Nation.
  • First Nations on-reserve served by MCFD, as well as First Nations, Métis, Inuit and Urban Indigenous children living off-reserve are at the greatest disadvantage because provincial funding for services for them is much less than for their counterparts living on-reserve.

“These funding differences put ICFS Agencies who support First Nations, Métis or Urban Indigenous children and youth residing off-reserve at a significant disadvantage because they do not receive any benefit from the Canadian Human Rights Tribunal ruling,” Charlesworth said. “Some Agencies serve both on- and off-reserve children, and for them, the funding differences are most starkly visible. Those Agencies receive funding from both the federal and provincial governments depending on where each child resides. Different children are allocated different levels of funding based on residence. This is fiscal discrimination, and it needs to end.”

The Representative makes three key recommendations to address these findings:

  • that MCFD adopt the Canadian Human Rights Tribunal principles of funding and provide funding models that are culturally based and needs-based, that provide for substantive equality for all First Nations, Métis, Inuit and Urban Indigenous children, and that prioritize culturally based community wellness and prevention services
  • that MCFD update its ministry-specific fiscal management tools and reporting practices to align public funds allocated to First Nations, Métis, Inuit and Urban Indigenous child welfare to stated spending objectives and declared government and ministry priorities
  • that MCFD incorporate the Grandmother Perspective, as described in the Office of the Human Rights Commissioner’s 2020 report on disaggregated data collection, to collect disaggregated race-based data to understand the diverse and greater needs of the First Nations, Métis, Inuit and Urban Indigenous populations it serves.

https://nationtalk.ca/story/representative-calls-for-end-to-discriminatory-child-welfare-funding-practices


March 21, 2019


Bill C-92

Yellowhead Institue Critique of Bill C-92

“Bill C-92, An Act respecting First Nations, Métis and Inuit children, youth and families” was graded as follows by the Yellowhead Institute of Ryerson University based on analysis by five Indigenous legal scholars. (See also First Nations Child and Family Caring Society Information Brief in C2A # 4)

GRADES:
National Standards: …………………… C
Funding: ……………………………………..F
Accountability: ……………………………D
Jurisdiction: ……………………………….D
Data Collection and Reporting: …..D

Yellowhead Institute Recommendations

National Standards

  • Ensure that standards exist in law so that Indigenous children do not automatically become government wards without significant efforts are made to maintain familial and community care.
  • Require ongoing legal relationships, or at the least, access to children’s family of origin.
    Include strong, mandatory language around BIOC to address judicial bias and overtake any binding precedents in this area.
  • Include “active efforts” or “maximum contact” clauses in relation to Indigenous child welfare with First Nations have not taken over full jurisdiction.
  • A requirement of written documentation of active efforts to find placements according to the priority set out or affidavit evidence from the Indigenous group that there is no available placement.
  • And/or a presumption that an access order with some family or community member and a long-term funding commitment for regular travel back to the community is included as a term of any permanency order.

Funding

  • Attach clear federal funding commitments for First Nations pursuing child welfare jurisdiction.
  • Ensure funding reflects the principle of substantive equality and which also meets the needs and circumstances of children on reserve
  • Ensure off-reserve, Métis, non-status and Inuit children and families are included in budgets, distinct from non-Indigenous children and families.
  • Compel coordination between federal and provincial governments regarding incentives to cooperate and adequately fund Indigenous governing bodies to implement Jordan’s Principle.

Accountability

  • Establish a dispute resolution mechanism to deal with situations where Indigenous groups experience challenges in entering collaboration agreements with Canada and the provinces, in the cases they are required.
  • Create an independent body to hear disputes and make binding decisions on all parties.

Jurisdiction

  • Recognize jurisdiction as a right to self- determination under UNDRIP rather than a s. 35 right.
    Set a clear path out of the existing jurisdictional squabbling between the provincial and federal governments.
  • Revise paramountcy rules so they are clear enough for, and accessible to community members, so that can understand in time sensitive or emergency circumstances.
  • Contain clear conflict of laws principles and processes that give real weight to Indigenous law-making authority and jurisdiction.
  • Address the long-standing issue of services to First Nations children who are residing off-reserve, as well as non-status, Métis and Inuit children.
  • Provide clarity and direction on how the “Best Interests Of the Child” (BIOC) standard will be defined regarding the applicability of laws. At minimum this should clarify a standard for best interests of the Indigenous child— determined by Indigenous legal and community standards—and dictate the application of federal and provincial laws to Indigenous children.
  • Clearly and openly resolve the lack of funding for Indigenous law-making, administration and enforcement as well as funding for the preventative of child and family health.

Data Collecting and Reporting

  • Mandate collection and publication of data along the lines of TRC Call to Action #2
  • Address privacy issues by anonymized and displaying data in aggregate.