Indigenous Children in Care Need a Voice in our Courtrooms

  • August 01, 2018
  • Frances Rosner

Do you act for parents from First Nation communities and struggle with how to have the views of the children heard in our courts? Have you tried unsuccessfully to have counsel appointed for children when they have been removed from their families and communities so that their interests are adequately represented in decisions that will determine their futures? Indigenous children involved in the child welfare system are among the most vulnerable sector of society due to impacts from colonization that gave rise to childrens’ removal, lack of resources to support families to stay together, and the challenges endemic to the foster-care system. Once a child is removed from their parents, there is a real risk that critical bonds will be broken and the child’s connection to their family, community and culture will be fractured or permanently severed. These consequences are discussed at length in Grand Chief Ed John’s final report – Indigenous Resilience, Connectedness and Reunification – From Root Causes to Root Solutions: A Report on Indigenous Child Welfare in British Columbia and the Truth and Reconciliation Commission Final Report.

Decisions are made every day about where children will reside, how their daily needs will be met, and how important connections will be preserved – but are those decisions being made with meaningful involvement of children? Although there are capacity considerations with children, this does not negate the need to consider their viewpoints, especially for adolescent children. When parents, families and communities are taken out of the mix, a social worker is assigned to manage the child’s plan of care and that social worker becomes the gatekeeper of information concerning the child’s well-being. The Child, Family and Community Service Act (“CFCSA”) sets out that the child’s views should be taken into account regarding decisions affecting him or her. But, the language is permissive and there is no statutory provision to ensure that the child’s views will, in fact, be considered.

In a system that lacks financial resources, do social workers have the necessary tools and resources to provide adequate management and oversight of children? Who will speak out on behalf of children when the system falls short of meeting their emotional, psychological, physical and cultural needs? As child protection lawyers, we are often told that there are not enough resources to support frequent and regular access to parents, siblings and extended family members; there is a lack of supervisors available to supervise visits; there is a lack of transporters available to transport children to visits; and there is a lack resources to ensure children attend important cultural events in their communities. But, as parent’s counsel, we are not privy to the full breadth of shortcomings that may adversely impact the child in care.

What happens when gaps in resources serve as a real barrier to giving effect to the CFCSA guiding principles concerning best interests of the child? What happens when there is a real difference or disconnect in viewpoints between the social worker and the child? What rights does that child have under the CFCSA to have his or her voice heard in a court of law? British Columbia is lagging significantly behind other jurisdictions that have statutory safeguards in place protecting the rights of children to be heard. Currently, there is no statutory right to counsel under the CFCSA and therefore access to justice for Indigenous children is hindered. The voices of children in care matter and need to be heard; if children were given a voice, it may cause all stakeholders to do their jobs differently. At the very least, it would lift the veil of silence on BC’s most vulnerable children.

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.