Judge orders First Nations baby be returned to its mother

A B.C. provincial court judge has ordered a First Nations baby who was taken into care when it was three days old be returned to its mother, with support.

Justice Barbara Flewelling ruled Wednesday afternoon that the province’s Director of Child Family and Community Service did not use the "least disruptive means" to ensure the baby’s safety when it took the baby and placed it with its paternal grandmother. The judge ordered that the child should live with its mother in a supported home.

“The mom is just thrilled. She’s so happy. She wept when she found out,” said Maegen Giltrow, legal counsel for the mother and the Huu-ay-aht First Nation, of which the mother is a member.

While the baby was in the care of its grandmother, the mother was living in a hotel in order to spend time with and breastfeed her baby because she lives in Port Alberni.

The Huu-ay-aht First Nation, near Port Alberni, has offered to provide all support necessary to ensure the baby is cared for. The paternal grandmother and the baby’s father are from a different B.C. First Nation and they live in Courtenay.

The paternal grandmother’s lawyer Karen Stevan said in an email that the grandmother is devastated by the decision. The court ordered that the father will have “reasonable” supervised visits.

"Our hope is that we can keep connected to plan for the best interest of (the baby) in a way that honours Indigenous paternal rights," the grandmother’s sister said in an emailed statement.

Huu-ay-aht councillor Sheila Charles said the baby will be connected to both First Nations.

“With this strong foundation, this baby will have every opportunity to grow up safe, supported, and loved by both (its) mother’s and father’s First Nations,” Charles said in a news release.

The baby’s mother and father were living with the paternal grandmother in Courtenay during the pregnancy, but before the baby was born, the mother decided to move back to Port Alberni. But after the baby was placed with the paternal grandmother, the ministry only allowed the mother to see the baby two hours a day and not at all on weekends.

A Supreme Court judge stepped in last month, invoking Parens Patriae jurisdiction, which allows the court to step in to protect the interests of children and vulnerable people. The judge’s ruling increased the mother’s access to ensure that breastfeeding was not interrupted and that the maternal bond was unharmed.

Now the Provincial Court ruling will see the baby returned to its mother’s care full-time as of March 17.

The Huu-ay-aht First Nation has a $1.8-million plan in place with a goal that none of its children will be in foster care. The nation has funded portions of the plan itself, but is seeking federal and provincial funding.

Meanwhile, B.C.’s Minister of Children and Family Development Katrine Conroy promised new legislation that would make it easier for extended family members within the baby’s First Nation to care for a child.

“I have committed to legislation … that I want to bring into the Legislature … so that we can actually have a situation where social workers can talk to First Nations before a child is brought into care, to find out from a First Nations if, in fact, there is someone within the First Nation, like a family member — an auntie, a grandma — who can take the child,” Conroy said in the provincial Legislature last week. “The way our act reads right now, we can't do that.”

In the Legislature, Conroy said she could not speak to the specifics of the case, due to privacy.

“The decision to remove a child is never taken lightly, and it is made to reduce a risk to a child. Whenever possible, we try to keep the family together,” Conroy said. “We also try to place the child with extended family or people who know the child and can provide safety and security. Whenever there is more than one nation involved, we work to ensure both nations are involved in the decisions that are going to be particularly beneficial to the child.”

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