…but the new ICWA regulations deny children a best interest hearing.
The new Bureau of Indian Affairs guidelines for Indian Child Welfare Act (ICWA) implementation disallow a best-interest hearing in child welfare cases involving Indian American children, assuming that the best interest is always with the tribe. In contrast, all major child welfare guidelines emphasize the primacy of the best interest standard. The Hague Convention, the United Nations, the American Psychological Association, and the National Association of Social Workers’ guidelines are included here.
The American Psychological Association guidelines indicate that children, parents and the state all have interests in child welfare investigations. The first guideline emphasizes that the child’s best interest is the primary purpose of an evaluation.
Guideline 1: The primary purpose of the evaluation is to provide relevant, professionally sound results or opinions in matters where a child’s health and welfare may have been and/or may be harmed.
The UN convention on the Rights of the Child argues that the best interests of children “must be the primary concern in making decisions that may affect them” (Article 3).
Non-discrimination (Article 2): The Convention applies to all children, whatever their race, religion or abilities; whatever they think or say, whatever type of family they come from. It doesn’t matter where children live, what language they speak, what their parents do, whether they are boys or girls, what their culture is, whether they have a disability or whether they are rich or poor. No child should be treated unfairly on any basis.
Best interests of the child (Article 3): The best interests of children must be the primary concern in making decisions that may affect them. All adults should do what is best for children. When adults make decisions, they should think about how their decisions will affect children. This particularly applies to budget, policy and law makers.
The National Association of Social Workers emphasize that client well-being is the social worker’s first responsibility.
“Services are intended to protect children and their well-being, strengthen families, and provide permanency when children cannot safely remain with their families. Child welfare services should be strength based; family centered; trauma informed; and respectful of a family’s culture, values, customs, beliefs and needs.”
The United Nations Guidelines for Children in Alternative Care emphasize dignity and respect for children, stability, permanency and safety. They specifically mention the best interests of the child 25 times. A key portion states that:
11 All decisions concerning alternative care should take full account of the desirability, in principle, of maintaining the child as close as possible to his/her habitual place of residence, in order to facilitate contact and potential reintegration with his/her family and to minimize disruption of his/her educational, cultural and social life.
12 Decisions regarding children in alternative care, including those in informal care, should have due regard for the importance of ensuring children a stable home and of meeting their basic need for safe and continuous attachment to their caregivers, with permanency generally being a key goal.
13 Children must be treated with dignity and respect at all times and must benefit from effective protection from abuse, neglect and all forms of exploitation, whether on the part of care providers, peers or third parties, in what- ever care setting they may find themselves.
14 Removal of a child from the care of the family should be seen as a measure of last resort and should, whenever possible, be temporary and for the shortest possible duration. Removal decisions should be regularly reviewed and the child’s return to parental care, once the original causes of removal have been resolved or have disappeared, should be in the best interests of the child, in keeping with the assessment foreseen in paragraph 49 below.
15 Financial and material poverty, or conditions directly and uniquely imputable to such poverty, should never be the only justification for the removal of a child from parental care, for receiving a child into alternative care, or for pre- venting his/her reintegration, but should be seen as a signal for the need to provide appropriate support to the family.
The Hague Convention makes very clear that a child’s best interest is the fundamental consideration in child welfare decisions.
Article 1 (a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;
“Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children…”
4b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;
16d) determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.
Article 21 (1) Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child, in particular –
The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.
The BIA should ensure that ICWA guidelines comply with these international and national standards by assuring each Indian American child’s best interest will be heard in court.
Bonnie F. Cleaveland, PhD ABPP
Hague Convention text
American Psychological Association (2013). Guidelines for psychological evaluations in child protection matters. American Psychologist 68(1) 20-31. Retrieved from http://www.apa.org/practice/guidelines/child-protection.pdf
Hague Conference on Private International Law (1993). Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Retrieved from http://travel.state.gov/content/adoptionsabroad/en/hague-convention/hague-convention-text.html
National Association of Social Workers (2012). NASW Standards for Social Work Practice in Child Welfare. Retrieved from http://www.socialworkers.org/practice/standards/childwelfarestandards2012.pdf
United Nations (2012). Guidelines for the alternative care of children. Retrieved from http://www.unicef.org/protection/alternative_care_Guidelines-English(2).pdf
United Nations (1990). Convention on the rights of the child. Retrieved from http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf