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B.C. Supreme Court order providing Indigenous mother daily access to newborn could set national precedent

A B.C. Supreme Court ruling that orders the provincial government to ensure an Indigenous mother has daily access to her newborn child so she does not lose her maternal bond could impact other First Nations throughout the country, the lawyer for a Vancouver Island band says.

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A B.C. Supreme Court ruling that orders the provincial government to ensure an Indigenous mother has daily access to her newborn child so she does not lose her maternal bond could impact other First Nations throughout the country, the lawyer for a Vancouver Island band says.

Huu-ay-aht First Nations and the child's mother petitioned the court after the infant was removed from the mother's care three days after it was born. The mother said a clear explanation was not provided.

A few days after the child was apprehended the province said "no other less disruptive available measure is adequate to protect the child." The mother said she was shocked by the ministry's conduct and that it offered no credible rationale.

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B.C. Supreme Court Justice Catherine Murray this week ordered the province to provide additional information. She said it must also allow the mother to see the child for at least six hours a day so her breastfeeding is not interrupted and her maternal bond is unharmed.

Maegen Giltrow, legal counsel for Huu-ay-aht and the mother, described the ruling as 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," she wrote in a statement on Thursday.

"The Court has held the Ministry to a higher standard than what we've been seeing."

Huu-ay-aht councillor Sheila Charles said that, despite widespread recognition the child-welfare system is broken and that Indigenous children should not just be scooped into care, "this case has only repeated all the patterns of the past."

The Ministry of Children said it could not discuss a specific case. In a written statement, it said the decision to remove a child is not made lightly and is done to reduce risk. It said that, whenever possible, the ministry attempts to place children with extended family or persons known to the child who can provide safe and appropriate care.

The child – who along with the mother cannot be identified – was born Jan. 13. The newborn was removed from the mother's care on Jan. 16 before it left the hospital.

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Justice Murray said B.C.'s Child, Family and Community Service Act orders the province to "promptly" notify parents as to why their child has been removed.

She said the child was placed with its paternal grandmother, with whom the mother has a strained relationship.

The judge said the mother had been forced to leave her home in the community of Port Alberni just to be near her child. The mother has been living out of a motel in the city of Courtenay, about 100 kilometres from her support network.

The ministry had been allowing the mother to see the child for two-hour periods four days a week and three hours on the fifth day. The mother was not permitted to see the child on weekends because the ministry does not have enough weekend staff to accommodate visits.

The judge said the limited access and weekend breaks made it difficult for the mother to maintain breastfeeding.

She ruled hampering the mother's ability "to nurse and bond with her baby is not in the best interests of the child."

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In ordering the increased access, the judge said she did not have enough information to make a full determination on whether the apprehension was in the child's best interest. She said it appears the ministry's long-term plan is to reunite the child with the mother.

The judge noted matters involving the act are typically heard in Provincial Court and the act stipulates a protection hearing must take place no later than seven days after a child is removed. She said the hearing has not yet taken place.

The hearing was originally scheduled for Jan. 22 but counsel for the province was unavailable. The hearing was then adjourned to Jan. 24, but there was not enough court time for the hearing to proceed. It was then set for March 23.

However, since that would be more than two months after the child was removed, Justice Murray exercised jurisdiction. She said the mother and Huu-ay-aht had been left in a "hopeless situation."

Grand Chief Ed John in 2016 released a report that made 85 recommendations and called for an overhaul of B.C.'s Indigenous child-welfare system.

Federal Minister of Indigenous Services Jane Philpott has described the Indigenous child-welfare system as "a humanitarian crisis."

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