20 search results for
The FREDA Centre at Simon Fraser University’s School of Criminology
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).
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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.
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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.
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Recommendation 14:
Children must be provided with legal representation to ensure that their best interests are at the forefront of decision-making in high-risk cases (Elrod, 2016; Lovinsky & Gagne, 2015; Martinson & Tempesta, 2018; Tempesta, 2019), which includes providing court appointed and funded lawyers to ensure that children’s claims are meaningfully considered and given due weight (Elrod, 2016).
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Recommendation 18:
Children are often not informed about their participatory rights in family law and in child welfare proceedings. Yet the UN Committee General Comments conclude that receiving this information is essential to implementing participation rights. The CBA 2020 Report recommends that in all cases where courts formally assess children’s best interests, children should be meaningfully informed about their participation rights, including their right to independent legal representation.
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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).
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).
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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).
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- Access to justice ,
- Accessibility ,
- Accessible services and technology ,
- Ageism ,
- Courts ,
- Decolonization and Indigenous rights ,
- Discrimination and hate ,
- Education and employment ,
- Human rights system ,
- Indigenous children and youth in care ,
- International human rights ,
- Policing and the criminal justice system
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Recommendation 19:
As noted above, the BCCA refused declaratory relief to a child in a family law proceeding. Brown, findlay, Martinson, and Williams (2021) recommend that the FLA be clarified to ensure that children can obtain a best interests declaration about their best interests in a family law proceeding, and similar relief should be available in the CFCSA.
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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.
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.
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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.
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