Article

Social & Legal Studies

2022, Vol. 31(4) 559–579
Indigenous parents and © The Author(s) 2021

child welfare: Mistrust, Article reuse guidelines:

sagepub.com/journals-permissions
epistemic injustice, and DOI: 10.1177/09646639211041476
journals.sagepub.com/home/sls

training

Robert Leckey , Raphael Schmieder-Gropen,

and Chukwubuikem Nnebe
Faculty of Law, McGill University, Canada

Miriam Clouthier
IMK sencrl/LLP, Montreal, Canada

Abstract
The settler state’s taking of Indigenous children into care disrupts their communities and
continues destructive, assimilationist policies. This article presents the perceptions of
lawyers, social workers and judges of how Indigenous parents experience child welfare
in Quebec. Our participants characterized those experiences negatively. Barriers of lan-
guage and culture as well as mistrust impede meaningful participation. Parents experi-
ence epistemic injustice, wronged in their capacity as knowers. Mistrust also hampers
efforts to include Indigenous workers in the system. Emphasizing state workers’ ignor-
ance of Indigenous family practices and the harms of settler colonialism, participants
called for greater training. But critical literature on professional education signals the
limits of such training to change institutions. Our findings reinforce the jurisdictional
calls away from improving the system towards empowering Indigenous peoples to run
services of child welfare. The patterns detected and theoretical resources used are rele-
vant to researchers of other institutions that interact with vulnerable populations.

Keywords
Child welfare, continuing professional education, epistemic injustice, First Nations
parents, Indigenous parents, social work

Corresponding author:
Robert Leckey, Faculty of Law, McGill University, Montreal, Canada.
Email: robert.leckey@mcgill.ca
560 Social & Legal Studies 31(4)

Introduction
In Canada and other settler states, child welfare takes Indigenous children from their fam-
ilies into care at a rate vastly higher than their share of the population. On some views,
this disruption of child rearing within Indigenous families and communities continues the
destruction done by overlapping assimilationist, even genocidal, policies. The dealings of
Indigenous parents with the agencies of child welfare and the courts thus command atten-
tion on the part of those concerned with colonization’s ongoing harms. In research
designed collaboratively with the Native Women’s Shelter of Montreal, we asked
lawyers, social workers and judges in child welfare in Quebec for their perceptions of
Indigenous parents’ experiences with the system and their recommendations for change.
Our participants cast Indigenous parents’ dealings with child welfare and the youth
courts in overwhelmingly negative terms. They stressed state workers’ ignorance of
Indigenous family practices and the ongoing harms of settler colonialism. Interviews
indicated that, in contending with child welfare and the courts, Indigenous parents experi-
ence epistemic injustice – wrongs to individuals in their capacity as knowers. This
concept and related ones are more present in research in philosophy and social work
than in legal studies. As for participants’ recommendations, the most frequent was for
more training about Indigenous peoples. But critical literature on professional education,
developed in the health sciences, cautions that such training has limited capacity to
change institutions substantially. While recommendations focused on adjustments to
individual conduct – on the part of state personnel and Indigenous parents – structural,
fundamental changes seem necessary. We contend, then, that our findings reinforce jur-
isdictional calls not to fix the colonial system but to transfer authority over child welfare
to Indigenous communities.
Given its location and scope, this article may speak most immediately to scholars of
‘postcolonial’ contexts, Indigenous peoples, social services and the legal system. But it
may contribute to broader readerships. The conditions for epistemic injustice and profes-
sionals’ recourse to training as a remedy for structural injustice obtain in settings other
than child welfare. Our analysis may thus inform researchers of other institutions that
interact with vulnerable people internally or externally, such as the military, police and
healthcare. Moreover, the article’s theoretical resources relating to epistemic injustice
and critiques of professional training hold untapped potential for sociolegal researchers.

Research and Legal Context

This project addresses a gap in the research: no empirical study has gathered the percep-
tions of professionals in child welfare regarding the process for Indigenous parents.
It complements the rare studies of Indigenous mothers dealing with the system in
Quebec (Croteau, 2019; Soumagnas, 2015; for other provinces, see Bennett, 2009;
MacDonald, 2002; on Aboriginal youth in youth protection in Quebec, see Gagnon
Dion et al., 2017; Gagnon Dion et al., 2018).
Indigenous children are grossly overrepresented within state care in Canada, including
in Quebec.1 This situation prevails in other settler states, such as Australia and New
Zealand (Tilbury and Thoburn, 2011: 298–300). Materially, the risks propelling the
Leckey et al. 561

removal of First Nations children from their families are substantially ‘due to social
exclusion, poverty and poor housing’ (Blackstock, 2007: 76 [footnote omitted]; see gen-
erally Commission of the Pan American Health Organization on Equity and Health
Inequalities in the Americas, 2019). Other present-day contributing factors may
include discriminatory practices by professionals who detect children as ‘at risk’; institu-
tional racism or system biases; Indigenous families’ lesser likelihood of legal represen-
tation; and discriminatory practices by child-welfare workers (Tilbury and Thoburn,
2011: 295; see also Mosher and Hewitt, 2018; Sinha et al., 2011: 307). The underfund-
ing of child-welfare services in Indigenous communities, including preventive program-
ming, is another (Ariss, 2021; Blackstock, 2016; Monchalin, 2016: 169).2 Rules that are
unsuited to the crowded housing and other realities of First Nations make it hard to
recruit and retain foster families from their communities (Palmer and Cooke, 1996:
716).3 Differing conceptions of family play a crucial role. State social interveners
and the courts adopt an individualizing, liberal conception of ‘best interests of the
child’, one that casts separating First Nations children from their families as ‘natural,
necessary, and legitimate, rather than coercive and destructive’ (Kline, 1992: 423;
see also Kline, 1994). They may misunderstand and marginalize Indigenous notions
of the family – including forms of customary adoption (see, e.g. Baldassi, 2006) –
that have preceded Canadian state law and coexisted with it, often centering the
extended family (see, e.g. Guay, 2015; Makokis et al., 2020). Such conceptions may
nest within forms of constitutionalism and worldviews distinct from those of settlers
(see, e.g. Mills, 2018; Simpson, 2017).
These factors operate against a background built by generations of settler colonialism
and assimilationist policies. The system of residential schools, run by the federal govern-
ment with churches from 1831 to 1996, strove to eradicate Indigenous children’s lan-
guage and culture. It subjected children to physical and sexual abuse and they died
within it at shocking rates (Monchalin, 2016: 125). Thousands of the system’s survivors
sued the federal government and the churches, culminating in a class-action settlement
and leading to a Truth and Reconciliation Commission (2015). Since May 2021, hun-
dreds of unmarked graves have been discovered on the grounds of former residential
schools (Globe and Mail, 2021).
Another intervention has been child-welfare agencies’ ‘mass removal’ of Indigenous
children for placement in foster care or adoption by white families (Shaheen-Hussain,
2020: 180). Because this ‘scooping’ or removal of children accelerated in the 1960s, it
is known as the ‘Sixties Scoop’ – although the ‘ongoing reality’ of Indigenous children’s
taking into care spurs talk of a ‘Millennium Scoop’ (Monchalin, 2016: 169). A crucial
insight is the continuity across these interventions: the ‘forced separation of
Indigenous children from their families’ did not end when the residential schools
closed (Shaheen-Hussain, 2020: 180). Indeed, such separation may typify how settler
colonialism ‘destroy[s] to replace’ (Wolfe, 2016: 33), dispossessing Indigenous
peoples from their land and its resources. State interference with Indigenous families
denied children ‘healthy parental role modelling’ and resulted in their ‘diminished cap-
acity as adults to care for their children’ (Blackstock and Trocmé, 2005: 15; also Ing,
2006). The result is ‘negative intergenerational cycles of individual, familial, and com-
munity adversity and distress’ (Bombay et al., 2020: 64).
562 Social & Legal Studies 31(4)

For the most part, governmental strategies to improve the welfare of Indigenous chil-
dren by developing more effective and culturally sensitive responses have failed (Tilbury
and Thoburn, 2011: 305). Legislative directives to consider Indigenous culture in child
protection seem to have made little difference (Guay and Grammond, 2012).
In Quebec, Cree and Innu communities have developed social services under provincial
law (Guay et al., 2014: 200–201; Act respecting health services and social services for
Cree Native persons). Innu mothers have reported that community-run social services
and Innu workers value their parenting practices and prioritize keeping children within
the community (Croteau, 2019: 273). The Youth Protection Act has since 2001 contem-
plated that the government and an Indigenous community may agree that the latter will
establish and run child-welfare programs. The first such agreement was concluded in
2018 with the Atikamekw nation (Commission spéciale sur les droits des enfants et la
protection de la jeunesse, 2021: 290–291). Such programs must respect the legislation’s
‘general principles’ (Youth Protection Act, s. 37.5, paras. 1, 2). Arguably, though, the
need is for ‘distinct systems, conceived in response to Indigenous realities’, not
‘Indigenous organizations or personnel applying non-Indigenous laws and regimes’
(Guay et al., 2020a: 260 [authors’ translation]). On this reasoning, First Nations ‘must
be empowered’ to substitute their child-welfare services for provincial ones (Kline,
1992: 424). This thrust, which focuses on authority and the space in which it operates,
evokes theorizing on jurisdiction (Mant and Wallbank, 2017; Valverde, 2009).
It evokes an abolitionist turn from improving the exercise of state power to limiting its
space (Akbar, 2020: 1838).
The Parliament of Canada in 2019 affirmed that Indigenous communities’ inherent
right to self-government ‘includes jurisdiction in relation to child and family services’
(An Act respecting First Nations, Inuit and Métis Children, Youth and Families,
s 8(a)). This statute has spurred concerns about its approach, including the lack of
accompanying funding, and its framing narrower than the traditional children’s
laws or family or clan laws of First Nations (Blackstock, 2019a). Regrettably, the
government of Quebec has contested the legislation’s constitutionality (Guay et al.,
2020b).
While the overrepresentation of Indigenous children in care has been documented
more extensively elsewhere in Canada (Breton et al., 2012: 160), service provision
for Indigenous peoples may be especially problematic in Quebec. The Public Inquiry
Commission on Relations between Indigenous Peoples and Certain Public Services
in Québec concluded that its investigation ‘established the systemic character of
discrimination’ in the services under study (2019: 228 [authors’ translation]). The
National Inquiry into Missing and Murdered Indigenous Women and Girls dedicated
a volume of its report to Quebec, given the province’s distinctive political, socio-
historical, linguistic, religious, cultural and institutional context (2019: 11–13). The
Commission spéciale sur les droits des enfants et la protection de la jeunesse (2021:
292) heard numerous testimonies that application of the Youth Protection Act engen-
ders discriminatory effects for Indigenous families. Despite voluminous findings to
the contrary, the provincial executive persists in denying the presence of systemic
racism or discrimination, preferring to focus on individual wrongdoing (Cardinal,
2020).
Leckey et al. 563

Approach
Research Process
This small-scale, qualitative study was suggested by the Native Women’s Shelter of
Montreal to one of the authors. Respecting calls for research on or about Indigenous
people to be done for and with them (see, e.g. Evans et al., 2020; Windchief and San
Pedro, 2019), social workers at the Shelter reviewed drafts of the ethics proposal (REB
File #7-0619) and the interviewers’ questions. Rather than aspiring to neutrality, the
study aims to support the Shelter’s advocacy on behalf of Indigenous women
(McHugh, 2020).
The study took an internal perspective, speaking with professional ‘repeat players’
having dealt with numerous families in the child-welfare system and courts
(Erez-Navot, 2014; Galanter, 1974), mostly in urban settings, off-reserve. The
Shelter proposed interviewing professionals (see similarly Walsh and Douglas,
2011). It hoped to learn more about the ‘settlement conference’ – a process of judicial
mediation consecrated in Quebec’s new Code of Civil Procedure (Roberge, 2016) –
and possible ways to adapt it for Indigenous parents. The choice of professional par-
ticipants takes up the call to look inward to examine how institutions enact power and
discrimination (Gerlach, 2012). It matched the research team’s expertise and
resources. In contrast, for a study that foregrounded the voices of children or
parents, recruitment would be more complex and the vulnerabilities and risks to miti-
gate, more acute (Summers, 2020; on children’s participation in other legal processes,
see, e.g. Bala et al., 2010). No member of the research team was Indigenous. While we
try to remain reflexively conscious of our settler role in the Canadian context, our posi-
tionality ‘may shape the findings and conclusions’ (Berger, 2015: 220; see also
Thurairajah, 2019).
In summer and fall 2019, interviews took place with six lawyers, four social workers
and two judges. One is from Val-d’Or, the rest from Montreal, Quebec. A social worker
self-identified as Métis. Potential interviewees were contacted by e-mail and sent an over-
view of the study and a consent form. Participants were asked to suggest additional inter-
viewees, and some did so. A self-selection bias may have yielded participants who are
especially critical of the state’s system. Interviews were semistructured (Brinkmann,
2020) and most were conducted in person, typically lasting 45 min. While we foresaw
no major risk to participants, we identify participants only by profession and the nongen-
dered pronoun ‘they’, mitigating the risk of their identification by an employer who dis-
approved of the study. The interviews were transcribed and analyzed for common
themes, recommendations and other salient observations. The richness of the interviews
led to splitting the results, with a companion article to focus on settlement conferences
(Leckey forthcoming in 2022).
This study offers access to the participants’ descriptions and stated impressions, as
interpreted by the researchers (Padgett, 2012; Trent and Cho, 2020). The interviews
allowed us not only to gather the participants’ perceptions and recommendations but
also to learn more about their professional selves. The inclusion of participants from
social work and law is a strength, given the potential for epistemological and professional
differences between them (Dickens, 2005; Taylor, 2006). Especially significant are points
564 Social & Legal Studies 31(4)

on which accounts overlapped, as well as ‘inconsistencies, contradictions, ambiguities,

and ambivalences’ (Gilgun, 2020: 988).
Limits of the study merit mention. Assessing the attitudes and feelings of others is always
difficult. Moreover, the interviews do not transparently yield participants’ views on the
interaction of Indigenous parents with child welfare. For example, despite the anonymity,
participants may have shaped their responses as part of the ongoing management of their
professional identity (Seron and Silbey, 2004), including their role in a harmful colonial
system (compare Shaheen-Hussain, 2020: 9–10). Given the scale of the study, the geo-
graphic concentration and participants’ division across social work and law, the results
do not yield generalizable propositions (Webley, 2020: 65–66; on ‘analytic’ payoff
rather than statistical generalizability, see Maxwell, 2009). Research with professionals
in regions of Quebec, where the number of Indigenous children engaged with state care
is higher, would offer a complementary perspective. Due to resource constraints, the
study includes no control group focused on non-Indigenous parents. The Director of
Youth Protection (DYP) intervenes disproportionately in families that are from visible
minorities, living in poverty, or both (Bernheim and Coupienne, 2019: 239–241), and pre-
sumably they experience dealing with child welfare as difficult and stressful. Nevertheless,
our interviews flag features specific to First Nations and other Indigenous parents, or dis-
proportionately applicable to them.

Theoretical resources
While the project builds on postcolonial theory’s concern with ‘forms of social, cultural
and psychological practice that survive the formal colonial era’ (Blagg et al., 2017: 346)
and, indeed, acknowledges that colonialism and territorial occupation are ongoing (see,
e.g. Simpson, 2017), other strands of research inform our reading of the interviews
more directly.
Critical, chiefly feminist, work on epistemic injustice helps in specifying the dynamics
raised by our participants. Epistemic injustice is not simply a potential unfairness in the
distribution of epistemic goods such as information or education. Rather, it is ‘a wrong
done to someone specifically in their capacity as a knower’ (Fricker, 2007: 1; see gener-
ally Kidd et al., 2017). Fricker distinguishes two forms of epistemic injustice.
‘Testimonial injustice’ arises when prejudice against a speaker’s social group leads to
their word being taken as less credible than it ought to be (Fricker, 2007: 28; see also
Wanderer, 2017). ‘Hermeneutical injustice’ occurs ‘when a gap in collective interpretive
resources puts someone at an unfair disadvantage when it comes to making sense of their
social experiences’: think of someone who suffers sexual harassment in a culture lacking
that concept (Fricker, 2007: 1). Testimonial justice will prove relevant, as will the related
idea of ‘epistemic entitlement’, which operates when someone unjustly assumes authority
to speak on behalf of one less privileged (Manne, 2020: 141; see also Steers-McCrum,
2020). Scholars in social work (see, e.g. Bell, 2014; Bourgault, 2020; Doan, 2017;
Iacono, 2017; Lee et al., 2019) have used the concepts of epistemic injustice more
than have their counterparts in sociolegal studies (compare, e.g. Lindsey, 2019; Tsosie,
2012). Although theorists still debate how best to identify or characterize the harms of
testimonial injustice (see, e.g. Byskov, 2021; Congdon, 2017), these concepts aid in
Leckey et al. 565

discerning the shared character of the comments we gathered about voice, knowledge and
influence and how they reflect systemic inequities.
Furthermore, critical research on professional education in respect of cultural compe-
tency, anti-racism and Indigenous peoples is useful. More developed in health and social
services than in law, this literature cautions about the risks of superficiality (Shepherd,
2019), of focusing on individual attitudes rather than organizational change (Bendick
et al., 2001; Karabanow, 2004) and of severing culture, in a depoliticizing way, from
racism, colonialism and other systems of oppression (Acosta and Ackerman-Barger,
2017; Hassouneh, 2006). It helps in assessing the adequacy of participants’ recommen-
dations as responses to epistemic and other forms of injustice.

Troubles engaging with the system

The first major theme from our results concerns the difficulties of parents and other
Indigenous people in working with the state’s system of child welfare. Our participants
work in a system that they concede to be broken and harmful (compare a nuanced
summary of Innu mothers’ views on Quebec’s child protection: Croteau, 2019: 272).
They spoke about child welfare’s colonial impact and Indigenous parents’ feelings of
defeat, shame and mistrust when dealing with it. They commented on the linguistic cap-
acity of Indigenous parents and troubles in accessing interpreters. Obstacles to
Indigenous clients’ meaningful participation in court drew attention. We discern distinct-
ively epistemic harms in these factors’ cumulative effects, namely, testimonial injustice
and epistemic entitlement.

Widespread Mistrust
Several participants identified a pervasive mistrust on the part of Indigenous parents – one
reasonable in the light of the system’s operation, especially in the lives and communities
of First Nations. Interviews proved consistent with observations that Indigenous families
engaged with the system often feel as though their experiences, perspectives and needs
are given less credence than those of the state’s social workers (Schmid and Pollack,
2009; see also MacDonald, 2002). Lawyer 3 reported sometimes wanting Indigenous
parents to ‘fight more, or to present more, or to offer more to the court’. Lawyer 4
expressed the feeling that Indigenous parents are ‘very ashamed of what’s written in
the reports’; ‘[t]hey feel they’re being judged’ (as non-Indigenous parents might also
feel). Lawyer 5 said that despite widespread talk about reconciliation, forgiveness and
making amends, mistrust was still present: ‘it’s like it’s too little, too late’ (for a call to
interpret reconciliation broadly, as ‘a decolonizing force’, see Simpson, 2011: 22).
They continued: ‘There’s a huge mistrust of the white person, there’s a huge mistrust
of the system, there’s a huge mistrust of social workers.’
Mistrust also emerged on the part of potential fosterers. Our participants raised the
potential gains of placing children in Indigenous foster families and confiding authority
to run child welfare to Indigenous communities. Although ‘plac[ing] a child in a white
foster family is terrible’ and may surface ‘the collective Jungian memory of the residential
schools’ (Lawyer 5), there are severe obstacles in recruiting foster families from
566 Social & Legal Studies 31(4)

Indigenous communities. Indigenous families and individuals may be reluctant to serve

as foster families because doing so involves working with the government: ‘As much as
I’m praising the extended family, often they don’t want to get involved and … it’s a fear
of the system. The white guy, they are going to have surprise visits, they are going to have
to make reports’ (Lawyer 5). Social Worker 1 reported a similar experience when recruit-
ing: ‘a lot of times people are like, I would love to foster but I just don’t want to have the
involvement of DYP in my life’.
These attitudinal impediments to involving Indigenous fosterers reinforce legal ones,
which may telegraph the state’s mistrust. For Lawyer 5, the aim of keeping Indigenous
children with their culture demands greater openness ‘to receiving all the families’,
even if they are not ‘perfect grandmothers or aunts or stepsisters’. Given Indigenous
peoples’ overcriminalization (Chartrand, 2019; Marques and Monchalin, 2020), preclud-
ing foster parents with a criminal record eliminates many candidates (noted by Social
Worker 1). No distinction is made between convictions for child-related offences and,
say, old ones related to drugs. In addition, ministerial guidelines may be ‘set up for
white middle-class folks who have lots of space’ (Social Worker 1). Lawyer 5 empha-
sized the ‘many criteria’ in screening potential foster parents: ‘[Y]ou have to get the
plugs in the right place and lamps and locks on the doors, and you can’t have a
husband who drinks’.

Language troubles
The limited linguistic capacity of Indigenous parents in the colonial languages of English
and French and the lack of interpreters arose repeatedly. The few interpreters are ‘over-
booked’, running from youth court to meetings with social workers (Social Worker 1).
Social Worker 1 added that ‘[a] lot of judges won’t wait, which I think is a human-rights
abuse’; when the judge pushes ahead although the client needs an interpreter, ‘it further
marginalizes folks’. In contrast, Lawyer 6 experienced interpreters as always available for
court but thought a lack of interpreters for lawyer–client discussions made it harder to
prepare files and resolve situations.
Participants differed in explaining the shortage of interpreters. Lawyer 6 saw a lack of
personnel and thought fixing ‘this interpreter problem’ would require tackling a broad
range of education and capacity-building needs in Indigenous communities. In contrast,
Social Worker 1 saw funding as inadequate and discerned a reticence on the part of com-
munities to become involved with the DYP.

Barriers to participation in court

Scholars have long studied the unequal distribution of access to courts and the variable
capacity to participate meaningfully in judicial and other processes of dispute resolution.
Factors such as race, social class and gender are salient (Nichols, 2017; Noone and
Ojelabi, 2020; Sandefur, 2008). Theorizing on intersectionality helps to recognize over-
lapping, interlocking layers of disadvantage experienced by Indigenous parents
(Crenshaw, 1991; Marchetti, 2008; on identity pluralism, see Sen, 2006), including
ones specific to them. For instance, the legal system’s double standard of high
Leckey et al. 567

expectations for qualifying as a good or even adequate mother might bear harshly on
Indigenous mothers (Bernheim, 2017; Boyd, 2016; Mosoff et al., 2017).
Nobody opined that Indigenous parents were adequately supported in dealing with the
system of child welfare (see similarly Bennett, 2009: 87–89). Lawyer 4 said they feel
often that the Indigenous parents ‘don’t really know how to testify’ or ‘how to explain
themselves’. It was observed that the mothers rarely ‘feel confident enough to explain
their point of view’ in front of the judge (Lawyer 4). Lawyer 5 pinpointed ‘shyness of
the courtroom forum, of the robes, of the white person, of the white social workers, all
this stuff … the state intruding in certain cultures’ life, nobody likes it but it’s like frigh-
tening to some groups’. Lawyer 1 observed that ‘because of the history’, Indigenous
parents experience difficulties in ‘[f]inding their voice’ when dealing with the judicial
system and the DYP. Lawyer 3 saw ‘[a] lot more discussion’ with the social worker
outside court, while Lawyer 5 noted parents’ problems ‘express[ing] themselves to
their lawyers’.
Lawyer 6 underscored the challenge of informing Indigenous clients about the function-
ing of the judicial system; translation falls short when the destination language has no words
for elements of the civil system. They doubted that clients grasp the difference between a
judge’s mediating function in a settlement conference and the adjudicative role in court.
Lawyer 4 wondered how much Indigenous mothers understand the reports that they read
or that are read to them. It was suggested that some Indigenous parents might confuse pro-
ceedings for child protection with the criminal court (Lawyer 6).
Ideas about improving Indigenous parents’ experience in court varied. Lawyer 4
stressed the need to educate ‘these women … as to what is court, how to prepare, how
to testify, what to say, how to say’. Lawyer 3 thought that a court-designated cultural
liaison might help. Social Worker 1 indicated that when they have Indigenous clients,
they try to contact the Native Women’s Shelter to see if someone is available to accom-
pany the person. Relatedly, Social Worker 4, who is Métis, recognized the need for not
just Legal Aid ‘but dedicated people in place to explain the court process and accompany’
clients.

Epistemic Injustice
Problems recounted by our participants are distinctively epistemic. Testimonial injustice
arises, what Fricker would call a credibility deficit, when Indigenous parents’ knowledge
and statements receive less than their fair weight. For instance, Lawyer 3 perceived a
‘defeated’ sense that no matter what some parents said, the government (or courts)
would take their child. We see epistemic entitlement when social workers and lawyers
speak on behalf of parents.4 In proof of how fraught this terrain maybe, a credibility
excess – which may, exceptionally, amount to testimonial injustice (Fricker, 2007: 21)
– sometimes harms Indigenous parents. Lawyer 4 thus expressed concern that, while
some parents ‘don’t want to talk, they want somebody else to do the talking for them’,
some judges value the parents’ direct expression of their understanding of a situation
or recognition of a problem. If equipping Indigenous parents to speak confidently
might be a longer-term goal, the immediate term may require judges to tread a line
between weighting the testimony of Indigenous parents too little and too much.
568 Social & Legal Studies 31(4)

It is helpful to separate the comments on knowledge gaps by their varying scales

(Valverde, 2009, 2015). Recommendations for supporting Indigenous clients in court
focus on the parents’ potential to conform better to the courtroom’s ‘procedural conven-
tions’ and ‘bewildering and even “unjust”’ language (Fielding, 2013: 288). Programs to
train and accompany Indigenous parents in court might help; the Innu mothers inter-
viewed by Croteau (2019: 270) wished to know more about the legal processes involv-
ing them. It is debatable, though, whether adapting to the settler state’s court is fairly the
burden of Indigenous parents (on professionals’ duty vs. their clients’, see Gerlach,
2012: 156).
Crucially, since testimonial injustice is not a quality of the speaker but a product of her
listeners’ identity-based prejudice (Fricker, 2007: 32–33; compare the social model of
disability: Albrecht et al., 2001), focusing on Indigenous parents is insufficient. The
idea that the audience in its context generates the credibility deficit directs attention to
child welfare’s staff, to which we turn now.

Making space for indigenous specificity

The second principal theme bears on the workers in child welfare. Our partici-
pants voiced concerns about the paucity of Indigenous employees and the lack
of knowledge about Indigenous history and culture, especially family practices.
In a way that may reveal their premises about the scope of foreseeable change,
they spoke time and again about the need for better education and training for pro-
fessionals. Critical literature on professional education invites caution in antici-
pating the extent of change that would ensue from acting on these
recommendations.

Composition and Capacity of Personnel

Participants called for more Indigenous personnel, including judges, in the state system.
Social Worker 4 pointed to the lack of Indigenous hiring and an underlying mindset in the
provincial system: ‘they just didn’t have those staff, they weren’t trying to make that a
priority, they weren’t looking at alternative ways of hiring people, they weren’t
looking at community expertise’. Lawyer 6 thought that having Inuit lawyers and
judges would be preferable to more interpreters. Yet the absence of Indigenous personnel
in the state system generated mixed views. Lawyer 5 did not assume that ‘social workers
of that culture would be more lenient’; they noted that minorities can be ‘much tougher on
their own people’ and gave the example of Jewish social workers with Orthodox clients.
The potential for Indigenous communities to run their child welfare drew diverging
views. For Social Worker 1, the 2019 federal law ‘put things in the hands of the
people’, but the variable capacity of different First Nations to run child welfare was a
concern. They said the settler state has in some places ‘marginalized and disadvantaged’
the Inuit to the point that it would be ‘impossible’ simply to say ‘hey, take over your ser-
vices’. Redressing the lack of capacity might involve changes on multiple fronts. Lawyer
6 described the situation ‘up North’ as ‘like a circle’, with interconnected problems
including a lack of education and a concomitant shortage of teachers and other
Leckey et al. 569

professionals. The levels of service – including an ‘external educator’ visiting a village

‘once every three months’ – led Lawyer 6 to ‘think you are in the Third World. I’m
sorry to say that but honestly, we can’t even imagine that in Canada there is things
like that.’ Lawyer 6 pointed favourably to the Cree Nation’s steps to be ‘self-determined’,
creating ‘their own DYP system so the lawyer works really for the community, the Cree
communities’. They added that ‘all kinds of people from the community, the parents, the
family’ attend in the courtroom.
Lawyer 4 distinguished Montreal’s English-language system (Batshaw Youth and
Family Centres) from the French-language services. For them, the former ‘were really
working with the community to try to find solutions’, trying to support the family
before removing children. In contrast, ‘a very different point of view’ characterized the
latter: ‘it’s let’s take the kids out, let’s work on the things, and let’s put them back’.
This participant saw the English sector as better respecting the legislative aims, adding
they were ‘not the only one’ to think that. This intriguing hint invites further research.
The English-language system’s leadership and staff might be more connected than
their Francophone counterparts to developments in other Canadian jurisdictions.
Furthermore, the precarious position of English-language social services in a province
where ‘French is the official language of Québec’ (Charter of the French Language,
s 1), although the Canadian Charter of Rights and Freedoms recognizes English and
French as ‘the official languages of Canada’ (s 16(1)), may instill sensitivity to other
minorities. Nevertheless, one should not underestimate the complexity of majority–
minority dynamics (see, e.g. Bourhis, 2019; Jedwab, 2007).

Calls for Training

It was observed that judges – ‘predominantly white, upper-middle-class men’ (Social
Worker 1) – would benefit from several sessions of training about Indigenous peoples
(Social Worker 1; similarly, Social Worker 3, Lawyer 3, Social Worker 4). Social
Worker 1 doubted whether ‘some judges know the difference between Inuit and First
Nations, to be perfectly honest’. They envisaged ‘an Indigenous 101, moving on to
102, and then more complex issues’. Social Worker 1 supposed that better-informed
judges would wait for an interpreter when needed. Lawyer 1 stated: ‘Everybody needs
to know that a silence doesn’t mean the same thing for your typical French-Canadian
that it means from an Indigenous person.’ Raising a potential error in assessing credibil-
ity, Judge 2 recounted having learned from a social worker that Indigenous people would
avoid eye contact because of cultural norms of deference and politeness, not dishonesty
(also Lawyer 1; see Monchalin, 2016: 274–276). Lawyer 3 had found training
‘eye-opening’, giving the example of varying conceptions around time, such that tardi-
ness might not convey disrespect. Lawyer 1 pointed to an online three-hour training
that gave tips: ‘you know, well, you may want to do this, or things like they want to
include the seventh chair in a meeting because that’s for the next generation that’s not
there yet’. Judge 1 did not anticipate resistance to training on their fellow judges’ part.
Lawyer 5 suggested that social workers should adopt a broader ‘notion of the group,
the culture, the collectivity and the immediate extended family’. Social workers might
take courses about the ‘matriarchal society’, with a view to encourage proactivity in
570 Social & Legal Studies 31(4)

asking mothers about their family and its potential role (Lawyer 5). This participant
remarked a ‘lack of understanding by social workers’ of customary adoptions: a
mother might confide her child to her own mother, ‘not because she’s a bad mother
but because grandma is there’. These remarks echo observation of the gap between
those Indigenous conceptions of family relevant to Quebec’s bold inclusion of
‘Aboriginal customary adoption’ in its Civil Code and those instinctive to lawyers and
judges (Leckey, 2018). Relatedly, Social Worker 1 ascribed to a lack of judicial training
their failure to persuade the court to keep a child’s family record longer than normal.
In making the request, they had cited Indigenous children’s longstanding removal
from their families.

The Limits (and Risks) of Training

Redressing gaps in knowledge, as raised by our participants, has variable remedial poten-
tial. Teaching about matters such as how to read an Indigenous person’s avoidance of eye
contact might help professionals to receive Indigenous parents’ testimony more fairly.
But how much would greater knowledge of Indigenous family practices, including the
extended family’s role, change decision-making?
Social Worker 4 thought that training would help workers in child protection to
‘understand the historical realities, like understanding colonization, the impacts that
it’s had on the families, how it’s led to urbanization, and addictions, and all of these dif-
ferent social issues where people are overrepresented in the systems’. But Lawyer 5 was
unsure how historical and cultural sensitization would alter the work of child protection.
They acknowledged that sensitization might make the client less ‘terrified to admit some-
thing’ to a social worker better informed of the client’s background circumstances. They
doubted, though, that it would be appropriate to say: ‘OK, so this lady, she drinks but you
know it’s natural for everyone in Kahnawake to drink, we’ll bring the kids back’. The
expectation – in a recorded interview – that training would deliver the ‘drunken
Indian’ stereotype of alcohol abuse as ‘natural’ within First Nations may prove training’s
necessity. This remark also prompts reflection on what training on subjects such as colo-
nialism and its ongoing structural violence can achieve within the system.
Positively, deepened knowledge of historical and ongoing harms by the colonial state
may help decision makers to resist framing parental ‘neglect’ as an individual problem
(Caldwell and Sinha, 2020). Perhaps understanding colonial history can foster
genuine, informed and humble Indigenous–settler relationships (from social work, see
Czyzewski and Tester, 2014). More negatively, though, while better-informed state
actors may decide more leniently, they may also set individuals ‘within a “colonial heri-
tage” that places them “at risk”’ of offending (Maurutto and Hannah-Moffat, 2016: 466).
For instance, data about the criminal justice system’s ‘enormous racial disparities’ may
become evidence ‘not of racism’ but of ‘the prevalence of Black criminality’
(Maynard, 2017: 84).
Critical literature from the health sciences and social work gestures towards the limited
ability of professional education to rehabilitate an oppressive system. A focus on indivi-
duals’ knowledge may evoke a neo-liberal individualizing of responsibility (see, e.g.
Rose, 1992). Furthermore, critiques against training on diversity and unconscious bias
Leckey et al. 571

warn that knowing about bias does not automatically produce behavioural changes, while
training for individuals may ‘distract[]’ from attention to ‘embedded, structural disadvan-
tages’ (Noon, 2018: 206). The ‘pervasive structuring effects of racial–colonial hierarch-
ies’ can make curricular innovations ‘complicit’ in reproducing anti-Indigenous racism
(Sylvestre et al., 2019: 2, 8). Some doubt that the state’s system of child welfare can
ever be made ‘culturally appropriate’ for Indigenous people (Blackstock, 2019b: 147–
148). Research in medical education adds that training must address the ‘hidden curric-
ulum’ (Hafferty and Franks, 1994), the professional baggage conveyed across genera-
tions by words, actions, jokes and even silences (Mahood, 2011: 984). This
transmission may include negative stereotypes about Indigenous people (Ly and
Crowshoe, 2015).
Finally, it is worth asking about the realistic scope of training in an underfunded, over-
stretched system. A participant’s nod towards a three-hour online module indicates the
scale of training that some would envisage for overworked professionals. Workshops
risk superficiality and may be ‘unlikely to change behaviour or an institutional culture’
(Shepherd, 2019: 5). It has been suggested that reflexive and transformative forms of
pedagogy and practice require ‘decentering ourselves’ in a ‘challenging’ but ‘essential’
way requiring more than a semester’s reading and engagement (Sonn, 2008: 164).
Promising calls for decolonizing education appear in social work (see, e.g. Choate,
2019; Sinclair, 2019) and law (see, e.g. Borrows, 2016; Mills, 2016). But occasional
ad hoc trainings will not realize these ambitions.

Conclusion
Reform-minded readers might distill several recommendations for the state’s child-
welfare system from our findings:

• judges should wait for interpreters where they are needed;

• the government should work with Indigenous communities to train and fund more
interpreters;
• the formal and informal criteria for screening Indigenous foster families should
reflect their communities’ realities;
• the government should work with community organizations to offer Indigenous
parents accompaniment in court;
• professionals in child protection should receive training about Indigenous family
practices and communicative norms, as well as about the abiding effects of
colonialism.

Yet the participants’ comments indicate that such actions’ potential is limited. Recall that
mistrust and desire to avoid dealing with the system emerged on the part of parents as
well as of potential interpreters and foster parents. Moreover, the epistemic injustice
experienced by Indigenous parents has causes beyond the lack of knowledge that training
can fix.
Although our participants may have been sincere in recommending training, the
(presumably uncoordinated) repetition gave their statements an air of performance.
572 Social & Legal Studies 31(4)

Whether the recommendation conveys their preferences or their calculated sense of their
institution’s limits, this focus shelters the institutions from fundamental disruption
(see similarly the bounded nature of recommended alterations to judicial mediation:
Leckey forthcoming in 2022). Indeed, calls for training and increased sensitivity may
fit within the ‘seemingly more conciliatory set of discourses and institutional practices
that emphasize our [Indigenous peoples’] recognition and accommodation’, while pre-
serving a fundamentally colonial relationship between them and the settler state
(Coulthard, 2014: 6 [emphasis omitted]; see also Simpson, 2017: 45–47). Moreover, to
what extent will those professionals who staff the system voice solutions that might dras-
tically alter it (potentially disrupting their careers)? We conclude, ultimately, that the
reasons for skepticism in respect of incremental improvements within the state’s
system of child welfare confirm the urgency of empowering and equipping Indigenous
communities to manage this critical area (and more research on outcomes from
Indigenous communities doing so, contending as they must with intergenerational
trauma, will be valuable). Put otherwise, ‘fixing’ the child-welfare system is too narrow.

Acknowledgements
For comments on earlier versions, we are grateful to Nicholas Bala, Emmanuelle Bernheim, Cindy
Blackstock, Alicia Boatswain-Kyte, Angela Campbell, Joshua Ginter, Jeffery Hewitt, Michaël
Lessard, Félix-Antoine Lestage, Alexander Pless, Laurence Ricard, Samir Shaheen-Hussain,
Suzanne Zaccour, and the two external reviewers, as well as the Droit de la famille class at
McGill in winter 2021. Special acknowledgement goes to the Native Women’s Shelter of
Montreal. McGill University and Montreal, where most interviews were conducted, are situated
on land that has long served as a site of meeting and exchange amongst Indigenous peoples, includ-
ing the Haudenosaunee and Anishinabeg nations. We add that the household of James McGill,
whose bequest led to the establishment of the university bearing his name, included at least five
enslaved Black and Indigenous individuals. The views expressed in this article are the authors’,
not their employers’.

Cases Cited
First Nations Child and Family Caring Society of Canada v Attorney General of Canada (for the
Minister of Indian and Northern Affairs Canada), 2016 CHRT 2, [2016] 2 CNLR 270.
First Nations Child & Family Caring Society of Canada v Attorney General of Canada (represent-
ing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 39.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or
publication of this article.

Funding
The author(s) received no financial support for the research, authorship and/or publication of this
article.

ORCID iD
Robert Leckey https://orcid.org/0000-0003-0271-6806
Leckey et al. 573

Notes
1. Beneath umbrella categories such as ‘Indigenous’ and ‘Aboriginal’ children, Métis and Inuit
children are in foster care at a much lower rate than are First Nations children. Just under
one-half (48%) of all children in foster care in Canada in 2011 were Aboriginal children, the
majority of whom (82%) were First Nations children; of First Nations children aged 14 and
under, 2.5% on reserve and 6% off reserve were in foster care, while the percentages for
Métis and Inuit children of that age were, respectively, 1.7% and 2.8% (Kelly-Scott and
Smith, 2015: 4). In 2011 in Quebec, 2.7% of children were Aboriginal but Aboriginal children
accounted for 15.4% of all children in foster care, a number nearly sixfold their share of the
juvenile population (Turner, 2016: 7).
2. The Government of Canada has been found liable for the ‘wilful and reckless’ character of its
discriminatory underfunding of services for First Nations children (First Nations Child and
Family Caring Society of Canada [2016, 2019]). It has admitted historic discrimination
against First Nations children but continues to defend itself in these proceedings (Kirkup,
2021). In virtue of the Constitution Act, 1867, the Parliament of Canada has exclusive legislative
authority in relation to ‘Indians’ (sic) (s 91(24)), while each provincial legislature has exclusive
authority over local matters within the province, including social services (s 92(16)).
3. In 2011, while 4% of the non-Aboriginal Canadian population lived in crowded homes, defined
as more than one person per room, the figure was 28% for on-reserve First Nations people and
30% for Inuit. The percentage was 3% among Métis and 7% among off-reserve First Nations
people (Kelly-Scott and Smith, 2015: 4).
4. Since the Shelter proposed that we interview professionals, we respectfully reject the suggestion
by a reader of a draft that our work is an instance of epistemic entitlement vis-à-vis Indigenous
parents. Much as we hope that this research might contribute to improving conditions for them,
we (and our participants) do not purport to speak for the parents.

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