STEP ONE

USE THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC) AS A FRAMEWORK

Know what child rights are: keep in mind the four guiding principles (non-discrimination, best interests of the child, life/survival/development, participation); and the three clusters of rights (protection, provision, participation).

STEP TWO

START WITH THE CHILD TO INFORM YOUR WORK

Work outwards to understand the child’s lived reality by considering what is happening for the child, the child’s family and the child’s community; services available to the child; and options for the child to participate. 

Consider:

• The child - where resides, age and development, culture (and protocols), indigenous, gender identity, attending school/grade, any disabilities or special vulnerabilities, potential discrimination, activities important to the child, who the child turns to for assistance or support/ other significant persons in the child’s life, what has happened from the child’s perspective to date (e.g. what is the case about, has the child experienced violence or other trauma, how many times interviewed, number of court dates, type of conflict exposed to, form of participation, information provided to child in a way the child understands.
• The child’s family - who is the child’s family (immediate and extended), where do they reside, nature of the child’s relationship with each family member, what’s happening as it affects the child, what are the family’s economic or other circumstances.
• The child’s community - school, caregivers, friends, neighbours, out-of-school activities, groups, coaches, community leaders, spiritual or religious leaders/guides.
• Services available - which legal process is triggered, what options are available (e.g. mediation (in person or distance), children’s lawyer), what government or community services are available to assist (e.g. Child Advocacy Centre for children who have experienced violence and are moving through the criminal process as a victim or witness), multi-disciplinary assistance (e.g. child specialist or counsellor) Options to participate to inform action/inaction - directly (e.g. court process, mediation, cultural process, judicial/decision-maker interview, consultation); or indirectly (e.g. legal or other representative, assessment, views of the child report.

STEP THREE

TAKE A CHILD RIGHTS-BASED APPROACH IN LAW

Identify the child rights at stake, where they are found in in domestic law and and policy (e.g. Charter, federal, provincial/territorial statutes, regulations or policies, Rules of Court), and undertake a general and contextual legal analysis consistent with the CRC and the child’s lived reality, considering the child’s particular vulnerabilities.

For examples of child rights-based analysis in case law, see:

• B.J.G. v. D.L.G., 2010 YKSC 44 (child’s right to be heard in family law).
• A. C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 (child’s consent to medical treatment).
• R. v. L.(D.O.) [1993] 4 S.C.R. 419; A.C. (admissibility of child’s videotaped evidence in criminal proceedings)
• Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 and Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2015 SCC 61 (immigration officer’s exercise of discretion in considering the best interests of the child in H&C applications).
• A.M.R.I. v. K.E.R., 2011 ONCA 417 (refugee child’s right to meaningful procedural protections in Hague Convention proceeding including right to be heard and to have legal representation).

STEP FOUR

ADVANCE THE CHILD’S RIGHTS AND WELL BEING IN ALL YOUR ACTIONS

Recognize the child as a participant with independent rights and support the child’s best interests and healthy development in all actions given 1, 2 and 3 above. How you do this, whether as part of the process or the outcome, may depend on your role as child’s lawyer, litigation guardian for the child, amicus curiae, policy maker or adult’s lawyer where actions affect a child. Keep focused on the child in question, create an enabling space where that child can participate, and use multi-disciplinary professional expertise. See additional information below.

Practice Essentials

• Recognize the child is a participant with his or her own rights in all matters that affect them and treat the child accordingly given his or her evolving development and capacity.
• Keep focused on the child’s rights (best interests is often easier for people to understand but this must be understood to include an opportunity for the capable child to express his or her views and to have those views given due weight in accordance with the child’s age and maturity).
• Provide information to the child about what is happening: their role in the process, or a decision made, in a way that they understand.
• Create an enabling space for the child to participate to inform their best interests: use a trained professional; the child participates voluntarily and is aware of what will happen with their views prior to sharing them; child is not required to share their views more times than necessary.
• Keep involvement of the child neutral such as through joint retainer of experts or child interviewers, or with the Court’s or a mediator’s assistance, to minimize or mitigate conflict if at all possible; consider issues of confidentiality and privilege.
• Make sure the child knows what decisions are made, why, and how their views were considered and given due weight.
• Write pleadings, submissions or orders so they accurately reflect the child’s rights: e.g. Parenting time in family law is the child’s right and not the parents’ so state, “Child A’s parenting time with parent Y will be . . . “ as opposed to “Parent Y will have parenting time with Child A . . . ”.
• Work with multi-disciplinary professionals on matters concerning children (e.g. criminal proceedings where a child has been a victim or witness of crime requires involvement of legal, law enforcement, medical, child protection and counselling professionals and others such as indigenous communities; skilled mental health professional in family law matters, as applicable ).
• Support the child’s protective factors (e.g. strong connections to school, family, community)