Cutting Connections to Indigenous Children in Care During COVID-19

In response to COVID-19, the Ministry of Children and Family Development (“MCFD”) developed and implemented a blanket policy suspending in-person visits between children in care and their families shortly after the onset of the pandemic.¹ In-person visits may still go-ahead in “exceptional circumstances” by seeking and obtaining approval from a Designated Director — approvals must be consistent with the parameters and instructions from the Provincial Health Officer (“PHO”). However, the PHO has not suggested eliminating contact between children and their parents residing outside their home and children continue to move between households in other co-parenting situations. This is not the time to be breaking connections to children. The PHO suggested that essential service providers continue to provide services to vulnerable populations and adapt as necessary in light of COVID-19 — the MCFD’s response was to eliminate in-person access.

Unless an exception is granted or the court intervenes, children in care will only have access to their parents and families through virtual contact such as telephone, text, email or skype regardless of the child’s age. The lack of in-person visits over an extended period of time will adversely affect thousands of children in care and their families throughout BC — disproportionately impacting Indigenous children because they continue to account for two-thirds of children in care. The MCFD acknowledges that “[m]aintaining connections and facilitating access between children, youth and their families is in the best interest of children and youth and is essential to their well-being especially now during the COVID-19 pandemic.” But, in light of “facility and office closures, physical distancing and service providers being unable to provide transportation and supervision” in-person visits have been suspended, including with families that have unsupervised visits.²

Meanwhile, courts presiding over family law matters dealing with multiple households in co-parenting arrangements are routinely deciding that it is best for children to maintain parenting schedules and physical contact with both parents unless it can be shown that the access parent is not complying with COVID-19 safety measures. In Ribeiro v. Wright, Justice Pazaratz (“ONSC”) stated the following: “A blanket policy that children should never leave their primary residence, even to visit their other parent — is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”³

In keeping with the line of reasoning in Ribeiro, the court decided in Children’s Aid Society of the Region of Halton v. R.O.⁴ that a 16-month old boy would continue to have in-person access to his parents. The court undertook an individualized assessment despite the society’s blanket policy against in-person access, and decided that the parent’s COVID-19 protocols were appropriate. Further, “it is vitally important that R.O. has the opportunity to maintain and grow his relationship with his parents and... develop a secure space as a member of his family...”⁵ Video access was deemed inappropriate for this infant child.

The MCFD should work toward an individualized assessment of each child in care to determine how essential family, community and cultural connections can be preserved safely in keeping with the best interests of the child. Now is the time to employ less intrusive measures and seriously consider letting children go home to their families. The courts in BC have to perform their gate-keeping role diligently to ensure that decision-making is centered on the child’s safety and well-being. Adopting the MCFD’s blanket approach to eliminating in-person visits is unfair to Indigenous children and all children in care for that matter. These vulnerable children are no less worthy of a probing assessment than other children involved in family law proceedings.

Indigenous Matters | June 2020