wrapping our ways around them · 2018-03-29 · 3 wrapping our ways around them aboriginal...

WRAPPING OUR WAYS AROUND THEMTHE CFCSA, ABORIGINAL COMMUNITIES AND PARENTS

PLAIN LANGUAGE GUIDE

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WRAPPING OUR WAYS AROUND THEM

WRAPPING OUR WAYS AROUND THEM:The Child, Family and Community Service Act (CFCSA), Aboriginal Communities and

Parents Plain Language Guidebook

A Project of:

The ShchEma-mee.tkt Project acknowledges the financial support

of the Law Foundation of BC and the Government of British Columbia.

To download copies of this Guidebook visit www.wrappingourways.ca

ACKNOWLEDGEMENTSEditorial Board: Don Bain, Cunliffe Barnett,

Romona Baxter, Ray Harris, Louise Mandell, QC, Crystal Reeves,

Debbie Abbott

Author: Ardith Walkem, QC

Research and Writing Assistance: Halie Bruce

Thank you to these people who helped with this Plain Language Guidebook:

Robyn Gervais, Linda Thomas, Laura Matthews, Joanna Recalma, Michael Kennedy, Pamela Shields.

Thank you also to the Legal Services Society for their support of

this work.

Text design by: Alice Joe (alicejoe.com)

Photo Credits: Nadya Kwandibens, Red Works Studio (redworks.ca)

WHAT IS THE CFCSA (CHILD WELFARE) PROCESS?.........................4

WHY SHOULD ABORIGINAL COMMUNITIES BE INVOLVED?.....................5

THE HUMAN RIGHTS OF ABORIGINAL CHILDREN................................7

WHO IS AN ABORIGINAL CHILD?...............10

STEPS WITHIN THE CFCSA PROCESS..........11

WHAT CAN ABORIGINAL COMMUNITIES DO?.............15

CONFIDENTIALITY AND DISCLOSURE.......16

CFCSA PROMISES TO PROTECT ABORIGINAL CHILDREN’S IDENTITY, CULTURE AND HERITAGE.............................17

TRADITIONAL AND ALTERNATIVE DISPUTE RESOLUTION (ADR)......................20

CHILD WELFARE COURT PROCESS.............21

APPENDIX—MAKING AN “ABORIGINAL PLAN OF CARE”..................25

TABLE OF CONTENTS

This Plain Language Guide is for information only. People/communities should consult a lawyer

about individual cases.

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Aboriginal Community Involvement can Help Protect Children and Heal Families

PARENTS

DIRECTOR - DELEGATED AGENCY—SOCIAL WORK T

EAM

A

BORI

GIN

AL COM

MUNITIES

Wrap Aboriginal laws and culture around children

Preserve a child’s Aboriginal identity and connections to

their community

Help heal families and

childrenKeep children

connected to their land, languages,

and culture

End the loneliness parents and children in the

child welfare process

Use Aboriginal decision making

Prevent kids from being lost in the system

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WHAT IS THE CFCSA (CHILD WELFARE) PROCESS?

The Child, Family and Community Service Act (“CFCSA”) is BC’s child welfare law. The CFCSA applies to all children in BC and is meant to protect children from abuse, neglect or harm or threat of harm, including from physical, sexual or emotional abuse.

1. Help to keep children healthy;

2. Keep children connected with their parents, family and community;

3. Help protect children in the long run.

The CFCSA sets out steps the Director must take when there is a child protection concern beginning with the “less intrusive ” (providing support to protect a child, while they stay in their home) to “most intrusive” (taking a child from their home). The CFCSA says that Aboriginal communities have the right to be involved in making decisions about their children and that Aboriginal children also have a right to have their Aboriginal community involved).

ABORIGINAL COMMUNITY INVOLVEMENT CAN

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WHY SHOULD ABORIGINAL COMMUNITIES BE INVOLVED?Aboriginal children are over-represented in BC’s child welfare system. Over 60% of all kids in care in BC are Aboriginal. This is too many.

COST TO ABORIGINAL CHILDRENAboriginal children raised in care have:

• Higher risk of addictions;• Higher risk of street involvement;• Higher chance of “aging out” of the

system with no permanent home or family; and

• Higher contact with the criminal justice and child welfare system in their own lives.

CULTURE HEALSWhen Aboriginal communities are involved in making child welfare decisions, it is more likely that a child will be placed with Aboriginal caregivers, and keep their cultural and community connections.

CULTURE SAVES LIVES. It is in Aboriginal children’s best interests to be connected to their Aboriginal culture.

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Solutions based on Indigenous laws could help to heal families, protect children and recover Aboriginal ways of caring for children.

INDIGENOUS LAWSIndigenous laws protected Indigenous children for thousands of years. Newcomers to Canada attempted to destroy those laws, including through Indian Residential Schools and the child welfare system.

DELEGATED AGENCIESDelegated Aboriginal agencies are created under provincial law and follow the same provincial law and policies as other MCFD offices. Delegated agencies deliver child welfare services with an Aboriginal focus and may have protocol agreements for how they work with Aboriginal communities.

A Delegated Aboriginal agency is not the same as the Aboriginal community and does not represent the community in child protection proceedings.

CFCSA Roles

THE CHILD, FAMILY AND COMMUNITY SERVICE ACT

(CFCSA)

PROVINCIAL GOVERNMENTMinistry of Children and

Family Development

DIRECTOR OF CHILD PROTECTION

MINISTER

REGULAR MCFD

OFFICES

DELEGATED ABORIGINAL

AGENCIES(with guidance from Aboriginal communitites)

SOCIAL WORKERS

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ABORIGINAL CHILDREN’S HUMAN RIGHTSWHO PAYS FOR CHILD WELFARE SERVICES FOR ABORIGINAL CHILDREN? Canadian governments often disagree about who should pay for child welfare services for Aboriginal kids. Aboriginal children and families on-reserve have received less funding and help than children and families off-reserve.

The Canadian Human Rights Tribunal said that Canada must provide equal funding for on-reserve children and families.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the United Nations Convention on the Rights of the Child (UNCRC) talk about Indigenous children’s human rights to:

• Maintain their unique cultural identity as Indigenous Peoples;

• Be heard in matters that impact them;• Aboriginal children have the human

right to preserve their cultural identity, and to be protected using Indigenous laws and traditions; and

• Be raised with and protected according to the laws of their Indigenous culture.

Under the CFCSA, children in care have rights to:

• Know their rights within the child welfare system;

• Have a say about plans of care and important decisions about their life;

• Help to preserve their culture; and• Help to contact the Representative

for Children and Youth or the Ombudsperson if they have concerns about their care.

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1. Help Aboriginal children talk about the importance of their Aboriginal culture.

2. Appear in court to argue for their own ways of protecting children or healing families.

3. Talk with social work teams or take-part in mediation, to keep children within their culture, and for culturally sensitive plans to help families to heal.

4. Appoint an advocate (such as an Auntie or Uncle advocate) to help children have their voice heard with social workers and in court – or help children get legal representation.

5. Help children to say who they want to keep connected with, including elders, aunts/uncles, other young people within their community, and how they want those visits to happen.

6. Help children talk about how they want to keep connected to their territory.

7. Help children or youth to ask for:{{ A review of their placement;{{ Consideration of other homes within their family or Aboriginal cultural community;{{ An administrative review of their file, or to file a complaint within the MCFD/Delegated Agency process;{{ A review where their Plan of Care is not being followed; or{{ Support from the Representative of Children and Youth.

ABORIGINAL COMMUNITIES COULD

CULTURAL ALIENATIONSometimes, where a child was raised in care or away from their home community (or their parent or grandparent was), they may not know about their Aboriginal culture or community.

Cultural alienation may result from years of a family’s involvement in Residential Schools and the child welfare system.

To protect the rights of a child who has been alienated from their Aboriginal culture, the child (or their family) should have a chance to learn about how they could become connected to their Aboriginal community, and what that might mean.

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WHAT IS AN ABORIGINAL COMMUNITY?The CFCSA regulations recognize the following Aboriginal communities:

• Indian Bands, First Nations, and communities with modern treaty agreements with BC (including Nisga’a, Huu-ay-aht, Ka:’yu:’k’t’h’/Che:k’tles7et’h’, Toquaht, Tsawwassen, Uchuklesaht, and Ucluelet) ;

• Other Aboriginal organizations, such as The Metis Commission for Children and Families of BC, Friendship Centres or other urban Aboriginal organizations.

MÉTIS CHILDRENMétis Nation British Columbia (MNBC) maintains a registry of MNBC citizens in BC. The MNBC follows the Powley test and to be registered as a citizen of MNBC, a person must apply and show that they (1) self-identify as Métis, (2) have an ancestral connection to an historic Métis community, and (3) are accepted by the contemporary Métis community.

People who identify as Metis but do not meet the MNBCs criteria are also served and accepted by the Metis Commission for Children and Families of BC.

Does a Child need to have Indian Status or be a Registered Member of a Band or First Nation?

No. Status or registration is not the same as belonging to an Aboriginal community. A child may be Aboriginal and recognized as a member by their community, but not have status.

Can a child have more than one Aboriginal community?

Yes: • Where the parents are members of different Aboriginal communities or Nations, a child may be part of more than one Aboriginal community. • To protect children’s best interests, it is important to keep children as connected as possible to all of their Aboriginal cultural community(ies).

Are all Aboriginal children who are of mixed ancestry Métis?

No. Being of “mixed” heritage is not the same as being Métis. Some children who have a parent or grandparent who is non-Aboriginal may call themselves “métis”, but having mixed heritage does not mean that they are members of the Métis Nation. For example, a child with one Nlaka’pamux parent would be considered Nlaka’pamux under Nlaka’pamux law, not métis.

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Who is An Aboriginal Child?

The child is registered or entitled to be under the Indian Act (Status)

or has a parent who

is registered.

The child is a citizen of the Métis Nation

orhas a parent who

is a citizen.

The child identifies as Aboriginal,

orhas a parent

who identifies as Aboriginal.

The child is a member of a modern treaty agreement with

BC (including Nisga’a, Huu-ay-aht, Ka:’yu:’k’t’h’/Che:k’tles7et’h’, Toquaht,

Tsawwassen, Uchuklesaht, and Ucluelet) or

has a parent who is a member.

The child or their parent self-identifies as Inuit

or the Inuit community recognizes the child

as a member.

First Nations, Métis, Inuit, Status and non-Status, on- and off-reserve children can all be

recognized as Aboriginal.

What can you do if the Ministry says a child is not Aboriginal?

You can ask the court to recognize the child’s Aboriginal culture.

Canadian law recognizes that someone is Aboriginal if: • A person says that they are Aboriginal, or their family says that they are Aboriginal. • An Aboriginal community recognizes the person or family as being Aboriginal; and • There is an historical connection between the person, family and the Aboriginal community.

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STEPS WITHIN THE CFCSA PROCESSREPORT, ASSESSMENT AND INVESTIGATIONWhen the Director receives a report that a child may be in danger, the Director must look into it. If the Director decides that a child may be in need of protection, they can:

• Enter into a “safety plan” to protect the child keeping them with their family, which could include an Aboriginal community;

• Allow the child to stay in their home under a “supervision order” with conditions that the parent(s) must follow; or

• Remove the child if they cannot safely stay in their home.

Parents who hear that a child welfare complaint has been made against them can:

• Apply for a legal aid lawyer as soon as they are aware of the complaint; and

• Ask their Aboriginal community to become involved.

AVOIDING SHORT-TERM PROTECTION AND LONG-TERM DAMAGE

Often, when we talk about child protection, it is only in the short-term. There are very real long-term risks when Aboriginal children are removed from their families and communities.

Aboriginal children are often left isolated and alone at the end of a child welfare process meant to protect them. Their ties to their families and cultures are broken and Aboriginal children often age out of care with no connections.

1. Educate community members about how Aboriginal community involvement can help to protect children and prevent them from being lost in the child welfare system.

2. Work with the Director to pre-approve community members as emergency foster homes, so that children are not removed from their communities when there is a protection concern.

3. Make an emergency plan with the Director and parents for what will happen if parents don’t follow the terms of a supervision order or safety plan.

4. Say where supervision terms won’t work or there are better options within the community.

5. Suggest other ways to help the family, such as traditional parenting classes, taking part in activities on the land, or traditional healing.

ABORIGINAL COMMUNITIES COULD

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1. Safety PlanAn informal agreement which talks about a child will be kept safe.

• Safety plans can last for a long time, and are often made without parents having a lawyer or their Aboriginal community involved. If a safety plan breaks down, this can quickly lead to more involvement of the Ministry in a family’s life. For example, all parties could agree on a safe place in the community for the children to stay as a “Plan B” so that the child is not taken from their community.

2. Support Services AgreementsThe Director could enter into agreements to pay for support services to help a family, such as counseling, home support, respite care, and parenting programs.

• The Director could enter into support services agreements with an Aboriginal community to help families.

3. Special Needs AgreementsA special needs agreement allows the Director to provide services to a child with special needs.

• Funding could be provided to Aboriginal community to provide services for children with special needs.

4. Extended Family Program (Formerly Kith and Kin Agreements)The Director can enter into agreements with important people in a child’s life, including people who are traditionally or culturally responsible for a child.

• Aboriginal communities can help identiy these people

5. Agreements with YouthThe Director can enter into agreements with youth to live independently.

• Aboriginal communities could help to re-connect Aboriginal youth with their cultures and communities, especially where youth were disconnected from their culture and family while in care.

TYPES OF VOLUNTARY AGREEMENTS

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REPRESENTATIVE OF CHILDREN AND YOUTHThe Representative for Children and Youth (RCY) can investigate whether services were provided as required under the CFCSA or help Aboriginal children to advocate for themselves. The RCY could support Aboriginal children to make sure that a child’s Aboriginal identity and cultural heritage are honoured within the child welfare process.

PRESENTATION HEARING

Once a child is removed, the Director must go to Court within 7 days to show that there is some evidence that a child is in need of protection. This is often the first Court appearance.

At a presentation hearing the Court can:

1. Return the child to their parent(s) with no conditions or with supervision conditions.

2. Make an interim (temporary) order placing the child under the care of the Director or other person.

3. Decide who can visit a child and how often, including for parents, grandparents, extended family members, or culturally important people to the child.

PROTECTION HEARINGAt a protection hearing, the Court decides if a child is in need of protection. Permanent custody decisions, with long term impacts, may happen at a protection hearing.

At a protection hearing, the Court can decide that a child:

1. Is not in need of protection and should be returned to their parent.

2. Remain with their parent(s) under a supervision order.

3. Be placed in custody of a person other than their parent, with the supervision of the Director.

4. Be placed in custody of the Director for a specified period of time.

5. Be placed in the continuing custody of the Director (“CCO”). A CCO legally puts the child in the permanent care of the Director and cuts off all parental rights (parents or others can apply for access after a CCO if they can show it is in the child’s best interests).

For information on orders that are possible at a presentation or protection hearing see

Legal Service’s Society (BC)’s Publication Parents’ Rights, Kids’ Rights.

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Aboriginal Communities and the Child Protection Process

Adapted with permission from the Legal Services Society of British Columbia.

Temporary supervision order

Temporary custody order (child in foster care)

PROTECTION HEARING

REPORT/ASSESSMENT/INVESTIGATION

Voluntary agreement or safety plan

No

Yes

PRESENTATION HEARING

Protection required?

Child removed?

Case closed

First stage at which notice

MUST be given to a child’s Aboriginal

community.

No notice currently required.

AT EVERY STAGE Aboriginal communities can say:• How removing a child from their cultural

connections puts them at risk over the long term;

• Steps necessary to help children keep their Aboriginal identity and cultural connections; and

• Request funding to help them attend Court or participate in planning (such as mediation).

REPORT AND INVESTIGATION STAGES• Assess child protection concerns in a

culturally sensitive way

PRESENTATION AND PROTECTION STAGESSet out an Aboriginal Cultural Preservation plan which identifies:• Alternate caregivers within a child’s

family or cultural community; • Steps that need to be taken to

protect child’s Aboriginal identity and heritage;

• Less disruptive measures to avoid removing a child from their family or Aboriginal community;

• Culturally appropriate programs and services;

• Issues related to access, including for members of a child’s extended family or other community members;

• Ways to keep the child in the home or within the family or community;

• Alternative permanency solutions which protect a child’s Aboriginal identity, culture and community connections.

VOLUNTARY AGREEMENTS• Strengthen supervision terms• Enter into agreements with the

Director to provide preventative or support services to the child or family

• Emergency plan for breaches of a supervision order

Continuing custody order (CCO)

(child in foster care permanently)

Director/delegated agency requests supervision order

Notice given to a child’s Aboriginal

community (if practicable).

Yes No

No supervision order Interim supervision order Interim custody order

(child is placed in foster care)

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IDENTIFY WAYS TO PROTECT A CHILD WITHOUT REMOVING THEMIf the Aboriginal community believes the child can be kept safe within the community or family, they can tell the social worker or Court about those options.

For example:

• Having an elder or other community members work with the family.

• Appointing “foster parents” to help teach parents how to parent.

• Removing unsafe people (including parents) so a child can stay within the home.

FIND HOMES WITH THE FAMILY OR ABORIGINAL COMMUNITY• Find people within the family or

community who can care for children so they can stay in the community.

• Help the Court and social workers to think about the long-term risks to Aboriginal children taken into care, and suggest alternatives to taking a child into care.

• Make a plan to keep the child culturally connected and involved.

WHAT CAN ABORIGINAL COMMUNITIES DO WHEN A CHILD IS INVOLVED IN THE CHILD WELFARE SYSTEM?

SUPERVISION• Identify ways for supervised visits

to take place in the community. For example, family or community members could supervise visits within the community.

ACCESS• Talk about who should be able to visit a

child beyond just parents and extended family.

• Plan for access visits when a child is placed outside of their community, including:{{ When visits will occur;{{ Safe people or places for supervised visits to occur in the community;{{ How the child, family or Aboriginal community can ask for visits; and{{ Transportation (how the parents, child or community members will get to and from the visits and how this will be paid for).

CULTURAL RESPITEIdentify people within the child’s cultural community who can care for them for shorter periods so that they can participate in cultural activities and get to know people within their culture.

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PERMANENCY UNDER ABORIGINAL LAWS AND TRADITIONSPermanency placements through custom adoption are common under Aboriginal law and could allow security for a child – with room for continued cultural and family connections – for Aboriginal children. Aboriginal communities can help to identify these options.

WHAT CAN THE ABORIGINAL COMMUNITY DO AFTER A CCO?A CCO places a child in the permanent care of the Director. Often, children lose contact with their family and extended Aboriginal culture after a CCO.

A child who has been placed under a CCO is very vulnerable. Aboriginal communities can fight to keep Aboriginal children connected to their Aboriginal culture.

Aboriginal communities could work with parents, extended family or community members to apply for access to a child who has been CCO’d and is under permanent care of the Director.

Where a parent or family has turned their life around, an Aboriginal community could support an application to cancel a CCO.

CONFIDENTIALITY AND DISCLOSUREIn the child welfare process, information is kept confidential to protect the dignity and privacy of children and families.

Confidential information about a family, or reasons for a protection concern, can be shared where it is necessary to plan for a child, or keep a child safe.

Sharing confidential information to help protect and plan for children can allow Aboriginal communities to help take steps to protect children.

Sometimes keeping information completely confidential can hurt children because it prevents sharing of information that Aboriginal communities need to act to protect their children.

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• Aboriginal children and youth have the right to have their Aboriginal identity and cultural heritage protected.

• Aboriginal communities have the right to help plan and care for their child members according to their own laws and traditions; and

• Aboriginal children have the right to have their community involved in protecting them according to their own laws and traditions.

Aboriginal identity is a sense of belonging with cultural, social and historical roots. A child has a right to their own cultural identity, not to a generic pan-Aboriginal identity (for example, a Nlaka’pamux child requires connections to the Nlaka’pamux community).

Plans of Care should be Living Agreements“As long as the sun shines, grass grows, rivers flow.” Aboriginal children, families and Nations live and grow—and care plans should too.

Aboriginal communities could regularly review plans of care to see what might have changed or what needs to change to keep a child connected to their culture.

PLAN OF CAREThe Director must present a plan of care to the Court when they take a child into care. The plan of care must talk about:

• The child’s views on the plan of care, if they have been asked;

• If the child’s Aboriginal community helped to make the plan of care, and what they think of it;

• How the child’s relationships will be maintained, including with parents, family and friends;

• How the placement preferences for Aboriginal children under the CFCSA were followed;

• If the Director is applying for a permanent CCO, how they plan to meet the child’s need for permanent stable relationships; and

• A schedule for review of the plan of care.

CFCSA PROMISES TO PROTECT ABORIGINAL CHILDREN’S IDENTITY, CULTURE AND HERITAGE

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1. Ways to help a family to heal the problems that have led to the child protection concern.

2. Family or community members that could take care of the child to keep the child within their family, community, or nation when they cannot stay with their parent(s).

3. People who could mentor the parents where Aboriginal parents cannot safely parent on their own, but could if they had support.

4. Ideas to care for children that reflect Aboriginal traditional parenting or other ways of caring for children across several families or homes.

5. How a child can participate in cultural activities while in care, such as language classes, gathering activities, spiritual or cultural celebrations, community dinners or sporting events.

6. Family or community members that play an important role in the child’s life (such as elders or extended family members), and a plan for how to protect those relationships.

7. Elders, cultural or spiritual supports who can work with the child or family on traditional wellness or healing.

8. Alternative or traditional decision-making processes that the Aboriginal community wants to use to plan for the child or to address protection concerns.

AN ABORIGINAL COMMUNITY COULD PRESENT THEIR OWN ABORIGINAL CULTURAL PRESERVATION PLAN WHICH TALKS ABOUT:

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s.2 Guiding

Principles

Decisions made about a child should consider that(e) kinship ties and a child’s attachment to the extended family should be preserved if possible; (f) the cultural identity of Aboriginal children should be preserved;

s.3

Service Delivery

Principles

(b) Aboriginal people should be involved in the planning and delivery of services to Aboriginal families and their children; (c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services;

s.4 Best Interests

of Child

(1) (d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (e) the child’s cultural, racial, linguistic and religious heritage; (f ) the child’s views;(2) If the child is an Aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining the child’s best interests.

s.35

Presentation Hearing

(and Regulation s. 7.2(h))

The director must provide a report to court that includes an interim plan of care about the steps to be taken to preserve the child’s Aboriginal identity.

s.42

.1

Protection Hearing

(and Regulation s. 8)

The Director must provide a report to court that includes an interim plan of care, including the steps to be taken to preserve the child’s Aboriginal identity, and that a child’s plan of care include the involvement of the child’s Indian band/Aboriginal community and a description of how the Director plans to meet the child’s need for continuity of the child’s cultural heritage.

s.70 Rights of

Children in Care

Requires that children in care have the right to receive guidance and encouragement to maintain their cultural heritage.

s.71 Placement

Preferences

Priority placement for an Aboriginal child:• With the child’s extended family or within the child’s Aboriginal cultural

community;• With another Aboriginal family, if the child cannot be safely placed within

their extended family or community; or• If placing the child within their family, cultural community or another

Aboriginal family is not possible, where the child can remain in contact with siblings, relatives and friends; or where they can stay in the same school.

The CFCSA promises to maintain, preserve and protect a child’s Aboriginal cultural identity.

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TRADITIONAL AND ALTERNATIVE DISPUTE RESOLUTION (ADR)

Aboriginal communities can be involved in discussions outside of Court (including mediation, case conferences or traditional processes) to protect a child’s Aboriginal identity and cultural heritage.

FAMILY GROUP CONFERENCESA family group conference (FGC) or AFGC (Aboriginal Family Group Case Conference) is a informal decision-making process that invites parents and caregivers, extended family and the child’s Aboriginal community, to come together to plan for a child.

FGCs are family focused and so may not fully reflect an Aboriginal community’s role and responsibilities. The Director has ultimate authority to approve a plan.

MEDIATIONIn mediation, a neutral third party (a mediator) helps the parties to talk about the child protection concerns and maybe come to an agreement.

Mediation offers Aboriginal communities a chance to share their ideas and address any misunderstandings between the parties.

Aboriginal communities could:

1. Ask for mediation to occur on their territory or a place that is culturally safe for the family.

2. Choose a mediator with knowledge about the child’s Aboriginal culture, traditions, and community.

3. Consider asking for a co-mediator from within their community or culture.

Under Section 22 of the CFCSA, Aboriginal communities can ask for an “alternative dispute resolution mechanism”, including one that reflects their own traditions.

Aboriginal communities could:

1. Ask the Court to have their own traditional dispute resolution processes used to address child protection concerns and to plan for their children. (You should say what this is, and how you see it operating.)

2. Propose a process that blends traditional decision-making processes with mediation to create a model that involves Aboriginal elders, community and family members, and the child, working together with the Director and legal counsel.

PROPOSING A TRADITIONAL DECISION MAKING PROCESS

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NOTICE AND ABORIGINAL COMMUNITY INVOLVEMENTThe CFCSA requires the Director to let Aboriginal communities know (provide “notice”) when one of their child members is taken into care. If an Aboriginal community officially appears in Court, they become a legal “party” to the proceedings.

Legal party status allows the Aboriginal community to:

• Participate in Court;• Receive information about the child

protection concern (“disclosure”);• Speak in Court;• Call witnesses; and• Participate in case conferences or

alternative dispute resolution processes.

The best practice is for the Aboriginal community to appear in Court whenever one of their child members is taken into care.

GOING TO COURT

The earlier an Aboriginal community becomes involved, the more they can do to protect their child members’ cultural identity and connections.

GOING TO COURT

Going to CourtAppearing in Court can be scary. The provincial Court (where CFCSA matters are heard) is known as the “peoples’ Court” and has relaxed rules so that people (or Aboriginal communities) can talk for themselves if they do not have a lawyer.

To make an official legal “Appearance” does not simply mean being in the courtroom. A representative of the Aboriginal community must tell the Judge that they want to be on the record as appearing on behalf of the Aboriginal community.

“My name is ____________ (spell your last name) and I am here representing the [Aboriginal community]. The child(ren) is/are members of our community and we are appearing as a party in this matter.”

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WHAT IF YOUR ABORIGINAL COMMUNITY CANNOT ATTEND COURT?If your community wants to be involved but Court is too far away (or you cannot afford the travel), your Aboriginal community still has a legal right to be involved (and your kids have the right to have you involved in helping to care for them).

You could:

1. Tell the social worker (and a lawyer for a parent or the Director) that you want to participate by video- or tele-conference. Do this as soon as possible, as plans need to be made to have a teleconference or videoconference.

2. Write out your preferred plan for the child, or other concerns, and send it to the Registry to be brought to the Court’s attention (send also to the social worker, lawyer for parents and the Director and ask that they bring it to the judge’s attention).

3. Ask that a traditional dispute resolution process that reflects your Aboriginal community’s traditions and involves your community, or mediation, be used to plan for the child.

EXPLAINING HOW CULTURAL CONNECTION IS IN A CHILD’S BEST INTERESTUsually when you want to ask the court to make a decision, you have to file a form, but the provincial court has relaxed rules so you can make an application or tell the judge what you would like the judge to do.

You say how it is in the child’s best interests. You could say what you are asking for (for example, a traditional ADR process or increased access visits) and then say how this is in the child’s best interests because it will:

• Help the child(ren) keep connected to their Aboriginal cultural heritage and identity;

• Protect the child’s relationships with their family, elders, or other members of their Aboriginal community;

• Allow the child(ren) to maintain their spiritual and religious identity as a member of the Aboriginal community/ First Nation.

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ADVOCACY SCRIPTS

IF YOU WANT SAY THIS

Access visits to a child We are asking for access visits to the child(ren):

1. Who the visits are with2. When and where the visists will occur (for example, “every second weekend

at Auntie Y’s house;”or “each Thursday at the parent’s home from 4:30-8:00”)3. How the children and others involved in the visits will travel to and from the

visits4. If visits are to be supervised, how that will happen (for example, “the

community social worker supervise the visits,” or “visits will occur at the home of Uncle Y who will supervise the visits”)

5. How any costs associated with the visits will be covered, including who will pay for travel, meals, supervision (Director, Aboriginal community, family)

6. How access visits are in the child’s best interests because they

� help the child(ren) to maintain their connection to their Aboriginal cultural heritage and identity

� maintain the child’s relationships with extended family members, elders, or other members of their Aboriginal community

� allow the child(ren) to maintain their spiritual and religious identity � Other reasons you think that the access visits are important for the child

(list): _________________________________________________

Disclosure (s. 64 or 79)

We are asking for an order for disclosure (ss. 64 and 79)

“To fully and effectively participate in the planning for the care of the child(ren) and to help to ensure their safety and well-being the ________________ Aboriginal Community/First Nation requires disclosure of all relevant facts about the protection concerns to take an informed position in these court proceedings, and to act to ensure the safety of the children.” [Can also send as a letter to the lawyer for the Director]

To add the Aboriginal community as a party to a proceeding (s. 39(4))

If an Aboriginal community is not automatically added as a party after they appear in court, they can ask the judge to add the Aboriginal community as a party and say why this is in the best interests of their child members because it keeps the community involved and helps to protect their Aboriginal cultural identity.

24


If there is a question about whether the child is Aboriginal

1. I am the Chief; Elected Councilor; Social Development Worker; or (Elder/member/etc.) _________________ of the _________________ Aboriginal community/First Nation.

2. Say how the child is related to your community, and that your community recognizes recognize this child as a member of our your community.

3. The __________________ First Nation/Aboriginal Community makes this application for an order that: “The __________________ First Nation added as a party to this proceeding under section 39(4) of the Child, Family and Community Service Act.”

To allow parties to appear by, or for CFCSA proceedings to be conducted by, telephone (Rule 1(7))

1. We are asking to allow the ________________________ Aboriginal community/First Nation, to appear by teleconference (Rule 1(7)) at all future hearings regarding this matter.

2. This is in the child(ren)’s best interests because otherwise the _________________ Aboriginal Community/First Nation cannot fully participate in planning for the care and safety of the child(ren) due to the distance and cost of travel to attend hearings.

Ask the court to consider your own Aboriginal plan of care for a child in temporary or permanent custody.

1. We are asking the Court to consider the Plan of Care we are submitting because:• It is in the best interests of Aboriginal children that their Aboriginal

community be fully and actively involved in planning for their care, • and that their Aboriginal identity, culture and relationships within their

cultural community and extended family be maintained.

2. The _____________________ Aboriginal Community/First Nation has identified the steps that should be taken, or resources relied on, to preserve the child’s Aboriginal culture and identity and set these out in the Plan of Care.

ADVOCACY SCRIPTS, CONTINUED

25


APPENDIXQUESTIONS TO ASK IN MAKING AN “ABORIGINAL PLAN OF CARE”

(a) Cultural factors that need to be included in a child’s plan of care (specific steps for a child to participate in cultural activities, such as language classes, gathering activities, spiritual or cultural celebrations, community dinners or sporting events, or other activities): ____________________________________________________ ____________________________________________________________________

(b) Cultural or community supports or programs within your Aboriginal Community/First Nation to assist the family in addressing protection concerns: ____________________________________________________________________

(c) Less disruptive means than removal to keep families together (including culturally-based resources within the community) that should be explored, or potential alternate caregivers within the child’s cultural community or extended family, that could take care of the child on a temporary basis while the child protection matter is addressed or, on a permanent basis, if necessary: _________________________ ____________________________________________________________________

(d) Family or community members that play an important role in the child’s life (such as elders or extended family members), and a plan for for how to maintain those relationships: ________________________________________________________ ____________________________________________________________________

(f) Elders, cultural or spiritual supports from within the nation who can work with the child or family within a traditional wellness or healing model: ______________ ____________________________________________________________________

(g) Alternative or traditional decision-making processes – including those based in Aboriginal traditions – that the Aboriginal community wants to use, as allowed under s. 22 of the CFCSA: ______________________________________________ ____________________________________________________________________

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wrapping our ways around them · 2018-03-29 · 3 wrapping our ways around them aboriginal...

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