For Immediate Release – April 25, 2023
Vancouver, unceded Xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish) and səlilwətaɬ (Tsleil-Waututh) homelands – Yesterday, the British Columbia Court of Appeal released a decision that improves protections for parents’ right to privacy when being surveilled by the family policing system, also known as the child welfare system.
The decision in T.L. v. British Columbia (Attorney General) will have a major impact on the privacy rights of parents over their health records. The Court of Appeal overturned a decision made by the BC Supreme Court and recognized that giving representatives of the Ministry of Children and Family Development (MCFD) unfettered access to information about caregivers is intrusive and can negatively affect their decision to seek help.
This case was about the constitutionality of s. 96(1) of the Child, Family and Community Service Act. This provision allowed the MCFD to obtain personal health and psychiatric information about T.L., a mother who has a mental health disability, without her consent, and used this information to remove her children from her care. MCFD employees are not required to inform the parent that they are making this request and some families never know that their private, personal information is in the hands of the government. This information can be “highly personal” and “intimate” such as information about experiences of trauma and violence.
“The Court of Appeal’s decision holds the state accountable and requires safeguards be put in place before the state can intrude into parent’s private health information,” says Bety Tesfay, staff lawyer at West Coast LEAF, who intervened in this case. “Yesterday’s win shows that the court recognizes the power imbalance between the state and caregivers, and that meaningful limits must be placed on MCFD’s access to personal information. This is especially important in the context of a family policing system that disproportionately affects Indigenous families and parents with disabilities.”
The Court of Appeal found that the BC Supreme Court did not give sufficient weight to the intrusive impact of s. 96(1) on T.L.’s Charter rights. The Court of Appeal also found that there were not sufficient procedural safeguards available limiting the MCFD’s power to request personal health information.
This decision emphasizes the need for a new child and family well-being model that is collaborative and respectful of the autonomy and dignity of parents involved in the family policing system.
“While yesterday’s decision is an important milestone in the development of parents’ rights in the family policing system,” continues Tesfay, “we’re still concerned that the court framed the privacy interests of parents as in conflict with the state interest in protecting children. In a family well-being model these rights would not be in opposition.”
West Coast LEAF was represented by staff lawyer Bety Tesfay and pro bono counsel Sarah Runyon.
Read the BC Court of Appeals decision.
interim manager of communications, West Coast LEAF
604-684-8772, ext. 226