BC Supreme Court grants Huu-ay-aht mother more access to her newborn

Huu-ay-aht First Nations won an important case in the Supreme Court of British Columbia on Tuesday that grants a young mother more access to her new-born child to ensure breastfeeding and bonding are not further harmed.

“This is an important victory,” explains Maegen Giltrow, legal counsel for the mother and Huu-ay-aht First Nations. “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. The Court has held the Ministry to a higher standard than what we’ve been seeing.”

The 20-year-old mother (LS) was shocked when the Ministry of Children and Family Development apprehended her baby girl (VS) on January 16, 2018, three days after she was born, without any credible reason. Since that day, Huu-ay-aht and the Nation’s legal counsel have sought the return of the child to her mother. Huu-ay-aht staff, government, and legal counsel have continually pressed for less disruptive measures and better access to the baby so that her mother could breastfeed and bond with her baby.

Even though LS lives in Port Alberni, the baby was placed in Courtenay. Since then, her mother has been living out of a hotel in Courtenay so she can get every minute of access to her baby available. However, the Ministry had been allowing her only 2 hours a day, with no access on weekends. She has been struggling to maintain breastfeeding and bonding under these conditions.

Furthermore, under the existing process in Provincial Court under the Children, Families and Community Services Act, LS wouldn’t have an opportunity until 66 days after the removal for a hearing before a judge to argue the removal was unwarranted and less disruptive and intrusive measures are available that do not involve breaking the bonding and attachment between her and her daughter.

LS and Huu-ay-aht turned to the Supreme Court for help.

The Ministry had argued that the Supreme Court should not hear the mother’s application because the Court did not have jurisdiction. The Court held, however, that the Ministry’s argument only “highlights just how impossible and unfair” the “hopeless situation” the mother is in is. The Court invoked the rarely used but important Parens Patriae jurisdiction that allows the court to step in to protect the interests of children and vulnerable people. The Court held it had the power to, and should, step in to protect the child, rather than letting this situation carry on as the Ministry was proposing.

The Court ordered the Director to increase the mother’s access to the child to ensure that breastfeeding is not interrupted, and the maternal bond is not harmed.
This means more natural access, morning, mid-day and evening, weekends included. The Court also held that the Director of Child and Family Services has an obligation to consider and respond to the concerns and proposals put forward by the Nation for healthier access that would allow the mother to be with her child in a safe and nurturing environment with supports from her family and her Nation. The Court ordered the Director to consider and respond to these proposals within two days of the order. These proposals had all been previously left unanswered by the Director.

Huu-ay-aht is celebrating this as an important victory, and its first since implementing the 30 recommendations from an independent Social Services Panel on how to “Bring Our Children Home”, and stop the cycle of breaking Huu-ay-aht families up into the foster care system (Full report: https://huuayaht.org/social-services-project/ ). report outlines the steps the Nation will take to reach the eventual goal of having no Huu-ay-aht children in care. It approaches the issue with a preventative approach that is designed to protect and support both the children and the family.

The findings of this report speak directly to this issue. It says, “Attachment is a natural connection that occurs between a baby and his or her caregivers for life. It begins as newborns and continues as the child gradually forms sense of who she or he is.” The report continues that, “Attachment helps a child feel safe, loved, and protected. In traditional societies, it also gives a sense of belonging to one’s tribe or nation.”

“The Court used an ancient jurisdiction to protect this child,” says Huu-ay-aht Councillor Sheila Charles. “This is exactly what Huu-ay-aht is doing – relying on our ancient ways to protect and nurture our children.”

Because the Nation has already implemented many of the recommendations from this report, it was able to offer the mother what she needs to fight for her child. This includes 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.

The Federal Minister of Health Jane Philpott has called the number of indigenous children in care a “humanitarian crisis,” and the Premier’s mandate letter to Minister Conroy expressly directs her to “Work to implement the recommendations from Grand Chief Ed John’s report and provide better supports to keep Aboriginal children at home and out of care.”

However, despite recognition at the highest political levels that the child welfare system is broken, and that we must stop scooping indigenous children into care and away from their families and communities, “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,” says Charles. “Tuesday’s Supreme Court decision shows that the law requires more. 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.”

Although the road ahead for this young family is a long one, Charles says it is exciting to see the Social Services Panel Report come to life.

“We got to witness this doing what it was intended to do in supporting our citizens, advocating for our citizens, and taking care of what is rightfully ours as Huu-ay-aht,” she says. “I look forward to hearing more success stories on how the Social Services Project – Bringing Huu-ay-aht Children Home – is working for Huu-ay-aht citizens, with the ultimate goal one day having no Huu-ay-aht children in care.”