The Convention on the Rights of the Child
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Application of the Principle in Divorce Law
There are various ways in which children may be provided the opportunity to express their views freely in the context of a divorce proceeding. A child can be interviewed alone by the judge, in the judge's office, called as a witness in the proceeding, or in some cases even be granted standing as a party to the proceeding.
In Canada , at present, there is no obligation to give children an opportunity to have their views heard in divorce or custody cases under the Divorce Act, even if the child is capable of forming his or her own views and to instruct counsel.
While genuinely respecting children's rights does not necessarily mean imposing a systematic obligation to hear the child, it does mean that children who are capable of forming their own views must be given the opportunity to be heard, leaving it up to the child to determine for himself or herself whether he or she wishes to be heard, or would prefer to remain silent and not get directly involved in the dispute between his or her parents.
The Example of the European Convention on the Exercise of Children's Rights
Although this has no application in Canadian law, a children's rights convention, in this instance developed under the aegis of the Council of Europe, is worthy of a parenthetical mention here. The European Convention on the Exercise of Children's Rights provides some guidance concerning measures for implementing children's right to express their views in the precise context of certain family law proceedings. This is an example of best practices that is well worth considering; its objective is to help children to exercise the rights set out in the CRC by granting them procedural rights, while assigning duties to a variety of people. It applies to children under the age of 18, and relates specifically to family proceedings (for example, proceedings in relation to custody and access and to filiation) that are held before a court or other administrative authority. The first part of the Convention deals with children's procedural rights; the second part deals with the duties and responsibilities that judicial authorities have with regard to children; and the third part deals with the duties and responsibilities of persons who represent children.
Article 3 of the European Convention on the Exercise of Children's Rights provides, at the outset, that a child who has sufficient understanding (as determined according to domestic law) has the right, in proceedings affecting him or her, to receive all relevant information, to be consulted and to express his or her views, and to be informed of the possible consequences of compliance with those views and the possible consequences of any decision made regarding the child. It also provides for a representative to be appointed to protect the rights conferred on children and allow them to assert their interests in legal proceedings. In the event of a conflict of interest between the holders of parental responsibility and the child, the child may apply to have a special representative appointed (Article 4). Article 5 further provides that children may be granted other procedural rights in proceedings affecting them, including the right to apply to be assisted by an appropriate person of their choice in order to help them express their views, the right to apply for the appointment of a separate representative (such as a lawyer), the right to appoint their own separate representative, and the right to exercise some or all of the rights of a party to such proceedings.
The purpose of the duties and responsibilities of judicial authorities and representatives is to ensure that the procedural rights granted elsewhere in the Convention are protected, while ensuring that there is no interference in family life. For example, before making any decision in relation to a child, judicial authorities must gather as much information as possible about the situation at issue, ensure that the child has been consulted after receiving all appropriate information, give due weight to the views expressed by the child and ensure that a decision is made speedily and based on the best interests of the child. Representatives must provide the child with information and explanations concerning the consequences of the wishes expressed by the child and the proposed decision.
This is an example of best practices inspired by the rights of the child as set out in the Convention on the Rights of the Child to be used as a basis for developing true procedural rights for children. In this instance, the right of the child to express his or her views is very definitely not an empty shell, and takes on a much more concrete meaning, while at the same time, very real obligations are imposed on representatives and judicial authorities to guarantee the exercise of that right.
Guidelines on justice for child victims and witnesses of crime
We can also look to other areas of the law, such as criminal law, for tools that can be used to implement the rights of the child. The United Nations Economic and Social Council recently adopted the Guidelines on justice in matters involving child victims and witnesses of crime.
The Guidelines are based largely on the Convention on the Rights of the Child, and provide a practical framework for ensuring that children who are victims or witnesses of crime are treated fairly and with dignity when they are participants in the criminal justice process. Some of the subjects it deals with are:
- the best interests of the child;
- the child's right to be treated with dignity and compassion and to be protected from discrimination;
- the right to be informed, to be heard and to express his or her views and concerns;
- the right to effective assistance, to privacy, to be protected from hardship during the justice process, to safety and to reparation; and
- the right to special preventive measures.
There is also considerable attention paid to training for professionals.
The Guidelines can also be applied in family law, and in particular in divorce proceedings. Article 6 of the Guidelines provides:
The Guidelines should also be applied to processes in informal and customary systems of justice such as restorative justice and in non-criminal fields of law including, but not limited to, custody, divorce, adoption, child protection, mental health, citizenship, immigration and refugee law (emphasis added).
As their title suggests, the Guidelines have no binding effect and are rather intended to be a "practical framework" for developing, reviewing and implementing domestic laws, procedures and practices in this area, and to assist and guide professionals and others who work with children in their everyday practice. Practitioners should consult the Guidelines and refer to them in their own work. Canada made a significant contribution to the drafting of the Guidelines and played a decisive role in the process that led to their adoption by the United Nations.
Since their adoption by the United Nations, the UN Committee on the Rights of the Child is now systematically referring to the Guidelines in its concluding observations and recommendations to State Parties to the CRC (and its Optional Protocols) and recommending that they improve child-sensitive court procedures in accordance with the Guidelines. The recommendations contained in the recent report from the UN Secretary General's Study on Violence Against Children also make specific reference to the Guidelines, and it is hoped that the Guidelines can provide guidance in the efforts to address the many challenges identified by the Study. Furthermore, a partnership agreement between the International Bureau for Children's Rights (IBCR), the United Nations Office on Drugs and Crime (UNODC) and UNICEF has led to the publication of a child-friendly version of the Guidelines, which will help empower children to play an active role in having their rights respected. IBCR, UNODC and UNICEF are also providing assistance to States in adapting their legislation and procedures to enhance the capacity of their respective justice systems to respond to child victims and witnesses of crime in accordance with international standards contained in particular in the Convention on the Rights of the Child and in the Child Victims Guidelines.
More particularly, IBCR is involved in the development of a set of tools for Member States (including a Model Law and a Handbook on Child Victims and Witnesses of Crime for policy makers and professionals) and will be providing training on the implementation of the Guidelines.
Other Relevant Provisions
In addition to the best interests of the child (Article 3) and the right of the child to express his or her views freely (Article 12), which are among the general principles set out in the CRC, there are other provisions of the CRC that can also be applied in the context of divorce.
One example of these is the right of a child who is separated from one of his or her parents to maintain personal relations with both parents, a right that is protected by Article 9 of the CRC. Under that provision, where a child is separated from one parent and a decision must be made regarding the custody of the child, all interested parties must have an opportunity to participate in the proceedings and make their views known, and a child who is separated from one or both parents also has the right to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
We would also cite Article 18 of the CRC, which recognizes the principle that both parents have common responsibilities for the upbringing and development of the child. Under that Article, parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The CRC specifies that the best interests of the child will be their basic concern.
While the primary purpose of that provision is to govern the relationship between the parents and the State, and in particular to protect the parents from excessive intervention by the State in family life, it sets out the principle of the sharing of responsibility for the upbringing and development of the child between the parents, and provides that, obviously, the best interests of the child must be their basic concern in carrying out that responsibility.
In addition, the reference to common rather than equal responsibilities is no accident. This is, in fact, the result of a compromise between a desire to abide by the Convention on the Elimination of All Forms of Discrimination Against Women and a recognition that each family sees the manner in which parental responsibilities are shared differently, and that the State should not interfere in how they divide those responsibilities, except in relation to child support or in other extreme cases. In fact, paragraph 27(4) of the CRC expressly provides that States Parties
"shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad".
In family law cases, and more specifically in divorce and custody cases, the guiding principles set out in the CRC – and especially the best interests of the child, the right of the child to express his or her views freely – can very certainly shed a different light on litigation between parents, and allow for the child to be truly recognized as a subject of law.
We have seen that although the CRC has not been formally incorporated into our domestic legislation, it nonetheless has effects in Canadian law. As a number of recent decisions of the Supreme Court of Canada indicate, even though the CRC is not a part of domestic law and has no binding effect, it can nonetheless be cited for interpretive purposes. Practitioners should make greater reference to the CRC, and encourage judges to refer to it in their decisions.
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