Supreme Court Exercises Its Parens Patriae Jurisdiction Over Indigenous Newborn

  • April 01, 2018
  • Frances Rosner

In a groundbreaking BC Supreme Court decision1 rendered February 20, 2018, The Honourable Madam Justice Murray took jurisdiction over an Indigenous newborn baby girl subject to removal by the Director of the Ministry of Children and Family Development. In exercising her parens patriae jurisdiction, Madam Justice Murray decided that it was in the best interests of the child to be breastfed and to bond with her mother, and that a timely order was vital to remedy an impossible situation imposed by the Director, legislation and Provincial Court delays. The Director was ordered to provide daily access for the mother to her newborn baby, to ensure that breastfeeding and the maternal bond go unharmed while the infant is in the care of the Director.

Huu-Ay-Aht First Nation and the mother petitioned the Supreme Court under s. 10 of the Judicial Review Procedure Act 2 taking issue with the director’s exercise of power under the Child Family and Community Services Act (“CFCSA”). 3 The Petitioners sought the return of the child before the presentation hearing or, in the alternative, greater access for the mother. The Director argued that the Supreme Court did not have jurisdiction to make the orders sought given that the CFCSA falls under the jurisdiction of the Provincial Court, but the court disagreed.

After the baby girl was unexpectedly removed from her mother at the hospital on January 16th, 2018, counsel for the Petitioners immediately wrote letters to the Director requesting a review of the decision and proposing less disruptive measures. Suggestions were made for approved MCFD homes where the mother and baby could reside along with several culturally appropriate supports available through Huu-ay-aht First Nation and USMA Nuu-chah-nulth Family and Child Services. But, the Director was unresponsive.

The Petitioners identified a gap in legislation that prevented them from seeking relief from Provincial Court under the CFCSA for an access order. The requirement to have an order in place before an application can be made under s. 55 precluded any viable remedy under the CFCSA. The Petitioners were unable to get into Provincial Court before March 23rd, 2018 due to court delays, 66 days after the child’s removal, despite the legislative requirement to have a presentation hearing “no later than seven days after the day a child is removed.” 4 The mother was put in an impossible situation with respect to breastfeeding her baby because the child was placed in a different community and the Director did not have the resources to accommodate daily access.

Given the failed attempts to reason with the Director and the Provincial Court delays, the Petitioners turned to the Supreme Court for immediate relief. The Court deliberated briefly on the jurisdictional issue raised and decided that although not used lightly, parens patriae was founded on the necessity to protect those who are unable to protect themselves – in this case, the Indigenous newborn baby. Madam Justice Murray is seized of the matter and the Director was in court on Tuesday, March 6th for the presentation hearing arguing against the access order made.

Bernard Richard, BC’s Representative for Children and Youth, having reviewed the Ministry files connected to this case, expressed his outrage and criticized the government for its failed Indigenous child welfare system. He stated: “I’ve spoken to Ministry officials at a high level to express my outrage about how this case was handled. It’s very concerning; it reeks of paternalism. The issues the Ministry had related to the grandmother, rather than the mom herself. It raises concerns about systemic racism.”1

That said – this parens patriae precedent, carving out jurisdiction for the Supreme Court to protect Indigenous children from the broken system, provides at least one option for a timely remedy in the seemingly impossible legal framework.

  1. L.S. V. British Columbia (Director of Child, Family and Community Services), 2018 BCSC 255. |
  2. R.S.B.C. 1996, c. 241. |
  3. R.S.B.C. 1996, s. 46 [CFCSA]. |
  4. Ibid., s. 34. |
  5. March 6, 2018, The Globe and Mail, "BC watchdog labastes province's 'awful' child-welfare strategy" |

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.