An Indigenous mother whose two eldest children were removed from her custody after a case worker examined her medical records is once again challenging a provision of B.C.’s child welfare legislation she says discriminates against parents with mental health challenges and violated her right to privacy.
According to court documents, the records retrieved by a social worker showed the mother, referred to as T.L., had a history of schizophrenia she manages with medication, as well as substance use and trauma stemming from childhood sexual abuse.
T.L. appealed her case to the B.C. Court of Appeal last week, and an intervening legal advocacy organization says the outcome could permanently alter the child welfare system that disproportionately polices Indigenous and disabled women.
Under section 96 of British Columbia’s Child, Family and Community Service Act, case workers for the Ministry of Children and Family Development can request access to medical and psychiatric records, among other records from public bodies, to carry out their duties without consent from or notifying the parent who is being investigated.
“As the law currently stands, it gives social workers that unfettered access to sensitive records,” said Bety Tesfay, a staff lawyer for legal advocacy organization West Coast LEAF in an interview.
After losing custody of her two oldest children in January 2021, T.L. challenged the regulation in a judicial review at the B.C. Supreme Court, arguing that without reasonable limitations the law violated her Charter rights to privacy and to freedom from unwarranted search and seizure.
The attorney general of B.C. and lawyers for the case worker, on the other hand, argued that the policy was in the interest of and in proportion to the importance of protecting children, which T.L. agrees is essential.
The court ruled against her challenge, stating the provision was reasonable given the agreed upon significant goal of child welfare.
This week, T.L.’s appeal was heard at the B.C. Court of Appeal, which has reserved its judgment. A request for comment to T.L.’s lawyer was not returned by press time.
There are no meaningful limits on the power to access private records, which can be exercised as a result of harmful stereotypes about Indigenous parents’ capabilities and contribute to stigma, says Tesfay.
“Who is recognized as ‘the good mother’ or ‘good parents’ and the systemic prejudices against Indigenous mothers are unfounded,” said Tesfay. “These are harmful assumptions that can arise within the system.”
That lack of privacy can also make parents fearful of seeking health care and support for mental health or substance use issues, Tesfay added. Child apprehension also increases the risk of parents experiencing drug poisonings.
West Coast LEAF has intervened at each stage of the claim to argue the court’s decision must consider the colonial underpinnings of the child welfare system and the importance of privacy for people seeking sensitive medical care.
“We're hoping that the court recognizes the social contexts of families who are more likely to be surveilled by the state, and that meaningful limits to the law can support the shift from an apprehension-based approach to a preventative approach within the family policing system,” said Tesfay.
“And we think this is important in light of UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples] and DRIPA [Declaration on the Rights of Indigenous Peoples Act] and B.C.’s commitment to decolonization.”
The case at hand arose when T.L. told the case worker of her intention to take her two oldest kids home with her from where they were living with her partner’s mother in northern B.C. since August 2020.
That arrangement was agreed upon by MCFD, T.L. and her partner due to concerns of alcohol and drug use, mental health and inadequate parenting skills brought to the attention of Alberta's Ministry of Children’s Services when the family lived briefly in Edmonton.
T.L.’s second child was underweight and coughing persistently, and was diagnosed with and treated in hospital for a fistula in May 2020 that had prevented her from properly absorbing nutrients.
But in January 2021, T.L. wanted her children to live with her again, triggering a custody battle.
An MCFD case worker in B.C. requested and reviewed the mother’s medical and hospital records, which detailed her history of schizophrenia, substance use and trauma stemming from sexual abuse in her childhood.
According to court documents, T.L. took medication for her schizophrenia that allows her to manage some delusion and paranoia most of the time.
The case worker then removed her two young children from T.L.’s custody, ordering they remain living with their grandmother.
In April 2021, T.L. gave birth to the couple’s youngest child who stayed in their custody under supervision from MCFD. And since then, their two older children have begun to spend three days a week with their parents, unsupervised.
Tesfay says T.L.’s case highlights how Indigenous and disabled mothers in particular are surveilled and stigmatized in the current child welfare system, which needs to be considered in the court’s decision.
Child apprehension was a key mechanism of the Indian residential school system and '60s Scoop, which removed children from their families, communities, languages and cultures to church and state-run schools and to live with non-Indigenous families.
The lasting, intergenerational trauma of that colonial violence is still perpetuated by the child welfare system, according to a 2019 report from West Coast LEAF.
There are around 5,000 children in B.C.’s child welfare system today, 68 per cent of whom are Indigenous according to MCFD.
Many Indigenous leaders and academics have called it the “new residential school system” or the “Millennium Scoop.” A 2019 report from West Coast LEAF found Indigenous parents felt a lack of accountability and trust with social workers, as well.
In October 2022, B.C. announced landmark legislation that would continue the return of child welfare powers to First Nations communities.
Tesfay said it is important for the current system to be improved with the historical and current impacts of colonization in mind.
“In this case, placing limits on that unfettered access can be corrective for the power imbalance between parents and the director, and it could mean potentially addressing the distrust that caregivers have towards the family policing system,” she said.