2.1 Overview of Racine v Woods

Leticia Grace Woods was born on September 4, 1976, in Manitoba to her mother Linda Woods who is Aboriginal. The biological father of Leticia is unknown. Leticia has two half siblings who, at the time, resided with their father. Linda Woods was described as unable to care for Leticia due to a “serious alcohol problem.” Leticia stayed with her uncle and then her aunt before she was apprehended. She was six weeks old when she became a ward of the child welfare authorities for a one-year term, which was extended by an additional six months. Leticia was placed in the foster home of Sandra and Lorne Ransom. Later that year, Sandra and Lorne divorced, and Sandra entered into a new relationship with Allan Racine. Sandra and Allan got married, during which time Leticia remained in their care until the wardship expired a year later. Leticia was returned to her mother; at that time, her half-siblings also resided with her mother. Once the transition was complete, the Racines paid a couple of visits to see how Leticia was doing in her new living environment. On the second visit, the Racines were permitted to take Leticia home with them on the premise that it would be temporary. The Racines understood this was to be a permanent placement and began the process of adoption. Five weeks later Mrs. Woods arrived at the Racines’ home stating she was moving and wished to place Leticia in the care of her sister. The Racines refused to relinquish Leticia to her mother. Three years later, Mrs. Woods issued an application to have Leticia returned to her under habeas corpus. The Racines stated prior to this order they did not receive any contact from Mrs. Woods over that three-year period. Shortly after Mrs. Woods applied for habeas corpus, the Racines applied for a de facto adoption. The adoption was approved by the courts, as the Racines had cared for Leticia for three consecutive years. It was also stated that Mrs. Woods’ lack of contact over the course of three years suggested abandonment of the child, and thus she relinquished the rights to her child to the Racines. The courts acknowledged the fact that the Racines illegally withheld the child from her mother but sided with the Racines as their actions were “prompted by concern for the child.” The claims of kidnapping were dismissed due to the de facto adoption order. Mrs. Woods was not seen as being assertive or prompt enough in the process of regaining her rights to her child, and thus the court sided with the Racines on the claim of abandonment. Mrs. Woods appealed the decision, which eventually made its way to the Supreme Court.

Over the course of five years, Mrs. Woods overcame her addiction, left an abusive relationship and upgraded her education. However, it was stated that over those five years, Leticia became “an established part of the Racine family.” Leticia was described as a well-adjusted child who was positively involved in her school and church. Leticia was aware the Racines were not her birth parents and that Mrs. Woods was. Leticia was also aware of her Aboriginal descent. Expert witnesses considered the Racines to be Leticia’s “psychological parents.” The argument arose that keeping Leticia within the Racine home cut her off from her culture and heritage.

Madam Justice Wilson concluded that “the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes.”^{Footnote 16} The Court believed that the Racines were well equipped to deal with any identity crises the child might face in adolescence and believed that the bond between Mrs. Racine and Leticia was more important than that of cultural preservation. Attachment and bonding were used to determine the best interests of the child, and thus the Supreme Court granted the Racine’s adoption.

The adoption did not work out, and Leticia found herself in group care through most of her teenage years. She recently noted, “I had no identity, nobody to connect with. I always felt shame, I asked myself, ‘why did I have to be this colour?’ I’d look in the mirror and say, ‘I hate you.’”^{Footnote 17}

2.2 Ongoing Impact of Racine v Woods

When the question of the primacy of attachment is at issue, this case has been cited as the basis upon which to determine placement of children from Indigenous communities permanently into non-Indigenous care. While there are over 580 citations noted through the CANLII database, three recent cases in Alberta help to illustrate how Racine continues to be applied. We will argue that continued application is an error of present understandings of the inter-cultural application of attachment theory. While attachment theory is not the only consideration in these cases, it is relied upon heavily. This runs contrary, in our view, to the notion of the best interests of the child. The United Nations Convention on the Rights of the Child (CRC), states 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.”^{Footnote 18} The Canadian Bar Association notes, “best Interests of the child” is a substantive right and guiding principle that covers all CRC rights, is aimed at the child’s holistic development, and requires a rights-based approach that promotes the child’s human dignity: adult judgment cannot override the child’s rights.^{Footnote 19} The best interests of the child test is a legally based argument as opposed to one that has been validated through social science research.^{Footnote 20}

URM ^{Footnote 21} is an Alberta Provincial Court decision regarding two Aboriginal girls who were placed under a permanent guardianship order (PGO) immediately after birth and placed within a non-Indigenous foster home. Both girls resided within that home for about three years. In 2015, the foster parents applied for private guardianship of both girls; shortly thereafter, the maternal great-aunt of the girls also filed for guardianship. Up to twice monthly, the aunt would bring various family members to visit the children, starting in 2016 and until the trial date. Both the aunt and the foster parents were assessed as suitable placement options; however, the Court followed Racine,^{Footnote 22} seeing culture as less important than attachment. In URM,^{Footnote 23} the trial judge quoted Justice Wilson to the effect that as attachment and bonding strengthen, the importance of culture and race abates. The foster parents were labelled the psychological parents, which is defined as the person or persons who provide the child continuous emotional and physical care and whom the child considers to be its parents. The Court felt that the disruption of attachment the two girls had to their foster parents would be detrimental to their development. The Court concluded, “To be absolutely clear, I reject as unsustainable or insupportable that the factor of maintaining Indigenous heritage is sufficient reason to ignore attachment theory. This position amounts to prioritizing the preservation of Indigenous heritage at the expense of all other factors, including the established attachment relationship between the children and the Foster Parents.”^{Footnote 24}

DP v Alberta ^{Footnote 25} was a 2016 provincial court case regarding two Aboriginal boys who had become permanent guardians of Alberta. Both children were placed in the care of their foster home as infants. The biological parents remained in contact with the boys throughout, visits increasing in frequency and duration as time went on. The biological parents, who had seven children in total, overcame their addictions in hopes of regaining their children. Since the removal of their four eldest children, they had managed to successfully raise three others with minimal intervention from child services. All had been returned to the biological parents apart from the two boys in question. The two boys had been in continuous care of their foster parents for about ten years. The foster parents were believed to be the psychological parents in this case, and though the children showed interest in wanting to be involved in their biological parents’ lives, their preference was to remain living with their foster parents. The courts deemed both sets of parents to be appropriate placements; however, when the test of best interests was applied, the courts relied on the belief that the maintaining of a consistent home and the emotional attachments formed in care took priority over cultural preservation. A psychologist testified it would be in the best interests to return the children to their biological parents; however, the judge disagreed. The trial judge quoted Justice Wilson in stating that as attachment and bonding strengthen, the importance of culture and race abates. The Court in DP determined that there was no reasonable cause to remove the children from their stable living environment unless there were dire circumstances. Guardianship and custody were granted to the foster family, and the biological family’s application was denied.

KG (Re) ^{Footnote 26} was a 2013 Alberta Provincial Court case regarding a girl, almost six years old, who was placed in foster care and became a permanent guardian of Alberta in 2011. The foster parents who gave respite care for the girl applied for guardianship alongside a paternal cousin. It was understood at that time that the Director of Child Welfare intended to place the girl within her community and thus was in support of the guardianship order presented by the cousin. The process of transitioning and exposing the child to overnight stays with her aunt commenced with overall success; however, it was noted by the foster parents as well as the child’s school that she began to act out upon returning from her visits with her aunt. Through an assessment, it was deemed the psychological parents of the child were her foster parents. The foster parents believed they had built a level of trust with the child and that the child had become attached. The Court in KG (Re) called upon Racine, quoting Justice Wilson in stating that as attachment and bonding strengthen, the importance of culture and race abates. Another quote relied on from Racine focused on race dropping in priority as time moves forward and that the true issue at hand is the mother-child relationship and the level of connection the child has with the parties involved. The trial judge concluded that the transition was causing unnecessary trauma to the child, who had already experienced enough adversity in her life. The guardianship was granted to the foster parents, and the application of the cousin was denied.

3.1 Over-Representation in Care

The colonization and assimilation of Aboriginal peoples in Canada is linked to the over-representation of Aboriginal children in care.^{Footnote 27} Canada sought to fully assimilate Indigenous peoples into European society but determined that allowing children to continue to live with family was a barrier to that goal. Indian residential schools were developed to “get rid of the Indian problem.”^{Footnote 28} Boarding schools for Aboriginal children have been recorded as early as 1620 in New France.^{Footnote 29} They became more prominent in the 1860s and expanded into government-funded facilities in 1883. By 1930, eighty residential schools existed across Canada. The government was encouraged by the churches to remove the children from their families as early as six years old to ensure they were “caught young to be saved from what is on the whole the degenerating influence of their home environment.”^{Footnote 30} Aboriginal children were removed from their homes and placed in a Christian, white, colonial environment and were stripped of their language, culture, and community. Approximately 150,000 children were removed from their homes and placed in one of the 132 Indian Residential Schools (IRS) in Canada that were government funded. By 1980, most residential schools were closed, although the last one would not be closed until 1996. In the 2008 apology by Prime Minister Harper, he described substantial wrongdoing on the government’s behalf, including the “emotional, physical and sexual abuse and neglect of helpless children, and their separation from powerless families and communities.”^{Footnote 31} The government acknowledged the continued effects the residential schools have on the survivors and their family members, for whom a settlement agreement was implemented and a promise of reconciliation given.

Despite the closures of IRS, between the 1950s and 1980s roughly 20,000 children were taken from their homes and placed in white foster homes or adopted out to white families throughout Canada, the United States, and other countries.^{Footnote 32} This movement was referred to as the ’60s Scoop. Blackstock argues that the ongoing over-representation of Indigenous children in the care of child welfare across Canada is a different version of assimilation and colonization efforts.^{Footnote 33} She sees this as a continuation of the IRS, as the children were removed from their families on the same premise but with less potential of them ever being returned to their families.

Henry, Lévesque, and Lévesque demonstrated the continuing relocation and removal of Aboriginal children,^{Footnote 34} referring to a quote from 1985 by Judge Kimelman stating:

This leads us to today’s over-representation of Aboriginal children in the foster care system. Aboriginal people make up 6% of the population in Alberta while Aboriginal children represent 69% of children in care. According to the Canadian incidence study in 2008,^{Footnote 36} 46% of Indigenous children coming into care were for reasons of neglect related to poverty and lack of supportive resources. A further 9% were related to emotional maltreatment and 33% to intimate partner violence. Physical and sexual abuse represented 11%. The report indicates a strong connection between intergenerational trauma and involvement in child protection. Henry, Lévesque, and Lévesque noted the majority of staff working within child welfare consisted of “white middle-class people who assumed that low-income Native parents could only provide a less than adequate home for their children.”^{Footnote 37} The lack of proper training regarding colonialism’s financial effects on Aboriginal communities, together with the “strengths, needs, culture resiliencies, and unique spaces of Indigenous families and communities” results in racial and economic biases.^{Footnote 38}

Economic insecurities date back 200 years, to the beginning of colonialism, when Aboriginal people lost the rights to their natural resources.^{Footnote 39} Issues of insufficient and over-crowded housing plagues reserves, which only further entrenches the involvement of Child and Family Services.^{Footnote 40} Continued systemic racism provides major road blocks to gaining employment for Aboriginal people, with those on reserve having an overwhelmingly high unemployment rate.^{Footnote 41} Economic considerations have become a major element in the decisions to remove First Nations children from their homes as stated above. Another major factor, outlined in the CHRT 2016 decision,^{Footnote 42} is access to more comprehensive funding for children in care than for those remaining at home. This case outlined the imbedded racism within child protection when intervening with First Nations and funding that encourages the removal of Aboriginal children, promoting a more reactive, rather than preventive, form of intervention. The Tribunal sided with the First Nations Child and Family Caring Society of Canada (FNCFS), which resulted in recommendations made by the FNCFS for changes within the child welfare system as well as a settlement. Wrongdoing in regard to the removal of children due to race, underfunding of programs, and implementation of IRS were acknowledged within the final Tribunal decision.^{Footnote 43} The case of Brown v Canada ^{Footnote 44} (Brown) shows that there is a common-law duty to properly care for Indigenous children, and long-term harm arises when that is not done.

5.1 Contextualizing Attachment Theory and Indigenous Peoples

As seen in the above-noted cases, including Racine,^{Footnote 59} attachment is a major consideration, particularly when a child is not to be returned to a parent and some sort of permanency is sought for the child. This can create a contest between possible caregivers. As seen above, there are several cases where attachment theory has been used to determine that existing, non-familial, often foster carers, are preferred placements rather than kinship placements. Decisions have rested heavily upon the notion that the child has formed a secure attachment with the foster carers which would cause significant harm if the child were removed and placed in kinship care or some other form of familial care.

There is no doubt that attachment theory has a place in our understanding of human relationships. This theory found its roots in the work of English psychoanalyst John Bowlby.^{Footnote 60} He argued that early childhood attachments played a crucial role in the development of the child, influencing mental and relational functioning.

His work was reinforced by psychologist Mary Ainsworth.^{Footnote 61} Looked at together, their work formed an understanding that a child would seek proximity to attachment figures that they would remain close to throughout development. Their research also led to an understanding of the transferability of attachment behavior in other intimate and familial relationships along with a contribution to intergenerational parenting patterns.

Bowlby’s early work included a report to the World Health Organization in 1951,^{Footnote 62} in which he argued for an intimate, warm and continuous caregiving relationship with the mother or a permanent mother substitute. Bowlby was aligned with the work and thinking of Sigmund Freud, in the sense that they both believed that early life experiences were crucial to the life course of a person.^{Footnote 63} Like Konrad Lorenz, Bowlby also linked attachment to survival.^{Footnote 64} This is often used as the argument for sustaining the foster care position, as it is deemed the place from which the child is capable of developing healthy relationships with others.

Bowlby’s work was built on the English and European understanding of family, which tends towards a nuclear construction with a primary dyadic relationship with the primary caregiver, typically the mother. The attachment theory that evolved is hierarchical in nature. That is, there is the primary attachment (typically the mother) at the top. The secondary caregiver, often the father, is next, and then would come siblings and so on along the hierarchy to other figures.^{Footnote 65}

While influential, Bowlby’s work is not the seminal understanding of maternal-child relationships. Some of his early work has been heavily criticized, particularly his influential 1944 study known as the 44 Thieves Study. ^{Footnote 66} This study tested the hypothesis that disrupted attachment led to future socially maladaptive behaviours. Rutter has shown the experiment was methodologically flawed, confusing cause and effect with correlation.^{Footnote 67} Rutter suggested the distress reported in the study could also be seen with the departure of other attachment figures such as a father, siblings, friends, and peers and even inanimate objects. Others have noted the conclusions around attachment in the 44 Thieves experiment are likely more connected to the deprivation arising from severe maltreatment and the complex interplay between genetic and environmental triggers.^{Footnote 68}

Rutter went on to distinguish, in attachment theory, a difference between deprivation and privation.^{Footnote 69} The former is the loss of or damage to an attachment relationship, while the latter is the failure to develop an attachment relationship. Deprivation is often mistaken as the impact of moving a child from a home where they have developed a secure attachment to a home where a secure attachment might also be developed. Deprivation, as outlined by Rutter, is loss without a recovery attachment. It is that which distinguishes attachment from privation. His work essentially contributes to an understanding that children have the capacity to transfer attachment.

Later work showed that a child can transfer attachment patterns. In fact, there is little sense in attachment theory in the absence of this ability. Otherwise, we would need to stay attached to the primary figure all of our lives and would be unable to attend to the needs of new relationships. Indeed, as Allen points out, the capacity to build new attachments is quite possible when we transfer a child to different caregivers.^{Footnote 70} In fact, this is exactly what we do when we move children into foster care and later return them to family.

Weisner and Gallimore showed that only a minority of children in human societies are cared for by a primary individual as opposed to a system of caregivers.^{Footnote 71} This was reaffirmed in the work of Tavecchio and van IJzendoorn and of van IJzendoorn, Sagi, and Lambermon showing that, not only can a network of carers provide a stable system for a child, but it may indeed have significant advantages, as the mother is then not solely or primarily responsible for all of the needs of the child.^{Footnote 72} It is also vital to note that by 1977, Bowlby was thinking of various attachment figures, although still starting with a dyadic understanding.^{Footnote 73} Zeanah, Shaiffer, and Dozier report that transfers, such as back to biological family, are stressful but can be successful if appropriately managed.^{Footnote 74}

5.2 The Issue of Culture and Attachment Theory

Racine decided culture fades and attachment is the lingering connection.^{Footnote 75} In essence, this gives attachment a priority position while virtually disempowering the role that culture has in the development of a child. The Brown decision suggests otherwise.^{Footnote 76} It is estimated that 20,000 children were affected and that the compensation could see as many as 15,000 survivors come forward. Loss of culture and identity was a significant factor in determining compensation was needed. It also was foundational in the apology by Premier Notley.

A significant question is whether attachment theory can be seen as culturally universal given its roots in white, ethnocentric cultures. This has certainly been argued.^{Footnote 77} Van IJzendoorn and Sagi argue for balancing factors between universal trends and contextual determinants. They state, “attachment theory without contextual components is as difficult to conceive as attachment theory without a universalistic perspective.”^{Footnote 78} They add, while supporting the notion of a universal sense of attachment, “cross cultural studies on attachment have made us sensitive to the importance of wider social networks in which children grow and develop…We need a radical change from a dyadic perspective to an attachment network.”^{Footnote 79} Yeo adds there is a need for not only culture-specific research but also consideration of the interactions of Indigenous attitudes, values, and behaviours.^{Footnote 80} Weisner came to a similar conclusion, noting “dyadic attachment does not represent such complex, changing social worlds of relationships well, even in the USA and Europe, and much less in the rest of the world.^{Footnote 81}”

Kline, Shamsudheen, and Broesch show that attachment theory and other family-related constructs are rooted in Western understandings, with “belief that Western populations represent a normal and/or healthy standard against which developments in all societies can and should be compared.” These authors add that this builds upon the ethnocentric assumption that divides populations into “the west” and “the rest.”^{Footnote 82} Keller supports this view by noting that attachment theory is “based on the Western middle-class conception of development with the primary goal of individual psychological autonomy.”^{Footnote 83} Thus, assessment of parenting becomes premised upon the notion of “whiteness” parenting as the foundation against which all other parenting is compared.^{Footnote 84} There is white and then there is the “other.”^{Footnote 85}

Levine and Norman show that any sense of agreed upon universality of attachment theory as a concept is blind to cultural variations, perhaps due to the ways in which it was developed:

Other researchers have shown that attachment theory does not transfer as either pure nor universal but has specific manifestations. Rothbaum et al. showed that understanding the culturally specific expression is vital.^{Footnote 87} Morelli stated that we cannot just sidestep the contextual realities even though that may go against a “research tradition that spans decades and extends to communities worldwide.”^{Footnote 88}. Children’s lives and relationships exist in their particular cultural expression and parenting practices that reflect the specific needs for successful maturation in that context.^{Footnote 89}

Research now shows that attachment must be considered within the context of culture,^{Footnote 90} dismissing a whiteness lens of how the relationship between children and their caregiving system might be described. Even the language of attachment must shift from the whiteness lens and into the formative descriptions rooted in cultural language and knowledge. Pearson and Child concluded that the dyadic tenets of attachment theory are not culturally universal.^{Footnote 91} Wotherspoon et al. recommend that “judges not rely solely on ‘bonding assessments’ but take a more comprehensive look at the quality of the relationship between parents and infants in the context of overall risk.”^{Footnote 92} This is a call for an ecological view that steps outside of attachment as a singular or primary view, although it still relies more upon a dyadic than a systemic view.

Lindstrom and Choate, working with Blackfoot elders, have shown that, in their culture, attachment is not to a person but rather to a communal collection of people.^{Footnote 93} Parenting is done by a system of people not tied by blood bonds but by communal, cultural ones. Thus, the argument is not that attachment fails to occur in culturally diverse contexts, but that it occurs quite differently and can be in collective rather than dyadic or hierarchical expressions. Courts are being asked to use non-culturally based frameworks of attachment that discriminate against Indigenous caregiving systems, and likely those of other collectivistic or communal cultures. This differentiates culture in Indigenous communities from the hierarchical structure described above to one of multiple, communal-based attachments. The whiteness lens seeks to flatten attachment to a singular rather than complex, multi-varying series of relationships that differ but are equally valid.^{Footnote 94}

Mercer is pointed in stating that attachment research has been based in Western European and North American habits and beliefs, adding to the question of validity when applied to Indigenous peoples and other populations that do not fit the “whiteness” frame.^{Footnote 95} Yet the discussion about the influence of factors such as culture and socioeconomic status is not new; it began in the mid-1990s, if not earlier. However, there remains resistance to accepting this notion, as seen in the recent cases noted above.^{Footnote 96}

From the same perspective as many leading researchers, Granqvist et al. describe the improper use of attachment assessments and theory in child protection matters, stating:

When an assessment acts as the basis of judicial decision making, it is vital that the method, theory and tools used to draw conclusions not serve to discriminate against a population. This becomes the essential point, in that attachment assessment draws from a dyadic relational theory and is being applied to a communal family system. This is contrary to the best interests of the child when such decisions result in Indigenous children being removed from their culture. It also brings into question whether assessments based upon a predominant theory that is not culturally appropriate would meet the Mohan test for expert evidence in Indigenous or communal parenting systems.^{Footnote 98}

The need for culturally appropriate assessment methodology has been considered by the Supreme Court of Canada in Ewart v Canada (Ewart).^{Footnote 99} While that case arose from the criminal justice system, there are parallels to child intervention. Culturally biased tools may result in structural bias which is averse to an Indigenous person. This is particularly so when the system is aware that the tools are biased with respect to Indigenous peoples. A careful review of the attachment literature makes clear that there is no evidence that attachment theory has been determined to have validity within the Indigenous cultures of Canada. Following the Court’s line of thinking in Ewart,^{Footnote 100} the lack of cultural appropriateness of assessments reliant on attachment theory and other assessment methodology should be discontinued until reliability and validity can be determined.

This is consistent with the position taken recently by the Task Force of the Canadian Psychological Association and the Psychology Foundation of Canada,^{Footnote 101} which cautioned that assessments are “highly templated” and not normed on populations that diverge from Western theories. They accept that quantitative assessment tools have not been normed on Indigenous populations and yield results that do not “resonate with Indigenous world views.”

6.1 The Issues of Structural Racism

When applying definitions of family, parenting, and child care that are invalid for the population being assessed, a form of structural racism results. While this might be deemed a controversial nomenclature, we argue that it accurately represents the impact. Gee and Ford identify that, when a negative outcome occurs at a group level, then the discrimination, even though also felt at the individual level, is aimed at the group.^{Footnote 105} This resonates with the historical and ongoing over-representation of Indigenous children in Canada’s child welfare populations. The whiteness frame has been seen in other non-white populations, such as black populations in Canada^{Footnote 106} and the United States.^{Footnote 107} Barn affirms that social workers are agents of the state. They enact the policy, legislation, and direction proposed by the state.^{Footnote 108} Thus, in Canada, they have been the agents of assimilation and over-representation. Equally, the courts act in similar roles. We argue this is seen when white culturally-based definitions continue to be applied, such as through attachment theory.

When the Racine decision is applied, there is a necessary implication that severance of the child from the Indigenous culture is also in the best interests of the child. This removes from the child rights associated with being Indigenous. Some cases, such as URM,^{Footnote 109} indicate that it is possible to sustain culture through the use of “cultural plans,” whereby the adopting parent agrees to keep the child exposed to culture. This might include attending pow wows, ceremony, or visiting family. However, such plans are entirely at the goodwill of the adopting parent, as there is no way to enforce such orders in adoption. Furthermore, knowing culture comes from living “in,” as opposed to periodic exposure to, that culture. Kline describes Racine as justifying separation from community and culture.^{Footnote 110} In particular, it silences the mothers who no longer believe the court will hear their voices.^{Footnote 111}

Whiteness also occurs when the approach to answering assessment, case planning, and permanency questions for children and families is rooted in theories that have not been developed, normed, or validated in Indigenous populations.^{Footnote 112} This starts with the assumption of what is the desired outcome for the child and the pathways for achieving it. Like attachment theory, it assumes a universal definition of what is good enough. From there, the questions posed and their interpretations act as meaning making of the parenting and needs of Indigenous children by the Eurocentric culture.

There are assumptions that theories, such as attachment, are applicable because they have been found to be so in other cultures. Cowan and Cowan show such an assumption should not be made.^{Footnote 113} What might be most important in ending structural racism is to not assume applicability but rather to work with Indigenous peoples to understand how such issues are expressed within their culture, if at all.^{Footnote 114} If a theory or practice has not been determined to be valid, it must be so treated. Otherwise, colonialism and structural racism are extended.

However, it must also be noted that the apologies, though stepping in the right direction, do not address how our societal structures are still based on racial biases [structural racism]. Henry, Lévesque, and Lévesque addressed this issue in their article, stating, “It does not appear that apologies and money are going to restore the trust that has been broken between the two races. Apologies and money do not constitute a relationship.”^{Footnote 115}

6.2 The Acceptance of Inherent Bias

Ewart illustrates how bias operates and can be accepted as applicable over time.^{Footnote 116} The methods used become accepted as valid simply because they have been used previously. The decision can be extended to the role of another set of government agencies, child protection. In the same way, the question can be asked whether the tools used to assess parents and the needs of children are biased. This work shows that there is a high probability of inherent bias. Choate and Lindstrom^{Footnote 117} and Lindstrom and Choate^{Footnote 118} have shown that assessment of parenting capacity is built upon Western definitions of family, parenting, and child rearing, which is equally concerning and corroborates the case of Ewart. ^{Footnote 119} Indeed, there is a significant concern that much research is heavily weighted to Western, Educated, Industrialized, Rich, and Democratic (WEIRD) populations,^{Footnote 120} raising issues of generalizability. These same authors note that most people do not fit into the WEIRD category.^{Footnote 121}

6.3 Validity Exists Within the Indigenous View

As can be seen in Figure 1, the raising of a child in an Indigenous culture can be seen from a communal perspective. There is not the notion of a particular person or set of parent figures who are solely accountable for raising the child. Rather, it is a multi-directional caring system with multiple intersections that weave together developmental pathways for the child. The child, in this system, draws knowledge, capacity, and skill building through relationships with land, culture, spirit, and community. Attachment, according to this view, constitutes too narrow an interpretation of the systems that support the development of a child within their culture.

Figure 1

“Ani to pisi” Spider Web gifted to the authors by Elder Roy Bear Chief as told to him by his brother Clement Bear Chief. As shared by Roy Bear Chief from the Siksika Nation, the story of Ani to pisi (Spider web) can explain the intricate connections involved in the care of people. Creator asked the spider to make a web and surround the people with this protective web. If there was a disturbance in the thread (which Roy referred to as a vibration), Creator would be there to help calm the vibration and restore balance. The spider web can be used to map out support systems and resources. Vibrations (disturbances) can be quelled by the assistance of the supports that make up the web. This adaptation is being used to show the relational connections involved in the raising and care of an Indigenous child. This diagram might not represent all Indigenous views but is being used as a mechanism to demonstrate the complexities of the relationships built within one’s culture.

When assessing the needs of an Indigenous child, these forces go far beyond the narrow view of attachment. In fact, this is closer to the transactional model,^{Footnote 122} in which attachment is part of a series of influencing factors. This model has a larger, ecological view that considers vulnerability and protective factors that move well beyond dyadic views. This brings into consideration the child as an individual with impacts from familial, social, community, and economic forces. The dyadic view is too narrow to encompass these processes.

The Indigenous world view reflected in Figure 1 outlines more than just human relationships. Knowledge of the land and the way of nature, for example, allows the child to understand place in the universe not so much as unique but interconnected. Assessment that does not reflect this interactional understanding serves as a source of bias and will misjudge the child’s capacity and ability to develop in culture.

This leads to a need for a decolonizing view of assessment and the presentation of evidence to the court. Courts should be wary of expert evidence that lacks an Indigenous lens of caring for and raising a child. Figure 1 is an example of this Indigenous knowledge, but there is not a pan-Indigenous view, as cultures vary. Discomfort should arise when evidence not informed by the Indigenous view is presented, as the evidence may not meet the tests laid out in Mohan,^{Footnote 123} in that it would not be given by a properly qualified expert. Courts, social workers, psychologists, and others involved with families need to work with Indigenous peoples to revise their approach to be valid with Indigenous peoples, which is consistent with the TRC Calls to Action,^{Footnote 124} particularly Calls 1 to 5.

Indigenous authors have noted that Racine ^{Footnote 125} fails to understand the identity that comes from connection to culture and its longitudinal impact. This leaves the child with identity confusion over time.