A B.C. Supreme Court judge has ruled an injured baby must stay in government care.
On Feb. 12, Justice Nitya Iyer upheld the decision of a provincial court judge who granted a continuing custody order (CCO) permanently removing the child from its parents' care.
“The circumstances giving rise to this case are tragic,” Iyer said.
“WH” was born on Nov. 4, 2021, the first child of his parents, “IL” and “EH.” He was looked after by a midwife and two successive nannies supported the family through to December 2021.
After that, WH was in the family’s exclusive care.
The family took him for his routine two-month vaccinations on Jan. 5, 2022. The next day, he was sleepy and lethargic, a common reaction to such vaccinations.
“The family did not observe anything unusual when changing his diaper or performing other routine baby care,” Iyer said.
The day after, the child was fussy and flailing and paramedics took him to hospital.
“WH was found to have potentially fatal injuries. He had a fractured skull with internal bleeding on both sides of his brain, bleeding in his eyes, adrenal bleeding, multiple fractures of his ribs and ankles, laceration of his liver, significant bruising on his chest, abdomen, genitals and scrotum, and blood pooling at the base of his lungs,” Iyer said.
She said the family was shocked and could provide no insight on how the child was injured.
The Director of Child, Family and Community Services took WH into care while he was in the hospital.
Since his discharge, under consensual temporary custody orders, WH has remained in the care of a foster family.
Iyer said that, while the family has cooperated fully with investigations, the director sought and was granted the CCO on July 7, 2023.
The parents asserted the provincial court judge made two errors of law. First, they asserted the judge considered that the fact WH’s injuries were unexplained meant that he was required to make the CCO. They said it was an error of law because the case was about a temporary custody order at a protection hearing, which involves a different analysis than that at a continuing custody hearing.
Iyer disagreed.
"I am satisfied that the hearing judge did not treat the absence of any explanation for the cause of WH’s injuries as making a CCO a foregone conclusion,” Iyer said. “Rather, he assessed the likelihood of harm if WH were to be returned based on the specific facts of the case before him. This ground of appeal is dismissed.”
Second, the parents said the judge erred in finding he could not conclude “there is significant likelihood that the circumstances leading to his injuries will improve in a reasonable period of time.”
Again, Iyer disagreed.
“While the absence of any explanation for WH’s injuries was a very significant factor in the hearing judge’s reasons, so too was the severity of those injuries, the past conduct of the parents, the absence of a financially viable supervision option and WH’s best interests,” Iyer said. “His reasons demonstrate that his conclusion was based on his application of the statute to all the evidence before him. He made no error of law.”
She dismissed the appeal.
