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United Nations Convention on the Rights of the Child: How Does Albertas Legislation Measure Up?
by Anna S. Pellatt
Alberta Civil Liberties Research Centre
Table of Contents
Analysis of Alberta Legislation
Preparing this study was a large and daunting task. I drew on the expertise and support of a number of people in order to get the job done. Valerie Footz, Information Services Coordinator, Access to Justice Network, provided invaluable research support and encouragement throughout the process as did Linda McKay-Panos. Linda Graham, Project Director, Rights Awareness Project, British Columbia Society of Youth and Children, provided advice in the development of the "computer search" instrument for the project. I would like to thank Professors Martha Bailey and Nicholas Bala, the authors of a similar compliance review study in Ontario, for the assistance they provided as well as much valued copies of early and final drafts of their work. I would also like to thank Jim Robb, Mary Marshall and Irene McConnell for reviewing draft portions of the study, and Rebecca Sherer for the information she provided on day care standards and initiatives.
Alberta Civil Liberties Research Centre
Purpose of the Study
The purpose of this study is to determine the degree to which Alberta legislation dealing with children's rights and interests complies with the requirements of the United Nations Convention on the Rights of the Child ("Convention"). The Convention is an international legal instrument which establishes standards for the realization of children's civil, political, economic, social and cultural rights. The full text of the Convention is provided in Appendix "A". The Convention was adopted by the United Nations in November, 1989, and has, to date, received unprecedented support from the world community. Canada ratified the Convention in 1991, and, in so doing, bound all governments and members of Canadian society to the principles, goals and standards set out therein.
The Convention requires "States Parties" (all states which have ratified the Convention) to take all appropriate measures necessary to implement its provisions. The Convention also requires States Parties to monitor the progress of its implementation efforts and report to the United Nations Committee on the Rights of the Child (the "U.N. Committee"), the body charged with the responsibility of monitoring compliance, at regular intervals. In 1994, the U.N. Committee received Canada's first compliance report. The report consisted of a review and assessment of provincial and federal initiatives conducted by government itself. The U.N. Committee received very little information concerning the status of Canadian children from sources external to government. Canada's next report is due in 1999. In an effort to ensure that it receives a wider base of information this time around, the U.N. Committee has called upon non-governmental organizations to conduct their own assessments of the federal and provincial governments' performance and submit independent reports.
This study was inspired by the U.N. Committee's call for independent compliance reviews. A copy of this report will be submitted to the U.N. Committee to supplement the report the federal government will be submitting this year. This study is also designed to increase awareness and understanding of children's rights under the Convention and Alberta law as well as to pinpoint areas of strength as well as weakness in Alberta's legislative response to children. It is hoped that the study will generate further research and debate regarding the status of Alberta's children and lead to law reform initiatives which will improve the quality of their lives.
Alberta and the U.N Convention on the Rights of the Child
Alberta did not initially support Canada's ratification of the Convention. It has, up until very recently, refused to endorse the Convention on the grounds that the promotion of children's rights under the Convention undermines parental authority. On January 13, 1999, Premier Klein wrote to Prime Minister Chretien expressing Alberta's qualified support for the objectives and principles of the Convention:
As a further indication of our commitment to children and families, we would like to extend our formal support for the federal government's ratification of the U.N. Convention on the Rights of the Child. Our support is based on the understanding that the U.N. Convention does not usurp or over-ride the authority of parents and that any interpretation of same with respect to Alberta will be undertaken as though a reservation had been placed at the time of ratification in that regard.
Despite strongly held perceptions to the contrary, the Convention is neither anti-parent nor anti-family. The Convention certainly promotes the concept of the child as an active subject of rights, but also emphasizes the importance of parents and family to the realization of these rights and to children's lives in general. Article 5 requires States Parties to respect the responsibilities, rights and duties of parents, members of the extended family and the child's community to provide appropriate guidance and direction to children in the exercise of their Convention rights, "in a manner consistent with the evolving capacities of the child". Other articles recognize the child's right to know and be cared for by his or her parents (Article 7), affirm children's right not to be separated from their parents unless it is in their best interests and to maintain contact and access in the event of separation (Article 9) and call for States Parties to support parents in the performance of their child rearing responsibilities (Article 18). Respect for children's evolving capacities and right to be heard (Article 12) are two key Convention themes. Implementing these principles does, of necessity, involve some curtailment of parental authority and a re-thinking of children's role or place in the family as well in society at large. Clearly, it is not possible to grant older children the right to make decisions and act for themselves without diminishing parental rights and decision-making authority. Yet, the notion that children's right to act autonomously should expand as their age and capacities increase, that children should be treated more as adults and less as children as they approach adulthood, is not a revolutionary one. It is already well recognized in certain areas of the common law and statute-based law. Granting children the right to be heard, i.e., the right to express their views and have them considered when decisions are made which affect their lives, is, likewise, gaining greater force and currency in law, policy and practice. It is also important to point out that making space for children and children's views in this manner enriches rather than diminishes the institution of the family as well the operation of schools, community organizations and other social institutions.
Alberta's obligations with regard to the implementation of children's Convention rights flow from Canadian constitutional law as well as the Convention itself. Under section 132 of the Constitution Act, 1867, the federal government has the power to ratify international treaties. Provincial governments bear the responsibility of implementing the terms or provisions of treaties when the subject matter of the treaty falls within their scope of powers. When it comes to the implementation of children's rights under the Convention, both levels of government are involved. Under section 92 of the constitution, Alberta is responsible for the provision of health, education and child welfare services to children and for the protection of children's civil rights. Article 4 of the Convention spells out States Parties obligations with regard to the implementation of children's Convention rights. It requires States Parties to undertake "all appropriate legislative, administrative and other measures" for the implementation of the rights recognized in the present Convention." Article 4 establishes a different standard for the implementation of children's civil and political rights versus rights described as "economic, cultural and social" in nature. While the obligation to implement children's civil and political rights is absolute, States Parties are required to undertake measures for the implementation of economic, cultural and social rights "to the maximum extent of their available resources". Alberta is the wealthiest province in Canada. Over the past four years the province has run successive budgetary surpluses in the hundreds of millions and billions of dollars. Given this fact, Alberta should be held to a high standard with regard to the implementation of children's economic, social and cultural rights, and, specifically, its obligation to ensure that children have an "adequate standard of living" (Article 27).
The Approach to This Study
Focus on Legislation
This study focuses on legislation. It examines Alberta statutes and regulations which address children and children's rights and issues to determine the degree of compliance with the Convention. Though the study identifies omissions within the context of a particular legislative scheme, it was beyond the scope of this study to identify gaps in the overall body of provincial legislation. It was also beyond the scope of this project to examine the way in which legislative principles and provisions have been translated into policy and practice. It is hoped that this study will provide the basis for assessing these and other matters relating to the treatment of Alberta children.
The Process of Searching for and Selecting Statutes
One of the benefits of conducting this study at this point in time is that we were able to draw upon the experience and expertise of researchers in British Columbia and Ontario who had completed or were in the process of completing similar legislative reviews. In developing a search instrument to retrieve all relevant statutes and regulations, Valerie Footz, Information Services Coordinator, Access to Justice Network consulted Linda Graham, Project Director, Rights Awareness Project, Society of Children and Youth of British Columbia, one of the principal contributors to the British Columbia study. Based on this consultation and information contained in the British Columbia study, the following list of key words and their derivatives was used in the search:
-Age within 10 words of the numbers 1 through 19
The initial search produced a list of 209 Acts and 313 regulations. All of these Acts and regulations were reviewed to determine whether they were relevant to the study. Following the elimination of "false hits", the list was pared down to 50 Acts and 60 regulations. Appendix "B" contains an index of these statutes as well as the search terms they contain and the sections of the Act or regulation in which the search terms can be located.
All of these statutes were further reviewed to determine which should be subject to the compliance review analysis. Due to time pressures, only Acts and regulations which were judged to have a substantive impact on children's Convention rights were selected. The legislation reviewed in the following section reflects the state of provincial law as of October 12, 1998, with one exception. We included the Protection of Children Involved In Prostitution Act, which was proclaimed in force on February 1, 1999, because of the significance of its impact on children's Convention rights.
The Analytical Framework for the Study
In developing a framework and format for the analysis of the legislation, we drew heavily on both the B.C. study and drafts of the Ontario compliance review, as well as another important resource, the Implementation Handbook for the Convention on the Rights of the Child ("Implementation Handbook") published by the United Nations Children's Fund (U.N.I.C.E.F.). We decided to use the star system developed for the B.C. study by David Cruickshank and the British Columbia Society for Children and Youth as a way of rating compliance. This rating system was also used in the Ontario study. The star rating system is similar to that used for rating movies. It assigns a rating of 0 to 4 stars for compliance with the Convention as a whole, and a second rating for compliance with Article 12, the provision in the Convention calling on States Parties to respect the views of the child. The criteria for rating statutes, drawn from the Cruickshank report, is reproduced below:
FOUR STARS **** EXCELLENT COMPLIANCE
Overall Overall excellent compliance with the letter and spirit of Convention rights; no right is ignored or violated by law; very little legislative change is required, although policy or implementation may be below this standard.
Views of child Excellent compliance with the letter and spirit of Article 12 of the Convention; excellent compliance with the spirit of other relevant articles, very little legislative change is required, although policy or implementation may be below this standard.
THREE STARS *** GOOD COMPLIANCE
Overall Overall good compliance with the letter and spirit of Convention rights; some legislative improvement is required because some rights are not addressed or could be violated by certain applications or interpretation of the law; the legislation could be improved with a modest number of amendments.
Views of child Good compliance with the letter and spirit of Article 12 of the Convention; good or excellent compliance with the spirit of other relevant Articles; some legislative change would ensure better compliance with Article 12 (and possibly other relevant Articles), but only modest improvements are required.
TWO STARS ** FAIR COMPLIANCE
Overall Overall fair compliance with the letter of the convention; low compliance with the spirit of the Convention; either the legislative philosophy (e.g., adult control throughout minority), legislative structure or significant omissions make the legislation deficient; some modes examples of non-compliance are found under this standard, but there is basic compliance or simply no regard for Convention rights in most sections of the law; requires a rewritten statute.
Views of child Fair compliance with the letter or spirit of Article 12 of the convention; fair or good compliance with the spirit of other relevant Articles; the legislation is deficient either in its philosophy, structure or by significant omission; requires a written statute.
ONE STAR * POOR COMPLIANCE
Overall Bare compliance with the Convention and several clear examples of non-compliance; the legislation treats children in a token or wholly dependent manner; many omissions of Convention rights although most of the statute does not offend the convention; requires a new statute.
Views of child Bare compliance with Article 12 of the convention and the spirit of other relevant Articles; requires a new statute.
In order to assess statutes in as thorough and objective a manner as possible, we followed the lead of the authors of the Ontario study, and relied heavily on information about the Convention's requirements contained in the Implementation Handbook. The Implementation Handbook provides a detailed, article by article, analysis of the Convention. It includes background information on the drafting and wording of the Convention, an analysis of the U.N. Committee's growing body of interpretative commentary on States Parties obligations under the Convention as well as decisions and reports of other related treaty bodies and U.N. organizations. Each chapter of the Implementation Handbook focuses on a separate article and concludes with a summary of the main points raised in the discussion of implementation requirements in the form of a checklist of questions. The checklists for Articles 1-41, the articles containing the bulk of children's Convention rights, provided the basic guidelines for the analysis and are included in this study in Appendix "C". Each statute was assessed in relation to the articles it engaged as well as against the articles identified as the "general principles" of the Convention": Article 2 (non-discrimination), Article 3(1) (best interests of the child), Article 6 (right to life and maximum possible survival and development) and Article 12. In this regard, as well as in most other respects, our study follows the analytical framework and format developed by Martha Bailey and Nick Bala for the Ontario study. The analysis of each statute or portion of a statute follows the following format: a brief description of the legislation is provided, followed by the compliance ratings, the analysis of key articles of the Convention and general principles, a brief summary of the findings and recommendations for improving compliance.
We chose to closely follow the methodologies adopted in the B.C. and Ontario studies because we felt that they provided an excellent framework for conducting this legislative review. We also felt that adopting a similar analytical approach would allow for comparisons to be drawn across provincial boundaries with respect to the implementation of children's rights.
Rating legislative compliance is certainly not an exact science. In order to ensure that the process was conducted with as much objectivity and consistency as possible, each statute was rigorously reviewed using the criteria outlined in the checklists. As well, the ratings and analysis were reviewed and endorsed by members of the project's supervisory committee. In addition, portions of the study were reviewed by a number of lawyers and legal academics with expertise in the particular areas covered to ensure that the legislative analysis was accurate.
Summary of Conclusions and Recommendations
Viewing legislation through the lens of the Convention is certainly an eye-opening experience. Although I had been familiar with many of the Acts and regulations included in this study, approaching them from a perspective which put children and children's rights in the forefront shed new light on their meaning and possible impact. Although compliance with the Convention was found to be generally adequate, there is a need for substantial legislative amendment to improve compliance. A summary list of all recommendations may be found in Appendix "D". Below is a brief summary of my findings:
·Failure to fully comply with the requirements of Articles 3(1) and 12 stands out as one of the most common statutory deficiencies. Article 3(1) requires States Parties to make the best interests of the child a primary consideration in all decisions made and actions taken concerning children and to reflect this principle in legislation. Though many Acts and regulations include provisions directing that specific decisions made concerning individual children be guided by the best interest principle, the Child Welfare Act is the only statute which includes an overriding best interests provision. As well, none of the statutes which affect children as a group, e.g., the Social Development Act, the Social Allowance Regulation, and the Child and Family Services Act, direct that programs are to be administered and resources allocated in the best interests of children. Article 12 grants children a right to be heard in all proceedings which affect them, as well as a right to express their views freely and have their views taken into account with regard to all matters affecting their interests. Most statutes are in breach of one or both of these requirements. Many fail to direct those making decisions affecting the individual and collective interests of children to give their views due weight and consideration. For example, the Protection of Children Involved in Prostitution Act does not provide for children to be consulted either in determining the course of the services provided to them or in overall program planning and development. Some statutes fail to grant children a right to be heard in proceedings affecting their interests. The Child Welfare Act is the only statute which addresses the issue of legal representation for children and establishes an advocacy program specifically to deal with children's issues and complaints.
·Articles 1 and 5 call on States Parties to recognize the evolving capacities of children by granting children who possess "sufficient understanding" the right to make decisions and act for themselves. Though many statutes recognize the evolving capacities of children, most do so by granting greater rights and autonomy to children at a specific age. Some statutes are in total breach of this principle. The Mental Health Act, for example, denies children of any age the right to make treatment decisions for themselves, except decisions regarding psychosurgery.
·Legitimacy is still an issue in Alberta. Though the Legitimacy Act works to shrink the pool of children deemed to be "illegitimate", Alberta law continues to draw distinctions between children based on the marital status of their parents particularly in the area of child support or maintenance. Clearly, this issue needs to be dealt with and the law in relation to child support needs to be overhauled to ensure all children equal rights and access to maintenance.
·The Human Rights, Citizenship and Multiculturalism Act denies children protection from discrimination based on their age and is thus in breach of Article 2 (non-discrimination).
·The Child Welfare Act (CWA) represents one of the high points in terms of legislative compliance. Though the CWA is certainly not without flaws, it is in strong compliance with the Convention in several key respects. Most notably, the Act establishes an advocacy program for children in care, the Office of the Children's Advocate, which should be emulated in other legislative and service provision contexts, e.g., the young offenders system.
·Parts of the Protection of Children Involved in Prostitution Act (PCIPA) represent a low point in terms of compliance with the Convention. The PCIPA is designed to help children disengage from street life and prostitution, and is, in this respect, in keeping with the spirit of Article 34 (protection of children from all forms of sexual exploitation) as well as other parts of the Convention. However, the crux of the Act, the provisions allowing for the apprehension, conveyance and confinement of children for a three day period, do not comply with the Convention. As well, the provisions enabling a peace officer to apprehend and return a child to her or his home environment without consulting the child or requiring that the home be investigated first are troubling.
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