National Commissioner for Children and Youth

Recommendation 1: Despite the Canadian federal government ratifying the UN CRC, provinces are inconsistent in how and when legal counsel is appointed for children (CBA, 2020; Child Projection Project Committee, BCLI, 2020; Lovinsky, 2016). Even within a province, there are often inconsistencies across different areas of law (Child Protection Project Committee, BCLI, 2020; Lovinsky, 2016). The literature also notes that current independent provincial and territorial Child Advocate and Representative Offices vary widely across provinces and are vulnerable to funding and operational changes due to provincial restructuring and changes in political priorities (Bendo & Mitchell, 2017; CBA, 2020). For instance, Ontario’s Provincial Advocate for Children and Youth was recently closed, and its investigative functions were transferred to the Ontario Ombudsman, which does not carry the same specialized approach towards children’s rights as the Provincial Advocate for Children and Youth (CBA, 2020).

These issues can be addressed through a national plan across provinces to coordinate efforts and maintain consistency (Byrne & Lundy, 2019; CBA, 2020; Collins, 2019). The CBA recommends that the federal government develop an independent National Commissioner for Children and Youth reporting to both Houses of Parliament, with a statutory mandate to protect and promote human rights amongst children and youth in Canada, including their rights to participation, and to liaise with provincial, territorial and Indigenous counterparts to coordinate efforts of mutual concern and overlapping jurisdiction. The CBA further suggests that the National Commissioner should serve to coordinate and ensure consistency amongst independent child advocate offices across provinces and territories. Finally, the CBA emphasizes the importance of incorporating and protecting the rights and interests of Indigenous children and youth when developing a national policy on children’s rights.

Effective monitoring through Child Rights Impact Assessments (CRIAs), etc.

Recommendation 2: The literature has noted a specific need to monitor children’s rights across Canada (Byrne & Lundy, 2019; Canadian Coalition for the Rights of Children, 2016; CBA, 2020; Collins, 2019). Options for effective monitoring include establishing regional institutions and a National Commissioner dedicated to regularly assessing children’s rights, conducting ongoing child rights impact assessments, and ratifying the Third Optional Protocol to provide a communications procedure for children and youth to directly contact the UN CRC Committee regarding child rights complaints (Byrne & Lundy, 2019; Canadian Coalition for the Rights of Children, 2012; CBA, 2020; Collins, 2019).

Child Rights Impact Assessments (CRIAs) should inform the development of policy on children’s rights, as well as aid in the assessment of the actual impacts of policies related to child rights (Byrne & Lundy, 2019; CBA, 2020). Following the UN CRC Committee’s recommendations, the CBA (2020) notes that CRIAs should involve perspectives from various stakeholders, including children. Currently, CRIAs are not systematically used in decision-making across any provinces and territories other than New Brunswick and Saskatchewan (CBA, 2020). Given their key role in ensuring adherence to children’s rights, CRIAs should receive adequate funding to function effectively (Martinson & Raven, 2020a).

Taking an intersectional approach to children’s rights

Recommendation 3: In order to ensure that all children are granted the right to participate in legal proceedings in Canada, it is critical that all parties take an intersectional approach to understanding children’s rights and needs (Martinson & Raven, 2020a). This means acknowledging the particular nuances of a child’s circumstances and recognising that these may vary on a case-by-case basis. This also requires courts to recognise children’s socio-economic status, gender identity and expression, and differing abilities, amongst other factors (Canadian Coalition on the Rights of Children, 2016; CBA, 2020; Martinson & Raven, 2020a, pp. 22-23). Upholding children’s rights requires the creation of an environment in which all children feel empowered to participate in legal proceedings that affect them, regardless of their circumstances (CBA, 2020).

Enhanced awareness and training

Ensure children are appropriately educated as to their rights

Recommendation 4: As this literature review has established, there are various ways in which children’s rights to participate in legal proceedings can be strengthened and preserved. To ensure sufficient attention and awareness is given to children’s participation rights, all parties to legal proceedings involving children must be appropriately educated and trained (Canadian Coalition on the Rights of Children, 2016, p.9; CBA, 2020; Martinson & Jackson, 2016; Martinson & Raven, 2020a). To increase awareness on child rights, more information about court processes should be provided to children, particularly older children, so they can provide informed views and preferences during legal proceedings (Birnbaum & Saini, 2012; Byrne & Lundy, 2019; Paetsch et al., 2018). This could also be achieved by incorporating children’s rights into school curriculums (Collins, 2019). A holistic, rights-based education would not only preserve the best interests of the child through the expression of their views but could also enable children to further realise their rights in other areas (CBA, 2020; Paetsch et al., 2018).

Enhanced awareness and training

Education and training for legal professionals

Recommendation 5: The Canadian legal system also requires specialised training of professionals working with children, including mental health professionals, lawyers, and judges (Bala & Birnbaum, 2019; Collins, 2019; Paetsch et al., 2018). This is particularly important for legal professionals working on cases involving parental alienation and/or family violence (Elrod, 2016; Martinson & Jackson, 2016). These types of cases require judges and mental health professionals who are experienced in discovering and addressing problems in the family, as there can be multiple reasons for a child refusing contact with a parent or guardian, including family violence that can continue to put the child at risk if left unaddressed in custody and access decisions (Elrod, 2016; Martinson & Tempesta, 2018).

Specific recommendations for children’s legal counsel include: ensuring democratic communication, in which lawyers and child both share information about themselves to build trust in preparation for proceedings; having lawyers inform children about the court process and what it means to have a lawyer represent them; having lawyers pose questions to children to better recognize how children understand the court process; and getting lawyers to emphasize flexibility in the child’s options to share their views, not share them at all or change their instructions to the lawyer (Bala & Birnbaum, 2019; Koshan, 2020; Horsfall, 2013; Paetsch et al., 2018). Those working at family courts should receive specialised training on family violence and high-risk cases, which can have a substantial impact on children’s rights (Koshan, 2020; Martinson & Raven, 2020a). From a scholastic perspective, much more research is needed to understand which of the many strategies implemented across Canada (and the world) might be most helpful to children’s legal participation (Birnbaum & Saini, 2012). This requires ongoing cooperation and collaboration between the legal and academic communities, to guarantee specialised and sensitised approaches to this topic.

Enhanced awareness and training

Seek consultations with judges regarding children’s participation

Recommendation 6: One of the most valuable ways in which judicial perspectives could be sought as to the level of education and training received across Canada, would be through an in-depth consultation that would identify fundamental flaws within the Canadian legal system (see Martinson & Jackson, 2016). Consultations should include members of the Indigenous legal community, who are best placed to speak to the needs of Indigenous children in Canada (CBA, 2020).

Increasing attention (and resources) must be given to children’s representation

Recommendation 7: Academic scholarship and policy papers focused on children’s rights to representation point to the need for increased funding from government sources, to provide consistent and dependable counsel for children (Bala & Birnbaum, 2019; Byrne & Lundy, 2019; Canadian Coalition for the Rights of Children, 2016; Collins, 2019). However, it is also notable that none of this literature provides specific guidance as to where extra funding should be sourced or how new programming may be implemented to maintain both efficient and effective legal assistance for children to facilitate the expression of their views in a legal setting. In particular, the CBA Alternative Report (2020) suggests that in B.C., absolutely no funding is set aside for children’s representation (p. 33). This is particularly problematic in relation to immigrant, refugee, and Indigenous children (CBA, 2020). This may be the case for two reasons: 1) an overall lack of resources (particularly given the current local and international economic climate in the wake of Covid-19 – see Garlen, 2020); and/or 2) a lack of awareness at the federal level of the critical importance of this issue, and the ‘domino effect’ of reduced rights for vulnerable populations. As a result, it is recommended that policy organisations focused on this issue work to demonstrate whether and how additional funding can be allocated to children’s legal representation. In New Zealand, for example, the Family Court (Supporting Families in Court) Legislation Bill forms part of a $62 million package that restores the right to legal representation at the start of a care of children dispute in the Family Court (Government of New Zealand, 2020, p. 1). Enhanced attention and funding at the federal level can only benefit both those organisations focused on this area, as well as beneficiary populations.

Participation and representation generally

Protect and guarantee participation rights for children

Recommendation 8: Children’s rights, participation, welfare, and best interests are unquestionably interlinked. Children are persons with their own legal rights and must be guaranteed the right to participate in guardianship and family law proceedings (Grover, 2015; Martinson & Tempesta, 2018). Children’s rights to participate are in line with the UNCRC’s recommendations and FLA’s best interests provisions (Dundee, 2016), and work to safeguard and prioritize children’s voices and preferences about their own well-being.

Participation and representation generally

Implement an empowerment-based approach to participation and representation

Recommendation 9: Development and cognitive functioning should not prohibit children’s participation in court proceedings, as this denies children their fundamental rights based on perceived functioning and undermines the UNCRC’s recommendations (Grover, 2014; Martinson & Tempesta, 2018). Instead, an empowerment-based approach must be adopted and implemented that promotes, prioritizes, and ensures children’s participation in guardianship and family law proceedings regardless of age or capacity. An empowerment-based approach would be child-centred and incorporate strategies that would ensure children’s participation regardless of age and/or capacity, including legal representation, judicial interviewing, VCRs, and child-inclusive mediation.

Participation and representation generally

Guarantee legal representation for all children and in all cases

Recommendation 10: From a child rights perspective, treating children as full rights bearers, (Michel v. Graydon, at para. 77) legal representation is a key form of children’s participation which ensures that children’s voices will be heard, and due weight will be given to their opinions (Tempesta, 2019). Legal representation should be provided in all cases involving children’s interests in order to sufficiently fulfil requirements from Article 12 of the UNCRC, including the UN Committee on the Rights of the Child safeguards and guarantees, referred to above. (Elrod, 2016; Lovinsky & Gagne, 2015; Martinson & Tempesta, 2018; Tempesta, 2019). As such, it is necessary to provide legal representation to all children (who choose it after obtaining meaningful information and advice about it and other choices), in all cases, including high risk cases, in order to protect their rights and promote their best interests in guardianship and family law proceedings regardless of the level of risk, as well as fulfil the requirements outlined by the UNCRC (Birnhaum, 2017; Birnbaum et al., 2016; Martinson & Tempesta, 2018; Tempesta, 2019).