Recent reminders of the over-representation of First Nations children in child welfare services and of those services’ shortcomings and harms have come from the courts, a public inquiry in Quebec and Parliament. At the same time, jurisdictional wrangling persists about who should be running such services, with Quebec and Ottawa disputing how much authority can be transferred to Indigenous communities. A recent study in which I was involved supports Indigenous communities running these services for themselves.

Our small-scale study, done collaboratively with the Native Women’s Shelter of Montreal, strongly suggests the limits of the colonial state’s system, favouring instead the empowerment of Indigenous communities. We interviewed lawyers, social workers and judges who have worked with Indigenous families to hear their views on the experience for Indigenous parents. The shelter suggested that we speak with experienced professionals, because it was interested in their views on possible improvements to legal procedures. Hearing directly from Indigenous parents would be another valuable initiative.

Stealing “Indian” human rights in 2021

The long history of discrimination against First Nations children

Our participants cast Indigenous parents’ dealings with child welfare and the youth courts in overwhelmingly negative terms. They work in a system that they concede to be broken and harmful. They spoke about child welfare’s colonial impact and Indigenous parents’ feelings of defeat, shame and mistrust when dealing with it.

One of the lawyers we interviewed (we provided all participants with anonymity) said mistrust is still present despite widespread talk about reconciliation, forgiveness and making amends: “It’s like it’s too little, too late,” the lawyer said. “There’s a huge mistrust of the white person, there’s a huge mistrust of the system, there’s a huge mistrust of social workers.”

Mistrust also emerged on the part of potential fosterers. Our participants raised the potential gains of placing children in Indigenous foster families and giving authority to run child welfare to Indigenous communities. Although “plac[ing] a child in a white foster family is terrible,” the lawyer said there are severe obstacles in recruiting foster families from Indigenous communities.

A social worker we interviewed reported that “a lot of times people are, like, I would love to foster but I just don’t want to have the involvement of DYP [the director of youth protection] in my life.”

Interviews proved consistent with observations that Indigenous families who are engaged with the system often feel as though their experiences, perspectives and needs are given less credence than those of the state’s social workers.

Another lawyer said they feel often that the Indigenous parents “don’t really know how to testify” or “how to explain themselves.” It was observed that the mothers rarely “feel confident enough to explain their point of view” in front of the judge.

A third lawyer made the observation that “because of the history,” Indigenous parents experience difficulties in “[f]inding their voice” when dealing with the judicial system and the DYP. This was supported in another interview with a lawyer who underscored the challenge of informing Indigenous clients about the functioning of the judicial system; translation falls short when the destination language has no words for elements of the civil system. As one of the interviews suggested, there was a perceived sense of defeat that, no matter what some parents said, the government (or courts) would take their child.

Our participants also commented on state workers’ ignorance of Indigenous family practices and the ongoing harms of settler colonialism. It was observed that judges – “predominantly white, upper-middle-class men” – would benefit from several sessions of training about Indigenous Peoples. One of the interviews suggested that social workers should adopt a broader “notion of the group, the culture, the collectivity and the immediate extended family.”

Revisiting the “Sixties Scoop” of Indigenous children

Colonial policies deny internet to many Indigenous communities

The recommendation we heard most frequently was for more training about Indigenous Peoples. But a critical literature on professional education – developed in the health sciences – cautions that such training has limited capacity to change institutions substantially. Teaching about matters such as how to read an Indigenous person’s avoidance of eye contact might help professionals to receive Indigenous parents’ testimony more fairly.

But it is unclear how much greater knowledge of Indigenous family practices, including the extended family’s role, would change decision-making within the state system. Realistically, what is the potential impact of training in an underfunded, overstretched system? One participant’s nod toward a three-hour online module indicates the scale of training that some would envisage for overworked professionals. While those we interviewed may have been sincere in recommending more training, the repetition of this suggestion gave it an air of performance.

A focus on more professional training shelters the institutions in question from fundamental disruption. While recommendations focused on adjustments to individual conduct – on the part of state personnel and Indigenous parents – structural and fundamental changes seem necessary.

The study arguably reinforces calls not to fix the colonial system but instead to transfer authority over child welfare to Indigenous communities. Ultimately, the reasons for skepticism in respect of incremental improvements within the state’s system of child welfare confirm the urgency of empowering and equipping Indigenous communities to manage this critical area. It will be essential to have more research on outcomes from those Indigenous communities that do so, given the unavoidable challenge of contending with intergenerational trauma.

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Robert Leckey
Avocat émérite du Barreau du Québec, Robert Leckey est doyen de la Faculté de droit de l’Université McGill et titulaire de la Chaire Samuel Gale. Twitter @DeanLeckey

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