Script 238 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

Can children make their own decisions about things that affect them?
Not always, but children have a right to give their input, and parents, government authorities, and courts have to consider that input when making decisions about a child. As children get older, their capacity to make decisions increases and the importance of their input increases.

Article 12 of the United Nations Convention on the Rights of the Child (which Canada has agreed to) gives children the right to freely express their views—directly or through a representative—in any proceedings that affect them. The weight given to a child’s view depends on the child’s age and maturity. Article 12 also gives children the right to be heard in any judicial and administrative proceedings that affect them.

Children have a right to express their views in the following areas:

• which parent they prefer to live with if their parents separate or divorce
• whether to get or refuse medical or psychiatric treatment
• what they want in child protection cases
• their foster care
• access to money held in trust for them, and
• what to do if they are charged with a crime.

Can children choose which parent they want to live with if their parents separate or divorce?
No, children do not generally get to choose which parent they live with if their parents separate or divorce. The parents can agree on which one of them their children will live with and how often each parent will see their children. The parents may decide not to consult the children or anyone else when they make these decisions. Or the parents may talk to the children, social workers, lawyers, counselors, or other professionals. If the parents make an agreement that their children are not happy with, the children can talk to the parents about it, but it’s still the parents’ decision.

If the parents can’t agree, a court may have to decide whom the children live with. Section 24(1) of the Family Relations Act says that a child’s best interests are most important and a court must consider the following things when making an order about where children will live. They are:

1. the health and emotional well being of the child, including any special needs for care and treatment
2. if appropriate, the views of the child
3. the love, affection and similar ties that exist between the child and other persons
4. education and training for the child
5. the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

A child’s view is important, but it’s only one of several things that matter. Both the age and maturity of a child are important when a court considers the views of a child. A court often assesses a child’s maturity by examining how the child behaves at home and at school.

Do children need their parents’ or guardians’ permission to see a doctor?
No. BC’s Infants Act says that children under 19 have the right to consent to their own health care. They do not need the consent of a parent or guardian. This means that a child can see a doctor and get a prescription for birth control, without a parent’s permission. A teenager can also get an abortion without their parents’ consent. But a doctor must decide if a child is mature enough to understand the risks and consequences of the treatment to be able to give their own consent.

For more on this, check script 422, called “Children and Consent to Medical Care.”

What rights do children have if they are hospitalized against their will for psychiatric treatment?
A child under 16 can be hospitalized against their will for psychiatric treatment in one of two ways:

• if a parent or guardian requests it and a doctor then decides that the child has a mental disorder, or
• if the child is admitted as an involuntary patient under the Mental Health Act.

In both cases, the child has the right to be told why they’ve been admitted and the right to contact a lawyer immediately. If they want to leave but their doctor won’t let them, they can ask for a hearing by a review panel or court.

A child 16 or older can only be admitted against their will for psychiatric treatment as an involuntary patient. To find out more about involuntary admissions, check script 425, called “Hospitalizing a Mentally Ill Person.”

Do children have input in child protection cases?
Yes. The BC Child, Family and Community Service Act requires a child’s views to be taken into account when decisions about the child are made. The Act defines a child as a person under 19 years old.

If a child has been—or is likely to be—abused or neglected, child welfare workers may investigate and try to keep the child safe with their parents. For example, the worker may provide in-home support services for the family or obtain a court order to supervise the child in the home. The worker can remove a child from the child’s home only if the child is in immediate danger or if the worker decides—after fully exploring all available options—that there is no other way to keep the child safe. 

If a child is removed from their home, a presentation hearing must be held within 7 days in Family Court. Children 12 and older must be notified in writing of the date and place of the hearing. They have a right to participate in it. Children under 12 may be invited to attend the hearing and say what they think.

A child may also be asked to consent to an agreement or court order that affects them. If the child is 12 or older, no agreement or consent court order can be made without the child’s consent, and the child has the right to speak to a lawyer. In addition, any agreement or order for adopting a child aged 12 or older (and changing the child’s name) can proceed only if the child agrees to it.

For more information on child protection services, check the Ministry of Children and Family Development’s website at www.gov.bc.ca/mcf and look under “Reports and Publications” for “Child Protection”.

What rights do children in foster homes or group care have?
If a child is removed from their home because they’ve been abused or neglected, or because the child’s parent needs help and asks the Ministry to place the child in its temporary care, the child’s worker, and other people important to the child, develop a care plan for the child within 30 days. If the child’s worker expects the child to be in care for more than 6 months, they develop a comprehensive plan and review it every 3 months. If possible, the child takes part in the meetings where the worker develops and reviews their care plan.

Once the child is in the Ministry’s care, the Child, Family and Community Service Act provides certain rights for the child. They include the right for the child to be consulted and give their views on decisions that affect them. They also include the rights to reasonable privacy, to be free from physical punishment, and to be informed about (and helped to contact) the Ombudsman and the Office of the Representative for Children and Youth.

For more information, read the guide on the Ministry website at www.gov.bc.ca/mcf. Click on “Protecting Children” and then on “Publications” and finally on “Know Your Rights: A Guide for Young People in Care.”

Can children access money held in trust for them by the Public Guardian and Trustee?
It depends on the situation. BC’s Public Guardian and Trustee oversees the legal rights and financial interests of children under age 19. The Trustee holds money that children receive in the following types of cases—if another trustee is not appointed:

• an injury award after an accident.
• an inheritance.
• life insurance proceeds.
• part of the money that a child under 15 makes from acting in TV or films.

The Trustee pays all a child’s money (with interest) to the child when they turn 19. The Trustee may also use some of a child’s money—before the child is 19—to pay for things that a child or their family cannot afford, such as school fees, tutoring, camps and trips, transportation, computers, and dental needs.

For more information, call the Public Guardian and Trustee at 604.660.4444 or check www.trustee.bc.ca.

What rights do children have if they are charged or convicted of a criminal offence?
The Youth Criminal Justice Act explains how police, courts, and the correctional system must treat young people, 12- to 17-years old, who are arrested, charged, or convicted of a crime under federal laws.

The most important federal criminal law is the Criminal Code. It covers common crimes like shoplifting, breaking and entering, car theft, and assault. Other federal laws deal with things like possessing and selling (or trafficking) illegal drugs.

Provincial laws, not the Youth Criminal Justice Act, cover many other crimes, such as drinking under age, trespassing, and breaking traffic laws.

Under the Youth Criminal Justice Act, children who are stopped and questioned by the police have the right to a lawyer and the right to remain silent, with some exceptions. Children who are arrested or who are charged with a crime but not arrested, have other rights. For more information, check script 225, called “Young People and Criminal Law.” As well, visit the Ministry of Children and Family Development website at www.gov.bc.ca/mcf and look under “Reports and Publications” for “Youth Justice”.

Where can children, parents, and guardians get help?
Call the Representative for Children and Youth at 250.356.6710 in Victoria and 1.800.476.3933 elsewhere in BC. The website is www.rcybc.ca. The Representative does not work for government. She is an independent officer of the BC legislature. She supports children, youth, and families who need help dealing with the child welfare system. She also suggests changes to the system.

Contact the Ministry of Children and Family Development. A child or youth in the care of the ministry (or their family member or caregiver) who disagrees with something the ministry did or decided, has a right to complain and be taken seriously. For more information on how to make a complaint, go to the Ministry website (www.gov.bc.ca/mcf) and click on “Ministry Contacts” and then on “Client Complaints”.

The Provincial Ombudsman ensures that youth are treated fairly by people providing service to them. This office can provide an independent review of a case. The website is www.ombud.gov.bc.ca and the phone number is 1.800.567.3247.

For urgent help, dial “0” or “411” and ask the operator for the Helpline for Children. You can also dial it directly at 310.1234 (no area code). A social worker will answer 24 hours a day.

[updated October 2008]

Dial-A-Law© is a library of legal information that is available:

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