Article 12 of the Convention on the Rights of the Child and Children’s Participatory Rights in Canada
IV. Expanding Children’s Participation Rights in Canada
A review of legislation and case law from across the country suggests that Canadian legislatures, judges and policy makers are alert to the participation rights of children, and their responsibilities under Article 12. This is especially true in the area of family law, where children’s views and preferences are a guiding factor in making custody, access, child protection, and adoption decisions in children’s best interests. However, there is room for improvement. The United Nations Committee on the Rights of the Child has described Canada has having “inadequate mechanisms for facilitating meaningful and empowered child participation in legal, policy, environmental issues, and administrative procedures that impact children.”Footnote 209
This concluding part of this paper offers some suggestions on how children’s participation rights under Article 12 of the CRC could be enhanced in Canada.
Promoting Children’s Participation in Judicial and Administrative Proceedings
This section provides specific suggestions for further promoting children’s participation in proceedings addressed in this paper: family proceedings (custody and access, Hague Convention, child protection, and adoption), criminal proceedings, proceedings respecting treatment decisions, and immigration and refugee proceeding. These options are informed by practices that promote children’s participation rights in other countries, and some come directly from academic writing on children’s participation. It is also important to recognize that there is significant variation across Canada in the extent to which children’s participation rights are recognized and promoted, and policy makers in different provinces and territories can learn from experiences in other Canadian jurisdictions.
There is no single “best” way to engage children in legal proceedings, but rather it is important to have a range of ways available to allow children to participate. Although the United Nations Committee on the Rights of the Child generally prefers direct over indirect participation, how children participate in proceedings will depend in some measure on the nature and stage of the case, and the resources available. The Committee has made clear that children should never be forced to express their views. The method used for hearing children should take into account the needs and maturity of children, as well as the need to balance children’s participation with the protection of their interests and relationships. Perhaps most importantly, the views of individual children about how they wish to participate at particular stages in particular proceedings should always be taken into account. That said, certain methods for hearing children ought to be more readily available.
Legal representation of children in custody and access proceedings in Canada is limited, and not available in some jurisdictions. Article 12 may provide an avenue for encouraging a superior court to use its parens patriae power to appoint a lawyer for a child involved in a custody and access proceeding.Footnote 210 However, legal representation is relatively expensive and may result in children feeling pressure to “take sides” in litigation. Assessments can be an important way for soliciting the views of children, but also relatively expensive with the potential to delay resolution of proceedings. It would certainly be appropriate for lawyers for children and assessors to ask children how they would like to participate, including whether they would like to meet the judge.
Some provincial and territorial statutes have provisions that allow for judicial interviews. Judicial interviews can provide a cost-effective and timely way of hearing directly from children in family law proceedings. Some jurisdictions, including Scotland, New Zealand and most notably Quebec, have already expanded judicial interviewing to allow greater participation by children in family cases. Empirical research establishes that children in family cases always want to be asked if they wish to contribute their views, and, if their family’s dispute is being resolved in court, many would like to meet the judge.Footnote 211 Interdisciplinary education and training on issues relating to judicial interviewing of children and children’s involvement in the family dispute resolution process is also important. It is not expected that judges and lawyers should have the knowledge of mental health professionals who conduct assessments, but education programs can ensure that they should be aware of the importance of engaging children in a sensitive fashion, and prepared to address such issues as confidentiality, recording and Non-evaluative Views of the Child Reports, currently used in some jurisdictions, which can be a relatively inexpensive and expeditious way of allowing children to express their perspectives and preferences, and consideration could be given to expanding their use. However, issues of training, resources and protocols for Views of the Child Reports need to be addressed, including whether children should be asked whether there are matters that they would rather not be disclosed to parents, the court or a mediator, and whether they would like to meet the judge or mediator.
While the focus of this paper has been children’s participation in legal proceedings, Article 12 also supports children’s participation in non-curial family dispute resolution processes. The Netherlands, for example, requires that children’s views be reflected in all parenting plans placed before the court. In G. (B.J.) v. G. (D.L.), Justice Martinson held that Article 12 requires children’s views to be considered at all stages of a custody and access case, including attempts to settle using alternative dispute resolution.Footnote 212 In England and Wales, the government has committed itself to ensuring that children’s views are shared with parents and mediators in every case being resolved by this method of dispute resolution.Footnote 213
The YCJA recognizes the right of young people accused of a crime to be heard and to participate in processes that lead to decisions that affect them. Yet research on children’s experiences in the youth criminal justice system suggests that many children do not feel as if they have been heard or given an opportunity to participate.Footnote 214 Professor Myriam Denov suggests that one way to promote children’s rights under Article 12 would be to introduce a statutory requirement that children’s views be taken into account in predisposition reports and sentencing considerations.Footnote 215
In the health law context, commentators have suggested moving away from presumed capacity to consent to treatment decisions based on age toward presumed capacity to consent for all.Footnote 216 This is already the law in Ontario, Prince Edward Island, and the Yukon. Eliminating age presumptions for consent would be consistent with the Committee on the Rights of the Child’s interpretation of the requirements of Article 12.
With respect to children’s participation in immigration and refugee proceedings, Professor Sonja Grover has suggested that child refugee claimants should be assigned independent, free, and expert legal counsel in order to participate effectively in hearings.Footnote 217 Designated Representatives, because they are often family members, are less likely to be independent, raising questions about their ability to safeguard the child’s interests.
There is also a need to provide children greater opportunities to participate in processes that involve decision-making in the education and schooling context, both in regard to making decisions about their individual lives and in developing policies, programs and student codes of behaviour. In order to encourage participation of children in various processes and to promote their rights, school curricula also need to address issues of children’s rights.
Policy Development and Law Reform
The focus of this paper was on children’s participation rights in legal proceedings, but there are other important domains for involving children in civil society. This paper did not address issues related to opportunities to promote children’s participation in legislative and policy reform, but in a number of countries significant efforts have been made in this regard.
Some of the approaches that different countries, regional governments and municipalities have developed to engage children include children’s clubs, children’s councils, and children’s parliaments, as well as representation of children and youth on various advisory councils and policy-making bodies.Footnote 218 For example, in the American state of Georgia, a children’s forum was set up to allow children the opportunity to express their views on the problems facing children and to propose specific solutions. In Sweden, many municipalities have established “influence forums,” which allow children to participate in decision-making at the local level on issues that affect them. At the national level, New Zealand has established a prime minister’s youth advisory forum. Every year, selected youth from across the country are invited to meet three times with cabinet ministers, including the prime minister, to discuss issues affecting children and other matters concerning the government. Topics canvassed so far include student loans, bullying in schools, and police treatment of young people.
In Canada, some governments have also developed programs to involve children and youth in policy development and program monitoring. For example, the Ottawa Police Service has established a Youth Advisory Committee with members aged 13 to 24 years to allow for participation in development of policies and programs.Footnote 219 This type of Committee both allows children and youth to be more involved in decision-making and provides valuable information to police. In many Canadian jurisdictions there is a provincial or territorial office that has responsibility for advocacy for children and youth, often focusing on investigation of complaints and concerns related to children in the care of government agencies, most often in the care of child welfare or youth justice facilities. Some of these offices have youth advisory committees.Footnote 220 However, much more needs to be done to involve children and youth in law reform and policy development, especially in areas where they are directly affected, likely family law and education policy.
Research and Policy Development
A review of statutes and cases across the country suggests that Canadian legislatures, courts and tribunals are alert to the CRC and the participation rights of children contained in Article 12. However, as this paper demonstrates, there is significant variation across jurisdictions and across legal domains in whether and how children are heard in legal proceedings that affect them. The United Nations Committee on the Rights of the Child has advised that Canada needs to do more to promote and protect children’s participation rights. This paper has provided some suggestions for how that could be achieved.
As discussed in this paper, there is some research on children’s experiences with participation in legal processes in Canada. It is not a large body of research, and there is a clear need for more research on the experiences of children, parents, judges, lawyers and other professionals with children’s participation. Although there is a clear need for further research, enough is known about the needs, rights and interests of children that all of those involved in the implementation of justice should be taking steps to improve children’s participation in matters – both legal and policy – that affect them.
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