Child Participation


A child who is capable of expressing views has the right to participate. This has two key aspects:

  • The child’s right to express his or her views freely in matters affecting the child
  • The right to have these views given due weight in the matter in accordance with the child’s age and maturity

Convention on the Rights of the Child (CRC) General Comment No. 12

Child participation is essential to making good decisions that affect children whether the child is a party with standing, the subject of a proceeding, a witness or an affected third party to the decision-making. A child’s lived experiences are distinct from those of adults and considering them can help make legal or administrative decisions better for the child as well as others around them. Article 12(1) of the CRC says that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

Child participation is directly (inextricably) linked to a child’s best interests (GC 14, para. 43) and is connected to all other CRC Articles as both a substantive right and guiding principle. It requires children to have information in a way that they understand about what is happening and their role in it; supportive spaces to share their views and ask questions about matters that affect them; and know the results of decisions that impact them in a way that they understand. It also requires decision-makers to hear, consider and give due weight to the child’s views in making decisions about the child. Child participation informs both the process the child is involved in as well as the final decision made about the child. Participation helps make interactions with children and actions on their behalf more sensitive to their realities and rights, both in processes and final decision-making.

Child participation may be implemented following a five step process (CRC GC No. 12, paras. 41-47):

  1. Prepare the child
  2. Hear the child’s views
  3. Assess the child’s capacity
  4. Give due weight to the child’s views and explain the decision to the child
  5. Address complaints, remedies and redress: be accountable to the child

The best interests of the child cannot be correctly applied if the requirements of child participation (Article 12) are not met. Similarly, the best interests of the child enforces the functionality of child participation by facilitating the essential role of children in all decisions affecting their lives.


Participation is a process, not a momentary act.

(GC No. 12, para. 13)


Participation is respected when the child:

  • Chooses to participate either directly or through a representative; whenever possible the child must be given the opportunity to be directly heard (GC 12, para. 35).
  • Has a child friendly space to participate and ask questions.
  • Is informed about all aspects of the process, including their role in it.
  • Has capacity to participate regardless of age if capable of forming his or her own views; there is no age limit and no starting presumption of incapacity. (GC 12, at paras. 20-21).
  • Is not interviewed more than necessary (GC 12, at para. 24).
  • Knows what happened to their views when decisions are made in a way that they understand.

Age alone does not determine the significance of a child’s views. There must be a case-by- case assessment of “due weight in accordance with the age and maturity of the child” (GC No. 12, para. 29). Information, experience, environment, social and cultural expectations, and levels of support all contribute to the development of a child’s capacity to form a view.

International Law

Interpretive Sources

Canadian Law

Federal Law

Under the Youth Criminal Justice Act, S.C. 2002, c. 1, the child or his or her counsel participates in proceedings (e.g. s. 119 contemplates the young person’s counsel accessing information), and child participation is inextricably linked to wherever best interests of the child is referenced in legislation.

Provincial and Territorial Law

Laws enacted by the provinces and territories include some provision for child participation such as:

  • Views of the child is a factor to consider in determining the child’s best interests under family and child protection legislation
  • Children over the age of 12 are to receive notice and participate in a child protection hearing (e.g. Child, Family and Community Service Act, [RSBC 1996] Chapter 46, ss. 33.1, 34, 36, 42.2, 44, 46, 49, 55, 55.01, 57 or 58; see also Child and Family Service Act, R.S.O. 1990, c. C. 11, s. 39)
  • Children are recognized as parties in proceedings (e.g. Child, Family and Community Service Act, [RSBC 1996] Chapter 46, s. 39)
  • Appointment of counsel for a child in a legal proceeding is needed such as under British Columbia’s Family Law Act which allows courts to appoint a lawyer for a child under s. 203 if the degree of conflict between parties impairs their ability to act in the best interests of the child and it is necessary to protect the best interests of the child. This is not a government-funded lawyer in BC, but the court can allocate the cost between the parties or make one party pay. Some provinces have offices or organizations dedicated to child legal representation in certain matters such as the Office of the Children’s Lawyer (Ontario), and Child Legal and Educational Resource Centre (Calgary). (See also Legal Representation section of the Toolkit)

Case Law

A. C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 upheld the right of a child to participate in medical treatment decisions affecting the child, and offered several questions not as a formula but as examples to assist others in assessing the extent to which a child’s wishes reflect true, stable and independent choices. The Court concluded at para. 114:

...I agree with A.C. that it is inherently arbitrary to deprive an adolescent under the age of 16 of the opportunity to demonstrate sufficient maturity when he or she is under the care of the state. It is my view, however, that the ‘best interests’ test referred to in s. 25(8) of the Act, properly interpreted, provides that a young person is entitled to a degree of decisional autonomy commensurate with his or her maturity.

B. J.G. v. D.L.G, 2010 YKSC 44 contains an analysis of the CRC in a family law context and says that children have a legal right to express their views but they are not required by law to do so: they can choose not to participate. If children choose to participate there is first a determination of whether the child is capable of forming his or her own views before the child has the legal right to express them. Capacity refers to cognitive capacity to form views and communicate them. Decision makers address all of the circumstances of the case when deciding what weight should be given to a child’s views. This second legal right of children is based on the best interests of children principle. It gives children a voice, not the choice; they are not required to make the decision that is the responsibility of the adults involved (paras 26 – 28).

A.M.R.I. v K.E.R., 106 O.R. (3d) 1, 2011 ONCA 417 (C.A.) arose in the context of an application under the Hague Convention in regard to a child who had been found to be a Convention refugee. The Court considered the CRC and determined that the weight to be given to the child's best interests in the CRC strongly supported the conclusion that a Hague application judge must treat the child's status as a refugee as giving rise to a rebuttable presumption of risk of persecution if forced to return to her country of origin. The Court also referenced Article 12 of the CRC in support of its conclusion that in the context of a child refugee, the views of the child gain greater importance. Give the interests at stake, the Court specifically found that:

An order of return under the Hague Convention has a profound and often searing impact on the affected child. Where the proposed return engages the child's s. 7 Charter rights, as in this case, meaningful procedural protections must be afforded to the child. In our view, these include the right to: (1) receive notice of the application; (2) receive adequate disclosure of the case for an order of return; (3) a reasonable opportunity to respond to that case: (4) a reasonable opportunity to have his or her views on the merits of the application considered in accordance with the child's age and level of maturity; and (5) the right to representation.

LEG v. AG, 2002 BCSC 1455 addressed judicial interviews of children and says:

  • The court’s discretion to interview is found both in the court’s parens patriae jurisdiction and in its statutory duty to consider the best interests of the child (important, because otherwise the Provincial Court could not interview);
  • In considering whether to interview a child, the court must consider the relevance of such evidence to the issues at trial, the reliability of the information, and the necessity of conducting the interview rather than obtaining the information in another way, and this can be done either toward the end of the hearing, after the court has heard enough evidence to put the child’s views in context, or at the beginning, so the parties can introduce evidence to answer any concerns raised;
  • The court does not require the parents’ or guardians’ consent. “While a parent cannot simply veto an interview, a parent’s specific reasons for withholding consent may be important to a determination of relevance, reliability, and necessity” (para. 6).
  • While it may be preferable to have such evidence come in through an expert or amicus curiae, the “regrettable reality” (para. 57) is that parties often lack the resources to avail themselves of such services.

Dormer v. Thomas (1999), 65 B.C.L.R. (3d) 290 (B.C.S.C.) outlines some of the options available for the court to meet its statutory obligation to determine the best interests of the child and says three models of legal representation for children are frequently referenced:

  • Amicus curiae (friend of the court) - is viewed as a neutral officer of the court whose role is to facilitate an informed judicial decision in custody and access proceedings and who ensures that all relevant evidence is before the court.
  • Litigation guardian - is appointed to protect the interests of the child and must decide what is in the best interests of the child and submit an informed opinion of those interests to the court. The opinion of the guardian need not be the same as the wishes of the child.
  • Child advocate - is in fact an advocate on behalf of the child. This is the more traditional role that lawyers play. The advocate must present and attempt to advance the child’s wishes.

Other Cases

Special Considerations

  • Do not assume that adults’ views correspond with the child’s views.
  • All children have a right to participate: it is not a question of whether, but how, to best support a child and his or her right to participate
  • In determining how to best support a child’s participation, one must understand the child’s context.
  • Where the child resides, and who is involved in facilitating the child’s participation, will determine the options and supports available for the child to participate and ultimately the quality of the child’s participation.
  • The method chosen, and the adult who facilitates a child’s participation can impact how the child’s views are heard, considered and the weight given to them by the decision-maker: choose wisely.

Practice Essentials

Five Steps to Implement the Right to Participate

(GC No. 12, paras. 40-47)

  1. Prepare:
    • Inform the child about
      • The right to express their opinion in all matters affecting them, and, in particular in any judicial and administrative decision-making processes
      • About the impact his or her expressed views will have on the outcome (e.g. provide input into the decision but it is up to the decision-maker to decide what happens)
      • About the option of either communicating directly or through a representative and the consequences of this choice
    • The decision maker must adequately prepare the child before the hearing, providing explanations on how, when and where the hearing will take place, who the participants will be, and taking into account the views of the child in this respect
  2. Hear the child’s views
    • Create an enabling and encouraging environment and context
    • The format is more like a talk rather than a one-sided examination
    • Preferably, a child should not be heard in open court, but under conditions of confidentiality
  3. Assess the child’s capacity
    • Capacity refers to cognitive capacity to form views and communicate them (B.J.G. v. D.L.G, 2010 YKSC 44, at para  27)
  4. Decision-maker explains outcome, how the child’s views are considered and the weight given to them
    • Since the child has the rights to have his or her views given due weight, the decision maker has to:
      •  Inform the child of the outcome of the process and
      • Explain how the views were considered.
  5. Address complaints, remedies and redress
    • Be accountable to the child for process and outcome

Enhancing Meaningful Particpation

Ways to enhance meaningful participation that is: (GC 12, paras. 132-134)

  • Transparent and informative – providing full, accessible, diversity sensitive and age-appropriate information about participation rights
  • Voluntary
  • Respectful of children’s views – e.g. in process (do they want to participate directly or indirect – consider the range of options) and outcomes (due weight given to views in decisions)
  • Relevant to children’s lives
  • Child friendly (e.g. language, supportive environment and information, hear the child’s words)
  • Inclusive, recognizing that children are not a homogenous group
  • Respects the evolving capacity of children (age is not always an accurate indicator)
  • Supported by appropriately trained adults
  • Safe and sensitive to risk
  • Accountable (including to the children involved) – e.g. tell children what happened to their views and how they were considered (or not) in the decisions made about them
  • Keep in mind that participation is not a one-time event but ongoing – consider the child’s views in ALL decisions affecting the child (GC 12, para. 13 and 133).

Equip yourself to speak with children: understand aspects of child development, rapport building, and use of appropriate language, tone, pacing and questions.