OCCAS CONFERENCE September 25 & 26, 2003 ALTERNATIVES TO COURT: CUSTOMARY CARE CUSTOMARY CARE

PRESENTERS: Karen Hill & Andy Koster

FIRST NATIONS CHILD WELFARE: EARLY HISTORY

RESIDENTIAL SCHOOLS BNA made First Nations people ‘wards’ BNA made First Nations people ‘wards’ of the federal government Therefore Native children became ‘eligible’ to attend federally funded schools, and the Indian Act was modified to make school attendance compulsory Therefore Native children became ‘eligible’ to attend federally funded schools, and the Indian Act was modified to make school attendance compulsory For almost a full century Aboriginal children were systemically removed from their communities. For almost a full century Aboriginal children were systemically removed from their communities. The primary focus of these schools was religious indoctrination, not education The primary focus of these schools was religious indoctrination, not education The last residential school closed in 1984 The last residential school closed in 1984

The 60’s Scoop The Canada Assistance Plan (1966)resolved issues of jurisdiction, by delegating Provincial authority on Indian reserves. The Canada Assistance Plan (1966)resolved issues of jurisdiction, by delegating Provincial authority on Indian reserves. Prior to this 1% of children in care were First Nation Prior to this 1% of children in care were First Nation By 1977, 20% of all children in care across Canada, were of First Nation origin – this rose to as high as 65% in some jurisdictions By 1977, 20% of all children in care across Canada, were of First Nation origin – this rose to as high as 65% in some jurisdictions Few children were placed in Native care, and we are left to heal the trauma experienced by many Aboriginal children. Few children were placed in Native care, and we are left to heal the trauma experienced by many Aboriginal children. Our children were placed in unmonitored foster or adoptive situations with non-Native care providers, who at best failed to meet the cultural need of these children, and at worst abused and neglect them. Our children were placed in unmonitored foster or adoptive situations with non-Native care providers, who at best failed to meet the cultural need of these children, and at worst abused and neglect them.

FIRST NATION RESPONSE The 1969 White Paper policy was perceived by many Native people to be the articulation of a prolonged, systemic assault on culture and aspirations of the Aboriginal community. The 1969 White Paper policy was perceived by many Native people to be the articulation of a prolonged, systemic assault on culture and aspirations of the Aboriginal community. From the Native perspective – it called for cultural genocide, and they rejected this goal absolutely. From the Native perspective – it called for cultural genocide, and they rejected this goal absolutely. First Nation people organized politically and begin to lobby for protection of their cultures and their communities. First Nation people organized politically and begin to lobby for protection of their cultures and their communities. First and foremost, was the protection of our children. First and foremost, was the protection of our children. In Ontario, the Aboriginal community lobbied for the protection and safeguards against the loss of their children to child welfare authorities. In Ontario, the Aboriginal community lobbied for the protection and safeguards against the loss of their children to child welfare authorities. Through these efforts, we saw the inclusion of Part X to the CFSA. Through these efforts, we saw the inclusion of Part X to the CFSA.

CFSA – PART X The underlying principal of this part was to provide a mechanism whereby First Nations communities in Ontario could have a voice and role in deciding the futures of their children.

CFSA PART X: KEY PROVISIONS Ensuring First Nations communities had the right to legal representation in child welfare legal proceedings Ensuring First Nations communities had the right to legal representation in child welfare legal proceedings Directing that where possible Native children be placed in Native homes. Directing that where possible Native children be placed in Native homes. Establishing Aboriginal representation on CAS boards of directors. Establishing Aboriginal representation on CAS boards of directors. First Nations communities be given the authority to build capacity to develop their own child welfare service First Nations communities be given the authority to build capacity to develop their own child welfare service Recognized the principal of Customary Care Recognized the principal of Customary Care

Why Customary Care?

Customary Care vs. Formal Care F.N. ‘ownership’ of issues related to their children and families F.N. ‘ownership’ of issues related to their children and families Families remain vested and involved in the lives of children. Families remain vested and involved in the lives of children. Involves the broader First Nation community in planning. Involves the broader First Nation community in planning.  Provides formalized, predictable process of child care.  Children can move to permanency more readily. Planning is more efficient as it usually involves only the internal resources of an agency.

Customary Care vs. Formal Care Children remain integral parts of their families and communities. Children remain integral parts of their families and communities. Increases placement options. Increases placement options. Enhances the relationship between First Nations and the broader child welfare community Enhances the relationship between First Nations and the broader child welfare community Supports the long term needs of Aboriginal children Supports the long term needs of Aboriginal children Children remain in dysfunctional situations and remain at risk. Culturally appropriate placement are at a premium Contributes to the mistrust and tension that exist between many child welfare agencies and the Native communities they serve. One of the key contributors to dysfunction within Aboriginal communities

Broader Rationale Provided for in Part X of CFSA Provided for in Part X of CFSA Panel of Experts recommended that changes to CFSA be deferred to recommendations of Aboriginal child welfare review Panel of Experts recommended that changes to CFSA be deferred to recommendations of Aboriginal child welfare review The Aboriginal Child Welfare Review resoundingly supported the inclusion of a Customary Care option for those Native children needing out of home placement The Aboriginal Child Welfare Review resoundingly supported the inclusion of a Customary Care option for those Native children needing out of home placement Avoids the duplication of the systemic removal of large numbers of Aboriginal children Avoids the duplication of the systemic removal of large numbers of Aboriginal children

WORKING WITH THE ABORIGINAL COMMUNITY WHO’S … WHO??

BAND REPRESENTATATIVE Mechanism within Part X, which entitles Bands to representation in legal proceedings. Mechanism within Part X, which entitles Bands to representation in legal proceedings. Limited funding available through DIAND, most recently suspended, pending outcome of a review. Limited funding available through DIAND, most recently suspended, pending outcome of a review. Most First Nation communities do not have a dedicated position/person, so knowledge and experiential levels vary. Most First Nation communities do not have a dedicated position/person, so knowledge and experiential levels vary. Some training is available through ANC&FS. Some training is available through ANC&FS. Few administrative supports available to support a legal a response. Few administrative supports available to support a legal a response.

Chief & Council Elected representatives of First Nations communities. Elected representatives of First Nations communities. Can issue a BCR designating a representative to legal proceedings. Can issue a BCR designating a representative to legal proceedings. May intercede/advocate on behalf of parents (Band members) May intercede/advocate on behalf of parents (Band members) Have authority to declare a placement a Customary Care placement Have authority to declare a placement a Customary Care placement Can sometimes view child welfare situations as political. Can sometimes view child welfare situations as political.

Band Service Providers Can assist in supporting caregivers in effecting necessary change. Can assist in supporting caregivers in effecting necessary change. Can mediate concerns between CAS and parents Can mediate concerns between CAS and parents Can advocate on behalf of parents Can advocate on behalf of parents Are accountable to Band Councils Are accountable to Band Councils Can provide information around resources/strategies in meeting needs of children and families. Can provide information around resources/strategies in meeting needs of children and families.

Extended Family Can provide support to family member(s) involved with child welfare. Can provide support to family member(s) involved with child welfare. Note: This support can be a positive or negative influence Can provide placement options for Customary Care Can provide placement options for Customary Care Should continue to play an integral role in child’s life, regardless of outcome with primary caregivers. Should continue to play an integral role in child’s life, regardless of outcome with primary caregivers.

Elders/Spiritual Leaders Provide support to caregiver(s) in effecting necessary change. Provide support to caregiver(s) in effecting necessary change. Provide advice to service providers – including child welfare authorities in how to proceed. Provide advice to service providers – including child welfare authorities in how to proceed. There is presently a vacuum with regard to Elders, so legitimacy can be of issue in some cases. There is presently a vacuum with regard to Elders, so legitimacy can be of issue in some cases.

Factors in Working with First Nations Communities May encounter ambivalence around May encounter ambivalence around around leadership Politicians may be involved in service issues, due to history of child welfare Politicians may be involved in service issues, due to history of child welfare Band Service Providers may have aBand Service Providers may have a issues of ownership related to clients, due to exclusion of them in decision making of CAS’s

Factors in Working with First Nations Communities Significant extended family involvement. Significant extended family involvement. Caregivers may have legal involvement beyond child welfare matters. Caregivers may have legal involvement beyond child welfare matters. The resource issue is a key factor in terms of planning for both treatment and access provisions for caregivers. The resource issue is a key factor in terms of planning for both treatment and access provisions for caregivers. There is a high degree of diversity within the Aboriginal community, both between communities, and in terms of individual orientation and identification with Native culture. There is a high degree of diversity within the Aboriginal community, both between communities, and in terms of individual orientation and identification with Native culture.

Customary Care: What are Key Component?

Customary Care Components All parties need to be in agreement All parties need to be in agreement Need to conduct an assessment of proposed placement, to ensure safety of child, as well as capacity of proposed caregivers to meet child’s needs. Need to conduct an assessment of proposed placement, to ensure safety of child, as well as capacity of proposed caregivers to meet child’s needs. Need to explore the dynamics and history of extended family relationships. Need to explore the dynamics and history of extended family relationships. Need to ensure proposed family is fully briefed and prepared to deal with child behaviours Need to ensure proposed family is fully briefed and prepared to deal with child behaviours

Customary Care Components Need to extend a high level of support, as well as mediation to Customary Care placement, this could involve formal counselling and support services. Need to extend a high level of support, as well as mediation to Customary Care placement, this could involve formal counselling and support services. Need to commit to regular monitoring of child in placement, to facilitate identification and resolution of problems as they arise. Need to commit to regular monitoring of child in placement, to facilitate identification and resolution of problems as they arise. Need open communication among all parties around monitoring and ensuring compliance around terms and conditions of placement. Need open communication among all parties around monitoring and ensuring compliance around terms and conditions of placement. Need to build in regular review of agreement, and be prepared to amend as necessary. Need to build in regular review of agreement, and be prepared to amend as necessary.

The End