The Power of Perspectives

The Canadian Bar Association

The Hon. Donna J. Martinson, Caterina E. Tempesta and Suzanne S. Williams

Rights of the child: Have we really come such a long way?

December 13 2016 13 December 2016

 

Twenty-five years after ratifying the United Nations Convention on the Rights of the Child (CRC) Canada ranks 17th out of 29 affluent nations for children’s overall wellbeing. Canada drops to 26th for inequality between the most affluent and least affluent children. Children of all backgrounds are affected by our poor performance, but high risk and marginalized youth are particularly vulnerable.  So, what can lawyers do to improve the state of Canadian children?

Since Canada ratified the CRC on December 13, 1991, it has become the most universally accepted human rights instrument with all but one country in the world having ratified it. The CRC contains a bundle of civil, political, economic, social and cultural rights to support children’s optimal development and wellbeing.

While the CRC is not directly incorporated into domestic law through enabling legislation, it is referenced in Canadian law in limited instances, for example, the preamble to the Youth Criminal Justice Act, and has been cited in Supreme Court of Canada decisions. Canada’s position is that such enabling legislation is not required as it ensured when the CRC was ratified and continues to ensure that its laws, policies and practices comply with the CRC. It is presumed that Canadian statutes conform to the CRC and other international instruments.

However, in the most recent “report card” on Canada’s CRC compliance, the UN Committee on the Rights of the Child said the absence of comprehensive CRC legislation results in inconsistencies in implementing child rights across the country.  Limited awareness of the CRC among not only children, but also adults, was noted by the Committee, as well as the need for child rights training for professionals working with children, including judicial authorities.

This was confirmed in a December 2015 survey conducted by the CBA where almost 80 percent of respondents indicated that they had encountered a situation where they needed more information about child rights.

Access to justice remains an issue for many young people due to a lack of adequate mechanisms for meaningful and empowered child participation in legal, policy and administrative issues that impact them, including an ability to voice their complaints if their right to be heard is violated, and access to an appeals procedure.

A few ideas for what legal professionals can do to improve the lives of all Canadian children:

1. Learn about child rights.  Children have the right to equal benefit and protection of the law without discrimination under the Charter, other Canadian laws and international human rights treaties such as the CRC.  Children hold a bundle of rights that are interdependent.  These are important fundamental rights and special considerations apply to children: they rely on the adults around them to know their rights, access remedies or have their voices heard.

2. Take a child rights-based approach in your work.  Use the CRC as a framework for analysis, then begin with the child in question and determine that child's "lived reality" measured against the child’s rights under the CRC.  This requires a careful analysis of laws, policies and practices that apply to the child to determine whether they, in fact, comply with domestic and international child rights principles.  And critical to the achievement of just outcomes is the need to develop arguments, including those addressing appropriate remedies, that will actually make a positive difference in that child’s life.

3. Join other lawyers across the country who are championing children using the CRC as their vehicle.  Several provinces are creating provincial Children and Youth CBA sections which focus on child rights, and the CBA has created a national Children's Law Committee with members from many different areas of practice, reinforcing the breadth and depth of the CRC’s reach.  That Committee, through its CRC Sub-committee, will release a comprehensive Child Rights Toolkit for legal professionals in 2017. Innovative legal education programs have been developed, including the CLEBC 2015 Access to Justice for Children Conference which won an international legal education Award for Outstanding Achievement from the International Association for Continuing Legal Education.

The need to make access to justice for all a core part of legal professionalism has been identified by both lawyers and judges in the CBA’s equal justice reports and in the National Action Committee on Access to Justice’s A Roadmap for Change. We encourage legal professionals to ensure the “all” includes children.

Donna Martinson and Caterina Tempesta are members of the Canadian Bar Association's Children's Law Committee and co-chair the CBA Child Rights Toolkit, a project of the United Nations Convention on the Rights of the Child Subcommittee. Suzanne Williams has been involved as a writer/consultant in the development of the Toolkit. The views expressed here are the authors’ own.

Photo licensed under Creative Commons  by Natasha Hanova

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