First Nations kids deserve the same protection as others

Posted on April 28, 2015 in Child & Family Policy Context – Opinion/Editorials – Aboriginal rights must be taken into account in any analysis of the best interests of a child who needs medical care, a judge says. But at the end of the day the child’s welfare trumps other considerations.
Apr 27 2015.   Editorial

No parent or guardian in Canada should have the right to deny life-saving medical treatment to a child in their care. And First Nations parents are no exception. Aboriginal children deserve the same protection as any others. And the state has an interest in seeing that they get it.

So it’s a relief that an Ontario judge, Justice Gethin Edward, hasjust reaffirmed that basic principle by “clarifying” a troubling ruling he issued last year in the heart-wrenching case of J.J., an 11-year-old Haudenosaunee girl with cancer. At the time Edward ruled that her mother had a constitutional right to rely on traditional indigenous medicine instead of chemotherapy.

The decision created a furor with critics saying that, contrary to Edward’s finding, J.J. was a child in need of society’s protection from a well-meaning but misguided parent; that the ruling was an unwelcome precedent that put native children at risk; and that Queen’s Park should appeal.

Now, in a rare move that came at the request of the Ontario Attorney-General’s office, family lawyers and everyone else with an interest in the case, Edward has issued a statement “clarifying” his original ruling.

He maintains that First Nations have “the right to use traditional medicines.” But in what amounts to a major caveat he added on Friday that the right to do so “must remain consistent with the principle that the best interests of the child remain paramount.” Aboriginal rights must be taken into account, “among other factors,” he said, in any analysis of the best interests of the child, and whether the child is in need of protection.” Still, at the end of the day the child’s welfare trumps other considerations.

Whether this qualifies as a clarification, amendment, walk back or full-blown climbdown, it puts children’s aid societies and other authorities on firm notice that they must not let aboriginal rights eclipse a child’s best interest. That’s an important qualifier.

But welcome as Edward’s clarification is, it makes the original ruling all the harder to fathom. If J.J.’s “best interests” were indeed paramount, and aboriginal rights only a secondary factor among others, how were her best interests served by denying her the court’s protection and medical treatment that could save her life?

This doesn’t bolster confidence in the wisdom of the original ruling.

J.J.’s case began last year when McMaster Children’s Hospital in Hamilton sought to have her declared a child in need of protection after her mother pulled her out of chemo treatment for acute leukemia. J.J. “lacked the capacity” to make life-and-death decisions herself. Doctors said she had a very high chance of being cured if she continued with the chemo.

But Brant Family and Children’s Services did not believe J.J. needed protection. Edward found in the mother’s favour, saying she was exercising “her constitutionally protected right to pursue their traditional medicine.” The family took J.J. to a clinic in Florida that featured such treatments as positive thinking, raw foods, foot baths and vitamin injections.

In another similar case, an Ojibwe girl, Makayla Sault, also 11, was taken off chemo last year to get indigenous care and treatment at the same Florida clinic. In her case Brant officials said she was capable of making her own decisions. She died earlier this year.

When J.J’s cancer resurfaced in March she was put back on chemo while continuing to get indigenous treatment. A team of physicians and a native healer now cares for her. This approach, combining the best modern medical care with due regard for aboriginal tradition, should serve as a template.

If nothing else, this is a sharp reminder to the courts and children’s aid alike that native children deserve no less protection than any others. No parent in Canada has the right to harm a child, whether by abusing them or denying needed medical care. That principle should be more aggressively asserted and applied in future disputes of this sort.

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