Indigenous woman files proposed birth alert class-action lawsuit

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This article was published 10/10/2023 (1035 days ago), so information in it may no longer be current.

An Indigenous woman has filed a proposed class-action lawsuit against Manitoba’s four child welfare authorities over the practice of birth alerts, arguing the policy is causing ongoing harm.

The alerts, issued before the birth of a baby, were used to notify hospitals and child welfare agencies when a parent was considered high risk and required further assessment before their newborn could be discharged to their care.

Manitoba discontinued the practice in July 2020 after a review found it discouraged pregnant women and families from reaching out for prenatal support, though some children are still taken into the care of Child and Family Services shortly after being born.

The lawsuit claims the new model for high-risk expectant mothers still allows for the equivalent of birth alerts if the mom is a minor or is a child in care herself.

The practice was long criticized by Indigenous leaders and described as racist and discriminatory by the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Most children in CFS care in Manitoba are Indigenous.

The lawsuit — filed Sept. 22 in the Court of King’s Bench by Ontario-based firm Lombard Law on behalf of a Winnipeg woman whose newborn was apprehended in January 2019 — claims authorities breached the privacy of parents, acted without lawful authority and breached parents’ charter rights of liberty and security by authorizing and using birth alerts.

The lawyer who filed the proposed class action, Alisa Lombard, did not return requests for an interview.

The proposed class action names as defendants the four authorities that administer the CFS system on behalf of the Department of Families: First Nations of Southern Manitoba CFS Authority; First Nations of Northern Manitoba CFS Authority; Métis CFS Authority; and General CFS Authority.

The general and northern authorities would not comment on the case while it is before the court. The Métis authority’s lawyer said it had not yet been served notice of the lawsuit. The southern authority did not return a request for comment.

The lawsuit alleges although the practice was “purportedly” discontinued in 2020, Manitoba child welfare authorities have not taken any steps to inform the plaintiff or other potential class-action participants about any birth alerts placed on them in the past or move to remove such alerts from their hospital files.

It also claims the alerts did not have any legal basis, as unborn children are not considered legal persons, also arguing the authorities exceeded their child protection powers intentionally.

In the plaintiff’s case, the document says, she gave birth to her first child in 1996, while she was a ward of the foster care system. She became pregnant with her second child in 2018, and reached out for social services’ assistance while pregnant.

She made arrangements for her to-be-born baby girl to be cared for by her aunt, the legal papers say. (The girl currently lives with the plaintiff’s aunt, while the plaintiff is involved with her life and regularly cares for her, the lawsuit says.)

On Dec. 20, 2018, the lawsuit alleges, the provincial child protection branch issued a birth alert on the plaintiff’s file. It had been requested by a social worker at Winnipeg CFS, an agency under the General CFS Authority.

Following an emergency c-section Jan. 8, 2019, social workers and Winnipeg police moved to apprehend her newborn, the suit says, but without telling the mother under what authority or why.

She did not find out a birth alert had been placed on her file until 2021, the claim states.

The legal filing alleges the alerts are issued based on speculative child protection concerns, often without evidence and without regard to hospital staff thoughts on whether the parents are able to safely care for the babies.

Further, it alleges, the practice was disproportionately used against Indigenous, racialized or disabled pregnant women as a result of discriminatory assumptions about their likelihood to be neglectful parents.

The lawsuit seeks general, aggravated, special and punitive damages, but not a specific dollar figure.

The 2020 policy change has led to a 70 per cent reduction in newborn apprehensions since 2014, when 289 babies were taken into CFS custody, former Tory families minister Rochelle Squires said previously.

erik.pindera@freepress.mb.ca