Bill C-92’s Best Interests of the Child & Inherent Right to Self-Govern: A Discussion


Bill C-92

What is Bill C-92?


Bill C-92 comes into force on January 1, 2020 and much has been written about it (see, for example, Yellowhead’s discussions here). Bill C-92’s full title is An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”). The Act’s purpose:

  • to affirm the inherent right of self-government and jurisdiction in relation to child and family services;

  • to set our principles applicable, on a national level, to the provision of child and family services* in relation to Indigenous children; and

  • to contribute to the implementation of UNDRIP.

This discussion outlines some considerations when determining best interests of the child.


What is the best interests of the child?


The Act does not define the best interests of the child. However, it does provide some guidance on interpreting the best interests of the child. Difficulties and issues may arise when legislation leaves the door open for interpretation of such terms (despite the fact that this principle is well-defined in case law and international instruments).


The Act outlines the following factors to be considered in assessing the best interests of the child:

  • the child's physical, emotional and psychological safety, security and well-being

  • the importance of preserving the child's cultural, linguistic, religious and spiritual upbringing and heritage

  • attachment and emotional ties between the child and significant people in the child's life

  • the child's views and preferences

  • the child's needs and level of development

  • any plans for the child's care

  • any family violence and its impact on the child

  • any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child (collectively, the “Factors”)

Indigenous communities who exercise their inherent right to self-govern also have the potential to be acting in conflict with other rights, especially where there are competing rights (i.e. rights of the parents/care-givers, the community and of other children).


What is the standard when applying the best interests of the child?


The Act provides that the best interests of the child is a primary consideration concerning child and family services regarding the Indigenous child and that it is the paramount consideration regarding child apprehension.


The best interests of the child could impact the way a community exercises its inherent right to self-govern and jurisdiction regarding child and family services or child apprehension.


By way of example only, this could mean that simply stating that a decision is acting within an Indigenous community’s inherent right to self-govern (the purpose of the Act) may be insufficient when deciding in the best interests of the child, a primary or paramount consideration of the Act depending on the decision being made. In other words, there likely needs to be something more to support a decision made in the best interests of the child when relying on an Indigenous community’s inherent right to self-govern.


Together, these considerations are justified given the child’s vulnerability (i.e. voicelessness) in relation to others especially when decisions are being made for or on behalf of them.


What other considerations may be considered in the best interests of the child?


As stated above, the best interests of the child arises in two instances: provision of child and family services, and child apprehension.


When the considering the Factors (above), primary consideration must also be given to:

  • the child’s physical, emotional and psychological safety, security and well-being including: (1) the importance, for that child, of having an ongoing relationship with their family and with the Indigenous group, community or people to which they belong; and (2) the importance of preserving the child’s connections to his or her culture.

The best interests of the child also represents more than a community’s right to self-govern. It also represents the child’s right to be heard and fair weight given to their views. While generally Indigenous communities respect and honour Indigenous children’s perspectives, there may be a conflict when a child’s desires do not align with those of the community's past practices. Primarily, some communities may not be providing child and family services that are 2SLGBTQ+ friendly and a child may express a desire to receive child and family services that respect their gender and/or sexuality. It is up to the community to fulfill its statutory duties without discrimination.


For more information on creating non-discriminatory practices while respecting your community's inherent right to self-govern, contact Naomi directly at me@meetnaomi.com. Naomi has eight years of experience on consulting and advising on human rights issues and policies in the context of Indigenous rights. Nothing in the post constitutes legal advice.


Sources:

*Child and family services means the services to support children and families including prevention services, early intervention services and child protection services.


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