Title:AN ANALYSIS OF THE CHILD WELFARE LEGISLATION IN BC

Subtitle:THE BEST INTEREST OF THE CHILD PRINCIPLE AND THE LEGISLATIVE EMPHASIS ON THE CHILD’S SAFETY

Recommendation 3: the Alberta Child, Youth and Family Enhancement Act (CYFEA), provides that the best interests of the child assessment requires decision makers to provide children who have been exposed to family violence any intervention service that “supports family members and prevents the need to remove the child from the custody of an abused family member.” This is a key framing of some of the programming needed to address family violence in the case of the child welfare system and is the approach that many Indigenous community-based family service organizations electively employ to keep families together. We recommend that similar language is included in the defnition of the best interests of the child principle that directs decision-makers to turn their mind to prevention-based supports in assessing the right of the child to be protected from harm.

A LACK OF ACCOUNTABILITY AROUND A SOCIAL WORKER’S OBLIGATION TO IDENTIFY LESS DISRUPTIVE MEASURES

Recommendation 4: These examples indicate a need for there to be an explicit legal obligation on the Ministry to actively consider placing the child with extended family members or returning the child to the parent. The federal standard, as set out in Bill C-92, requires that a reassessment of available alternative placements is “conducted on an ongoing basis.”

Recommendations for legislative reform

Recommendation 5: MCFD should amend the guiding principles of the CFCSA to ensure that children’s rights are not viewed as hierarchical but interdependent. The guiding principles should reflect the holistic nature of children’s rights including the right of the child to maintain relationships with their family and community, the child’s right to support services, and the importance of maintaining the child’s relationship to their culture.

A LACK OF ACCOUNTABILITY AROUND A SOCIAL WORKER’S OBLIGATION TO IDENTIFY LESS DISRUPTIVE MEASURES

Recommendation 5: Recommends that Canadian legislation mimic the language of the US Indian Child Welfare Act, which requires evidence that social workers have made “active efforts” that “proved unsuccessful.

Recommendations for legislative reform

Recommendation 6: MCFD should amend the best interests of the child principle set out in the CFCSA to ensure that decision-makers turn their mind to the entirety of children’s right. The best interests of the child principle should at minimum direct decision-makers to:

1. consider the trauma caused by apprehension;
2. weigh the risks to the child’s well-being if the child remains or is returned with the family against the risks to the child’s well-being that is caused by the removal and placement of the child in care;
   1. assessment of the risks to the child if the child remains or is returned to the family must be done with due consideration of all the supports and services that can be provided to the family; and,
3. consider the impact of family violence on the child and provide all the necessary services to the family in a manner that supports family members and prevents the need to remove the child from the custody of an abused family member.

A LACK OF ACCOUNTABILITY AROUND A SOCIAL WORKER’S OBLIGATION TO IDENTIFY LESS DISRUPTIVE MEASURES

Recommendation 6: There should also be a requirement that the Ministry respond to alternative proposals by parents, Nations, and community-based organizations that support the parent. The Yellowhead Institute recommends that the legislation include “affidavit evidence from the Indigenous group that there is no available placement.

Recommendations for legislative reform

Recommendation 7: MCFD should amend the CFCSA to reflect the right of the child to not be separated from their family by reason only of their parent or guardian:

1. lacking the same or similar economic and social advantages as others in BC society;
2. engaging is substance use or coping with addiction when a parent is actively pursuing or participating in addiction services; or
3. having a disability.

Recommendations for legislative reform

Recommendation 8: MCFD should, in consultation with Indigenous communities and Nations, amend legislated timelines to allow for an opportunity to develop creative family plans.

Recommendations for legislative reform

Recommendation 9: MCFD should review the legislation to assess how the legislation could support a more accountable and robust legal framework for prevention-based supports including by:

1. Adding a comprehensive list of functions for MCFD at the beginning of the legislation which includes:
   1. working with community and social services to alleviate and remedy the socio-economic conditions that place families at risk;
   2. developing and providing services and supports before and after intervention;
   3. proactively identifying groups of children the recognition and realization of whose rights may require MCFD to undertake special measures and develop special programming
2. Replace the reference of prevention services in section 2(c) of the CFCSA, with a legislative provision that places a binding and measurable obligation on the Ministry to provide supports to keep families together who are at risk of having their children apprehended. The provision should place a positive obligation on the Ministry to take active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the child’s family. The courts must then be satisfied that these active efforts proved unsuccessful in keeping the family together.
3. Expand the list of supports under section 5 to include:
   1. improving the family’s financial situation;
   2. improving the family’s housing situation;
   3. improving parenting skills;
   4. improving child-care and child-rearing capabilities;
   5. improving homemaking skills;
   6. drug or alcohol treatment and rehabilitation;
   7. providing child care;
   8. mediation of disputes;
   9. self-help and empowerment of parents whose children have been, are or may be in need of protective services; and,
   10. transition supports for families who have just had a child apprehended or returned.

Recommendations for legislative reform

Recommendation 10: Strengthen the legal duty of the Ministry to consider less disruptive measures by:

1. Adding legislative language in the CFCSA that explicitly directs the Ministry to actively and diligently pursue and implement less disruptive measures on an ongoing basis;
2. Including a non-exhaustive list of less disruptive measures that the Ministry must consider on an ongoing basis including an order of preference of placements akin to that set out in section 16 of Bill C-92;
3. Adding legislative language in the CFCSA that directs the Ministry to establish in court that social workers have made active efforts that proved unsuccessful to return the child to their family;
4. Where parents and Nations have identified less disruptive measures, the CFCSA should direct the Ministry to provide prompt, clear, and written reasons for rejecting these less disruptive measures.