Article 12 of the Convention on the Rights of the Child and Children’s Participatory Rights in Canada

I. Introduction: Scope of Paper

In 1989, the Convention on the Rights of the Child (CRC) was adopted by the United Nations. Canada ratified the CRC two years later, in 1991. Although the CRC has not been fully incorporated into domestic law, its principles guide interpretation of the Charter of Rights and Freedoms, legislation and the common law in Canada. Footnote 1

The CRC recognizes that children have civil, political, economic, social, health, and cultural rights. One of the most important rights in the CRC is the “right of participation,” Footnote 2 set out in Article 12. Article 12(1) recognizes the right of children capable of forming views to express those views in all matters affecting them, and directs that due weight be accorded those views, depending on the age and maturity of the child as well as the matter at issue. Article 12(2) provides for the right of the child to be heard directly or indirectly through a representative in any administrative or judicial proceeding affecting the child. Article 12 is especially important since it is one of the few provisions of the CRCthat children can exercise themselves, and because it provides for children’s involvement in decision-making that most directly impacts on their lives.

Canadian courts and legislatures have recognized the CRC, and the rights of children embodied in Article 12 in particular.  The importance of children’s views has been directly recognized in family law, specifically in the context of child custody and access disputes following parental separation. Children’s participation rights have also been recognized in proceedings respecting child protection, health, youth criminal justice, immigration, and education.

Despite the recognition in Canada of rights of children, the United Nations Committee on the Rights of the Child has suggested that steps need to be undertaken to further promote children’s participatory rights in this country. In its 2012 Report on Canada, the Committee welcomed the 2010 Yukon Supreme Court decision in G. (B.J.) v. G. (D.L.), Footnote 3 which cited and relied upon Article 12 to establish children’s participatory rights in disputes between separated parents, a decision discussed more fully below. The Committee, however, also was “concerned that there are inadequate mechanisms for facilitating meaningful and empowered child participation in legal, policy, environmental issues, and administrative procedures that impact children.” Footnote 4

This paper provides an overview and comparative analysis of children’s participatory rights in Canada. Footnote 5 Looking at legislation and case law from across the country, the paper describes and contrasts the way children’s views are considered in the different provinces and territories, as well as across legal domains. The paper also considers how Canadian courts have interpreted and applied Article 12. Finally, drawing on recent academic articles, both Canadian and international, the authors offer some suggestions for how legislatures, courts and tribunals could further implement Article 12, thus promoting children’s participatory rights in Canada.

A primary focus of this paper is on children’s participatory rights in judicial and administrative proceedings. However, the scope of Article 12 is broader: Article 12 also requires that children be consulted in the development of law and policy that affects them. The paper therefore concludes with some suggestions for including children’s voices in legislative and policy-making processes.

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