Over-Representation of Indigenous (and other Racialized) Children in the Child Welfare System: Human Rights Aspects

By:  Linda McKay-Panos

Reposted from LawNow 43(1) with permission

For the past few decades, there has been growing publicity about the over-representation of Indigenous and other minority children in our child welfare systems across Canada. The 2015 findings of the Truth and Reconciliation Commission confirmed that the over-representation of Indigenous children in Canadian child welfare systems has reached a crisis level. Even the United Nations Committee on the Rights of the Child in 2012 noted that Canada needed to take urgent measures to address the “discriminatory over-representation” of Indigenous children who were in “out-of-home” care. The Ontario Human Rights Commission recently released a report called Interrupted Childhoods: Over-representation of Indigenous and Black children in Ontario child welfare (February 2018) and this report confirms what others have been saying.

The challenge in identifying the causes of over-representation in the child welfare system related to human rights abuses is that discrimination is often systemic and proven through circumstantial evidence. The Ontario Human Rights Commission (OHRC) notes that systemic discrimination may be diagnosed by looking at numerical data, policies, practices and decision-making processes and organizational culture. Discrimination plays a role in policy formation and decision-making about placement in out-of-home care and funding of child welfare initiatives.

The OHRC analyzes the factors that result in discrimination in the context of child welfare decision-making. In summarizing the existing research across Canada, the OHRC notes that neglect (as opposed to active child abuse) is the main reason that Indigenous children enter the child welfare system. The OHRC also summarizes the causes of neglect in this community as “chronic family concerns, such as poverty, poor and unsafe housing, substance use, mental health issues and social isolation”. The causes of the chronic family concerns in Indigenous communities may be traced to decades of oppression and discrimination that have resulted in “multiple negative social and economic disadvantages”. Some of the most systemically discriminatory policies pertained to residential schools, which resulted in Indigenous children being taken from their families and removed from loving parents, parental role models, and thus losing their cultures and their identities.

With respect to Black and racialized minority children, the number of children over-represented in child welfare has not been well researched. However, existing studies indicate that children from families who are Black and from other visible minority groups, including those who are new Canadians, experience higher percentages of referrals for investigation, over-monitoring and higher numbers of decisions resulting in out-of-home placements. The OHRC indicates that causes of over-representation of children from these communities in the system include poverty resulting from historic and ongoing systemic and direct discrimination.

The systemic discrimination in child welfare systems is the result of a complex set of historical and current practices, policies, and biases. Research in the United States (supported by some Canadian research) indicates that medical and school professionals tend to over-report racialized families to child welfare authorities. The OHRC noted that authorities sometimes confuse poverty or misinterpret cultural differences as neglect, and thus refer racialized families to child welfare more often. In addition, policies and practices, such as risk assessment tools that reflect White, Western, Christian notions of child rearing, coupled with unconscious racial biases, may result in incorrect assumptions about the level of risk to which children are exposed. Research from the University of Calgary shows that a lack of knowledge by the child welfare staff about other cultures can also result in overrepresentation of new Canadian children in out-of-home care.

Funding discrepancies also indicate that discrimination exists in the child welfare system. In 2016, the Canadian Human Rights Tribunal ruled that the federal government discriminates against children on reserves by failing to provide the same level of funding to child welfare services that exist elsewhere. The evidence suggested that on-reserve child welfare systems received 38% less funding than elsewhere.

There have been some efforts to address concerns about discrimination in the child welfare system. For example, in some jurisdictions, child welfare legislation has been amended to require notification to/ consultation with First Nations officials when a child from their community is being placed into care or an adoption plan is being made for the child (See, for example Child, Youth and Family Enhancement Act, RSA 2000 c C-12, s 67). These provisions, however, have not succeeded in eliminating the difficulties with overrepresentation, according to Dr. Cynthia Wesley-Esquimaux at Indigenous and Northern Affairs Canada.

The OHRC arrived at 25 recommendations to assist in addressing the issue of over-representation. The following recommendations have a direct link to human rights and would serve as a valuable reference for all governments and agencies across Canada.

Recommendations to the government of Ontario

1. The government of Ontario (government) should develop a provincial strategy to identify and address how families’ social and economic conditions [citations omitted] are linked to racial disparities and disproportionality in the child welfare system. This strategy should contain measurable commitments to address these inequalities, including increasing the availability of funding, housing, services and supports to help families meet their needs and safely keep their children. The government should report on these commitments on an annual basis.

2. The government should commit to fully implementing the United Nations Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Commission of Canada’s Calls to Action.

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4. The government should require by law that all [Children’s Aid Societies (CASs)] – both mainstream and Indigenous – collect human rights-based data, including race-based data, and poverty-related information.

5. The government should amend the Human Rights Code to add “social condition” as a protected ground of discrimination. In doing so, discrimination against people experiencing social and economic disadvantage would be prohibited in services, housing, employment and other areas.

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7. The government should monitor and ensure CASs’ compliance with any legislation, regulations and policy directives pertaining to human rights-based data collection, with the aim of increasing the accuracy of the data collected and reducing the amount of missing or unknown data to zero.

8. The Ministry of Children and Youth Services (MCYS) should create a dedicated unit to advance equity for Indigenous, racialized and other Human Rights Code-identified groups in child welfare. Staff should have expertise in anti-racism, including anti-Indigenous and anti-Black racism. The unit would be responsible for building knowledge and resource capacity across CASs to collect and analyze data, identify potential sources of discrimination, develop training, and address systemic barriers and discrimination faced by Indigenous and racialized families and children. Liability for preventing and responding to discrimination would remain with individual CASs. …

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Recommendations to mainstream and Indigenous Children’s Aid Societies (CASs)

14. CASs should commit to fully implementing the relevant Truth and Reconciliation Commission of Canada (TRC)’s Calls to Action.

15. CASs should comply with government requirements to collect, tabulate and report human rights-based data. In the absence of government requirements, CASs should voluntarily collect, tabulate and report such data.

16. CASs should reach out to and be guided by First Nations, Métis and Inuit communities on data collection standards, training, approaches, analysis and reporting that will respond to the specific context of Indigenous communities.

17. CASs should collect and tabulate human rights-based data, including race-based data, in a standardized way within and across agencies, across services decisions. This includes referrals, investigations, verifications of abuse allegations, referrals to ongoing services, admissions into care, apprehensions from First Nations reserves and Indigenous children off reserve, type of care, days in care and referrals to drug and alcohol testing, etc. Data categories should be compatible with Statistics Canada categories and should be commonly defined.

18. In addition to any requirements to report data to the Ministry of Children and Youth Services (MCYS), all CASs should report publicly [sic] on disaggregated human rights-based data and data on poverty, on an annual basis. CASs should engage with affected racialized and Indigenous groups in their communities, and the [Ontario Association of Children’s Aid Societies], to decide the most meaningful data and comparisons to report (e.g. Indigenous or racialized identity and sex, Indigenous or racialized identity and poverty, etc.). Any public reporting must adhere to legislated privacy requirements.

19. Race-based data should be cross-tabulated with relevant provincial performance measures for the child welfare system.

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21.  New and incumbent child protection workers and managers should be required to undergo training on how to collect human rights-based data. Such training should be standardized across the province and should emphasize the importance of outcomes connected to data collection.

22. New and incumbent child protection workers and managers should be required to undergo training on anti-racism and providing culturally competent services to Indigenous, Black and other racialized families. Such training should be done in partnership with people from affected communities and incorporate a focus on:

a.     Anti-Indigenous racism

b.     Indigenous cultural competency training:

·      The history, impacts and intergenerational effects of the residential schools

·      The foundational differences between Indigenous and western world views regarding relationships between individuals, including children, and the community

·      Trauma-informed practices in an Indigenous context

·      The effects of ongoing colonialism

c. Anti-Black racism

d. The “child-welfare-to-prison pipeline.”

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25. Where an agency finds elements consistent with systemic racial discrimination, they must take steps to respond. These include:

• Demonstrating strong leadership that shows that racial discrimination will not be tolerated

  • Establishing stable and long-term resources within the agency dedicated to human rights and equity activity

  • Removing any bias or adverse impacts that exist in the agency’s rules, standards, formal and informal policies, procedures, decision-making practices and organizational culture

  • Investigating any alleged discriminatory conduct and taking corrective action where it is substantiated, up to and including dismissal

  • Providing further anti-racism and cultural competency training to staff and management. See Recommendation 22

  • Developing special programs to address the specific needs of Indigenous and/or racialized clients and increase hiring of Indigenous and racialized staff

  • Creating anti-discrimination and harassment policies that explicitly define racial discrimination as a type of discrimination that is illegal and provide relevant examples

  • Creating accountability mechanisms, such as complaints and disciplinary procedures

  • Building dialogue and relationships with racialized and Indigenous groups in the community

  • Undertaking comprehensive organizational development projects that incorporate the elements above

  • Publicly [sic] reporting on measures to address any issues identified.

  • (c)Anti-Black racism

    (d)The “child-welfare-to-prison pipeline.”

    …

  • Where an agency finds elements consistent with systemic racial discrimination, they must take steps to respond. These include:

  • The history, impacts and intergenerational effects of the residential schools

  • The foundational differences between Indigenous and western world views regarding relationships between individuals, including children, and the community

  • Trauma-informed practices in an Indigenous context

  • The effects of ongoing colonialism