An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (Federal Formally Bill C-92)
The Act seeks to:
- Affirm the rights of First Nations, Inuit and Métis to exercise their inherent jurisdiction over child and family services;
- Establish the Best Interests of an Indigenous Child as a national priority
- Prioritize preventative care;
- Focus on cultural continuity; and,
- Keep Indigenous children and families together.
- This law recognizes, for the first time in Canadian history, that Indigenous peoples have the inherent right to jurisdiction (authority) over their own child and family services
- This includes the authority for Indigenous governing bodies to:
- Draft their own child and family service laws [s. 18(1)]
- Administer and enforce these child and family service laws [s. 18(1)]
- Provide dispute resolution mechanisms [s. 18(2)]
- Within one year, January 1, 2021, some Indigenous groups may have their own legislation, that, where different, will prevail over provincial Child & Family Services legislation (CFYEA)
- Indigenous Peoples were the earliest practitioners of law in Canada. The first Europeans to arrive in North America recognized Indigenous legal traditions and often respected and followed Indigenous laws. The influence of Indigenous laws waned in the face of increased European settlement
- Indigenous legal traditions have not disappeared – many Indigenous communities have maintained and developed their laws and continue to be guided by them in governance and dispute resolution
Indigenous Jurisdiction: Authority
- Recognizes and affirms, as a s. 35 (Aboriginal or Treaty) right, that the inherent right of self-government includes jurisdiction in relation to child and family services, which includes authority for Indigenous governing bodies:
- draft their own CFS laws (legislative authority)
- administer and enforce these CFS laws [s. 18(1)]
- and to provide dispute resolution mechanisms [s. 18(2)]
Child Family and Community Service Act, Service Delivery and Principles of Best Interest
Child, Family and Community Service Act (CFCSA)
The CFCSA uses its own terminology to describe a “Child” as anyone under the age of 19. Aboriginal children are defined as children who have Aboriginal ancestry or self-identify to be Aboriginal. Each Aboriginal community has a designated representative for child welfare that is notified and consulted about child welfare proceedings. Children are no longer “apprehended” but rather are “removed”. Children in Care of the Director are placed with caregivers (persons approved by the Director to assume day-to-day care). Permanent orders have been replaced with “continuing custody orders”.
Administration of the Act
Under the CFCSA the Director is responsible for assessing all reports, providing support services, investigation to determine whether a child needs protection, intervening when a child needs protection and provisions of guardianship services to children in care. The Director delegates his powers to act under the CFCSA to social workers.
Section 2 – Guiding Principles Need to review new CFCS Act 2018
Section 2 of the CFCSA stated that it must be interpreted and administered so the safety and well-being of children are paramount considerations but with the following principles:
- Children are entitled to be protected from abuse, neglect and harm or the threat of harm;
- A family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;
- If, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;
- The child’s view should be taken into account when decisions relating to a child are made;
- Kinship ties and a child’s attachment to the extended family should be preserved if possible;
- The cultural identity of Aboriginal children should be preserved;
- Decisions relating to children should be made and implemented in a timely manner.
Section 3 – Service Deliver Principles
The following principles apply to provision of services under the Act;
- Families and children should be informed of the services under the Act;
- Aboriginal people should be involved in the planning and delivery of services to aboriginal families and their children;
- Services should be planned and provided in ways that are sensitive to the needs and cultural, racial and religious heritage of those receiving the services;
- Services should be integrated, whenever possible and appropriate, with services provided by other ministries and community agencies;
- The community should be involved, if possible and appropriate, in the planning and delivery of services to families and children.
Section 4 – Best Interests of Child
- Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child’s best interests, including for example:
- Child’s Safety;
- Child’s physical and emotional needs and level of development;
- The importance of continuity in the child’s care;
- Quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship;
- Child’s cultural, racial, linguistic and religious heritage;
- Child’s views;
- Effect on the child if there is delay in making a decision.
- (If the child is an Indigenous child, in addition to the relevant factors that must be considered under subsection (1), the following factors must be considered in determining the child’s best interests:
- Importance of the child being able to learn about and practise the child’s Indigenous traditions, customs and language;
- Importance of the child belonging to the child’s Indigenous community.
The CFCS Act specifically states that if a child is Aboriginal, the importance of preserving the child’s cultural identity must be considered in determining the child’s best interest.
KKCFSS Best Interest of the Children
Children are the most valuable resource of the Ktunaxa Nation, the Kinbasket People and Aboriginal People in general.
The Ktunaxa Nation and other Aboriginal Nations traditionally consider children as the future, hence the linkage between the past and future aspirations and dreams of the Nation.
We, as Aboriginal People working together, value children’s rights as inviolable and sacred and believe that children have a right to:
- Culturally appropriate family and community living experience;
- Affection, love and understanding and material security;
- Adequate nutrition, housing and medical services;
- Special care if handicapped, be it physically, mentally or socially;
- Be among the first to receive protection and relief in all circumstances;
- Be protected against all forms of neglect, cruelty and exploitation;
- Full opportunity for play, recreation and equal opportunity to education, to enable the child to fully develop her/his individual abilities;
- Develop her/his full potential in conditions of freedom and dignity; and
- Be brought up in a spirit of understanding, tolerance, friendship among peoples, peace, and universal brotherhood.
When decisions are being made regarding children the best interest of the children must be considered. When determining what is in the best interest of a child the following will be considered:
- Safety of the child;
- Wellbeing of the child that includes physical, emotional, and spiritual wellbeing of a child;
- Preservation of sense of identity, belonging, acceptance, and connection of the child to his/her cultural community;
- Views of the child considering factors such as maturity, developmental level, or level of understanding of the child;
- Views of the family and ancestral community of the child;
- Importance of continuity in connection of the child to his/her family and ancestral community;
- Importance of continuity in care to the child;
- Importance of continuity in family and community relationships that are significant or that may be significant in the future for the child;
- The child’s cultural, racial, linguistic, and spiritual heritage;
- In permanency planning for a child relationships and potential for future relationships with family, extended family and community the preservation of such relationships;
- If a child is not able to maintain a relationship with a parent or caregiver alternative relationships within the child’s family, extended family and ancestral community must be maintained or developed recognizing the child’s need for such relationships later in the child’s life;
- Timeliness of decision making must be balanced with time needed to ensure maintenance or development of relationships can occur, and
- Delays in decision making must be connected to purposeful planning on the maintenance of a child’s connection to family, extended family, and community.