October 30, 2017

Sixties Scoop court decision reveals problems – Hunsley

By Terrance Hunsley (Senior Fellow, The Pearson Centre)

From The International Social Policy Monitor, (politudes.com)

The federal government recently announced a fund to compensate indigenous people who as children were taken from their families and put up for adoption by non-indigenous families. It was in response to a class action court case filed on behalf of about 16000 children taken by child welfare authorities from reserves in Ontario (Brown vs Canada) from the mid-sixties to the mid-eighties. The government hopes to pre-empt a number of other cases in process.

The court decision, taken by Justice E. Belobaba, found that the federal government failed to fulfill its self-imposed obligation, in a 1965 Agreement with Ontario to extend provincial welfare services to native bands, to ensure that meaningful consultation was carried out and that each band would be asked for their input and to agree on the new services. Astonishingly, despite it being spelled out clearly as a prerequisite, no evidence was provided that either Canada, or Ontario on Canada’s behalf, carried out any consultations. That was the primary reason that he supported the plaintiff’s claim that Canada had failed to ensure that information and counselling would permit adopted children to know of their aboriginal identity and of federal benefits available to them when they became of age. Nor did there seem to be evidence provided that Ontario child welfare professionals would have done that as a matter of professional social work protocol, which is troubling in itself.

Because of the stipulations in the federal-provincial agreement, and because of the historic special relationship between Canada and aboriginal peoples, he found that “Canada had a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, who had been placed in the care of non-aboriginal foster or adoptive parents, from losing their aboriginal identity.” The plaintiff provided evidence to show that many children taken by the provincial child welfare authorities and placed for adoption or other forms of care, suffered negative mental health consequences.

Justice Belobaba clarified that the case did not address whether the apprehensions by provincial authorities were justified in order to protect “the best interests of the child”. The case was specifically against Canada.

However to put the issue into some historical context, the 50’s, 60’s and 70’s were a time of rapid expansion of provincial children’s services. The numbers of baby boom children were burgeoning, and there was increasing public concern about child abuse and neglect. A children’s protective services worker (such as in a Children’s Aid Society) who had reason to believe that a child was being harmed physically, psychologically or sexually, or was in danger of such harm, or was being neglected to a point of being in danger, could take the child into the care (legal wards) of the state. The number of children taken into care exploded across the country and among them, aboriginal children were over-represented about 4 or 5 to 1, relative to their population.

In following years the numbers decreased with the overall population of children. Also, importantly, it became apparent that the disruption of the child’s life when taken for adoption, foster care, or institutional care, (and in some cases, the poor quality of the care provided) could have serious negative consequences for the life of the child. It is not only the loss of culture that causes psychological and emotional damage, but the loss of family, kinship and neighbourhood. In cases where children have been subjected to abuse or neglect, the adopting or fostering families may not be equipped to deal with the damage and the behavioural issues which follow. This is especially true where children are born with fetal alcohol syndrome. Children’s services agencies now try to provide more support and oversight to keep the child in the family, often engaging members of the extended family or community.

The children of the sixties scoop may have been abused or neglected. But they were also victims of bias of white middle class professionals who did not understand aboriginal culture. It is likely that many children were taken due to a white Canadian definition of neglect, whereas aboriginal culture permitted children to be looked after by the wider community.

But aboriginal children are still being taken into care of the state in disproportionate numbers, perhaps even greater than the ratios of the sixties, even with some of the services being managed by the bands. Indigenous agencies have to use the same standards as the provincial authority, and government funding is available automatically for children placed in care, while funding for prevention or support services is more difficult to access. Moreover, conditions of life on reserves have bred problems that won’t go away easily or quickly, and culturally- appropriate intervention and support are still underdeveloped.

More broadly, children in care of, or under supervision of the state, still constitute a major problem for Canadian social services. The overall numbers of children in care are reduced because of fewer children in the population, because some extended families are more able to provide material assistance to young parents, and because children are more often kept in the family under supervision.

But the life trajectories of children (indigenous or non-indigenous) who are taken into the care of the state are far more troublesome than other children. Behavioural and emotional development issues can in some cases be major problems that cannot be solved by adoptive or foster parents. And government is not good at providing funding and other resources, as most families do, to meet the unique needs of the individual child.

Children who exit the child welfare system, often at age eighteen, are far less likely to make a successful transition to adulthood. Many wind up in the adult welfare or justice system.

Justice Belobaba found that the federal government had a common law duty of care to ensure the retention of aboriginal culture and identity. Understandable, especially since historically the Indian Act has considered indigenous people (on reserves) to be wards of the state.

But does the state not have a duty of care in all situations where a child is placed in care or under supervision? Loss of culture and identity can take place with any child. Support for healthy child development and transition to adulthood is a parental duty which is taken on by the state. And in many cases, extra supports are required. Unfortunately, albeit the problems can be very challenging, the state has not done well as a guardian. The well-being of vulnerable children remains an unsolved problem in Canada.

Terrance Hunsley was Director of the Canadian Council on Social Development in the 1980’s, when the CCSD carried out research which defined the “sixties scoop”. The report, “Native Children and the Child Welfare System” was published in 1983 and written by Patrick Johnston.