Independent Human Rights Institutions for Children

THE ROLE OF INDEPENDENT HUMAN RIGHTS INSTITUTIONS IN THE PROMOTION AND PROTECTION OF THE RIGHTS OF THE CHILD

Challenge

Children are affected by the action, or inaction, of governments more than any other group and the cost of failing to protect children is too high. Children are more vulnerable to exploitation and abuse, public policy and services for children are fragmented, and children fall through the cracks. Indigenous children, in particular, are at significant risk.

Opportunity

Independent Human Rights Institutions established at national and sub-national levels to promote and protect child rights can help overcome some of children’s unique vulnerabilities by addressing children’s:

  • Human rights violations 
  • Rare consideration of their opinions
  • Lack of a vote or meaningful participation in political processes
  • Barriers to accessing justice and obtaining remedies
  • Limited access to organizations that may protect their rights

CRC, General Comment No. 2

Legal systems as well as political, cultural and administrative processes should be responsible and responsive to children, and treat children as active citizens. Yet, children have no vote or way to influence government. The approximately 70 independent children’s human rights institutions worldwide help children overcome this hurdle and access complaint mechanisms, as well as justice and administrative processes.

Almost every Canadian province and territory has a child advocate office, however the mandates and functions of these offices vary. Canada was one of the first countries in the world to establish a child advocate office at the provincial level and now has 11 human rights institutions for children at the sub-national level to promote the rights, interests and views of children. In two provinces, these Offices are not self-standing; they are merged into other offices with blended mandates. For example, in Nova Scotia, the promotion of children’s human rights is carried out by the Office of the Ombudsman, while in QuĂ©bec, that function is carried out by the Commission des droits de la personne et des droits de la jeunesse [QuĂ©bec Commission for Human Rights and Youth Rights]. In other provinces and territories (Alberta, British Columbia, Manitoba, Saskatchewan, Ontario, New Brunswick, Newfoundland & Labrador, Yukon and Nunavut), these roles are carried out by Child and Youth or Children's Advocate/Representative Offices.

While these Offices share common objectives, their mandates and functions differ from one jurisdiction to another. Also, there is no child advocate specific to Indigenous children’s concerns. Indigenous children and families face unique concerns due to the legacy of colonization, the treaty and reserve system, the Indian Act, Residential Schools and the Sixties Scoop, all of which have affected their identity and the core of their human rights as Indigenous children.

In North America, independent statutory children’s rights offices are typically established as accountability or oversight mechanisms, particularly in respect of the delivery of provincial/territorial child welfare services and/or in response to a child’s death or critical injury, rather than proactively according to international human rights principles.

No National Children’s Commissioner or National Independent Human Rights Institution for Children exists in Canada. The need for one is great due to gaps and overlaps between federal and provincial/territorial governments’ constitutional responsibilities for children, such as in youth criminal justice, immigration, services to indigenous children, social security, tax benefits and family law. The UN Committee on the Rights of the Child has repeatedly called upon Canada to establish such a national institution, but these recommendations remain outstanding. Independent human rights institutions play an essential role in supporting children’s access to remedies that can be unattainable through formal justice or administrative complaint processes designed for adults, where children face greater barriers to commence proceedings, be represented by legal counsel and obtain timely and relevant remedies.

Good governance is central to the realization of children’s rights. These rights cannot be realized without effective, transparent and accountable governance mechanisms, where children are seen as active citizens whose well-being is inextricably linked to the well-being of society as a whole. The implementation of children’s rights relies on a conducive and enabling environment. This includes appropriate legal frameworks and institutions with adequate capacity and resources, as well as political, cultural and administrative processes responsible and responsive to the rights and needs of children.

International Law

Article 4 of the CRC states that:
States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources, and where needed, within the framework of international co-operation

  • UN CRC Article 4
  • Canada has signed and ratified the CRC and is obligated under international law to implement it. Article 4 requires States to take all appropriate legislative, administrative and other measures to implement the rights which it contains – at all levels of government
  • United Nations General Assembly, Principles relating to the Status of national Institutions for the promotion and protection of human rights (“The Paris Principles”), Resolution 48/134, 200 December 1993, annex
  • In the United Nations Committee on the Rights of the Child’s (CRC Committee) General Comment No. 5, the CRC Committee set out a series of good governance structures called the General Measures of Implementation, which include, inter alia, independent human rights institutions for children
  • In its General Comment No. 2, the CRC Committee set out its requirements for the role of independent national human rights institutions in the promotion and protection of the rights of the child. These requirements are an extension of earlier human rights principles for national institutions called the Paris Principles. General Comment No. 2 applies equally to independent human rights institutions for children at the sub-national level

Interpretive Sources

In international law, the CRC Committee’s General Comments and Concluding Observations to Canada provide clear guidance as to the role, mandate and functions of independent human rights institutions for children, and internationally, these institutions have helped respect and facilitate the implementation of child rights in a variety of contexts and in support of marginalized groups of children:

Canadian Law

Federal Law

Private Members’ Bills with respect to the establishment of a National Children’s Commissioner (introduced but not passed):

Government Reports

Provincial/Territorial Laws

In all provinces and territories, independent human rights institutions for children are established by legislation in those jurisdictions, although the legislative mandates differ markedly in some material respects:

Case Law

Special Considerations

Features of full-functioning independent human rights institutions for children:

  • Independence from government (both functionally and in terms of location of office premises), including the authority to act on its own motion
  • Impartial appointment process
  • Security of tenure (in terms of appointment and reappointment process)
  • Sufficient expertise, capacity and resources
  • Accessible to children (both physically and on-line), engage young people, facilitate child and youth participation by all children with special measures to ensure equal participation of Indigenous children, children of minorities and other systemically disadvantaged children
  • Broad mandate to protect and promote children’s rights in relation to all service sectors and all fields of activity for all children within the particular jurisdiction
  • Expertise and special focus on Indigenous children and other groups of children experiencing systemic disadvantage
  • Ability to act proactively and direct own agenda
  • Power to receive complaints and use informal methods to resolve complaints
  • Advocacy and investigative powers to address underlying systemic issues
  • Power to compel and question witnesses and access relevant documentary evidence
  • Right of entry to places of detention and residences for children in government care or custody
  • Right to have private communications and meetings with children
  • Power to undertake/facilitate Child Rights Impact Assessments as part of monitoring function
  • Power to seek Intervener or amicus curiae status in court and administrative proceedings
  • Engage in public education
  • Recommend improvements of programs for children to the government and/for the legislative assembly.
  • Youth engagement and facilitation of youth voice
  • Monitoring of implementation of government’s international obligations under the CRC

Practice Essentials

  • Make efforts to determine if there is an independent Child and Youth Advocate/Representative Office in your jurisdiction
  • Review the legislative mandate and functions of such an Office, if one exists in your jurisdiction (there are differences between jurisdictions)
  • Recognize the benefit to your client of having the assistance and human rights-based advocacy typically provided by these Offices and refer a child complaint when appropriate
  • Find out who can assist with incorporating Indigenous law and values in advocacy
  • Collaborate with the Provincial/Territorial Child and Youth Advocate/Representative Office in your jurisdiction for information and rely upon their reports and recommendations to support your arguments and/or provide evidence where you are representing the same child in your capacity as counsel, or consider other ways to collaborate even where you do not represent the same child
  • Invite the Office to seek intervenor status where there is an important systemic issue that may have precedent implications for many other children
  • Consider making a referral to the Provincial/Territorial Child and Youth Advocate/Representative Office in your jurisdiction where there is an individual child or group of children who have a complaint that can be effectively addressed through the informal/formal advocacy or investigation functions of that Office
  • Consider writing to the Chair of the Canadian Council of Child and Youth Advocates (CCCYA), an alliance of 11 Child and Youth Advocate/Representative Offices across Canada, where there is a national issue of concern to children  

Resources

Government of Canada Reports

Senate Reports

UNICEF Reports

UNICEF Canada Documents

Articles