The legal context: Assessing the child welfare legislation from a rights-based framework

THE STATE’S POSITIVE OBLIGATION TO PROVIDE SUPPORTS PRIOR TO APPREHENSION

Recommendation 1: States should pursue policies that ensure support for families in meeting their responsibilities towards the child and promote the right of the child to have a relationship with both parents. These policies should address the root causes of child abandonment, relinquishment and separation of the child from his/her family by ensuring, inter alia, the right to birth registration, and access to adequate housing and to basic health, education and social welfare services, as well as by promoting measures to combat poverty, discrimination, marginalization, stigmatization, violence, child maltreatment and sexual abuse, and substance abuse.

The legal context: Assessing the child welfare legislation from a rights-based framework

THE STATE’S POSITIVE OBLIGATION TO PREVENT AND ADDRESS FAMILY VIOLENCE

Recommendation 2: States should allocate adequate resources to address risk factors and prevent violence before it occurs. Policies and programmes should address immediate risk factors, such as a lack of parent-child attachment, family breakdown, abuse of alcohol or drugs, and access to rearms. In line with the Millennium Development Goals, attention should be focused on economic and social policies that address poverty, gender and other forms of inequality, income gaps, unemployment, urban overcrowding, and other factors which undermine society

Recommendations for systemic reform

Recommendation 3: The BC Human Rights Commission should undertake a review/inquiry into MCFD culture, training, policies, procedures, practices, and accountability mechanisms to assess whether MCFD policy and practice is in line with the Human Rights Code.

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.”

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.

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.

Discrepancies in the delivery of child welfare services

INCONSISTENCIES IN SOCIAL WORKER PRACTICE STANDARDS

Recommendation 7: MCFD should collaborate with Indigenous peoples to create a formal plan for recruitment and retention of Indigenous MCFD staff, with clear principles, goals, milestones, and timelines.

Discrepancies in the delivery of child welfare services

INCONSISTENCIES IN SOCIAL WORKER PRACTICE STANDARDS

Recommendation 8: MCFD must review hiring and human resource policies to remove barriers for Indigenous applicants and make workplaces safe for Indigenous employees

Discrepancies in the delivery of child welfare services

INCONSISTENCIES IN SOCIAL WORKER PRACTICE STANDARDS

Recommendation 9: MCFD should consider the creation of specialized, equitably-resourced, Indigenous-specific teams as recommended by Jane Rousseau in Struggling toward Indigenous representation and service improvement within the BC Ministry of Children and Family Development