Court/Judicial body: Saskatchewan Court of Queen’s Bench
Date: December 10, 2004 CRC
Provisions: Article 3: Best interests of the child Article 30: Children of minorities or indigenous populations
Domestic provisions: Canadian Charter of Rights and Freedoms (Section 1: guarantee of rights and freedoms subject to reasonable limits prescribed by law ; Section 7: due process in deprivation of life, liberty, or security of the person; Section 12: no cruel and unusual treatment or punishment; Section 15(1): equality before and under law and equal protection and benefit of law); Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1862 (U.K.), 1982, c.11 (Section 24 (1): Enforcement of guaranteed rights and freedoms; Section 25: aboriginal rights and freedoms not affected by Charter; Section 35: Recognition of existing aboriginal and treaty rights); Child and Family Services Act, S.S. 1989-90, c.C-7,2.
Background: Five aboriginal children had all been placed in foster care for substantial periods of time. The Saskatchewan Department of Community Resources and Employment (DCRE) had adopted a policy whereby First Nations children could not be placed for adoption without the consent of the child’s band or the relevant First Nations child welfare agency. Because the children could not be placed with members of their extended family or their band, the band refused to give their consent thereby preventing the children from being placed permanently for adoption. As a result, a lawsuit was brought in the children’s name to challenge the policy requiring the consent of the children’s band for adoption.
Issue and resolution: Indigenous children; adoption. The Court found that the policy of requiring the children’s band’s consent for adoption infringed the Canadian Charter of Rights and Freedom and unjustifiably prevented First Nations children from having the same opportunity to be placed for adoption as other children. As such, the Court ordered Saskatchewan to deal with First Nations children in a manner consistent with their best interests and to place them for adoption where appropriate.
Court reasoning: The aboriginal community does not have a special, protected right to “speak for its children” in relation to adoption proceedings under Canadian law. Rather, in making a placement order, the court has to consider the best interests of the child. As intended, the purpose of the policy in question was to give First Nations communities “a voice” in the placement of their children and address, at least in part, the unjustified removal of aboriginal children from their communities and culture. However, the effect of the policy was to deny these children permanent homes and stable, long-lasting relationships without regard to their best interests. As such, the policy infringes the childrens’ right to security and equality. Culture is an important consideration in determining the best interests of children as is a continuing connection with their aboriginal roots and community. However, adoption of aboriginal children does not mean they have to be cut off from their culture or community.
Excerpt citing CRC and other relevant human rights 64. Protecting children from harm is a goal which has universal acceptance. Article 3(1) of The United Nations Convention on the Rights of the Child, U.N. Doc. A/RES/44/25, to which Canada is a signatory, requires that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. … 73. Article 30 of The United Nations Convention on the Rights of the Child provides that: in those states in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language. … It is clear that culture is an important consideration in determining the best interests of these children as is a continuing connection with their aboriginal roots and community. Adoption of these children by non-aboriginal families does not mean they have to be cut off from their culture or community. “Adoption” and “culture” are not mutually exclusive concepts.
CRIN comments: CRIN believes this decision is consistent with the CRC in that the best interests of children must be a primary concern in all actions concerning them under Article 3 of the Convention. Here, as recognised by the Court, this principle should be viewed comprehensively and incorporate respect for children’s other rights, including the right to enjoy their culture.
Citation: In the Matter of the Child and Family Services Act and in the Matter of R.T., M.T., M.A.T., A.L. and K.A. (2004) SKQB 503 (Re R.T.)
Link to full judgment: On file with CRIN.