The Honourable Donna Martinson, K.C., recently released an article, Treating Children as Full Rights Bearers: Independent Legal Representation for Children in Family Violence and/or Resist-Refuse Contact Cases. This Learning Brief is part of the Alliance of Canadian Research Centres’ project “Supporting the Health of Survivors of Family Violence in Family Law Proceedings,” funded by Public Health Agency of Canada (PHAC).
The article puts forward detailed recommendations on how we can ensure that children are treated as full rights bearers. A brief summary is provided below.
Under the United Nations Convention on the Rights of the Child (the “UNCRC”), all children under the age of 18 are full rights bearers, entitling them to have those rights advanced and protected in court proceedings, including cases where there are allegations of family violence and/or resisting-refusing contact.
The ability to access a lawyer to advance and protect rights without interference is considered a fundamental aspect of Canada’s legal system. This ability is inextricably linked to the ability to advance and protect rights. Children are thus entitled to the benefit of this fundamental aspect of Canada’s legal system, without exception.
Children’s rights are found in Canadian domestic laws, including the Charter, and in Canada’s international obligations, particularly the UN Convention and the UN Committee on the Rights of the Child’s General Comments. All professionals, including judges and lawyers, have obligations to defend those rights.
The role of independent legal representation (“ILR”) for children in court proceedings is critical in implementing and advancing children’s rights. As the UN Committee states, the child will need appropriate legal representation when his, her, [or their] best interests are to be formally assessed and determined by courts. This is particularly true in family violence or resisting-refusing contact cases.
From a child rights perspective – one that treats children as full rights bearers – only a lawyer who acts as a child’s advocate is fully respecting a young person’s rights. ILR is especially important in ongoing, contentious, court proceedings. Though child rights are relevant to all children, and all cases, these are the cases in which both court processes and outcomes can have a particularly profound impact on children’s daily lives and their short- and long-term wellbeing, and it is even more likely that children’s rights may be overlooked or undermined.
Cases involving allegations of family violence, often associated with counter-allegations of children resisting-refusing contact due to “parental alienation,” provide an important example of how ILR is necessary to prevent child rights, including the safeguards and guarantees required to implement them, from being overlooked or undermined. There is significant judicial support for the conclusion that the right to participate applies to all children and all cases; no exception is made for cases involving violence and/or children who resist/refuse contact.
The Honourable Donna Martinson, K.C., outlines that the only question which empowers children, treats them as full rights bearers and ensures that they are safe, secure, and well, is: “How can we, throughout court proceedings, facilitate the independent legal representation to which children are entitled?”.
Justice for children requires no less.
Michael Zimmerman is associate counsel at LK Law in Vancouver, British Columbia.