View source for Children and Families (Legal Information for Indigenous People)

== Child protection laws ==

'''The legal landscape of child protection law is changing in Canada.'''<BR>
It is important to know about the different laws that could apply to your situation. There are different laws to consider in a child protection case.

'''Federal:'''
''An Act Respecting First Nations, Inuit and Métis Children, Youth and Families'' (Bill C-92)

'''Provincial:'''
''Child, Family and Community Service Act'' (CFCSA)

'''Indigenous Laws:'''
Nations have Indigenous laws and traditions and many have or will be enacting their own child protection laws.

<BLOCKQUOTE>"The Federal Act requires that the Indigenous laws and traditions of a child’s own community be reflected in all aspects of caring for that child, even where the Indigenous community has not entered (or may not enter) a process to officially pass their own child welfare law."<BR>
'''– Ardith Walkem, ''Wrapping Our Ways Around Them'''''</BLOCKQUOTE>

The Federal Act:
* affirms the inherent right of Indigenous self-government, which includes jurisdiction in relation to child and family services,
* sets out national standards for the provision of child and family services in relation to Indigenous children, and
* sets out the best interests of Indigenous children, which includes factors such as:
** their cultural, linguistic, religious and spiritual heritage,
** the nature and strength of their relationship with their parents, care providers, or extended family, and
** the importance to the child of preserving their cultural identity and connections to the language and territory

The Federal Act also sets out the priority for placement of Indigenous children if necessary in the following order:
* One of the child’s parents.
* Another adult member of the child’s family.
* An adult from the same Indigenous community.
* An adult from another Indigenous group.
* Finally, any other adult.

==== Provincial law ====

Provincial child welfare law is called the ''Child, Family and Community Service Act'' (CFCSA). The ''CFCSA'' applies to all children in BC, on and off
reserve.

The Ministry of Children and Family Development (MCFD) as well as Delegated or Semi-Delegated Aboriginal Agencies administer child services under the ''CFCSA''.

If MCFD Social workers contact you with concerns about your child, it is important to get legal advice as soon as possible.

Social workers’ roles include investigating reports of child abuse or neglect and they have authority to remove children from homes if children are at immediate risk. Get support and learn about your rights.

You and your family also could have Band supports available:
* Under the ''CFCSA'', the MCFD must give notice to the Band when they become involved with a family.
* Each Band has a designated representative or equivalent who is supposed to be notified if the MCFD is contacting you.
* You can insist that your Band representative be present for any questioning, meetings with social workers or court proceedings.

==== When there is a conflict between laws ====
As a general rule:
* If the conflict is between federal and provincial law, the federal law prevails.
* If there is a conflict between the federal law and the law of the Indigenous Nation, the Nation’s law is paramount with some limitations.
* If there is a conflict between two Nations’ laws, the law from the community to which the child has stronger ties prevails.

Under the Federal Act, Provincial laws and policies continue to apply to the extent of a conflict or inconsistency with federal laws or Indigenous laws over child and family services. In which case, both the federal laws and Indigenous laws prevail over the ''CFCSA''. The Federal Act was enacted in part to ameliorate the “unreasonable infringement” of the Indigenous right to self-determination and the right to self-government over child welfare matters.

This is an evolving area of law.<BR>
For more information, seek legal advice.

'''Atira Women’s Resource Society: 604-331-1407 x.114'''

'''Email is volunteeradvocate@atira.bc.ca'''

'''Indigenous Community Legal Clinic: 1-888-684-7874'''