Summary:

The analysis measures different interpretations of the CRC in Canada, presents some ideas about applying the concept, then introduces some guidelines for identifying "best interests" in each article of the CRC. It concludes that their best interests will be considered and realized by developing ways to incorporate children and youth into the process of decision-making.

The following report contains four distinct yet related sections that address the understanding and implementation of the United Nations Convention on the Rights of the Child (CRC) in Canada. The main emphasis of the report is an analysis of the best interests principle, one of the four general principles of this Convention of human rights for children. The following analysis measures different interpretations of the concept, presents some ideas about applying the concept, then introduces some guidelines for identifying "best interests" in each article of the CRC. The final component of the analysis is an evaluation of the best interests principle within the monitoring framework developed by the Canadian Coalition for the Rights of Children.

As an introduction, Part One evaluates the function and working methods of the UN Committee on the Rights of the Child. The role of NGOs in the process of monitoring child rights is examined, as well as the crucial involvement of the NGO Group for the Convention on the Rights of the Child in facilitating national NGO contact with the Committee. The success of the Convention (191 of 193 ratifications) is mirrored in the Committee's success in overseeing the reporting process. Although the Committee is a fairly new Committee, and their working methods are constantly challenged due to the volume of meetings, the Committee is generally praised for its hard work and diligence in promoting and protecting children's rights. Other international treaty bodies Committees have endorsed strongly the work and successes of the Committee on the Rights of the Child. It is accepted by most people working in the child rights field that the Committee on the Rights of the Child is operating well under stressful conditions of limited time and finances. Particularly noteworthy is the Committee's openness towards NGOs, and it's interest in assisting national NGOs achieve the objectives of securing child rights. The latter section of Part One presents various accounts of the monitoring process. The Convention specifies a role in this process for NGOs, and the Committee fully endorses and facilitates their participation. Proof of this endorsement lies in the Committee's participation in the pre-sessional working groups with national NGOs. This one week pre-session is firmly established in the schedule of the Committee, and with the help of the NGO Group for the Convention, a great deal of information is relayed to the Committee members from attending national NGO representatives. Follow through for these NGOs has been positive, providing them with a new link to the United Nations, as well as critical linkages with other NGOs. This sharing of information has spawned a series of new initiatives surrounding implementation and monitoring of the CRC, with more and more NGOs working together to share experiences and develop ways to secure government compliance with child rights.

Part Two focuses principally on the best interests principle, or Article 3 (1) of the CRC. The principle is one of four general principles of the CRC, and it is a familiar legal concept in many nations. This familiarity does not however mean that there exists a common understanding of the term. This section of the report presents the interpretations of the best interests principle from the Committee on the Rights of the Child and other noted scholars in the field of children's issues. It is clear from these interpretations that there are some explicit criteria and processes for identifying the best interests of the child. These include considering the best interests of children in policy decisions such that the principle serves as a form of affirmative action for children, bringing the views of a marginalized group forward in the hierarchy of decision-making.

Other interpretations of "best interests" stress that States Parties must consider children interests when implementing Article 4 of the CRC. The Committee on the Rights of the Child has encouraged States to consider the best interests of children when making budget allocations, especially in times of budget cuts. The principle of best interest should also inform the process of measuring impacts of decisions on children and youth and should apply in Parliamentary deliberations as well as in all government policy development.

In order for best interests principle to be incorporated into the policy making process, mechanisms need to be developed to facilitate and encourage change. Part Three of this report is one attempt at developing such a mechanism. This section of the report introduces some guidelines, or measurement tools, to be used by all practitioners, be they in education, health, social services or government. Both private and public service providers are the intended users of the guide. The guidelines are intended to be used in the Canadian context, however they can be adapted for use in other countries.

The guidelines are a series of questions that need to be asked in order to identify the interests of the children and to assist in the process of determining exactly what the best interests of the child are in the given situation. Each article in the Convention has been addressed and questions posed that require practitioners to separate the interests involved-- institutional, professional, parental, etc. and those of the child/children in question. These actions then priorize children in the decision-making process, providing a greater assurance that their interests will be identified, accounted for, and considered.

To successfully achieve the prioritization of children's issues and rights involves a complete change in attitude and assumptions about children and youth. These guidelines are a step towards achieving this change in perspective that is critical in implementing the CRC. These guidelines are therefore intended to evolve and develop. As practitioners use them and become more comfortable with them they too will be able to provide key questions and guidelines to improve the practice of considering the best interests of the child.

Part Four of this report presents a case study of how the best interests principle is applied in Canada, and how Canadian governments have succeeded or failed in living up to the promise of the principle. Legislatively, "best interests" has a long history in Canada, appearing in federal legislation pertaining specifically to divorce and immigration, and provincially in child welfare and protection policy.

The existence of the principle in law does not mean that it is applied in the spirit of the law. Case law indicates that the best interests of the child do play a primary role in determining custody in divorce, but a secondary role, if any, in most cases of immigration and refugee determination. In terms of provincial legislation dealing with child protection, the best interests principle is currently under evaluation given that recent deaths of children in care have put into question the criteria used for determining the best interests of the child.

In the area of government policy, the Canadian federal government demonstrates an increasing awareness of child rights and the best interests principle. Particularly noteworthy is the recent draft Strategy for Children (1997) developed by the Canadian International Development Agency (CIDA). This document sets out clear goals informed by the CRC and "best interests" -- for promoting and protecting child rights around the world. Unfortunately, no other federal or provincial government has developed a similar strategy that uses the language and premise of child rights, or the CRC as a reference. This is clear is provincial policy regarding child welfare where the two premises of the policy sanctity of the family and child welfare do not appear to be balanced and have had the effect of endangering the lives of children.

Thus, the practice of best interests is weak. The lack of sound and clear policy, compounded by increasingly severe budget cuts to social services, have all contributed to a neglect of the best interests of children by all levels of government. At the federal level, the practice of considering the best interests of children in immigration and refugee cases is appalling. There appears to be an intransigence on the part of the government to acknowledge or act upon the fact that the children of parents ordered deported have an interest in the case. These children are consistently not informed by officials of the possibility of family separation, nor are the "best interests" considered when a determination status is decided.

These violations of children's rights are interesting given that children and child poverty are current issues in the political and media agendas. The discussion is good, but without substance.

Public opinion is slowly growing in support of child rights. The recent deaths of children in the child welfare system have sparked numerous evaluations of the policies and practices in the province of Ontario. There is great potential to reform this system if the government takes genuine and consistent initiative to make the rights of children a priority, and to secure that their best interests are considered.

This report concludes that the best interests of the child is a principle that is rarely considered in the practice of law or politics in Canada. Although it is the centrepiece of the CRC and is present in Canadian legislation and policy, it is not applied. Attitudes need to be changed about children and youth and their place in Canadian society. Young Canadians need to be seen for who and what they are: a group of citizens who must be represented and accounted for in politics. By developing ways to incorporate children and youth and their interests and views into the process of decision-making, their best interests will be considered and realized. This is the challenge of the CRC.

Canadian Coalition for the Rights of the Child 180 Argyle Avenue Suite 312-316 Ottawa Ontario K2P 1B7 Canada +1 613 788 5085 +1 613 788 5106 ccrc@web.net

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Last updated 16/03/2001 12:53:54