Indigenous families disproportionately affected by 'birth alerts'; B.C. lawsuit seeks damages

CTV National News: Unconstitutional practice? Mothers in B.C. have filed a class-action lawsuit against birth alerts, claiming they are unconstitutional. Avis Favaro has the details.

TORONTO — A new class-action lawsuit has been filed in B.C., with another soon expected in Ontario, seeking justice for a disturbing practice that has split up hundreds of parents and newborn infants, with Indigenous and racialized families disproportionately affected.

Called “birth alerts,” it’s a practice in which social workers or hospital staff flag an expecting parent — often without their knowledge — as being unfit to care for the child they are carrying.

The result is newborn babies being taken from their mothers’ arms, sometimes shortly after birth.

“Birth alerts are part of a system, [a] system that assumes that certain kinds of mothers can’t look after their children, and then that assumption gives rise to all the illegal behaviour — privacy being violated, stereotypes being imposed, and then at the end of it you have these tragic stories,” Reidar M. Mogerman, with CFM Lawyers, told CTV News.

Nikida Steel knows first hand the pain that birth alerts cause.

A young Indigenous mother raised in foster homes, she was subjected to birth alerts for her son, then each of her four other children, eventually losing custody.

“I was basically criminalized,” she told CTV News. “I felt immediately, in pregnancy and immediately after birth, that I had done something wrong or I was expected to do something wrong, and that was really upsetting.

“They turned around, they took my children and then they disappeared and left things in a big mess.”

Steel is the Plaintiff in a new B.C. lawsuit setting out to demonstrate that the practice is unlawful and needs to end.

Birth alerts are meant to be issued if the official is concerned for the safety of a child due to instances of things such as domestic violence, drug usage, or even history with child welfare in the parent family.

But the lawsuit states that there are no clearly laid out thresholds and rules to outline when a birth alert should be issued, meaning that it is completely up to the discretion of child protective agents or hospital workers.

“As a result of this arbitrary process, the speculative ‘child protection concerns’ leading to the issuance of a birth alert are, in many cases, motivated by discriminatory and harmful stereotypes about the parenting capabilities of persons of certain backgrounds,” the lawsuit states.

Steel said that she hadn’t done anything wrong before she was flagged.

“There was paperwork that I read that said I was a heavy drug user,” she said. “I’ve never been a heavy drug user. I read information that said I was in a treatment program. I was never in a program. It said I had been sanctioned under the Mental Health Act. I had never been sanctioned under the Mental Health Act.

“These were all assumptions that were made, these were implicit biases. They don’t see you. They form assumptions.”

Steel is representing herself, as well as all of those who were subject to a birth alert in British Columbia between Jan. 1, 2018 and Sept. 16, 2019.

In that time, British Columbia issued 423 birth alerts.

Of those, in 228 cases, more than half, the mothers were Indigenous.

Following the release of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls in 2019, which recommended abolishing the practice of targeting Indigenous women with birth alerts, provinces started to ban the practice.

B.C. ended birth alerts in 2019, with many provinces following suit in recent years. Prince Edward Island and Saskatchewan ended it just this year, with Newfoundland and Labrador ceasing the practice only a few months ago. Quebec’s program will be placed under review.

But victims and their children say they need compensation for decades of trauma and family separation.

“They violate privacy, they give out a bunch of really sensitive medical info without the consent of the mother, and they are unconstitutional in that they discriminate,” Mogerman said.

“You are assuming that certain kinds of women can’t look after their children and then creating structures so these very women have less of a chance to look after their children. So it harms the mother, it harms the child and it harms society.”

Sometimes expecting mothers get flagged for a birth alert because of issues outside of their control that they should have received support for, or for issues they’ve already moved beyond, according to Lynne Groulx, Chief Executive Officer at the Native Women's Association of Canada.

“It could be a situation, for example, of poverty, so women are living in poverty,” Groulx said. “It could be a situation of, the woman had a problem 10 years prior but 10 years have gone by.”

“We need to see this completely banned except under exceptional circumstances.”

In one disturbing video which showed the result of a birth alert, live-streamed on social media in 2019, police arrived at a Winnipeg hospital only days after an infant’s birth to take the child away. The mother, an Indigenous woman, can be seen rocking back and forth and crying while holding her baby.

In the video, which garnered more than 400,000 views, when the family asked for five to 10 minutes of privacy to say goodbye, police refused.

According to APTN News, the infant in the viral video was reunited with her family a few months later when a Winnipeg judge awarded guardianship to the mother’s aunt.

But even if the child isn’t permanently separated from the family, the trauma of having a baby taken away and being treated like a criminal in the process can be hugely damaging to families, experts say.

“The damages [are] emotional, psychological,” Groulx said. “It's a family broken. It is just unacceptable in today's human rights standards.”

“There are countless tragic stories that stem from the birth alert system,” Mogerman added.

B.C.’s Ministry of Children and Family Development, when asked by CTV News about the lawsuit, said they “are unable to comment on matters that are before the court.

“What we can say is our government is committed to true and lasting reconciliation with Indigenous peoples and my ministry’s goal is to keep children safe with their families and connected to their culture and communities.”

Birth Alerts are also still in place in Quebec and Nova Scotia.

A spokesperson for Nova Scotia told CTV News in an email that the province is in discussions with Mi’kmaq and African Nova Scotian leaders about the practice, which has been used in the province by child welfare since 1991.

“We understand the troubling concerns related to the use of birth alerts and how they have disproportionately impacted African Nova Scotian and Indigenous families,” the statement reads.

“Nova Scotia is working quickly toward ending the use of birth alerts.”

The practice is a legacy of colonization that started hundreds of years ago, some say.

“This issue is not disconnected from what happened in residential schools, and enforced sterilization and birth alerts tell the story of why more than 50 per cent of Indigenous children […] are in care right now, and that itself should scandalize anyone,” Groulx said.

In Canada, more than half of the children in foster care are Indigenous, despite Indigenous children making up just under eight per cent of the country’s child population.

Instead of birth alerts, advocates say vulnerable mothers need programs and protection so families can stay together.

“I sustained extreme trauma based on the fact that I was subjected to this,” Steel said. “I would like to see them start supporting families.”

“The only way to reconciliation is to stop this type of treatment, to stop the damage.”

In the meantime, there will likely be more lawsuits in the coming months, an indictment of a practice that took place in Canadian hospitals for decades — and is still ongoing in some corners of the country.