New toolkit to advance access to justice for children

  • April 15, 2015
  • By members of the CBA Children’s Law Committee and UNCRC Sub-Committee including The Honourable Donna Martinson, Q.C., Jessica Melanson, Dale Hensley, Q.C. and Caterina Tempesta.

The Canadian Bar Association's (CBA) United Nations Convention on the Rights of the Child Subcommittee of the Children's Law Committee has approval to develop an innovative and comprehensive child rights toolkit. The committee members successfully applied for funding from the CBA Law for the Future Fund. They are particularly excited about this opportunity because the Canadian legal profession is engaged in critically important discussions about access to justice. Ensuring access to justice for children and youth must be a key component of those discussions. The toolkit will help lawyers, judges and other legal professionals advocate more effectively for children.

Children and youth in Canada have broad legal entitlements under domestic and international law, including significant participatory rights, which have the potential to shape their everyday lives in positive ways and to protect them when they become involved in court or administrative processes. Instruments for advocacy such as the Convention on the Rights of the Child (“the Convention”) and the Charter may be used more effectively to promote the rights of children and youth across all areas of legal practice. The toolkit will be designed with a view to enhance legal competencies in the use of these instruments.

Measures may also be taken in policy-making and legislative processes to ensure that provincial and national laws are compliant with the Convention through the adoption of Child Rights Impact Statements. Like environmental impact or privacy impact assessments, CRIAs are a policy-making tool that ensure that legislators remain accountable and have due regard for important public policy goals and fragile freedoms. The toolkit will outline the various types of CRIA and review the benefits and challenges which may arise in implementing them.

In spite of the hard work by and dedication of many lawyers, serious concerns still exist with respect to the knowledge lawyers and other legal professionals have about children’s rights, and about the implementation of those rights generally and particularly with respect to vulnerable, high risk and marginalized children and youth, including indigenous children and youth. Having the ability to identify the concerns and provide remedies is an essential aspect of both lawyer competency and the professional legal obligation to commit to the concept of equal justice for all, found in the Federation of Law Society’s Model Code of Professional Conduct. 

The toolkit will therefore be broad-based and useful to all areas of legal practice. It will provide the foundational information lawyers need about both the nature of the legal rights, and the reality of and complexity of the lives of children entitled to the benefit of those rights. It will then link that foundational information to the daily work lawyers do, suggesting practical ways in which lawyers can effectively work with children and youth to identify breaches of their legal rights and to provide remedies for them. Areas identified so far include issues unique to indigenous children, family law, child protection, youth justice, immigration, health, education, and privacy law, and sexual orientation and gender identity. Each section will provide specific suggestions and examples of how the legal principles can be applied; checklists; step-by-step suggestions for lawyers to follow; key cases and how they have been applied; references to precedents for arguments or facta that have been effectively used; and other resources.

Over the next year, the UN Convention on the Rights of the Child Subcommittee will work with legal professionals across Canada, law schools, continuing legal education groups and others interested in legal education on child and youth rights (such as the Canadian Coalition for the Rights of Children and UNICEF Canada) to leverage existing expertise and develop content that is comprehensive and contemporary. Upon its completion, the toolkit will be available nationally to all legal and other professionals.

Any individuals or groups interested in collaborating on this project are encouraged to contact the Chair of the Subcommittee, the Honourable Donna Martinson, Q.C., or any Subcommittee member: Marv Bernstein, Dale Hensley Q.C., Sarah Dennene, Cheryl Milne, Cathy Tempesta, Gavin Kotze, Sarah Rauch, Jennifer Shaften, and Christian Whalen, Chair of the Children’s Law Committee.

CBA Section membership in the National Children’s Law Committee reflects the broad application of children’s legal entitlements across various practice areas and interest groups: aboriginal law, administrative law, ADR, constitutional law and human rights, criminal justice, family law, health law, immigration law, international law, privacy and access, wills, estates and trusts, and sexual orientation and gender identity.

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