Protecting children’s rights starts with knowing what they are
The United Nations Convention on the Rights of the Child, which Canada ratified along with 194 other countries, instructs that the child’s best interests must be a primary consideration in all actions concerning children. Though the Canadian Charter is explicit in that it should be read as being consistent with our international obligations, the CBA has expressed serious concerns about the knowledge lawyers and other legal professionals have about children’s rights, and how rarely the Convention is invoked particularly with respect to vulnerable, high risk and marginalized children in a number of areas. Here are some figures.
In January, the Canadian Human Rights Tribunal ruled that the federal government discriminated against 163,000 First Nations children and their families by providing flawed and inequitable child welfare services and failing to implement Jordan's Principle to ensure equitable access to government services available to other children. In July, Ottawa promised $382 million to address the gap.
That’s the number of Canadian couples who divorce each year; 50 per cent of them have dependent children. It isn’t always clear how lawyers should represent children whose rights in the context of custody, divorce or child protection are often limited to having input as to their views and preferences. There is no consistent methodology for sharing those views and preferences nor is there consistency in the weight those views and preferences are afforded by decision makers.
Census data from 2011 counted 47,885 children in foster care, 49 per cent of whom were Indigenous. Although the “best interests of the child” is the overarching consideration in provincial child protection legislation across Canada, there is a lack of consistency in the application of this legal principle in specific statutory contexts – for example, the test for access to a child who has been made a permanent ward of the state – as well as in individual cases.
The number of youths in 2014-2015 being supervised in custody or in a community program. One-third were Indigenous. There are concerns that the practising bar does not have a comprehensive understanding of the Convention, and in particular its provisions on detention and punishment (Art. 37) and juvenile justice (Art. 40) and the minimum standards upon which they are premised.
The estimated number of children who, on average, were detained in Canada each year between 2010 and 2014 (University of Toronto). In a 2012 report on Canada’s compliance with the Convention, the UN Committee on the Rights of the Child expressed specific and significant concern that the best interests of the child is not appropriately applied in asylum-seeking, refugee and/or immigration detention situations.