Last week, we wrote about a child guardianship case in which Mincher Koeman is representing an intervenor First Nation, the Káínawa Blood Tribe, in an attempt to prevent the granting of permanent guardianship over a young boy born to a member of the Tribe to the applicant Caucasian caregiver. The Blood Tribe’s stance is that in accordance with the principles codified in An Act respecting First Nation, Inuit and Métis children, youth and families, private guardianship should never be granted over a First Nation child to a person or persons outside of the child’s Nation.

The history of the foster and guardianship system over Indigenous and First Nation children has been rife with problems dating back to colonization. The influence of colonization especially took hold with the creation of Canada’s residential school system, as well as in the mass child intervention affecting Indigenous and First Nation children in the 1950’s and 1960’s, now known as the Sixties Scoop.

As a result, thousands of children were taken from their homes and raised by institutions and families outside of their community, severing their ability to learn about their own heritage, and contributing to mass assimilation. To this day, First Nation children make up a disproportionate percentage of the children in Alberta’s child protection system. Despite a number of changes put into place at the federal and provincial level to address the treatment of Indigenous children in care, Nations continue to assert their stance that these practices must continue to evolve so that Nations themselves have control over the placement and care of children from their communities.

One of the key changes these Nations are seeking is the end of the private guardianship system, which allows children to be placed in the permanent care of families and individuals who have no connection to a child’s Nation. Below, we will outline the First Nation position on private guardianship in general, and how foster parents can help support this position by working with First Nations to maintain a child’s connection to their culture with as little interruption as possible.

System Still Operating Based on Standards Set During Residential School System and Sixties Scoop

Indigenous children have been forcibly taken from their birth families and their communities and required to assimilate to a life previously unknown to them, since colonization. These issues became especially pervasive with the creation of Canada’s Residential School System, which took First Nation children from their homes, forcing them to live at schools largely run by Caucasian leaders who followed a faith that had no connection to the children’s various communities. At best, these children were forced to lose touch with their culture, community, and family in favour of assimilating. At worst, they were subjected to abuse, mistreatment, and further untold trauma.

In the Sixties Scoop, the colloquial term used to refer to a number of policies that were implemented in Canada by various provincial child welfare agencies, which resulted in thousands of First Nation and Indigenous children taken from their homes and placed in the care of Caucasian families. As a result of these policies, the children affected lost all connection to their culture, their traditional languages, and even their names.

While these practices have since been condemned and governments across the country are still working to remedy the damage they caused, they continue to influence ongoing child protection laws in Canada.

The practices may look different, but children are still taken from their communities, and are still being required to assimilate with families that have no knowledge of the child’s culture or heritage. Practices such as private guardianship continue to take place with little concern for preserving a child’s cultural security or fostering the child’s connection to their birth family and their community.

Private Guardianship Seen as Way to Circumnavigate Moratorium on Adoption

Mincher Koeman is working with First Nations in Alberta to bring an end to the practice of private guardianship in the province. While policy and decision-makers attempt to interpret legislation such as the Child, Youth and Family Enhancement Act so as to consider the importance of an Indigenous child’s community in all decisions affecting that child, the system is still largely flawed. Considering a child’s culture as one aspect of a child’s best interests is simply not sufficient to provide that child with cultural security in the child protection system.

Most people in positions of authority charged with making decisions which determine where a child will live and who will be entrusted with their care are viewing these issues from an inherently Eurocentric perspective. As a result, the current practices continue to promote attachment to non-Indigenous caregivers, causing impacted children to lose valuable and much-needed connections to their own communities.

Family, heritage, and community are fundamental tenets of various First Nation communities and cultures. Cultural connections exist not only between parent and child, but between a child and their entire Nation. This connection provides the primary system of support for these children, and it is not supported by the current interpretation and application of legislation such as the Child, Youth and Family Enhancement Act.

The ability of a Nation to have adequate say over the care of its own children will never be cemented as long as the province continues to assume jurisdiction over the decision-making process. Further, it is the position of many Nations that the practice of private guardianship, which has been sought since a moratorium was placed on the adoption of Indigenous children by non-Indigenous caregivers, is extremely harmful. Private guardianship operates as a de facto adoption of the child, which is in direct violation of the moratorium on the practice. As a result, many Nations are working to end this practice outright and in the meantime, will continue to object to any application by a non-member of a Nation who is seeking private guardianship over a child belonging to said Nation.

Foster Parents Can Work with Nations to Support Their Position

While many non-member caregivers have the best of intentions with respect to Indigenous children in their care, nobody who is not a member of a given Nation can hope to truly understand the requirements of an Indigenous child to develop a connection and grow up with an understanding of the values, practices, and beliefs associated with their culture. The hope is that foster parents will understand ongoing objections to individual private guardianship requests and will take an active role in helping to foster a child’s community and family connections for any children in their temporary care. Ongoing and regular communication between a caregiver and a Nation’s members, elders, and the child’s birth family are the only way to help keep those connections strong while a child is placed outside of their community, and until they can return.

Contact the Lawyers at Mincher Koeman for Assistance with Indigenous Guardianship Issues in Calgary

At Mincher Koeman, we have devoted a portion of our practice specifically to working with local Indigenous communities on matters concerning child protection, guardianship applications, and the Kinship Care Program. We recognize the harm that Canada’s practices respecting child protection matters have caused to Indigenous children and their communities, and we work to represent their interests to preserve Nation autonomy and ensure children are not forced to disconnect from their culture even when they can no longer remain in the care of their birth parents.

Our family law lawyers have considerable knowledge of the inner workings of Alberta Child Services and as such we will provide insightful and accurate advice regarding guardianship orders, particularly as they pertain to First Nations children. We are committed to protecting the needs of Indigenous children who have been removed from an unsafe home environment while ensuring that they don’t lose connection to their culture and identity in the process.  Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.

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Calgary, AB T2P 3H6

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