B.C. Supreme Court steps in to make sure First Nations mom and baby don't lose bond

A court battle over a B.C. First Nations baby’s care is far from over, with two court dates set in the next week, but the early stages of the fight exemplify Canada’s national crisis in First Nations child welfare.

Both the federal and provincial government have said they want to keep First Nations families together and keep Indigenous children out of foster care, but this case puts those words to the test.

A 20-year-old mother from the Huu-ay-aht First Nation near Port Alberni on Vancouver Island took the province to B.C. Supreme Court earlier this month, in a bid to get more access to her baby, who she is trying to breastfeed and who was taken from her three days after its birth. The judge granted her request, exercising Parens Patriae jurisdiction, which allows the court to step in to protect the interests of children and vulnerable people.

That decision has national implications because the B.C. Supreme Court stepped in and took jurisdiction over what is normally a Provincial Court matter, which could happen in other provinces.

Maegen Giltrow, legal counsel for the mother and the Huu-ay-aht First Nation of which the mother is a member, called the case “an important victory.”

“This decision will impact how the Ministry of Children and Family Development works with Huu-ay-aht First Nations, and it has the potential to impact other First Nations in Canada,” Giltrow said. “The court has held the ministry to a higher standard than what we’ve been seeing.”

The baby girl was born on January 13 and taken into care three days later. The baby was placed in Courtenay, in the care of its paternal grandmother. The baby’s mother lives in Port Alberni, but she has been staying in a hotel in Courtenay to see the baby as much as possible. The ministry only allowed her to see the baby two hours a day and not at all on weekends.

Supreme Court justice says mother was in a “hopeless” situation

B.C. Supreme Court Justice Catherine Murray ruled the mother was in a “hopeless” situation with nowhere but the Supreme Court to turn to for relief. Murray ruled that she didn’t have enough information to decide whether the apprehension of the child was in the child’s best interests, but that the mom needs to be given access to her baby every day for enough hours to ensure that breastfeeding is not interrupted and that the maternal bond is unharmed.

The mom will be back in court this week, because the province is asking for an end date to the Supreme Court’s jurisdiction, Giltrow said in an interview. Also, the judge ordered the province to provide a written response by Feb. 22, but Giltrow says the response was not substantive. The initial court date of March 23 has now been moved up to March 6, after the court ruling.

The Huu-ay-aht First Nation is offering significant parenting support to the new mom, under a 2016 plan the community developed with the ultimate goal that no Huu-ay-aht child would be in foster care. Even the fact the mom got her day in court is due to that plan – it includes funding, paid for by the First Nation itself – for lawyers to advocate for and represent parents and children in court.

The judgment says the mother “was shocked” when her baby was taken away and had no idea removal was being considered.

The case arises as the nation grapples with a “humanitarian crisis” in Indigenous child welfare. Jane Philpott, Canadian minister of Indigenous services, characterized the situation that way when she called a two-day emergency meeting last month to focus attention away from apprehension of children and toward keeping families together.

In a speech, she linked residential schools and foster care, with children still being taken from their families and away from their communities, culture and languages. Less than eight per cent of all Canadian children under 14 are Indigenous but they comprise 52 per cent of all children in foster care in Canada — and nearly 65 per cent in British Columbia.

The federal government promised action, including support for communities to take on their own child welfare.

The Canadian Human Rights Tribunal has found that the Canadian government racially discriminates against 165,000 First Nations children in terms of funding for child welfare.

To address that ruling and to keep Indigenous children safe and families together, this week’s federal budget promises $1.4 billion in new funding over six years, starting now.

B.C. minister says goal is to keep Indigenous children with their families

Earlier this month, B.C.’s Minister of Children and Family Development Katrine Conroy told the National Observer that her ministry’s goal is to keep Indigenous children in their own homes and out of care.

“If we can keep a child out of care and keep them safe, healthy, happy and within their own communities with their extended family, that’s the goal we have to reach,” Conroy said in an interview. “The bottom line is there are too many Indigenous kids in care and we’ve got to change that.”

But the actions of the provincial government in this case seem to belie those words.

Bernard Richard, B.C.’s representative for children and youth, said the case seems “to contradict everything that the ministry is saying about how they’re going to approach Indigenous child welfare moving forward.

“They keep saying great things … but my lord – I was quite taken aback by the process here and not seeing the best interest of the child looked after. On the ground, it’s hard to see that the paternalist attitudes of the ministry have evolved that much.”

Richard emphasized that the safety of the child is the most important issue and acknowledged that child welfare is complicated and requires carefully planning and proper resources. However, he said this case is not highly unusual. He questions why the mom and her community had to press the Supreme Court to hear their case and why the ministry didn’t do more to preserve the family before the court ruled it had to.

This is not an isolated case, children’s rep says

“Unfortunately, we are not seeing the kinds of efforts we should be seeing in respecting cultural diversity, Indigenous traditions, efforts at family preservation,” Richard said. “This case cries out that we still have so much work to do and it’s not an isolated case.”

Richard couldn’t talk about some aspects of the case for privacy reasons, but could address information that is publicly available in the court documents.

The Ministry of Children and Family Development would not comment about this specific case, due to confidentiality concerns. However, the ministry said in a statement that it communicates to the parents verbally and in writing the reasons for the removal of any child at the time of removal. The information is also communicated through court documents, as soon as possible, the ministry said.

“The ministry will again present its reasons for removal at the presentation hearing which, in most circumstances, is held within seven days of the removal. However, in cases where a parent is contesting the removal the matter may be set for a trial date. This can greatly extend the timelines, subject to courtroom and lawyer availability,” the ministry said.

When it comes to Indigenous children, preserving their cultural identity is a key consideration, and the ministry would work with the relevant Delegated Aboriginal Agency and with the parents’ Indigenous communities, the ministry said.

“The decision to remove a child is not made lightly – and is made to reduce any risk to the child,” the ministry said. Whenever possible, we try to place children with extended family and/or persons known to a child who are assessed to be safe and appropriate to provide care. A judge makes the final decision about whether a child should remain in care or be returned to the parents and what access the parents may have.”

When asked if it would appeal the B.C. Supreme Court decision, the ministry said it couldn't comment because that would be addressed in court.

First Nation works toward goal of no children in care

The Huu-ay-aht First Nation has a goal that none of its children will be in care. That aspiration is backed up with a 127-page report that defines how it will get there. When the report was written, in May, 2017, there were 220 Huu-ay-aht children, with 34 of those in foster care, including 25 that were in care outside the First Nation. The report contains 30 recommendations, with a $1.8-million budget attached.

Twenty-three of the report’s 30 recommendations have already been implemented and the First Nation is footing the bill, Giltrow said.

The recommendations range from hiring family support workers, to providing addiction treatment, to food and shelter assistance for members of the First Nation. It also says the concept of “aging out of care” would be eliminated because the First Nation will support its people throughout their lives.

The nation is offering significant support to the young mom and her baby, including 24-hour emotional support, legal advocacy, cultural support, assistance with travel, accommodations, and food while she remains in Courtenay, counselling, parenting education, and supervision support for when she visits with her baby.

When asked if she is confident the baby would be safe with the supports being offered, Giltrow said yes.

“We do think Huu-ay-aht has the supports in place to keep the baby safe,” Giltrow said. “That’s even assuming that the baby is not safe with mom, which is something we heavily contest, because there hasn’t ever been any clear capacity assessment or report other than vague references to capacity.”

Giltrow says that taking the baby away was “unwarranted” and “out of left field.”

“The ministry’s whole approach to this seems to be remove quickly and then act slowly afterwards,” Giltrow said.

First Nation has offered supervised homes for the mom and baby

The judge noted that the First Nation provided the MCFD director with a list of approved homes where the mom and baby could live, lists of culturally appropriate supports, daily home visits from the First Nations family support workers, qualified parenting support.

“This case has repeated all the patterns of the past, which only serve to hurt our children and our families, and don’t allow us to heal,” Huu-ay-aht Councillor Sheila Charles said in a news release. “We are disappointed that our efforts to work with the Minister and the Ministry fell on deaf ears, but Huu-ay-aht will continue to fight to enforce the full rights to which our children and families are entitled.”

The judge said the director of child welfare must consider these options.

“When the court said that the director was compelled to consider and respond to the many options that Huu-ay-aht had put before the director that would allow the mother and baby to be in Port Alberni together in a nurturing and safe environment, we think what that meant was that he actually had to consider those options and if they weren’t sufficient … tell us what’s wrong with them. But there’s just no engagement with those options at all, which is a failure to consider,” Giltrow said.

Grand Chief Ed John, in his 2016 report on child welfare, said he heard from many Indigenous parents who were frustrated with the delays and power imbalance in the court system.

“Individuals described how social workers, considered ‘officers of the court,’ are afforded a large degree of discretion, authority and power,” John wrote. “Indigenous parents (are) … often not afforded fairness in court proceedings and in many cases (are) not even present in court due to delayed proceedings and other significant obstacles to their attendance.”

The United Nations Declaration on the Rights of Indigenous Peoples, which B.C. Premier John Horgan has promised to implement, says, “Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.”

The case is significant because of both the jurisdictional wrangle between the province and the Supreme Court, which Giltrow says reveals a systemic problem of overloaded courts, which result in an “acceptance of delay.”

“I think this is very much a clear instance of what is a systemic problem, so to have the Supreme Court step in, it should light a fire under the province,” Giltrow said. “Another thing that is significant is that the court made a court order whose measure is whether breast feeding uninterrupted and the maternal bond is harmed, which is a pretty important recognition. As I understand it, there hasn’t been a lot of law around that.”

While it's impossible to know the details behind the removal of this child, due to privacy concerns, it seems clear the First Nation is ready and prepared to provide all the supports necessary to keep the baby safe while living with its mom. All levels of government have said they want to keep First Nations kids living with their families, whenever possible. It may take time, but let's get it right. Let's hope this family is given a chance to thrive together and that whatever support might be needed — financial, psychological, cultural and physical — is truly there for a happy ending.

Tracy Sherlock writes about B.C. politics for the National Observer. Contact her at [email protected] with story ideas and tips