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

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.

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.

Law reform

Amendments to specific sections of the FLA

Recommendation 20:
Views of the Child – s. 37(1)(b)

Brown, findlay, Martinson, and Williams (2021) recommend amending s. 37(1)(b) of the FLA to remove the words, “unless it is inappropriate to consider them” and to add the words, “and give those views due weight in accordance with their age and maturity.” This would provide consistency with the 2019 Divorce Act, and the CRC.

Definition of Family Violence – s. 1

Brown, findlay, Martinson, and Williams (2021) also recommend that the definition of psychological or emotional violence be clarified to provide that it is the impact of psychological or emotional family violence, including impact on a child, not the intention of the abuser, that is relevant. This would make it clear that violence must be considered from the child’s perspective if the child is the victim of psychological or emotional family violence.

Conflating Conflict and Family Violence

Section 199(1) of the FLA addresses both minimizing conflict and protecting children and parties from family violence. The section should be amended to make it clear that the object of reducing conflict cannot override the overarching obligation to ensure children’s safety, security, and well-being (Brown, findlay, Martinson, & Williams, 2021).

Considering Other Civil or Criminal Proceedings – s. 37(2)(j)

The CBA 2020 report, when speaking about the relevant provision in the 2019 Divorce Act, recognizes the importance of stating that the objective of considering other proceedings is to both avoid conflicting orders and to coordinate proceedings. The 2019 Act also creates a duty upon judges to obtain such information. The FLA should be amended to conform with the new Divorce Act provision.

Amending s. 203 – Legal Representation

Section 203 inappropriately and significantly limits the ability of courts to appoint lawyers for children as required by the CRC and should be amended accordingly (Brown, findlay, Martinson, & Williams, 2021; Martinson & Tempesta, 2010).

Amendments to the CFCSA

The CFCSA should be amended to include express provisions and specific procedures that incorporate children’s views in child protection proceedings, including an enabling provision for legal representation (Child Protection Project Committee, BCLI, 2020). According to the Child Protection Project Committee of the BCLI (2020), this clarification of the law is necessary to prevent children’s views from being overlooked due to broad judicial interpretation under the CFCSA’s current form. This enabling provision should include detailed options and factors to consider for incorporating children’s views in child protection proceedings, while maintaining wide judicial discretion (Child Protection Project Committee, BCLI, 2020).

The CFCSA should also include a clear enabling provision for legal representation of children in child protection proceedings, which is currently missing from B.C. legislation, unlike most other provinces (Child Protection Project Committee, BCLI, 2020). Provisions for enabling legal representation for children should also clarify who should decide when appointing counsel is appropriate, factors to consider, how to determine appropriate capacity of the child and who should pay for the lawyer (Child Protection Project Committee, BCLI, 2020).
br>Finally, the BCLI Child Protection Project Committee (2020) notes that changes to the legislation are modest reforms and should exist alongside ministerial policies that are more flexible to changes and adequately funded programs to carry out children’s legal participation.