The Convention on the Rights of the Child

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  • [1] Jean-François Noël is a member of the Barreau du Québec and is the Director General of the International Bureau for Children's Rights. He taught children's law at the Law Faculty of the University of Montreal from 1999-2004. He has published many works and presented on children and international law.

  • [2] As of April 19, 2007, only Somalia and the United States of America have not ratified the Convention on the Rights of the Child.

  • [3] In public international law, every treaty in force is binding upon the parties to it and must be performed by them in good faith: Vienna Convention on the Law of Treaties, [1980] Can. T.S. No. 37, Art. 26 ( Pacta sunt servanda). [Translator's note: the CRC uses the expression "national law" to refer to the internal law of a State Party; in the Canadian context, this is confusing, in that the law in question may be provincial law. The expression "domestic law", as used by the Supreme Court of Canada, quoted in the text, has been used instead here.]

  • [4] For an overview of the legislative activities prompted by the CRC, see: UNICEF, Status of the Convention on the Rights of the Child in the domestic legal order, Background Paper prepared by the Division of Evaluation, Policy and Planning for the 10th Anniversary of the Convention on the Rights of the Child, New York , 1999. For an overview of the impact of the CRC on practice in courts, see: UNICEF, Translating Law into Reality: Practice in Courts, Background Paper prepared by the Division of Evaluation, Policy and Planning for the 10th Anniversary of the Convention on the Rights of the Child, New York , 1999. See also: International Bureau for Children's Rights, Making Children's Rights Work: National and International Perspectives, Final Report from the Conference held in Montreal from November 18 to 20, 2004, Éditions Yvon Blais, 2005.

  • [5] Article 21 provides: States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

    1. Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
    2. Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;
    3. Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
    4. Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
    5. Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
  • [6] This section provides: States Parties shall ensure that: [...] (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

  • [7] On the other hand, the monist approach (which is applied in France and Belgium, for example) holds that, as a rule, an international convention is incorporated into the legislation of the country when it is ratified. This opens the way for the convention to have direct effect, or to be applied directly by a judge or a court of competent jurisdiction in national law, in an individual case. On this point, see, inter alia: Lorraine Boudreau, Marie Angèle Grimaud and Jean-François Noël, "La Convention relative aux droits de l'enfant et son application en droit canadien", in: J. Rubellin-Devichi and R. Frank (eds.), L'Enfant et les Conventions internationales, Lyon, Presses Universitaires de Lyon, 1996; E. Krings, "La mise en œuvre de la Convention des Nations Unies sur les droits de l'enfant en droit interne", in: M.T. Meulders-Klein, La Convention sur les droits de l'enfant et la Belgique, Brussels, E. Story-Scientia, 1992. With respect to the doctrine of direct effect, see: Jacques Velu, Les effets directs des instruments internationaux en matière de droits de l'homme, Swinnen - Brussels, 1981.

  • [8] The Government of Quebec, however, has on numerous occasions called for the power to ratify international treaties and agreements dealing with matters under provincial jurisdiction.

  • [9] See, inter alia: Canada (A.G.) v. Ontario (A.G.), [1936] S.C.R. 427; Schneiderv. The Queen, [1982] 2 S.C.R. 112; MacDonald et al. v. Vapor Canada Limited, [1977] 2 S.C.R. 134, 171.

  • [10] That is in fact why, prior to ratification of the Convention on the Rights of the Child, the federal government consulted each province to obtain its consent. As may be seen in Canada 's first report to the United Nations Committee on the Rights of the Child: "The province of Alberta did not formally support this ratification, due to concerns on the part of a number of provincial legislators as to the perceived implications of the Convention on parental rights. It is however the position of the Government of Alberta that, subsequent to the amendment of several laws in 1991 which brought these laws into accord with the Canadian Charter of Rights and Freedoms, Alberta's legislation and practices now conform to the Convention": Committee on the Rights of the Child, Initial reports of States parties due in 1994: Canada. 28/07/94, UN Doc CRC/C/11/Add.3 , para. 435.

  • [11] Indeed, there is no obligation in the CRC for states to pass explicit implementing legislation; many CRC provisions indicate that they may be met through a variety of legislative, policy and administrative measures. Nor would explicit implementing legislation passed by a single legislature be sufficient to give effect to the CRC, given that its provisions fall under both federal and provincial jurisdiction. Nevertheless, some have criticized the Canadian approach to implementation of the CRC. See for example the recent report of the Standing Senate Committee on Human Rights, Children: The Silenced Citizens: Effective Implementation of Canada's International Obligations With Respect to the Rights of Children, Final Report, Chair: The Honourable Raynell Andreychuk, April 2007.

  • [12] The Supreme Court first opened the door to using the international instruments to which Canada is a party for interpreting the Canadian Charter of Rights and Freedoms in 1987: Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313, at 349-350 (Dickson C.J.). In 1990, the Supreme Court of Canada went a step farther when it recognized that in circumstances where the domestic legislation is unclear it is reasonable to examine any underlying international agreement: National Corn Growers v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 . In the opinion of the Supreme Court, when the text of the domestic law lends itself to it, one should also strive to expound an interpretation which is consonant with the relevant international obligations.

  • [13] P.(D.)v. S.(C.), [1993] 4 S.C.R. 141; Young, [1993] 4 S.C.R. 3 (delivered on the same day); Rv. L. (D.O.), [1993] 4 S.C.R. 419; Gordonv. Goertz, [1996] 2 S.C.R. 27; W.(V.) v . S.(D.), [1996] 2 S.C.R. 108.

  • [14] Bakerv. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

  • [15] Ibid., pp. 69-70:

    Another indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of children's rights and the best interests of children in other international instruments ratified by Canada. International treaties and conventions are not part of Canadian law unless they have been implemented by statute: Francis v. The Queen, [1956] S.C.R. 618, at 621; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, at 172-73. I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.

  • [16] Winnipeg Child and Family Servicesv. K.L.W., [2000] 2 S.C.R. 519.

  • [17] R. v. Sharpe, [2001] 1 S.C.R. 45.

  • [18] Canadian Foundation for Children, Youth and the Law v . Attorney General of Canada, [2004] CSC 4.

  • [19] Declaration of the Rights of the Child, proclaimed by the United Nations General Assembly on November 20, 19 59.

  • [20] Jean-François Noël, La protection de l'enfance et de la jeunesse en droit québécois au lendemain de la Convention relative aux droits de l'enfant (Master's Thesis, Université de Montréal, 1998 Alma Mater Award ) [unpublished] at 78.

  • [21] Ibid.

  • [22] Ludwig Salgo, "Child Protection in Germany", in Michael Freeman and Philip Veerman, eds, The Ideologies of Children's Rights, Coll. "International Studies in Human Rights", Dordrescht, Martinus Nijhoff Publishers, 1992, at 266.

  • [23] R.S.C. 1985 (2 nd Supp.) c. 3. See, inter alia, sections 16(8) and 17(5).

  • [24] Michel Tétrault, Droit de la famille, 3rd edition, ed. Yvon Blais, 2005, p. 1239.

  • [25] 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.

  • [26] An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Judges Act and to amend other Acts in consequence, Bill C-22. Introduced to the House of Commons for First Reading on 10 December 2002. Second Reading on 25 February 2003. Bill C-22, the Bill amending the Divorce Act died with the prorogation of Parliament.

  • [27] See: Ronda Bessner, "The Voice of the Child in Divorce, Custody and Access Proceedings", 2002, Family, Children and Youth Section, Department of Justice of Canada , p. 2.

  • [28] On this point, see: Kathleen Ku, "Listening to Children: An Essential for Justice", (1993) 1 (2) Int'l J.Child. Rts 155.

  • [29] Marie-Thérèse Meulders-Klein, "Les droits de l'enfant: À la recherche d'un équilibre entre parents et enfants", in: J. Rubellin-Devichi and R. Frank (eds.), supra, note 7, at 139.

  • [30] Jean-François Noël, La protection de l'enfance et de la jeunesse en droit québécois au lendemain de la Convention relative aux droits de l'enfant, supra, note 20, at 76.

  • [31] Claire Neirrinck, Le droit de l'enfance après la Convention des Nations Unies, Paris, Delmas, 1993, at 154.

  • [32] D. O'Donnell, "Réinstallation et rapatriement: le cas des enfants vietnamiens demandeurs d'asile non reconnus comme réfugiés et la Convention relative aux droits de l'enfant", (1994) 52 Journal of the International Commission of Jurists 18, 34.

  • [33] There is nothing to preclude the child's right to be heard being exercised in different context, for example in the schools .

  • [34] See "Voice of the Child in Court Proceedings" by Linda M. Tippett-Leary.

  • [35] European Convention on the Exercise of Children's Rights, Council of Europe, STE 160 . The Convention was adopted on September 7, 1995, and opened for signature by the member States of the Council of Europe and the non-member States which participated in its elaboration, at Strasbourg , on January 25, 1996. It came into force on July 1, 2000.

  • [36] Resolution ECOSOC 2005/20 of 22 July 2005.

  • [37] Convention on the Elimination of All Forms of Discrimination Against Women, UN Treaty Series Vol. 1249, p. 13; Convention adopted by the United Nations General Assembly on December 18, 1979, came into force on September 3, 1981. Article 16 of that Convention requires that the States Parties shall ensure that women and men have the same rights and responsibilities as parents, in matters relating to their children.

  • [38] For further details on this question, see: Sharon Detrick, ed., The United Nations Convention on the Rights of the Child: A Guide to the "Travaux Préparatoires" , Boston, Dordrecht, 1992, pp. 264-265.

  • [39] At this time, all Canadian provinces and territories have Maintenance Enforcement Programs and all common law provinces and territories have Inter-jurisdictional Support Orders legislation. A law based on the model uniform act has been passed in Quebec but is not yet in effect. See also "Some Considerations for Practitioners in Inter-jurisdictional Support Cases", by Tracy Morrow.

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