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Summary: The analysis measures different
interpretations of the CRC in Canada,
presents some ideas about applying the
concept, then introduces some guidelines
for identifying "best interests" in
each article of the CRC. It concludes
that their best interests will be
considered and realized by developing
ways to
incorporate children and youth into
the process of decision-making.
The following report contains four distinct yet related sections
that address the understanding and implementation of the United
Nations Convention on the Rights of the Child (CRC) in Canada.
The main emphasis of the report is an analysis of the best
interests principle, one of the four general principles of this
Convention of human rights for children. The following analysis
measures different interpretations of the concept, presents some
ideas about applying the concept, then introduces some guidelines
for identifying "best interests" in each article of the CRC. The
final component of the analysis is an evaluation of the best
interests principle within the monitoring framework developed by
the Canadian Coalition for the Rights of Children.
As an introduction, Part One evaluates the function and working
methods of the UN Committee on the Rights of the Child. The role
of NGOs in the process of monitoring child rights is examined, as
well as the crucial involvement of the NGO Group for the
Convention on the Rights of the Child in facilitating national
NGO contact with the Committee. The success of the Convention
(191 of 193 ratifications) is mirrored in the Committee's success
in overseeing the reporting process. Although the Committee is a
fairly new Committee, and their working methods are constantly
challenged due to the volume of meetings, the Committee is
generally praised for its hard work and diligence in promoting
and protecting children's rights. Other international treaty
bodies Committees have endorsed strongly the work and successes
of the Committee on the Rights of the Child. It is accepted by
most people working in the child rights field that the Committee
on the Rights of the Child is operating well under stressful
conditions of limited time and finances. Particularly noteworthy
is the Committee's openness towards NGOs, and it's interest in
assisting national NGOs achieve the objectives of securing child
rights. The latter section of Part One presents various accounts
of the monitoring process. The Convention specifies a role in
this process for NGOs, and the Committee fully endorses and
facilitates their participation. Proof of this endorsement lies
in the Committee's participation in the pre-sessional working
groups with national NGOs. This one week pre-session is firmly
established in the schedule of the Committee, and with the help
of the NGO Group for the Convention, a great deal of information
is relayed to the Committee members from attending national NGO
representatives. Follow through for these NGOs has been positive,
providing them with a new link to the United Nations, as well as
critical linkages with other NGOs. This sharing of information
has spawned a series of new initiatives surrounding
implementation and monitoring of the CRC, with more and more NGOs
working together to share experiences and develop ways to secure
government compliance with child rights.
Part Two focuses principally on the best interests principle, or
Article 3 (1) of the CRC. The principle is one of four general
principles of the CRC, and it is a familiar legal concept in many
nations. This familiarity does not however mean that there exists
a common understanding of the term. This section of the report
presents the interpretations of the best interests principle from
the Committee on the Rights of the Child and other noted scholars
in the field of children's issues. It is clear from these
interpretations that there are some explicit criteria and
processes for identifying the best interests of the child. These
include considering the best interests of children in policy
decisions such that the principle serves as a form of affirmative
action for children, bringing the views of a marginalized group
forward in the hierarchy of decision-making.
Other interpretations of "best interests" stress that States
Parties must consider children interests when implementing
Article 4 of the CRC. The Committee on the Rights of the Child
has encouraged States to consider the best interests of children
when making budget allocations, especially in times of budget
cuts. The principle of best interest should also inform the
process of measuring impacts of decisions on children and youth
and should apply in Parliamentary deliberations as well as in all
government policy development.
In order for best interests principle to be incorporated into the
policy making process, mechanisms need to be developed to
facilitate and encourage change. Part Three of this report is one
attempt at developing such a mechanism. This section of the
report introduces some guidelines, or measurement tools, to be
used by all practitioners, be they in education, health, social
services or government. Both private and public service providers
are the intended users of the guide. The guidelines are intended
to be used in the Canadian context, however they can be adapted
for use in other countries.
The guidelines are a series of questions that need to be asked in
order to identify the interests of the children and to assist in
the process of determining exactly what the best interests of the
child are in the given situation. Each article in the Convention
has been addressed and questions posed that require practitioners
to separate the interests involved-- institutional, professional,
parental, etc. and those of the child/children in question. These
actions then priorize children in the decision-making process,
providing a greater assurance that their interests will be
identified, accounted for, and considered.
To successfully achieve the prioritization of children's issues
and rights involves a complete change in attitude and assumptions
about children and youth. These guidelines are a step towards
achieving this change in perspective that is critical in
implementing the CRC. These guidelines are therefore intended to
evolve and develop. As practitioners use them and become more
comfortable with them they too will be able to provide key
questions and guidelines to improve the practice of considering
the best interests of the child.
Part Four of this report presents a case study of how the best
interests principle is applied in Canada, and how Canadian
governments have succeeded or failed in living up to the promise
of the principle. Legislatively, "best interests" has a long
history in Canada, appearing in federal legislation pertaining
specifically to divorce and immigration, and provincially in
child welfare and protection policy.
The existence of the principle in law does not mean that it is
applied in the spirit of the law. Case law indicates that the
best interests of the child do play a primary role in determining
custody in divorce, but a secondary role, if any, in most cases
of immigration and refugee determination. In terms of provincial
legislation dealing with child protection, the best interests
principle is currently under evaluation given that recent deaths
of children in care have put into question the criteria used for
determining the best interests of the child.
In the area of government policy, the Canadian federal government
demonstrates an increasing awareness of child rights and the best
interests principle. Particularly noteworthy is the recent draft
Strategy for Children (1997) developed by the Canadian
International Development Agency (CIDA). This document sets out
clear goals informed by the CRC and "best interests" -- for
promoting and protecting child rights around the world.
Unfortunately, no other federal or provincial government has
developed a similar strategy that uses the language and premise
of child rights, or the CRC as a reference. This is clear is
provincial policy regarding child welfare where the two premises
of the policy sanctity of the family and child welfare do not
appear to be balanced and have had the effect of endangering the
lives of children.
Thus, the practice of best interests is weak. The lack of sound
and clear policy, compounded by increasingly severe budget cuts
to social services, have all contributed to a neglect of the best
interests of children by all levels of government. At the federal
level, the practice of considering the best interests of children
in immigration and refugee cases is appalling. There appears to
be an intransigence on the part of the government to acknowledge
or act upon the fact that the children of parents ordered
deported have an interest in the case. These children are
consistently not informed by officials of the possibility of
family separation, nor are the "best interests" considered when a
determination status is decided.
These violations of children's rights are interesting given that
children and child poverty are current issues in the political
and media agendas. The discussion is good, but without substance.
Public opinion is slowly growing in support of child rights. The
recent deaths of children in the child welfare system have
sparked numerous evaluations of the policies and practices in the
province of Ontario. There is great potential to reform this
system if the government takes genuine and consistent initiative
to make the rights of children a priority, and to secure that
their best interests are considered.
This report concludes that the best interests of the child is a
principle that is rarely considered in the practice of law or
politics in Canada. Although it is the centrepiece of the CRC and
is present in Canadian legislation and policy, it is not applied.
Attitudes need to be changed about children and youth and their
place in Canadian society. Young Canadians need to be seen for
who and what they are: a group of citizens who must be
represented and accounted for in politics. By developing ways to
incorporate children and youth and their interests and views into
the process of decision-making, their best interests will be
considered and realized. This is the challenge of the CRC.
Canadian Coalition for the Rights of the Child
180 Argyle Avenue
Suite 312-316
Ottawa
Ontario
K2P 1B7
Canada
+1 613 788 5085
+1 613 788 5106
[email protected]
Owner: Catherine Angus