The Yukon Children’s Act revisions may not strengthen the existing act as much as expected, say foster-care workers.
“The former children’s act — if you read through it — is not a bad act,” said Chris Thompson, past president of the Yukon Foster Parents Association.
“A larger concern is how the children’s act was implemented, not how it was worded,” he said.
“It comes down to legal implementation — how judges apply the law.”
The death of seven-week-old Samara Olsen in 2004 is a jarring example of troubles within the system, he said.
The baby was killed by her mother Justina Ellis, who suffers from severe Fetal Alcohol Spectrum Disorder.
“According to the children’s act, there is no possible way in the world that child should have been left in the care of her maternal parents,” said Thompson.
“And the new act wouldn’t protect her any more than old one did.
“The old act would have protected (the baby) if the judges and lawyers had followed it.”
The 116-page draft revision focuses on placing children with extended family whenever possible.
And aboriginal children should be placed “with a family that includes a person who is a member of the child’s First Nation,” it states.
However, these provisions are already in the existing act, said Yukon Foster Parents Association president Cathy Bradbury.
“It has always been the policy and it is in the old act that children will be placed with their family in their home community whenever it’s possible,” she said.
“And it’s always been my experience that that’s always what’s tried first.”
But there are very few First Nations foster families.
“It’s a challenge to find foster parents in the communities,” said Bradbury.
“And there are never enough First Nations foster parents.
“From what I gather there never have been — so we need a lot of capacity-building there.”
That assertion is challenged by New Democrat John Edzerza.
“I know of First Nations homes with approved foster caregivers that were never used,” said the aboriginal politician.
Edzerza’s daughter went through the process and her residence became an approved foster home.
“But she never had a child placed with her,” said Edzerza.
After waiting three years, she gave up.
“I hope the new act forces the department (of Health and Social Services) to start getting more First Nations foster homes,” he added.
The children’s act revisions have First Nations playing larger roles in planning, service delivery and court proceedings.
“When we talk about First Nations taking a greater role in child protection, the responsibilities that come with that role are tremendous,” said Bradbury.
“And I think there might be quite a preparation period required for a community to be ready.”
When children are threatened, communities often commit to support and monitor the family, to keep it together and safe, said Bradbury.
“But that’s a tremendous commitment and people can’t always follow through, even though they may totally believe they’re going to when they make that commitment.
“So, when a community is taking on that kind of role they truly have to be ready first.”
And if First Nations are going to be part of the decision-making, they really need to be involved in the process with any child from the beginning, added Bradbury.
“Because, obviously, none of us should be huge decision-makers in a child’s life if we don’t really know what that child’s life is about.”
Currently, First Nations will have a representative present at child-welfare cases involving their citizens, she said.
“But it hasn’t always happened that they’ve had a day-to-day role in the decision-making up to that point.
“So they may, in fact, be given a great deal of say, but not really know the exact context of what’s happened with the child.”
Another theme in the revisions is a stated intention to take the “least intrusive approach, based on an assessment of the situation.”
The idea is that “children won’t need to come into care if we can intervene early,” said Bradbury.
“But the reality is — and I suppose it’s what we see most because it’s what we do — there will still be instances where children need to come into care.
“I don’t feel really optimistic that anything in the new act is going to make that less common.”
“I think most of us, and not just foster parents, would think we wait too long to intervene rather than that we intervene too early or too aggressively.”
There is a danger that by focusing more on the family and community an intervention to protect the child may be delayed, said Bradbury, who added she needs more time to go over the revisions.
“But we have to be ready to intervene for the safety and well-being of the child no matter what else we’re focusing on,” she said.
“In the new act we want to focus even more clearly on the child, rather than other people’s needs.
“We need to consider the birth family, the First Nation and the community — but always consider the child first.
“We have failed to do that in too many cases.”
There are provisions in the old act that should have protected children, but the system failed them, said Bradbury.
“This was because we weren’t following the act we had,” she said.
“It’s been my experience that the courts haven’t always followed the act that was in place.”
The old act required children in care to be placed in permanent care after two years.
But the courts often ignored these provisions, she said.
“So, certainly, kids have languished in limbo for way too long.
“Other jurisdictions have moved to put much more rigid timelines in and ensure that they’re followed.”
But Edzerza hopes that by involving extended family, the new act will break the cycle of putting children in permanent care.
A growing body of evidence suggests that most kids coming in to care have damage that cannot be undone, said Bradbury.
“It’s the effect of emotional trauma or long-term neglect,” she said.
“And this tells me we need to get in there earlier to ensure that doesn’t happen, with whatever intervention is required — whether it’s removal from the home or more support in the home.
“But we certainly need to be aware of what’s happening in homes and intervene a lot earlier so that isn’t the case.
“Because, as we know, there are many kids who fail ultimately in life because we didn’t intervene soon enough to save them.
“And I would worry the new act is going in the opposite direction.”
Calls to the Kwanlin Dun First Nation and grand chief Andy Carvill were not returned before deadline.