The Convention on the Rights of the Child

By Jean-François Noël[1]

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Overview

Children were long treated as an object of law – as being without capacity and in need of protection – and were given no rights. Today, the child is recognized as a full person, whose capacity is developing and the child is recognized as having rights of his or her own. Children are now true subjects of law, but deserve special protection because of their particular vulnerability. This is the modern concept of the child on which the Convention on the Rights of the Child (CRC) is based.

The CRC came into force on September 2, 1990, less than a year after it was adopted on November 20, 1989 by the United Nations General Assembly. It led to a new dynamic, which was given concrete expression in, for example, the World Summit for Children (1990) and the United Nations General Assembly Special Session on Children (2002).

The CRC is a virtually universal reference and instrument, as it is the most ratified treaty in history, with 193 States Parties.[2] To be truly effectual the CRC depends on effective application, especially in domestic law, but full implementation of the CRC by all States Parties is still problematic.

In principle, every State Party is responsible for acting on its international commitments, and may not rely on the provisions of its own domestic law to avoid the obligations it has assumed under the CRC;[3] in practice, however, there are numerous obstacles to the application of the CRC.

While the CRC has resulted in important legislative activities in over half of the States Parties since it came into force in September 1990, some States Parties are still lagging behind in their implementation of all or some parts of the CRC.[4]

What is the Place of the CRC in Canadian Law?

The Government of Canada ratified the CRC on December 12, 1991. Ratification implies that the ratifying State will adhere to the norms set out in the CRC in its domestic law, but in Canada, implementation of the Convention is somewhat limited by the two reservations stated at the time the Convention was signed, and subject to the constitutional and legal context.

As mentioned, Canada has entered two reservations to the CRC. The first relates to Article 21[5] and the application of the provisions on adoption. Its purpose is to avoid conflict with the customary forms of care among the Aboriginal peoples. The second relates to Article 37(c)[6] and depriving children of liberty (in the youth criminal justice system), where Canada has reserved the right not to separate children and adults where it is not feasible or appropriate to do so.

With respect to the constitutional and legal context, it will be recalled that Canadian judges are bound by three broad constitutional principles which play a decisive role in the incorporation of international treaties into Canadian law and the application of those treaties by the courts. These principles are the separation of powers, the sovereignty of Parliament and the supremacy of the Constitution, one aspect of which is the provision for the division of powers between the federal government and the provinces. In Canada , the federal executive branch has the exclusive authority to enter into international treaties, while both the federal and provincial/territorial legislative branches have the authority to enact laws and make regulations. Obviously, that separation of powers would be defeated if the government could amend domestic law simply by signing an international agreement and thus do indirectly what it cannot do directly.

In Canada , therefore, the dualist approach[7] separates international treaties from domestic law. Accordingly, there has to be legislative action in order to incorporate Canada 's international commitments into domestic law. While it is generally recognized[8] that the federal government has the exclusive authority to enter into international treaties, implementation must, as a rule,[9] be done in a way that is consistent with the division of powers between the two levels of government.[10] The CRC contains provisions relating to matters within both federal jurisdiction (such as divorce and criminal law) and provincial and territorial jurisdiction (such as education and health). Thus, it is up to all jurisdictions to take measures to meet Canada's obligations under the Convention. The CRC has not been explicitly incorporated into domestic law through a particular statute or statutes, and therefore cannot form the basis of a cause of action in Canadian courts.[11] This is consistent with the usual Canadian approach to implementing international human rights treaties which it has ratified, which is to rely on a wide range of existing measures at the federal, provincial and territorial levels – including the Canadian Charter of Rights and Freedoms, legislation, policies and programs – to comply with its treaty obligations.

What is the Role of the Canadian Courts

In the absence of legislation explicitly incorporating the CRC into Canadian law, does this mean that the CRC cannot be cited and its broad principles asserted in the Canadian Courts, in particular in divorce proceedings? No – because even if an international treaty is not part of domestic law and has no mandatory effect, it may still be cited for interpretive purposes.[12]

The CRC was in fact cited five times[13] in the Supreme Court of Canada between 1993 and 1996, but up to that point it had no significant effect. Then in 1999, in Baker,[14] the Supreme Court of Canada opened the door to referring to the CRC in the contextual approach to statutory construction and in judicial review proceedings. Since then, there have been several other decisions of the highest court that have addressed the question of the CRC and expressed some openness to referring to the CRC for interpretive purposes (not only as regards the Canadian Charter, but also for ordinary statutes[15]), in particular in youth protection[16] and child pornography cases[17] and, more recently, in relation to corporal punishment.[18] References to the CRC in the courts should therefore be encouraged, particularly in divorce proceedings where, as we shall now see, a number of the CRC's principles are of particular relevance.

The Principles in the CRC that are Particularly Applicable in Divorce Proceedings

What distinguishes the CRC from the other international conventions that apply to children that preceded it is that the CRC covers all spheres of children's lives, in all realms where their rights may be in issue. A number of the principles stated in the CRC could be applied in the context of divorce: the best interests of the child (Article 3); the right of a child separated from a parent to maintain personal relations with both parents (Article 9); the right of the child to express his or her views freely in all matters affecting the child (Article 12); and the principle of the parents' common responsibilities for the child's upbringing and development (Article 18). Here, we will consider primarily Articles 3 and 12 of the CRC, given that they are considered to reflect some of the CRC's general principles.

The Best Interests of the Child (Article 3)

The first paragraph of Article 3 of the CRC tells us that the best interests of the child shall be a primary consideration in all actions concerning children.

This kind of reference to the concept of the best interests of the child is not something new in international law. In 1959, the second principle in the Declaration of the Rights of the Child had stated:

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.[19]

Obviously, the CRC is more authoritative, both legally because of its standing as a binding convention and morally because of the large number of States that have ratified it. However, neither the 1959 Declaration nor the 1989 Convention offer any definition of the concept of the best interests of the child. While the Declaration addresses the concept of "best interests" in relation to the development of the child and the enactment of laws to provide for special protection of the child, the Convention makes the best interests of the child a general principle that applies to the Convention as a whole.

Under the 1959 Declaration of the Rights of the Child, the rights of the child were understood and interpreted as being expressed in the child's right to protection, and the concept of the best interests of the child related only to the protection (legal or otherwise) of the child. No direct connection was made between the fundamental rights of the child and the decisions made regarding the child by the State, the child's parents or the people in whose care the child might be.

With the advent of the Convention on the Rights of the Child, the emphasis shifted substantially, to recognition of the child as a true subject of law. In that context, the CRC's "rights of the child" go beyond mere protection, and are framed as true fundamental individual rights. The concept of the best interests of the child, once a mere abstraction and too often cited, wrongly, to legitimize decisions made to protect the child, must now be interpreted from the standpoint of the child and the child's rights. This means that no one can claim to be making decisions, or doing anything else, in the name of the welfare of the child or in the child's best interests unless the child's fundamental rights are recognized and respected at the same time.[20]

Thus the concept of the best interests of the child has made its way into almost all legislation around the world,[21] although in international law it has not yet achieved the degree of specificity that would limit the discretion of States Parties in identifying what criteria or factors to consider.[22]

Application of the Principle in Divorce Law

In Canada, the Divorce Act[23] states in several places that the interests of the child must be considered in divorce proceedings, and is in fact the only criterion for making decisions in relation to certain orders affecting the child. The best interests of the child concept is not expressly defined in the Divorce Act, however, nor does the Act include any provision setting out the guiding principles to be referred to in interpreting that Act, or criteria to be used in interpreting "best interests of the child". This is in contrast with most provincial legislation which sets out a number of factors to be taken into consideration in best interest determinations, including, among others, the consideration of the views of the child.

The legal literature tells us that the best interests of the child – a question of fact that must be analyzed from the child's perspective and not the parents' – is determined by looking to various aspects of the child's welfare (psychological, physical, spiritual, emotional and material).[24]

A few years ago, in recognition of the emerging new concept of the child as a true subject of law and not a mere object of the rights and obligations of adults (in this instance, the parents), there was a re-examination of the role of the child in family litigation in Canada. A Special Joint Committee of the House of Commons and Senate was struck to examine questions relating to custody and access, and upon completing its review it recommended, among other things, that the Divorce Act be amended to include a preamble alluding to the relevant principles of the CRC and a list of criteria for the best interests of the child.[25]

Former Bill C-22[26] (to amend the Divorce Act) proposed specific criteria for determining the interests of the child in divorce proceedings, but the bill died on the order paper when Parliament was dissolved on November 12, 2003. It was no accident that a central concern in those proposed amendments was the question of children's viewpoint in divorce, custody and access proceedings.[27] In divorce proceedings, the modern concept of the child proposed in the CRC, and more specifically any genuine consideration of the best interests of the child, necessarily leads to the question of the child's right to express his or her views freely. In fact, given the holistic approach proposed in the CRC, one cannot exist without the other.

The Right of the Child to Express Views Freely (Article 12)

We hear constantly about the fundamental importance of allowing children to express themselves, and most importantly of listening to them – not to assuage the adult's conscience, but because it is often the child who is the one most affected. Can we really claim to be doing justice in cases that affect a child if we do not allow the child to express his or her views freely, if we do not create an atmosphere of trust in which the child is able to share his or her fears, dreams, story and wishes?[28] Can people whose job it is to make important decisions in the life of the child, including decisions relating to custody and access rights, really make a decision in the best interests of the child without hearing a child who is capable of forming his or her own views speak, and without giving due weight to what the child says?

Article 12 of the Convention on the Rights of the Child states:

Article 12

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

When the framers of the CRC included that provision, they were filling an important lacuna: the "child's voice" on matters that directly affect him or her was often not heard.[29] We would note, first, that the child's ability to form his or her own views is a prerequisite for the existence, not the exercise, of the child's right to express his or her views freely, in this instance. Not all children are therefore given that right. Moreover, the CRC provides that the views expressed by a child who is capable of forming his or her own views should be given due weight in accordance with the age and maturity of the child.

This recognition of the child's right to express his or her views represents the most famous, if not the most important accomplishment of the CRC.[30] Of all of the rights of the child recognized by the Convention, this is the one that is most readily quoted, and that was the most quickly cited in the courts of the States Parties.[31] It is easy to understand the attraction of this provision, not only in proceedings where the child is the person most affected, but also in other proceedings where the child is not necessarily a party to the proceeding but where the outcome may be of decisive importance.

The right guaranteed by Article 12 of the Convention goes beyond merely giving the child an opportunity to be heard. As the first paragraph of that Article states, the child's views must be given due weight, in accordance with the age and maturity of the child. The importance of listening to the child does not, however, end with giving the child's opinion weight as one factor to be considered in the decisions being made: it is essential, for the social and psychological development of the child, that he or she be given an opportunity to express his or her views freely, even if those views sometimes amount to demands that cannot be met.[32] The second paragraph of Article 12, which in no way limits the generality of the previous paragraph, provides that the child shall in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. Although the scope of the right conferred by Article 12 may go beyond that limited framework[33], the second paragraph then recognizes the particular importance of providing the child with the opportunity to be heard in administrative or judicial proceedings that affect the child.

There can no longer be any doubt that the right set out in Article 12 of the Convention is a fundamental right. The child's right to express his or her views must now, like the principle of the best interests of the child or the principle of non-discrimination, be regarded as one of the fundamental principles of the Convention, in the sense that those principles play a decisive role in the implementation of all of the other rights set out in the Convention on the Rights of the Child.

Like the principle of the best interests of the child, the child's right to express his or her views is applied more specifically elsewhere in the Convention, for example in the second paragraph of Article 9, which provides that the child, just like all other interested parties, must be given an opportunity to participate in the proceedings and to make his or her views known in proceedings to determine whether it is in the child's best interests to be separated from his or her parents.

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