Child Protection Law - Niche?

Over the years I have heard the occasional grumblings amongst a broad range of legal professionals that the area of legal practice commonly referred to as “child protection law” or “child welfare” is niche. Conversely, and to the surprise at times to new appointments and those entering the profession, child protection law is highly complex on a broad spectrum of issues, evidenced by busy Family Service (“FSM”) dockets across the province, pretrials, summary hearings and trials.  2024 statistics demonstrate that on average 4000 appearances¹ in FSM dockets occur annually in Saskatchewan and involve an alarming overrepresentation of Indigenous children (90%).²  These statistics support the need to ditch “child protection law” as synonymous with “niche”.

Despite federal legislative efforts introduced over 5 years ago, namely, An Act respecting First Nations, Inuit and Métis children, youth and families³ which mandated national standards through a normative framework for substantive equality⁴ relating to Indigenous children and youth facing government intervention - the number of child protection files moving through court processes has not flattened across the province and continues to rise.  The national standards can be viewed as a baseline or minimum set of standards that apply to all Indigenous children, youth and families facing child welfare or government involvement.  These standards include frameworks surrounding the best interests of the Indigenous child, community engagement provisions, and placement priorities. These standards are broadly intended to address the overrepresentation of Indigenous children, youth and families facing government intervention.  In some ways, the national standards can be described as a transitional justice tool as Indigenous Governing Bodies (“IGBs”) consider paths forward in asserting jurisdiction over child welfare and engage in the coordination process available to IGBs within the Federal Act.

More recently the Supreme Court of Canada (“SCC”) upheld the entirety of the Federal Act in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families.⁵ Much of the attention around the litigation leading to the SCC Reference focused on how Indigenous Laws fit into the “constitutional architecture”, and if a conflict arose, whether Parliament had stepped out of its lane by legislating that Indigenous Laws could have the same force as federal law. But the analysis was not limited to the force of Indigenous Laws or the recognition of an inherent right to self-government. The decision examines the importance of the entirety of the Federal Act, and re-affirms the normative framework and principles around the substantive equality purpose and the national standards as a process of legislative reconciliation.⁶  The SCC highlights the national standards immediate application in all decisions involving an Indigenous child, youth or family facing government intervention.  The Court describes the protection of Indigenous children, youth and families as being legislatively supported in “three interwoven ways; affirming Indigenous communities’ jurisdiction in relation to child and family services; establishing national standards applicable across Canada; and implementing aspects of the UNDRIP in Canadian law”⁷. The Federal Act, as it relates to Indigenous children and youth under provincial child and family service applications under provincial legislative frameworks, impacts thousands of families in Saskatchewan annually and is highly complex.

The use and implementation of the national standards into provincial frameworks remains problematic, despite recent amendments in Saskatchewan to The Child and Family Services Act⁸ to incorporate some of the language and provisions of the Federal Act.  The amendments to the CFSA were not unique to Saskatchewan, and several other provinces engaged in amending provincial child welfare legislation to better incorporate the Federal Act’s national standards. While IGBs and Nations across Canada determine readiness and capacity to assert jurisdiction, the vast majority to child protection files continue to move through provincial child and family service processes and will continue to into the future.

When applied, the national standard provisions in the Federal Act provide guidance and act as a gatekeeper in child protection proceedings.  The standards are a direct response to the Truth and Reconciliation Commission of Canada’s (“TRC”) Call to Action #1 for state actors to monitor and evaluate the volume of “neglect” cases and investigations.⁹ The risk of perpetuating the colonial harms, the Federal Act aims to address, cannot be achieved without significant legal reform and consideration of the national standards in relation to every file moving through court systems.  Except for extreme circumstances (around acute safety issues) files should proceed in chambers and applications should only be made in the FSM context when evidence (an affidavit and accompanying materials) is prepared and efforts to maintain family wellness and prevention efforts have been exhausted and can be evidenced in those materials. Some of the national standards outlined in the Federal Act worthy of note for practitioners are the priority of placement provisions,¹⁰ notice provisions surrounding significant measures and participatory provisions for Indigenous communities,¹¹ priority of preventative care and prenatal care,¹² consideration of socioeconomic conditions,¹³ and the promotion of the substantive equality, cultural continuity and best interests of the Indigenous child.¹⁴  Materials that include consideration and application of the Federal Act’s national standards will also better support the named purpose of the provincial CFSA, which aims “..to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner.”¹⁵ Integrating the Federal Act’s national standards into court applications will further the objectives of both legislative goals and, arguably, will result in better outcomes for Indigenous children and youth.

Decolonization in this space mandates improving and challenging our understanding of “child protection law”.  Child protection law as niche perpetuates uninterrogated systemic bias in a highly complex area of law.  Child protection is complex due to the realities of cultural genocide resulting from residential schools, significant legislative changes and recent changes that establish national standards, federal and provincial legislative frameworks, and the reality that families facing government involvement are often in complex life situations that require preventative services. Practitioners who engage with child protection law have an obligation to ensure file readiness, read the SCC Reference, know the significance of the national standards and the Federal Act, raise non-compliance with the standards early on in court processes, and stay up to date on developing case law referencing the Federal Act. It’s time to ditch “niche”.

Professor Jamesy Patrick is an Assistant Professor at the College of Law with a research focus in child protection. She is passionate about policy development and governance surrounding child protection for Indigenous communities and organizations, and she is devoted to advocating for children and families facing systemic barriers in our community.