After a mother refused to consent to a caesarian section, the Superintendent of Child Welfare (“Superintendent”) secured an order to apprehend her foetus several hours before its birth. Following the birth, the child (“Baby R”) was physically taken into the custody of the Superintendent and placed in a foster home pending the hearing. Baby R’s mother opposed the action first in provincial court, and then in the British Columbia Supreme Court.
The main issue in the case of Baby R was whether an unborn child is a child within the meaning of the Family and Child Service Act in order to give the Superintendent jurisdiction to apprehend. Under the Act, apprehension proceedings are authorized where a child is “in need of protection”. “Child” is defined in the Act as “a person under 19 years old”. “Person” is not defined. LEAF was granted intervener status and argued that the term “child” in the Act does not include a foetus and apprehension of a foetus violates the rights of women protected in sections 7, 15 and 28 of the Canadian Charter of Rights and Freedoms.
Please find LEAF’s Factum here.
The British Columbia Supreme Court allowed Baby R’s mother’s appeal and stated that: “the powers of the Superintendent to apprehend are restricted to living children that have been delivered. Such powers to interfere with the rights of women, if granted and if lawful, must be done by specific legislation and anything less will not do.”