Last week, West Coast LEAF was granted intervenor status in a case about child welfare agencies’ access to personal information about caregivers and children held by third parties, including records held by health care providers, counsellors, and the police.

Under s. 96 of BC’s child welfare legislation, the Child, Family, and Community Service Act, a director within the Ministry of Children and Family Development can collect any third-party information deemed necessary for carrying out its role. This is an extraordinary power, and s.96 does not contain any procedural safeguards to ensure that the Ministry is exercising its power in a reasonable and non-discriminatory way.

The case is being brought before the BC Supreme court by “T.L.,” a mother who has a mental health disability. The Ministry removed T.L.’s children from her care because of a concern about the effects of T.L.’s mental health disability on her ability to safely parent her children. T.L. disagrees with the director’s assessment and will be seeking the return of her children in an upcoming court hearing.

T.L. argues that s. 96 unjustifiably infringes ss. 7 and 8 of the Charter, which protect people from unreasonable state intrusions on their privacy. When deciding whether to apprehend T.L.’s children, the director used s. 96 to obtain years of T.L.’s health and psychiatric records. In addition to challenging the constitutionality of s. 96, T.L. is seeking orders to prevent the director from relying on these records in its future decision-making or in court.

West Coast LEAF argues that the constitutionality of s. 96 must be assessed in the context of a colonial child welfare system that disproportionately harms Indigenous families and other families who face systemic discrimination. Biases and stereotypes about parenting ability are likely to inform requests for personal records. As we outline in our report Able Mothers, parents who experience multiple oppressions—such as Indigenous parents with disabilities—are particularly likely to have their parenting ability unjustly questioned and their privacy violated. In this context, meaningful limits on the director’s powers under s. 96 are necessary to prevent the discriminatory collection of highly personal and sensitive information.

There is already an enormous power imbalance between caregivers and the Ministry; there must be safeguards to ensure BC’s child welfare system is not operating with impunity.

The judicial review will be heard by the BC Supreme Court over three days, starting on June 21, 2021. Check our case page for case documents and updates.

This intervention builds on West Coast LEAF’s work to support families and communities to engage in systemic child welfare advocacy, with a focus on shifting from a colonial and apprehension-based system to a system in which all children, families, and communities will thrive.

Learn about our Child Welfare Advocacy Communities of Practice Project, which aims to build community capacity to support families engaged in the child welfare system.