Jordan's Principle: guidance on the best interest of a child

On this page

• Summary
• Background and definition of a right
• Applying the best interests of the child lens
• Process used to consider the best interests of a child

Summary

As part of the Government of Canada's review of Jordan's Principle requests, the best interests of a child must be considered. This means that requests for needed products, services, and supports are not only about ensuring substantive equality, but also making sure that the child's safety and well-being are considered when making decisions.

Background and definition of a right

The United Nations defines human rights as "rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion or any other status."

As the Government of Canada seeks to achieve reconciliation with Indigenous peoples, a paradigm shift towards recognition of rights, respect, co-operation and partnership is required. The implementation of Jordan's Principle consistent with Canadian Human Rights Tribunal (CHRT) decisions is foundational to this work as it requires the government to work with First Nations in the co-development of a system of supports and services to consider the best interests of a child.

Jordan's Principle is a legal principle designed to address gaps in government-funded services and discrimination that can result in delay, disruption or denial of services to First Nations children. In 2017, the CHRT ruled that when a government-funded service is not necessarily available to all other children or is beyond the normative standard of care, the government department of first contact will evaluate the individual needs of the child to determine if the requested service should be provided to:

• ensure substantive equality
• ensure culturally appropriate services
• safeguard the best interests of the child

Evaluation of requests must also take into account a child's needs stemming from historical disadvantage, inequities and deficiencies in the availability of culturally informed public services.

Jordan's Principle also considers:

• children are significant recipients of public services, (for example, education, health, recreation, child care and other social programs, and First Nations children have been disproportionately underserved by child welfare, juvenile justice, and youth services. As a result, First Nations children are impacted the most by both the intended and unintended impacts of policies and services
• as a basic principle, First Nations children are entitled to rely on the basic premise that any authority dealing with them would do so with due consideration to their human rights and their best interests
• the historical disadvantages and intergenerational impacts of colonization, such as the impacts of the Indian Residential Schools system and 60's scoop
• the discrimination arising from Canada's inequitable provision or denial of public services
• many other traumatic experiences of First Nations children, families and communities

In applying Jordan's Principle, the government must recall and recognize that many of colonization's historical disadvantages and intergenerational impacts were based on a colonial concept of a child's best interests. For example, Canada's "Regulations relating to the education of Indian children" of 1894 allowed Indian agents to issue warrants to commit First Nations children to residential schools when the Indian agent thought the child's parent was "unfit or unwilling to provide for the child's education" or the child was "not properly cared for".

Similar rationales were used to justify the transformation of residential schools into child welfare institutions, on the basis that some First Nations parents would not be able to assume the responsibility for the care of their children. As the Royal Commission on Aboriginal Peoples noted in 1996, these assessments, "were measured, of course, against non-Aboriginal norms." Similarly, in the course of the 60's scoop, which wreaked profound and lasting psychological damage on First Nations children and communities, government employees who placed thousands of First Nations children with non-Indigenous families were making decisions they thought were in the best interests of those children.

The implementation of Jordan's Principle helps First Nations children access the products, services and supports they need, when they need them. In order to consider the best interests of the child, Jordan's Principle recognizes that understanding the impact of intergenerational trauma and the role of the child in the family and community is needed to appropriately take all measures to help First Nations children have an equal chance to live up to their full potential, taking full account of their distinct culture.

Applying the best interests of the child lens

The CHRT has ordered Canada to take into account the best interests of the child in the evaluation of requests under Jordan's Principle.

The 1989 United Nations Convention on the Rights of the Child (UNCRC) is the main United Nations human rights treaty on the protection of children. It has 4 general principles:

• the best interests of the child will be a primary consideration in all actions affecting children (article 3)
• there will be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinions, national, ethnic or social origin, property, disability, birth or other status (article 2)
• states parties recognize that every child has the inherent right to life and will ensure to the maximum extent possible the survival and development of the child (article 6)
• children will be assured the right to express their views freely in all matters affecting them, their views being given due weight in accordance with the child's age and level of maturity (ariticle 12)

Canada ratified this convention in 1991, which also creates an obligation to consider the best interests of the child as a cornerstone to the application of Jordan's Principle.

The best interests of the child is a key child rights-based principle, enshrined in article 3(1) of the UNCRC providing:

Also relevant in the specific context of Indigenous children, the UNCRC requires in article 30 that the child also:

As a substantive right and guiding principle that aims to ensure the enjoyment of all rights in the UNCRC, the best interests of the child speaks to the child's holistic development and requires a rights-based approach that promotes the child's human dignity. As recognized in the United Nations Committee on the Rights of Child General, Comment 11, Indigenous children and their rights under the Convention, Indigenous children, "require special measures in order to fully enjoy their rights."

The UNCRC is a binding international human rights treaty ratified by Canada that requires governments to take all appropriate measures to ensure children have the full enjoyment of all rights under the convention. In order to meet its obligations, it is important for the Government of Canada to consider the potential impacts of legislation, budgets, policies, programs and practices on children's rights. When providing services or supports, the Government of Canada is obligated to take all appropriate measures to ensure that a child is protected from discrimination. The best interests of the child right and the non-discrimination right are both "general principles" of the UNCRC and are mutually reinforcing.

Taking into consideration the dehumanizing, colonialist and oppressive legacy faced by First Nations children throughout much of Canada's history, consideration of the best interests of the child is contextual and requires an assessment on a case-by-case basis.

Process used to consider the best interests of a child

Applying the lens of the best interests of a child under Jordan's Principle requires an evaluation of information, considering the specific circumstances of each identified child or group of children, as well as being responsive to each child's particular age, capacity, diagnosis, needs, maturity and circumstance.

Decisions made about the safety and well-being of First Nations children should be guided by the United Nations Declaration on the Rights of Indigenous Peoples and the following principles:

Every First Nations child should:

• have a safe and nurturing environment so they may live up to their full potential
• be loved in ways that bring dignity, support, and meaning to their life
• have their cultural identity and linguistic needs valued and respected
• have access to their traditional land, resources, and teachings
• be free from discrimination or the long-term impacts of disadvantage
• have a safe and nurturing relationship with their family (including siblings and extended family), community and nation
• have available and timely access to supports and services of equivalent quality to those available to non-Indigenous children
• have their necessary needs related to physical, sensory, mental health or intellectual disabilities met to ensure substantive equality
• have their rights upheld in relation to education, health and a safe environment

The term "best interests" broadly describes the well-being of a child, which can be determined by a variety of individual circumstances, such as age, health status, presence or absence of parents, the child's environment, and life experiences.

When Indigenous Services Canada (ISC) receives a request under Jordan's Principle, the department's employees should consider the following factors in order to take into account the best interests of an identified First Nations child:

• First Nations children and their families, caregivers and communities are experts in their own experiences and determine what is in their best interest; they will advocate on behalf of a child to ensure decisions are in keeping with the protection and enhancement of the child's health and well-being
• consideration for the whole child and their needs, including their physical, emotional, and spiritual well-being in the context of their right to grow up as a member of their cultural group
• consideration is given to the child's circumstances and the potential impact on their well-being and development
• specific attention or care is needed to ensure a child has access to health, social, or educational products, supports, and services to improve outcomes and develop with dignity
• the remedy requested respects and protects the rights of the child as a First Nations person

Other influential factors include:

• the need for timely responses given the health or developmental needs of the child and the impact of any delays in required supports and services on their development
• whether the child has been given the opportunity to be engaged in all matters affecting them according to their developmental capacity and maturity

The following questions guide a holistic best interests of the child approach when assessing a request to the implementation of Jordan's Principle:

1. Has consideration been given to the whole child and their needs, including their physical, emotional, and spiritual well-being in the context of their right to grow up as a member of their cultural group?
2. Has consideration been given to respect and protect the rights of the child as a First Nations person?
3. Will the action preserve a sense of identity, belonging, acceptance, and connection of the child to their community?
4. Do you understand the child's circumstances and the potential impact on their well-being and development?
5. Has consideration been given to protect the safety and integrity of the child's care within their family and community?
6. Have the child's rights relating to education, health, and safety been upheld?
7. Have the child's views been considered and given due weight in accordance with their age and maturity?