Implementing Child Rights in your Legal Practice

Unlike adults, children must rely on others to know their rights, have their voices heard and access remedies that may be available when their rights are violated or ignored. Children are particularly vulnerable as their rights:

  • Can be easily overlooked
  • Frequently conflict or compete with adult rights or interests, including those of adults meant to help them (parents, teachers, social workers, policy makers or lawyers)
  • Are often lost when a paternalistic needs-based approach is adopted

Use a Child Rights Based Approach to Meet Young People’s Realities

You can help ensure child rights are implemented by using a Child Rights Based Approach. Use the Convention on the Rights of the Child (CRC) as a framework to help address the unique vulnerabilities and realities of children wherever they may be affected and:

  • Advance the Child’s Rights in Processes and Outcomes - know and help to realize child rights to meet a child’s unique vulnerabilities in both processes leading to decision-making and the decisions themselves
  • Begin with the Child’s Perspective to Understand Context - step into the shoes of the child and work outwards to understand the child’s context. Consider what the child sees, hears, experiences and understands
  • Meet the Child’s Unique Vulnerabilities – use the child’s context to inform the action you take to advance the child’s rights and well-being. This may require a multi-disciplinary approach

Use a Contextual Legal Analysis to Address Children’s Inequality

You can do a contextual legal analysis to help address young people’s realities so both the legal problem concerning a child and the social reality out of which it arose are put into context.

  • This is how fundamental human rights are incorporated into laws, policies, practices and procedures
  • Connects child rights with the child’s lived reality
  • Advances “equal justice for all” within Canada’s constitutional framework, providing substance to human rights laws (Martinson and Bell, Legal Professionalism and Access to Justice: Lawyers as Champions for Children; Winnipeg Child and Family Services v. K.L.W. 2000 SCC, 48 at para. 71)
  • Applies to all professionals whose decisions affect children, whether as lawyer, mediator, arbitrator, judge or policy-maker and whose informed impartiality requires them to identify and deal with their own preferences, convictions and prejudices, using human rights’ principles (Rt. Hon. Chief Justice McLachlin, Judicial Studies Committee Inaugural Annual Lecture, June 7, 2012, Edinburgh, Scotland)
  • Is tied to cultural competency, requiring knowledge, skills and attitudes to allow you to relate to a child’s social context and lived reality, so you can advance the child’s rights competently (Devlin and Layton, Culturally Incompetent Counsel and the Trial Level Judge: A Legal and Ethical Analysis at 360)
  • Applies to the development, the final contents and the implementation of laws, policies and practices that impact children
  • Applies to all aspects of your work in individual cases such as:
    • What questions are asked of, and about the child to determine the child’s lived reality
    • How answers to those questions are used to compare the child’s lived reality to a just result in the context
    • How violations of the child’s rights can best be remedied
    • To inform the way the child participates in decision-making affecting the child
    • To provide a framework for examining applicable laws including evidence, policies and procedures