The Convention on the Rights of the Child

By Elizabeth Jollimore Q.C.

Introduction

We tend to focus our attention on domestic law when looking at child-centred legislative initiatives and give scant consideration to international law, unless we are faced with the unusual case of international child abduction. In "The Convention on the Rights of the Child", Jean-François Noël remedies this shortcoming by providing an introduction to the Convention (CRC). In place since 1989 and ratified by Canada in 1991, the CRC is little known by family practitioners and even less used, even though the Convention is a powerful tool permitting the focus to be placed on children in family law proceedings.

The Convention applies to children in every context, including divorce, adoption and as victims, witnesses and perpetrators of crime.

Noël clearly outlines the context of the CRC in Canadian law, explaining how international treaties must be entered into by our federal executive branch and implemented by the legislative branches, with their power to enact laws and regulations, and by the executive branches through non-legislative measures. Of particular interest is how we can use the Convention in Court. Noël provides a review of the Convention's use by the Supreme Court of Canada and its application in divorce cases.

The Convention contains various principles and identifies rights of significance to our work: the principle of the child's best interests; the child's right, when separated from a parent, to maintain personal relations with both parents; the child's right to express views freely in all matters which affect the child; and the parents' common responsibilities for the child's upbringing and development. Each of these has obvious application. The Convention makes clear that a child's "best interests" must not be seen from the perspective of rationalizing decisions to protect the child, but from the perspective of the child and the child's distinct rights. It is an essential corollary that we hear the child's view and the Convention can serve as a tool to bring the child's voice into the determination of the child's future and to give weight to the child's voice.