Nova Scotia and the UN Convention on the Rights of the Child

5. Children: The Silenced Citizens - Report of the Senate Committee on Human Rights

2007-06-28T04:37:00.000-03:00

Children: The Silenced Citizens - Report of the Senate Committee on Human Rights

This is an overview of some of the information in this report. You are encouraged to read the report, Children: The Silenced Citizens: Effective Implementation of Canada's International Obligations with Respect to the Rights of Children - Final Report of the Standing Senate Committee on Human Rights at http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/huma-e/rep-e/rep10apr07-e.htm#_Toc164844429

Time Line - History of Convention on the Rights of the Child

December 1975
- Meeting of federal and provincial ministers responsible for human rights resulted in the establishment of the Continuing Committee of Officials on Human Rights
http://www.canadianheritage.gc.ca/progs/pdp-hrp/canada/comite_committee_e.cfm
http://www.pch.gc.ca/progs/pdp-hrp/inter/un_e.cfm

March 1978 to March 1989
- Drafting the Convention on the Rights of the Child took eleven years
- Canada played an instrumental role in this process

November 1989
-Convention on the Rights of the Child adopted by the UN General Assembly.
http://www.ohchr.org/english/law/crc.htm
http://www.unhchr.ch/html/menu3/b/k2crc.htm
-The first time that the needs and interests of children were “expressly formulated in terms of human rights”

28 May 1990
- Canada signed the Convention on the Rights of the Child

29-30 September 1990
- World Summit on Children http://www.unicef.org/wsc/ - The largest gathering of world leaders in history at the United Nations
- Canadian Prime Minister Brian Mulroney jointly initiated and co-chaired
to encourage ratification of the Convention on the Rights of the Child and draft a ten-year plan of action for children.

1991
-UN Committee on the Rights of the Child created
- Based in Geneva
- Meets three times a year, for four weeks each session

13 December 1991
- Canada ratified the Convention on the Rights of the Child, however the federal government did not adopt specific or global enabling legislation to introduce the Convention into domestic law.

December 2001
Standing Senate Committee on Human Rights - first report - Promises to Keep: Implementing Canada’s Human Rights Obligations. [available at: www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/huma-e/rep-e/rep02dec01-e.htm ] - assessed whether the United Nations Convention on the Rights of the Child had been implemented - whether Canadian children were benefiting from it- whether the Convention had been used as a tool to address key problems of facing children in this country -examined the role of Parliament within this framework.

18 January 2002
- Optional Protocol Sale of Children, Child Prostitution and Child Pornography came into force

12 February 2002
- Optional Protocol Involvement of Children in Armed Conflicts came into force. February 2002

8-10 May 2002
- Special Session on Children -young people spoke to the General Assembly of the United Nations
http://www.un.org/ga/children/
http://www.unicef.org/specialsession/

April 2004
- Canada’s National Action Plan , A Canada Fit for Children
http://www.hrsdc.gc.ca/en/cs/sp/sdc/socpol/publications/2002-002483/page00.shtml
- Canada agreed to report to the UN Committee on its implementation of its National Action Plan, A Canada Fit for Children

November 2004
- Senate Human Rights Committee authorized by the Senate to examine and report upon Canada’s international obligations under the United Nations Convention on the Rights of the Child with regard to the rights and freedoms of children.
- originally received a mandate to report back to Parliament by 22 March 2005
- BUT deadline for presentation of the Committee’s final report was ultimately extended to 31 April 2007

December 2004 - October 2006
- Senate Human Rights Committee met with witnesses in Ottawa and held a series of hearings across Canada.

14 September 2005
- Canada ratified the Optional Protocol Sale of Children, Child Prostitution and Child Pornography

November 2005
- Senate Human Rights Committee tabled an Interim Report with the Senate, entitled Who’s in Charge Here? Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children - indicated that the Convention on the Rights of the Child has not been incorporated into domestic law and gaps in its implementation - noted witnesses concerns about the lack of public awareness about the Convention and children’s rights in Canada

April 2007
- Final report of the Standing Senate Committee on Human Rights, Children: The Silenced Citizens : EFFECTIVE IMPLEMENTATION OF CANADA’S INTERNATIONAL OBLIGATIONS WITH RESPECT TO THE RIGHTS OF CHILDREN released.
- The Honourable Raynell Andreychuk, Chair
- The Honourable Joan Fraser, Deputy Chair

The Convention on the Rights of the Child - (children = under the age of 18)

UN Committee on the Rights of the Child

- created in 1991
- Based in Geneva
- Meets three times a year, for four weeks each session
- Comprises 18 independent experts (an increase from the original 10), each of whom represents a State Party to the Convention and is elected for a four-year term. (Canada is currently represented by David Brent Parfitt)
- Monitors State compliance with the Convention on the Rights of the Child and compliance with the Optional Protocols
- After studying each country’s implementation report, the Committee adopts “Concluding Observations” that comment on the state’s progress in implementing the Convention and recommend improvements in areas in which the state is falling behind.
- encourages all States Parties to make their reporting process transparent and to publish their reports, along with the Concluding Observations, in order to stimulate public debate on the Convention.
- Approximately once a year, the UN Committee holds general thematic discussions on issues related to children’s rights, such as the economic exploitation of children, the rights of the child in the family context, the rights of the girl child, and youth criminal justice. These discussions may lead to requests for studies; they may also serve as a basis for work on interpreting the articles of the Convention
- The enforcement mechanism established by the Convention on the Rights of the Child is the UN Committee on the Rights of the Child, which receives periodic reports on Canada’s compliance with the treaty

* However: Although the UN Committee has no enforcement mechanism, the Concluding Observations do have political, moral and persuasive authority

Continuing Committee of Officials on Human Rights

- 1975 - meeting of federal and provincial ministers responsible for human rights that included the establishment of the Continuing Committee of Officials on Human Rights (pg 10)
- Formed within the Human Rights Program of the Department of Canadian Heritage (17)
- Includes federal, provincial, and territorial representatives from every jurisdiction (17)
- Meets twice a year as a forum for dialogue and exchange (17)
- Examines issues associated with each of the human rights treaties, and discusses specific UN recommendations in more depth, including sharing best practices (17)
- Can make recommendations to the ministers responsible on its views concerning the development of Canada’s positions on international human rights issues. (17)
- Permanent mechanism for coordination and collaboration with provinces and territories regarding the ratification and domestic implementation of international human rights instruments (17)
- Prepares Canada’s reports to the UN treaty bodies - a painstakingly slow process that can take up to three years. Each federal, provincial, and territorial jurisdiction prepares its own submission. Reports from all jurisdictions are then consolidated by the Continuing Committee of Officials on Human Rights to create Canada’s final report to the UN Committee (Executive Summary pg xii, pg 18)
- When the [UN] treaty body issues its Concluding Observations, the Continuing Committee’s role is to keep provincial and territorial governments apprised of any comments on the scope of the rights guaranteed by the convention. (Executive Summary pg xii, pg 20)

* As a prelude to ratification, the officials of the Department of Justice consult with colleagues in other federal departments; other agencies; the provinces and territories through the vehicle of [the] continuing committee; and with Aboriginal groups and other non-governmental groups. (pg 10)

The Senate Committee’s criticisms of the Continuing Committee of Officials on Human Rights

1. When a UN treaty body issues its Concluding Observations, the Continuing Committee’s role is to keep provincial and territorial governments apprised of any comments on the scope of the rights guaranteed by the convention. However, these consultations are held behind closed doors. Although the Concluding Observations are available on the UN and Canadian Heritage’s websites, little other effort is made to publicly disseminate UN Committees’ comments and criticisms or to ensure public debate or follow-up (pg 20)

2. On the basis of testimony from across Canada and abroad, our Committee has found that the current reporting and dissemination processes are too complex, leading to problems of coordination, compounded by the omission of important stakeholders. Lack of transparency is a significant criticism. The Continuing Committee appears to work behind a veil of secrecy. Few in government, let alone the public, know anything about its composition, actions or deliberations. Although consultations held in camera do facilitate free discussion, they do little to promote awareness of the specific conventions and the state of human rights in Canada. (pg 21)

* 3. In addition, although the Continuing Committee itself meets twice a year, there have been no intergovernmental meetings on human rights at the ministerial level in more than 15 years. (?) In Promises to Keep, this Committee criticized the Continuing Committee’s inactivity in this respect. (pg 21)

4. Ultimately, the Committee’s comments made in Promises to Keep remain true:
The real issue and problem is not, however, that the Continuing Committee of Officials on Human Rights is not providing a public forum for domestic accountability and scrutiny of Canada’s implementation of its international human rights commitments. This is not its job. The real problem for Canada is that no other official body or institution of government is performing this function either.[56] (pg 22)

5. What is lacking is real political involvement in the process at a ministerial level. As well, there is no role for Parliament to provide input or to monitor events with respect to Canada’s human rights treaties. This democratic deficit – which is only increased by the lack of transparency inherent in the current system, in the absence of both awareness-raising and public input – leads the Committee to conclude that Canada’s current reporting process and follow-up mechanisms are wholly inadequate. (pg 22)

3. Presentation to the Senate Committee on the Rights of the Child - October 30, 2006

2007-06-28T04:04:00.001-03:00

If you are new to this site please select 1. and then work downward -If you have accessed a single posting click on "home" at the bottom of the page first

Visit our sister LINKS What's Wrong with Nova Scotia's Children and Family Service Act: Comments & Recommendations http://revealingtruthinnovascotia2.blogspot.com/ , Former Reviews: They can do it Again! - We want a General Inquiry! http://revealingtruthinnovascotia3.blogspot.com/ , and Totally Deceived: The Journey Out of Denial http://totallydeceived.blogspot.com/

On October 30, 2006 Linda Youngson and Thelma Gillespie went to Ottawa to make a presentation to the Senate Committee on Human Rights. Paid for by the federal government we might add.

This committee examines and reports back to the United Nations upon Canada’s international obligations in regards to the rights and freedoms of children. A document that Canada signed on to in 1991. Within that document are concerns for the rights and freedoms of children in the care of the state. This presentation was televised on the government channel CPAC.

You can view the transcript of this presentation on the senate website at http://www.parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/huma-e/12cv-e.htm?Language=E&Parl=39&Ses=1&comm_id=77

Linda Youngson and Thelma Gilespie gave reply to a number of statements given to this same committee by George Savoury, Senior Director of Family and Children's Services, Government of Nova Scotia when senate committee representatives came to Halifax June 16th, 2005. You can view this original meeting at this address http://www.parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/huma-e/12cv-e.htm?Language=E&Parl=39&Ses=1&comm_id=77 Ms Youngson and Ms Gillespie were there to make it very clear that the statements given by this government representative were “inaccurate and misleading” and that they had “a very different story to tell”.

This was not the first time that Ms Youngson was pointing out the failings of the government of Nova Scotia - In December of 2005, she and another fellow advocate, Marilyn Dey, successfully took the Minister of Community Services to force him to put together a committee to review the Children and Family Services Act and its implementation as mandated by law by Section 88 of that same Act. As it turned out, when this committee was in Halifax in June 2005, George Savoury deceived this senate committee into believing that this committee was indeed up and running, when, in fact, this committee, had not met since 1996.

Below is the presentation followed by the documents that were filed to the senate committee with this presentation. Seven senators were present at this presentation: Senator and Chair Raynell Andreychuk, and Senators Viviene Poy, Noel Kinsella, Nancy Ruth, Jim Munson (formerly CBC), Romeo Dallaire (our war hero from Ruwanda who wrote the Book Shake Hands with the Devil) and Sandra Lovelace-Nicolas (a hero for First Nations women- by making complaint to the United Nations so that Canada was shamed into giving women and their children back their rightful Indian staus)

Ms Youngson wants it known that the senate committee gave the presenters the respect of a quorum. Currently the people who are making presentations to the Minister's committee here in Nova Scotia that reviews the CFS Act are NOT being given this respect. The quorum for this committee is 8 but as few as 3 committee members are showing up for the presentations.

Presentation to Human Rights Senate Committee in Ottawa

October 30,2006

Honorable Senators. My name is Linda Youngson and this is my colleague Thelma Gillespie. We are both from Nova Scotia. First of all, we would like to thank you for giving us this opportunity to bring our concerns to this committee. For a number of years we, along with others, have been working as advocates for families who are in conflict with the Nova Scotia Minister of Community Services over apprehensions of our precious children and grandchildren. In this work, we attempt to give families encouragement and direction as they wind their way through the system. We go to court appearances as court observers, and accompanying families to various meeting and appointments as support persons.
We also conduct ongoing research, pulling up reports, papers, and government documents that provide evidence of what we believe is systemic corruption that has surrounded the apprehension of children in Nova Scotia for generations. In addition, we have established three blog sites where we are in the process of posting our findings. We also maintain contact with individuals in the media, encouraging them to exert their responsibility of taking the government to task to encourage government accountability to the people.

In September of 2005, we stumbled across the hansard of this committee where Senators Mercer, Pearson, Oliver, and Andreychuk, come to Halifax on June 16, 2005, to gather information from various provincial government representatives.
We were disappointed that we, who have a very different story to tell, only heard about this meeting after the fact. We were not aware of the senators coming to Halifax before hand. In fact, when I visited my local MPs office, they were astounded to hear that their own Liberal senator was in town for this hearing and they expressed to me that they had not even heard of this meeting.

In the future, this committee needs to ensure that the process for public participation is secure. We, the people, not just government representatives, need to be heard. For the sake of our children, and for the sake of the families, that politicians claim to support, the voice and the evidence of the people needs to be guaranteed in committees such as these.

In general, the representatives of the Nova Scotia government are in the habit of pulling out sections of the Nova Scotia Children and Family Services Act, as it suits them, quoting the Act, and speaking of it as if they actually follow it. In his submissions to this committee and in answer to direct questions from this committee George Savoury, Senior Director of Family and Children's Services, Government of Nova Scotia made statements that were inaccurate and misleading.

Firstly, he made reference to Section 88 of the Act, whereby the Minister of Community Services is mandated to appoint an Advisory Committee to review the Children and Family Services Act and its implementation on an annual basis, as if this committee was an ongoing reality. However, the truth is that since the Act came into being, in 1990, this committee had only been formed twice, in 1993 and 1996.

In December of 2005, exactly six months after this senate committee meeting in Halifax, another advocate, Marilyn Dey, and I took the Minister to court to force him to follow this section of the Act. Though we won, to understand the mindset of this government, it is important to note that the legal argument the government brought to this case was that “The Crown only owed its duty to the Crown” and that individual citizens, like Ms Dey and I, did not have the right to bring the government to court to obey it’s own laws!

A second subject that Mr. Savoury mislead this commission on was that children 12 yrs and older have access to legal counsel in Family Services/ Children Aid/ government Agency cases. It is true that the Act states that this SHOULD be happening but we have no knowledge of any child 12 years or older who has been able to obtain this legal right of independent legal counsel.

It is only when children are criminalized, sometimes by individuals within the very system that is suppose to be looking after their “best interests”, that they are allowed criminal lawyers. But the provincial government has stymied all attempts, that we are aware of, when children attempted to get lawyers for their cases against the Minister of Community Services. Knowing this, we were surprised when Senator Oliver, assuming this right was being allowed, suggested a lower age of 8 or 9 years of age.

Thirdly, Mr. Savoury praised the newsletter, The Voice, which is written by youth in the “care” of Halifax Children‘s Aid . However, this publication represents no voice at all, for the true voice of the children, that shone through in their original publication, titled Listen! The System: It Doesn’t Work For Us, has been suppressed and censored. We believe the current newsletter is no more than a glitzy, glossy propaganda tool for the Minister of Community Services.

Thank you honorable senators. My name is Thelma Gillespie and I will continue to itemize our concerns.

When Mr. Savory spoke before the senate committee in June of 2005, he also mentioned a recent presentation of grandparents before the legislature's Community Services Committee. While speaking on this he glibly mentioned that “most of these situations occur because of divorce proceeding” . Well, it so happens, besides my advocacy work on this subject, I am also a founding member of the Grandparenting Rights Association, the very group to which Mr. Savory was referring. As a member of this group, I want to make it very clear that our concerns stem not only from families torn asunder due to divorce but also families torn asunder due to the actions of the Minister of Community Services when children have been unjustly apprehended!

In conjunction with the rights of the grandparents, I would also like to make it clear, that contrary to Mr. Savoury’s comment that qoute: “The Children and Family Services Act requires that we always consider relatives as our first place placement for children as opposed to foster care or residential care“ unquote , this is not being done. In fact, relatives who come forth to request placement are often subjected to shoddily executed assessments which are then used against them.

Both Ms Youngson and I had the assessments in our cases reviewed by well respected PHD psychologists and both of these psychologists were appalled by the bias, unethical, and improperly done assessments. And though we both filed formal complaints to the Nova Scotia Board of Examiners in Psychology, both our complaints were dismissed, with no right of appeal. In addition, we were both informed, in writing, not to bother asking any questions concerning our cases because no replies would be forthcoming.

Mention was also made by Mr. Savoury of the Ombudsman’s office. Well I do have a few things to say about this as well. Both Ms. Youngson and I had 3 lengthy meeting with this office. At the time, they were advertising their office on websites and with pamphlets as representing children in care, but through these meeting, and researching their financial statements, we discovered that they had not been doing so. We also discovered that they had no mandate and no desire to get jurisdiction over the children in foster care, where the youngest and most vulnerable children are placed.

We have no faith in the ombudsman’s office, for years, they sat on allocations of money that they were to spend overseeing the rights of these children in the care of the state, but they chose not to take jurisdiction. And since we brought their financial reports to their attention, they have since ceased to itemize a specific category for the children section in their financial statements.

Since these meetings with the Ombudsman’s Office, we have obtained government documentation that states that our children are currently being sent out of province to Alberta, and out of country to Utah. Since the Ombudsman’s office is not doing its job looking after our children’s rights in province, we have no reason to believe that they are looking after their rights when they are sent out of country.

Senators, we understand that you would like to take a good report back to the international committee concerning the rights and well being of our children in the care of the state, but you have an obligation to bring a balanced report that includes the voices of the families who have experienced the system first hand. We are not government representatives. We are families who love our children.
We are here to inform you that, in Nova Scotia, nothing in the system, concerning our children being apprehended by the state, is working and neither are any of the checks in balances, that are suppose to keep this system accountable, working either. We are currently lobbying for a general inquiry into Family Services/ Children Aid/ the government Agency in the province of Nova Scotia.

We have submitted a number of written documents (listed and hyperlinked below) to support and clarify the statements made in this presentation.

1. What's Wrong with NS's Children and Family Services Act:Comments and Recommendations
2. The Checks and Balances Not Working
3. Ombudsman's Office : More Gripes Please
4. Child Denied Right to Independent Lawyer
5 The Cry for Help that Went Unheard
6. They're Shipping our Children to UTAH!

We implore you to read these documents and we encourage you to access the blogspot address given in this documentation. - Thank you

Questions from the senators:

Senator Kinsella: What is the situation in Nova Scotia child protection unit? In the province of New Brunswick, there have been some bad experiences over the last 18 months. Indeed, some children were lost. What is the situation in Nova Scotia? Does that fall within the purview of your work?

Ms. Youngson: You are asking me a very broad, general question. The bottom line is that nothing is working as it should, and neither are any of the checks and balances that are supposed to be in place when families or parents are looking for recourse.

Senator Kinsella: The difficulty of coming to this branch of the Parliament of Canada is that we do not have jurisdiction over what goes on in the Province of Nova Scotia. I am curious to learn what you think this committee is able to do.

Ms. Youngson: My understanding is that there is a children's section concerning human rights about which you have to report to the UN; is that correct? My understanding is that this concerns children in the care of the state. I do not know of any children who are in the care of the state under the federal government; provincial governments have that responsibility. The bottom line is that you met with all the government representatives when your committee came to Nova Scotia. You heard what they had to say. We do not agree with anything that the provincial representative said concerning the children's state. We are concerned with the Children and Family Services Act.

One of the main reasons Marilyn Dey and I took the Minister of Community Services to court over section 88 is because it is just the tip of the iceberg. We have been court observers for years and we know the act. Both Marilyn Dey and I applied to be part of the committee and of course, we were blocked even though we had the qualifications. Recently, they posted an advertisement in the paper calling for the public to make submissions to the committee. What can I tell you except everyone like us had something critical to say about the government? We were originally given communications saying call such-and-such a number and we will schedule in a time. When these people phoned, they were given new qualifications to meet with the committee. One of the new qualifications was that if they wanted to talk to this committee, they had to find the part in the act to which it applies. Number one, normal citizens of Canada do not know the act. The job of the committee is to put two and two together. And there may very well be things that the act does not cover. There may be things missing in the act. Maybe we should make some new amendments.

When I talked to the person who was scheduling I was told, ``Linda, you have made such wonderful submissions. You have pointed to all the specific points of the act that concern you. You do not need to come to the committee.'' I said, ``Oh yes, I do, and oh yes, I will.'' At this moment, we still have not been advised of our scheduled meetings. I will believe it when I see it.

Senator Kinsella: Is this a review on the Nova Scotia Children and Family Services Act?

Ms. Youngson: It is the reason why Marilyn Dey and I took the minister to court. It states, ``The minister shall, on an annual basis, put together a committee to review the Children and Family Services Act and its implementation.'' There are supposed to be two parents on the committee. I say that it should include grandparents, too. It says, ``Parents who have had their children in care or have had their children in fear of care.'' What I can tell you is that the people who were appointed were all the inside boys and girls. As I said, both Marilyn Dey and I have a lot of knowledge of the act and experience as to how this act is implemented. We applied because of our experience in advocacy work, but we were denied. People who did not even know the act existed said, ``They gave us this piece of paper. I think it is the act. They told us to read it.'' Those people were appointed to the committee.

Senator Kinsella: To find a link between this particular piece of legislation under the jurisdiction of the Nova Scotia legislature and our committee one might look to the United Nations Convention on the Rights of the Child. This committee is seized with that convention. The periodic reports submitted by Canada are prepared with input from all jurisdictions, which obviously includes the Government of Nova Scotia. The Department of Canadian Heritage has been putting together the Canadian report with all the components from the various jurisdictions. When that report is tabled at the United Nations, the committee that reviews it is anxious to hear from non-governmental organizations. When you look at the Canadian report, look at section such-and-such that deals with Nova Scotia.

The Chairman: I thank you for that comment. Our task is to look at the United Nations Convention on the Rights of the Child. When we went to Nova Scotia it was to contact as many people as possible who understood the United Nations Convention on the Rights of the Child and who wished to speak to that issue. Consequently, our list included some academics, some NGOs, and probably more of the provincial people who have been part of the process. Part of our task is to educate people about the convention and the ways and means that they can make input to it. You have quite properly put it forward in that context. I thank you for that.

Senator Kinsella: Ms. Gillespie and Ms. Youngson bring forward the fact that real life issues are falling through the cracks in terms of the convention. We are indebted to you for that. . . .

Senator Dallaire: My other question is about children who are moved around under the child protection system. In Nova Scotia, is there a sophisticated methodology of follow-through from one family to another with the reasons why they are being moved around? Is there a psychological assessment? Do they have access to psychologists or psychiatrists? I am taking for granted by the arguments we have heard that children need warmth and love. Are the children who have experienced trauma obtaining that support?

Ms. Youngson: As far as assessments are concerned, I have covered the concerns we have in the documentation I filed with this committee. We have no confidence in assessments at all. We see that mental health care providers in Nova Scotia are eager to maintain the lucrative contracts they signed with the government. We had a well-known and respected Ph.D. psychologist conduct a public speaking session for us, and she spoke very candidly about her concerns with respect to the children's aid services government agency responsible for these children. Ms. Gillespie attended that presentation as well. The psychologist stated that as much as there is a problem across the province, there is a specific concern in the Halifax-Dartmouth area. We do not have any problem understanding why there is a great concentration of mental health care workers in the Halifax-Dartmouth area who need to be fed and who need to pay their bills.

Two different Ph.D. psychologists reviewed two assessments completed in different cases and they were appalled. There was nothing good, ethical, right or correct about those two assessments. Let me provide an example, and I will try to explain it such that it is as understandable as possible.

In one of these cases, a test was administered and our psychologist stated that they did not have the right to administer that test. Before administering that particular test, one must be administered a level 1 test. If the level 1 test indicates there is a problem, then and only then does one have the right to administer a level 2 test. A level 2 test has no "NORMAL" in it at all. It does not matter to whom the test is given; the person will end up with a negative psychological label. If you do not give the level 1 test that clarifies or verifies that you have the right to administer the level 2 test, what are you doing? That is a deliberate attempt to put a negative psychological label on a person.

The Chairman: Senator Dallaire, we are 10 minutes behind and we have the next panel waiting. As usual, we are short of time.

I want to thank our witnesses, Ms. Youngson and Ms. Gillespie, for attending. You have made your point that the systems are in place, but they need to be implemented appropriately, if Canadian citizens are to profit from that law. That is certainly on the record, and we thank you for your appearance here today.

We have also given you a suggestion that with respect to child protection issues, there is a report that goes to the United Nations and it can give you a further avenue for expressing your concerns where provincial authorities are in question.

Documents filed with the Senate Committee:

1.Concerns and Recommendations

See link to the left orhyperlink here:

1. What's Wrong with NS's Children and Family Services Act:Comments and Recommendations

2.The Checks and Balances Not Working
By Linda Youngson B.A., B.Ed., M.Ed.

Though we have serious concerns about the system that oversees the children who are taken into the “care” of the state, we also have extreme problems with the checks and balances that are suppose to be in place when families begin to understand that the system is not working the way it should and they are attempting to redress the injustices while their cases are before the court, or to get redress once their cases are out of court. The apparent checks and balances which we have identified as not working the way they should include:

The family lawyers representing the family, the non-existence of independent lawyers for the children
The Nova Scotia Barristers’ Society through which one is suppose to be able to make complaint against the lawyers,
The Ombudsman’s Office-Children’s Section,
The assessments of the children and family members, and the Nova Scotia Board of Examiners in Psychology,
The Minister of Community Services’ Advisory Committee, and
The Politicians.

Attempt to understand the frustration that parents go through when they are battling to rescue their children from the unjust system, only to find themselves stonewalled by the various establishments that are suppose to be there as checks and balances. The first and largest frustration being that some of these checks and balances, like the Ombudsman’s Office, the Nova Scotia Board of Examiners in Psychology, and some politicians refuse to be involved when the case is still before the court. Where is the logic in this? It is while the families are fighting to retain their children, that they need help, assistance and direction to force the system to work the way it should. Waiting until the court case is over and their children have been placed in permanent care, is too late!

Family and Children’s Lawyers

( See also attached document: One Ongoing Futile Attempt to Obtain an Independent Lawyer for a Child Over 12 Years Old as Mandated by the Nova Scotia Children And Family Services Act )

Family lawyers are doing nothing concrete to fight for their clients or to battle the corrupt system that has engulfed the families. Neither are they dealing honestly with their clients. Indeed, it is not uncommon, when families raise specific concerns with their lawyers, that they receive promises that these issues will be raised in court. However, come court time, these promises are often ignored and it is not unusual for families to find out later that an agreement was struck between the government’s lawyers and the family’s lawyers, behind the family’s backs, without their knowledge or approval.

In addition, family lawyers are doing nothing to protect their clients from the shoddy assessments used against the family. They do nothing to prepare their clients for these assessments, nor are they following up with the clients to insure that they were properly conducted. Though there are many legitimate legal arguments lawyer’s can raise against specific tests, the interviews in these assessment, the way they are conducted, given, written, and interpreted, the family lawyers in Nova Scotia are doing nothing.

Instead, the family lawyers are passively allowing the government to lead the case, leaving the families no legitimate representation or defense. Worse still, it can be stated that most of these lawyers, by either their actions or inactions, are actually working against their own clients. In all our years of advocacy work, we have never found one family court lawyer that we would recommend to a family. It makes no difference if these are legal aid lawyers (whom we see as NOT being independent from the provincial government system and therefore in conflict of interest) or well-paid family lawyers hired by the families. We see that they are all equally shirking their duty to properly represent the families.

The families that seem to have the most success are those who, for whatever reason, have hired non-family court lawyers. This pervasive problem with family lawyers here in Nova Scotia, has lead us to only one conclusion: there is collusion and corruption between the family lawyers who are suppose to be protecting the rights of the family and the government of Nova Scotia that apprehends these children.

The inept representation of these lawyers leads to three possible outcomes, with many families sliding through all these outcomes in stages:

The families passively allow themselves to be continually victimized by their own lawyers, naively believing that, despite the lawyer’s apparent inability to fight the case, that the Supreme Court Family Division justice or Family Court judge will see the all too apparent ineptness and justice will be done in court despite all this;
They begin the endless succession of hiring and firing one lawyer after the other, as they slowly begin to realize that this is a systemic problem, not limited to one incompetent lawyer and/or;
Out of frustration, they finally decide to self-represent, with the thought that at least they know they will not, knowingly, work against themselves.

The Children and Family Services Act states that children 12 years or older are suppose to have the ability to have their own independent lawyers in the court case concerning the Minister’s attempt to take them into custody. But as advocates we have never found a single child who was able to do so. Instead we have found families and children who have been told all sorts of lies, one after the other, in an attempt to waylay them and block this right. When one lie didn’t work, another would be thrown in its place.

These are just some of the problems and examples of desperation we have seen concerning this subject:

Most children in “care” do not know that they have the right to have their own lawyer- No one is informing them of this right
The governments lawyer’s argue against the children having their own lawyer based on the sole argument that 12 years old is too young (this is contrary to the act itself),
When parents request independent legal counsel for their children, they may be informed by the Agency and their own lawyers that the Minister’s lawyer is looking out for their best interests
Parents have been told they cannot assist their child in any way to find their own lawyer,
Parents have been wrongly informed that the guardian ad litem’s lawyer is the child’s lawyer.
Legal Aid certificates are denied non-legal aid lawyers to represent these children
The Legal aid office and lawyers have ignored communications from children looking for legal aid
One parent approached a number of non-legal aid lawyers only to be told that there is no mechanism that they are aware of by which they can represent these children
One child was so desperate to have her voice heard, she wrote a letter to the court concerning her wishes and had her mother file it in court for her. This was only done because the mother personally filed this herself. When the mother’s lawyer found out about this action, he strenuously attempted to retrieve it- He was unsuccessful and, in the end, this letter turned the case around for this mother and daughter.

The Nova Scotia Barristers’ Society

Bringing complaints before the Barristers’ Society is an option that few choose for a number of different reason. If families have fired a lawyer and still have their case before the court, they already have their hands full. Also, bringing complaint against one lawyer, while attempting to hire another makes it almost impossible to hire another, and working with another lawyer while making complaint can make the current lawyer very uncomfortable and has even led to verbal abuse against clients by their current lawyers.

If the case has finished and they have been lucky enough to get their child back, they are afraid to rock the boat because their experiences have taught them how powerful and unjust the system is, and they are well aware that, in retaliation, the system could easily re-victimize their families or the families of relatives or friends. And if they have lost their battle for their children, they are almost always emotionally and financially spend. And if they have not been lucky enough to hook up with fellow victims or genuine advocacy workers, they are unjustly shamed into silence.

And last but not least, many people do not file complaints because they have no confidence in the Society to do the right thing and see it as a waste of time and an additional drain on their emotions.

Let me quickly cite 2 complaints made to the Barristers’ Society. In one case, the former lawyer was hauled into court by the justice who was presiding over the ongoing case and was raked over the coals concerning 3 points. When complaint was made against the lawyer to the Barristers‘ Society, though a large number of evidentiary documents were listed in the original complaint, the Society only looked at 5, and then, very quickly, closed the case, citing 3 “cautions” against the lawyer. Though the lawyer was quietly removed from the legal firm she was working for, and she worked for a time in her mother’s real estate business, she later resurfaced working for the provincial Justice Department under a different name. (She is not the first person who has publicly gotten into trouble and eventually showed up working for the Justice Department.)

The other complaint concerned conflict of interest. After the case was finished, the Third Party, the maternal grandmother in the proceedings, stumbled upon official documentary evidence concerning her own lawyer, and one of the lawyer’s working for the provincial government agency in the case. Both of these lawyers had been involved in a private adoption that the mother had arranged 3 years earlier.

In this case, the mother had NOT bonded with the child, in part precipitated by the grief she felt over giving her first child up for adoption. It is important to note here that the adoption of this first child did NOT involve the Agency and was a private adoption.

Though both the maternal grandmother and the mother had originally requested services for this mother‘s “baby blues, these were never given. Instead, the mother was taken advantage of with the government Agency workers convincing the mother to give up her second child for adoption. This left the father and the maternal grandmother fighting against the Minister of Community Services, with the government taking every opportunity to create a rift between the mother and the rest of the family.

The documents found by the maternal grandmother showed that the original lawyer hired by the maternal grandmother had been her daughter’s lawyer for the previous private adoption and the government’s lawyer had been the lawyer representing the adopting parents. Put this together with the fact that the mother had made statements that she wanted the people who had adopted her first child, to adopt her second.

So, not one BUT two lawyers concerning this case with the Minister were in conflict of interest. The maternal grandmother’s argument was that neither lawyer had identified this conflict, and if she had known this conflict, she never would have hired the her lawyer in the first place, and she also would have challenged the right of the government’s lawyer to be in the case.
Incredulously, the Barristers’ Society declared that they saw no conflict of interest and the complaint was dismissed!

Ombudsman’s Office-Children’s Section

(See attached documents: More Grips Please and The Cry for Help that Went Unheard)
For years the Ombudsman’s Office was declaring that they were overseeing the rights of the children who were in the “care” of the state, on websites and text material, when this was indeed a fallacy.

Understand, we see this office as a conflict of interest - NOT independent. It is a provincial office, overseen by a retired RCMP official, Dwight Bishop, who was rigorously trained to protect the government.

In 2004, when a newspaper article about this office appeared in the paper, we decided to investigate further. Originally, just identifying myself as a citizen of Nova Scotia, I phoned the Ombudsman’s office and spoke with the head of the Children’s Section. In this conversation, this representative informed me that this office was there to protect the rights of the children who had been apprehended by the Children’s Aid Society, Family and Children’s Services and the government Agency, and that they were there to take any complaints the children might have against the system, their workers, or the foster parents.

Meanwhile our research of financial documents of the Ombudsman’s office posted on the website showed that this office had “NOT taken jurisdiction over the children in care”. After sourcing this information, we arranged to meet with the head of the Children’s Section,.
We were surprised that, now, in person we were being told that they indeed had NOT been representing the children who had been apprehended. Their excuse being that because they did not have jurisdiction over the children in the privately run Children’s Aid Society and Family and Children’s Services, they had NOT taken jurisdiction over the children they could, the children taken by the provincial government Agency.

This made NO sense - They chose to NOT take jurisdiction over the children they could because they did not have jurisdiction over them all! At this meeting, we were told that they planned on taking jurisdiction over all these children in the near future.

At a second meeting, since the Ombudsman office had made such a clear distinction between the privately run establishments and the government Agency, we though it might me important to ask specifically about the children in foster care. In response to our inquiries, we were informed that the Ombudsman’s Office did not have jurisdiction over the children in foster care, believing there was no need to do so.

But stop and think about this- the children are originally taken into care, through court action, by Children’s Aid/Services and the government Agency BUT then most of them, especially the youngest and the most vulnerable, are then put into foster care! This revelation meant that almost all the children taken into care by the state would NOT be represented by the Ombudsman’s Office- Children‘s Section.

When we explained the need for having this jurisdiction, with specific examples of abuse that we were aware of in the foster homes, the 2 women we were speaking to ended the meeting with the assurance that they now agreed that they did need to get jurisdiction over the children in foster care.

Imagine our surprise when we arrived for a third meeting to be told now, in no uncertain terms, that the Ombudsman’s Office saw no need to obtain jurisdiction over the children in foster care. Dwight Bishop, the ombudsman, himself, was in attendance at this meeting, completely dominating and controlling everyone. The other two women from the previous meetings sat at the table in total silent. And every time we attempted to speak, we were interrupted and spoken over.

We have since sourced government documents verifying that many of the children apprehended by the Minister are being sent out of province as well as out of country - One such place is Cinnamon Hills in UTAH in the United States. We also have documentation showing that the California government was so concerned about this facility in Utah that, at one point, they abruptly pulled funding for this this facility and immediately recalled all their children.

We are very concerned about the well-being and the whereabouts of these children - Once they have taken children into permanent care and shipped them out of country, who is watching out for these children? What, we ask, is the Ombudsman’s Office doing to protect their rights? What avenues of complaint do these children have to complain against the out-of-province and out-of-country facilities that they find themselves in?

We have no confidence in this Ombudsman’s Office to oversee the right and complaints of the children who have been apprehended by this province. It is not independent. This office has shown no desire to defend and represent these children . For years, they had been funded to do exactly this, yet they chose Not to take jurisdiction over any of these children.

We need a truly independent organization that really care about these children to take jurisdiction over these children who have been apprehended by the government.

Assessments and Nova Scotia Board of Examiners in Psychology

We have no confidence in assessments conducted either to justify apprehending a child in the first place or keeping a child in the system, whether these are assessment of the child or the family members. There is too many people making too much money with the assessments as well as the various mental health “services” proceeding and/or following these assessments. There is also concern that it also behooves the system, paid caregivers, foster parents and group home operators, as well as adopting parents, to have the children classified as “special needs” because then more funding is made available to them. And it is very important to note that there is a very tight connection between the government department responsible for apprehending these children and the mental health department. We are concerned that they encourage and financially feed off of each other.

Families have limited options fighting these assessments. As mentioned above, the lawyers of the families do nothing to fight the assessments, in fact, knowing the all too often dire outcomes of these assessments, they actually speed their clients on to submit to these assessments with the false expectation that “the sooner you submit to these assessments, the sooner you will get your child back”.

On the rare occasion when something is attempted to fight the assessments, it has only happened because the family is self-representing or they have put extreme pressure on their lawyer to do so. However, these actions by lawyers are limited and the families find themselves constantly battling their lawyers to do their job.

In one case, where the assessment against the mother was the main argument for taking the child away from her mother, her lawyer, who had a reputation of being “bulldog” in court, only submitted a half page letter by a psychologist in her defense!

In another case, the grandmother accused the assessors of deliberate misrepresentation of statements made by her and other supportive witness in the interview section of the assessment. An order to have the original handwritten interview notes presented in court within 10 days, was originally stalled with excuses of not having a working photocopier. This was eventually followed by a fraudulently produced handwritten document. Two to 3 months later, the assessors finally confessed to withholding the requested documents, but then, in a signed letter, they also confessed to shredding the all important documents - the proof that the grandmother would have had that the assessors had deliberately and fraudulently misrepresented her and her supportive witnesses!

The PHD psychologist who spoke strongly against all aspects of this assessments, including the wrong use of tests and an inappropriate testing process, as well as blatant bias, testified to the important fact that such original interview documents are to be retained with the file so that when psychologists, like her, or other officials are called to review the assessments they can go back to the original documentation on which the assessment is based.

In another case, knowing the deliberate misrepresentation of interview notes, a mother requested that tapes be made of the interviews. She valiantly fought for this right, but was adamantly refused. Later a well known and well respected local PHD psychologist, Carol Pye, in a public speaking appearance we arranged, candidly shared with us her grave concerns with assessments done for Children’s Aid/Services and the government Agency. In this presentation she spoke about the right and the importance of having interviews taped, to protect not only the person being interviewed but also the interviewer. We fear that the system in Nova Scotia is so corrupt, that they have no concern for protecting themselves for they are more then aware that the system is stacked against the families - not them. So, in the end, the right to tape interviews are denied because the evidence of these tapes could assist the families and be detrimental to the assessment services.

In yet another case, a mother knowing the abuse of these assessments, and fearing that the government was determined to have her child taken away at any cost because she had been publicly outspoken against the system, refused to submit to an assessment. This was consequently used against her. Though the mother was not found to have neglected or abused any child, her young child, who was still breastfeeding, was taken into permanent care.
When there are concerns about the assessments, the avenue of defense are limited. One option is to hire an independent psychologist to review the assessment. However, in order to do this one must first hire a psychologist with equal or superior credentials. Then one needs to find a psychologist who is willing to honestly speak up against his/her own colleagues. This is not an easy task . As, Rilda Van Feglan, the registrar of the Nova Scotia Board of Examiners, informed us, “this is a small province and the family of psychologists are small and everyone knows each other“

And last but not least, you need the funds to pay for this review and then pay for the psychologist’s appearance in court. Many of the people who are victimized are well selected: poor, single, and oftentimes separated from supportive family etc. Few can afford this defense.
But, and this is very important to note, even if a family does get this review of the assessment done, this expert testimony of a PHD psychologists speaking against the system is summarily dismissed. One such witness was even rudely dealt with by the justice, for daring to speak against the government’s psychologists.

The last resort is a complaint to the Nova Scotia Board of Examiners in Psychology. However, to have even a hope in this process, one must first have had the assessment reviewed by a PHD psychologist. Only 2 women that we are aware of have made this complaint.

One woman approached this board a few years previous looking for redress. However, her right to file a formal complaint was never explained to her. At one point, Rilda Van Feglan, the registrar of Nova Scotia Board of Examiners in Psychology and Dr Wine a psychologist, together, wrote a letter to officials in Community Services and the Family Court requesting a new investigation. In this letter they chronologically citing the major events in this woman’s case including the names of a number of professionals who shared the concerns this woman was bringing forward. These names included a medical doctor, a psychiatrist, officials from Family and Children Services and the Agency of Community Services, and a well known and respected PHD psychologist from Ontario who testified in court for this family.

This woman had the assessments in her case reviewed by Dr Marlies Suderman a psychologist who was then the Director of Violence Prevention Services In London Ontario. This psychologist cites concerns of bias, inappropriate interview techniques, disregard for the voices of the children involved in the interviews, inappropriate interpretations of statements made by interviewees and test results.

The two women who filed individual formal complaints to the Nova Scotia Board of Examiners in Psychology did so, at the same time, supporting each other. Over the course of a year these women asked the board a number of questions including clarification of the complaint process and the names of the people on the investigation teams - All innocuous but valid questions. But they were continually frustrated by a persistent avoidance to their questions. When a year had passed they were both suddenly sent written letters informing them that their complaints had been dismissed and were bluntly informed not to bother asking the board any questions concerning their cases because no answers would be given!

When they both filed letters to appeal the decisions, they were summarily informed that they had no right to appeal- BUT if the decision had gone the other way, the psychologists involved would have had the right to appeal.!

The next step would have been taking the psychologists to court to make them accountable through the court system BUT these women have NO confidence in the court system and have no intention of throwing good money after bad

So where we ask is the justice and redress?

The Minister of Community Services’ Advisory Committee

[See Section 88 from the attached document entitled Concern with Nova Scotia’s Children and Family Services Act (1990)]

According to Section 88 of Nova Scotia’s Children and Family Services Act (1990), the Minister of Community Services is suppose to appoint a committee on an annual basis to review the Act ands it implementation. Two of these members are suppose to be parents who have had their children in care or fear of having them placed in care.

When it was originally brought to the attention of the government, that this had only been done twice, in 1993 and 1996, the government then scandalously, and fraudulently claimed that they had also appointed this committee and done this work in 1999. Later, the government fraudulently claimed this committee also had been appointed in 2001. We have sourced the documents concerning these claims and we know the government’s claims are untrue.

After writing the Minister of Community Services twice concerning this negligence and receiving promises from the Minister that were not fulfilled, Marilyn Dey , and I, Linda Youngson took the Minister to court to force him to obey the act and appoint the committee.

It is important to note that when this went to trial, the government’s legal argument was that “the Crown only owed its duty to the Crown”, and that individual citizens like Ms Dey and I did not have the right to bring the government to court to make it obey its own laws. This is evidence of the arrogant mindset of this government. And this supports what we have been saying all along about the government and this Act - there is very little of the Act that they actually follow. This government believes that it is a law onto itself and that they are answerable to no one - not even to the people of this province.

Then there was some flurry in our province when the committee members were appointed -basically it seemed that only inside members and the friends of the government need apply. And though one of the qualifications to be a member of this committee was to have knowledge of the Act, we are aware that some of the “in crowd” didn’t even know the Act to see it when given copies to read.

Both Ms Dey and I applied for this committee, and, knowing this government, we were not surprised to find ourselves locked out. We have since reapplied for the following year.
The government then buried an advertisement in the newspaper inviting the public to make submissions or meet the committee to make presentations. The final dates for submissions and requests was October 20th, 2006. Though most of us had made our requests to meet the committee well in advance of this date, we were informed to phone in to get a specific date to meet the committee. Then, imagine our surprise, when, just days before this deadline, as we were phoning in to get our appointments, Lynn Cheek, the committee member placed in charge of scheduling, came up with a number of last minute qualifications to meet with the committee or make submissions.

People were told that they had to link anything that they wanted to bring before the committee with specific sections in the Act and when people who did not have computer connections asked for copies of the Act they were refused and those who did have computers were given such poor instructions that even one applicant, a writer and journalist gave up trying to find it.

Others were told outright by Lynn Cheek that it was her determination that their concerns did not line up with any section in the Act - First of all, we are well aware that Ms Cheek is not familiar with the Act herself and she is NOT qualified to make that determination arbitrarily. In addition, it is possible that important concerns dealing with Children’s Aid/Services, the Agency, the children in care, the court process, etc are not presently covered by sections of the Act. In this case, the committee needs to be mindful of possible amendments that may be needed.
I, myself, was informed by Ms Cheek that because my submission was so thorough including specific references to the various sections of the Act that I did not need to meet with the committee! So it seemed that whether one complied with the last minute requirements or not, Ms Cheek was determined to keep our voices out of the committee.

And last but not least: though the original advertisements for the public participation gave only a fax number and e-mail address, Ms Cheek, only days before the deadline, was suddenly stating that any new request now had to be made through the mail “with a stamp“! !
However, kudos to the media for doing their part in setting this government straight. After we spoke with the media, the media immediately contacted Ms Cheek on her direct phone line. Within hours her tone had changed and we now understand that we will be given times to meet with the committee - But only after the committee decide on new dates to fit us all in. From this, I gather, they had planned on successfully keeping us out.

Politicians
(See the attached article - The Cry for Help that Went Unheard)

We are tired of knocking on the doors of politicians who pretend concern and then do nothing. One politician who recently retired from provincial politics candidly informed one of our advocates that even though we raise valid concerns, we would not get anywhere because our issues were not “vote getters” .

Shame on our politicians when they ignore legitimate cries for assistance. There have been many. In 2001 the youth under the “care” of the Halifax Children’s Aid put together a Newsletter entitled The System: It Doesn’t Work For Us. In this newsletter, through graphic drawings, collages, and articles the cry for help is clear.

It is apparent that these youth were encouraged to have a voice, but though all the politicians of the day were given copies of this newsletter, not a single one responded to the cry that so blatantly screamed from its pages. Like the people who looked upon the naked Emperor who paraded around in his “new clothes“ invisible to everyone, these politicians chose not to rock the political boat by acknowledging what was actually within the pages of this newsletter.

We implore this senate committee not to ignore our concerns as you write your report for the United Nations. We understand that you would like to bring “tidings of great joy” to the international community in regards to Children’s Rights in Canada. But you must bring the whole truth of the situation of our children to the international community. We are not government or government representatives. We wield no great power and carry no swaying influence unless you count the hearts and tears of families who love their children, families that still cling to the belief that someday the injustices in this country will be righted for the sake of our children. You have a responsibility to bring forth our voice, the voice of individuals citizens, and families of Canada who have a very different story to tell.

3. More Gripes Please?

I am so frustrated. . . . and so tired. I have just returned from a 2 ½ hour meeting with the Ombudsman’s Office of Nova Scotia. This meeting, the third of a series of meetings with this office since August of 2004, has manifested the roller coaster downturn that unfortunately we, who are trying to fight the system, have come to expect. As Thelma and I walked the hallway after the meeting we were already discussing other avenues to pursue. “We are resistant. Knock us down and we will pop right back up again” I defiantly declared as we headed for the elevator. Like those carnival games you see on TV. Pop the pegs down with a mallet and they pop right back up again!

It wasn’t that everything that was said at this meeting was negative, but at the beginning of the meeting the Ombudsman, Dwight Bishop, wasted valuable time expressing to us the wonderful “evidence” of the good works of the Foster Care system that had been revealed to him at one of their presentations . Yes a propaganda presentation! Some of the people in our group, I included, had already experienced such propaganda meetings.

“They are doing a splendid job. There is no need for us to get involved with them” the Ombudsman resounded. To me, this was mind-boggling! For a man whose job it was to hear complaints against municipal and provincial government offices and establishments, it was bizarre to hear him defend these people. (We discoveried that the Ombudsman, Dwight Bishop, was a retired RCMP office - a person who is rigorously trained to protect the government at all costs!) Such expressions devalued our horrendous experiences , and left us sincerely wondering if we had come to the right place.

Personally, except for the last few minutes of our 2 1/2 hour meeting, I was noticeably and purposely ignored by the Ombudsman. The ombudsman would not even look at me, steadfastly staring at Thelma, even when I attempted to interject. In fact, whenever I spoke, his gaze on Thelma intensified, and he interrupted me like I was totally invisible. At one point, I remember rolling my eyes and I mouthing to the assistant ombudsman, who had been so kind and attentive to us in the last meeting, “He’s totally ignoring me.” After the meeting, Thelma expressed to me that she believed he was “afraid” to speak to me. By this I gathered, that my reputation as a knowledgeable speaker had proceeded me and that he had no intention of verbally engaging with me.

Well now that I have let out a little steam, let me tell you how we got to this third visit.

Over time, a number of people I had connected with over our common concerns about this corrupt system had, now and then, brought up the subject of the ombudsman’s office. “The ombudsman’s office. They’re paid by the government! How are they going to help with our concerns against the government system” was the general reply. Years previous, Thelma had gone to this office, taking in all her documentation but they did nothing to assist her.

As for the alleged existence of a “Children’s” Ombudsman’s office, well that just seemed to be a fable-of-fantasy. There had always been whispers of such an office but no one seemed to know if it really existed. Even the people at Dalhousie Legal Aid didn’t seem to know. But, though rumors of the existence of a Children’s Ombudsman’s office would surface from time to time, none of us thought it worth our while to expend energy searching for this elusive holy grail sponsored by the very government that was victimizing us.

However, on July 15, 2004, a most amazing article appeared in the local newspaper. Ombudsman: More grips please the story banner read. Above the four-columned story two serious faces peered out of the paper, strangely unified by their somber gazes despite their physical differences. One was a tall distinguished white haired gentleman, perfectly groomed, with a well-trimmed mustache, white shirt and conservative, tidy, checked tie. The other was an unusually young looking woman, shorter, with dark wind-tossed hair, sporting an open collared shirt with a crew necked shirt beneath. To the right of these two, was a second woman, short haired, with glasses, a dark business jacket and a white blouse. Her eyes seemed to twinkle and her smile shone so that the contrast of her expression made me wondered how she had managed to get into a picture with these two grave grumblies .

Supposedly these three, the ombudsman, Dwight Bishop; the representative of the Children’s Section (the wind tossed lassie); and the woman overseeing the new division handling complaints from seniors (the sparkling smiler); were out on a whirlwind tour across Nova Scotia, attempting to drum up more business for the ombudsman’s office. At first glance, this sounded most excellent, but the details in the story revealed something different. These people were going to their regular pit stops, the youth detention centres and other institutions connected with the Justice Department, and instead of informing the general public about their existence and their services, they were meeting with municipal mayors and the people in municipal executive offices, they very people they are suppose to handle complaints against!

All of us connected with this struggle were aghast! If it was more business they wanted, all they had to do was to start helping the children in care, and their families. The concerns in the metro area alone, we felt, would keep them more than busy. This office seemed more interested in advertising themselves to the government than informing the people who have been victimized. Basic question: how can people access assistance if they do not even know it is there to begin with?

I must admit, this chance article in the paper confounded and fired me up, so much so , that, for the first time, I decided to delve into the ombudsman office a bit more. As a result, I was went on a web search expedition, slowly unearthing all kinds of interesting information about this office. Of particular interest was a posting on the Nova Scotia Office of the Ombudsman website declaring they did indeed give assistance to children in the care and custody of the province.

This posting read:

Nova Scotia Office of the Ombudsman Children’s Section
If you are a child or youth in the care or custody of the Province of Nova Scotia or you have an interest in the programs and services provided to children and youth in provincial facilities . . .
The Nova Scotia Office of the Ombudsman Children’s Section may be able to help you.

Printed from http://www.gov.ns.ca/ombu/Child_Ombud/default.asp

It seemed totally strange that I had been connecting with victimized families for five years now, and the existence of the Ombudsman’s Children’s Section had been nothing more than mist in the wind, yet here they were boldly declaring themselves as defenders of children in care on the internet. At this point, I decided to make an exploratory phone call to the Ombudsman’s Office, Children’s Section, to get clarification of their assistance for children in care.

As a result, I spoke with the wind tossed lassie, the young lady who worked in the Children’s Section. Not wanting the reputation I seemed to have made for myself within government circles to influence the answers, I star 67ed my phone and identified myself only as a Nova Scotia citizen who wanted to know a bit more about the office, what they did, and their jurisdiction. To begin with, I let her ramble on in general areas that did not particularly interest me before gently steering her to the information I was really interested in. Then, I casually asked the questions I wanted answered. In response, I was told that the ombudsman’s office Children’s Section was there to handle complaints from children who had been removed from their parents and had been placed in the care of the province, whether they had complaints about Children Services, a case worker, or a foster parent. I was also told they were also there to help the families of these children if they had any concerns or complaints about the system. I was careful to get her to repeat herself, and reflect back to her my understanding of what she had said so that there would not be any misunderstanding on my part. Then I sincerely but nonchalantly thanked her for the talk and ended the conversation.

But all that glitters is not gold! After this initial contact, I sourced out additional information that informed me that this office was not implementing their jurisdiction over the children in care! This included three significant documents. The first two were the last two financial statements of the Ombudsman’s office Nova Scotia Office of the Ombudsman, Annual Accountability Report for the Fiscal Year 2001/02 and Nova Scotia Office of the Ombudsman, Annual Accountability Report for the Fiscal Year 2002/03.

The first report declared: “the Office [Ombudsman’s Children’s Section] was under spent by $201,248.05 due to the delay in the implementation of the Children’s Ombudsman’s service to children in care of the government (Community Services, residential Child-Caring Facilities)”.

The second, report stated: “the Office of the Ombudsman was under spent [by $124,000] because jurisdiction issues have delayed the implementation of the Children’s Section service to children in care of the government.”

The third document, It’s Time to Break the Silence: Creating Meaningful Access to Rights and Advocacy Services for Young People in Care in Ontario, was as a scathing report against the Child Advocacy Office in Ontario (the equivalent to our Ombudsman’s Office, Children’s Section in Novas Scotia). This document, published by Defense for Children International - Canada 2003, an international organization formed in response to the United Nations adoption of the Convention on the Rights of the Child in 1989, includes specifics about the Nova Scotia Office of the Ombudsman, Children’s Section:

"The Children’s Section of the Nova Scotia Ombudsman was established through the ombudsman’s power of delegation under the Ombudsman’s Act in June 1999. The ombudsman delegated a Children’s Ombudsman and a group of field officers to staff the section. . . Although the Children’s Ombudsman’s service mandate also includes young people in child protection care and secure treatment, a multi-agency agreement to monitor and investigate services within child protection facilities has not yet been implemented. "

Shortly after, on August 11, 2004, Thelma and I and a third woman arranged a meeting with the Ombudsman’s Office Children’s Section. As we waited in the seating area, noting the bullet-proof glass and the security doors, we passed disparaging remarks amongst ourselves about this sad state of affairs. Surely they knew there were disgruntle people out there. Disgruntled enough to warrant the installation of bullet-proof glass. As I panned the waiting room, I noticed two other closed doorways, one in the adjacent wall, the other, opposite the main doorway into the office. I assumed, wrongly, that one might be a washroom for the public.

Eventually a young, tall, soft spoken, well mannered African-Canadian gentleman came from the office, introduced himself and then ushered us through the opposite doorway into a windowless conference room. “A black hole with foul air”, Thelma would tell me later. “The black hole of Calcutta” I would clarify. But we didn’t even have time to sit down because, seeing that there weren’t enough chairs and not wanting to take the time to drag them in from behind the secured area, this man opened up the other mystery door, with turned out to be the “back door” to the office. So, we were ultimately ushered into “the inner sanctum” , we called it, a larger conference room with windows running along the length of one wall.

The wind-tossed lassie, the representative for the Children’s Section was waiting for us, introduced herself, as we settled around the large conference table. I hauled out my 2 large binders, from my briefcase, and, as the meeting began, both of the ombudsman reps took out their tidy little notebooks and, with heads bent, began meticulously notating every word. I recall feeling a bit ignored with their heads bent so, but not wanting to be outdone, and thinking it important to equalize the perception of power, that seemed to emanate from this diligent scribbling, I whipped out my notebook and began seriously making my own notations.

The first question I asked was what exactly were they doing about looking after the concerns and complaints of children who were taken in to care by Children’s Services. In reply, the woman began rambling about the office making visits to youth in detention centres. I interrupted her and repeated the question. She now proceeded to ramble off in a different direction, once again avoiding my specific inquiry. Again, I stopped her, repeated the same question, only to have her, again, ramble off onto the pathway of avoidance.

For the third time, I stopped her, again reiterating the question.

This time, there was a pause. I guess she finally realized that I was not going to let her avoid my question. She looked at me and now, matter-of-factly, told me that the jurisdiction over the children in care had not yet been implemented. Of course I had already known this, but I hadn’t expected them to blurt this out so early in the meeting, especially since this woman had already told me different when I had spoken with her on the phone just weeks earlier. But keep in mind, this woman did not know that I had been that unnamed “citizen of Nova Scotia” asking questions. I also sensed that she was using this matter-of fact tone to try to steer me away from this subject. But, of course, we honed in on the subject, and as we began to tell them our concerns, interjecting a number of questions, it was apparent that these two people were not comfortable. As a result it was quickly communicated to us that they wanted to arrange a meeting for us with the assistant ombudsman. We were obliging to this, but Thelma stated that she wanted us to see the head honcho, Mr. Ombudsman, Dwight Bishop, himself. No, we were told, that would not be possible, access to the ombudsman, had to “follow proper procedure” and we would have to meet with the assistant ombudsman first.

Not wanting to forewarn them, until we met with the assistant ombudsman, that we were aware of the monies given to them specifically to implement jurisdiction over the children in care that was not spent since 2001, we started by inquiring in a general way about the Children’s Section, how did the Children’s Section came about and what they were doing. The information we were being given did not jive with the information I had already gleaned from this office’s own published materials and left me wondering what they actually knew about the history of their own office.

In the course of our meeting, we held nothing back, informing these scribes of our many concerns: our problems with Children’s Aid/Services, the corrupt assessments people were forced into, the conflict of interest that existed between many of the assessors and CA/CS, the unfruitful complaints to the Nova Scotia Board of Examiners, and we also managed to touch on some of the concerns we had with the judicial system.

I informed them that I was aware of the present complaint system implemented by Children’s Services from their own manual, Department of Community Service Family and Children‘s Services Division: Manual of Standards, Policies, and Procedures for Children in Care and Custody, Section 1.4 and 1.4.1, effective August 1, 2004. This manual stated that it was the responsibility of the social worker in Children’s Services to inform the children of their right to complain, and that if the child was over 16 years old that the workers were to instruct the child to make a complaint to the police. I informed them that they, of all people, should know that such a process was completely unacceptable, that this was the very reason there was an ombudsman’s office. One could not expect the very people who might be complained against to educate children on the complaint system. Did they really expect a social worker was going to instruct a child to call the police against them?

We also informed them of our concerns about the accountability of the numbers of children in care. I explained the usage of snapshot data, data for a single predetermined day, as the only accountability for the numbers of children in care. Giving the numbers for children in various categories for a single day, I explained, could not possibly account for the numbers of children who go through the system in the course of the year.

I suggested that when they did begin implementing their jurisdiction over the children in care, that Children Services needed to inform them of all the children who were in care, and that the ombudsman’s office needed to make sure that they visited every child and informed them of their right to complain through the ombudsman’s office, and that they should also visited every family and also inform them of their right to complain through the ombudsman’s office. As new children are brought into the system, I continued, the ombudsman’s office needs to get out and educate each new child and family. This way, I also pointed out, someone, besides Children’s Aid/Services would have the actual numbers for the children going through the system in the course of a year.

At this point, the diligent scribbler raised their heads from their notebooks informing us that they felt this was a very good suggestion, as they nodded their heads to each other.
I then educated these scribes on the absence of an annual review of the Children and Family Services Act as proscribed by law under Section 88, subsection 1and 2, clarifying that only 3 “annual” reviews had been done since 1990, the last in 1999.

When a child is taken into care, we explained, not only are the parents, who the legal action has been taken against, automatically sent into assessments, but so is any other family member who dares raise their hand to seek custody of the child. We also informed them that two well-known and well-respected PHD psychologists had already strongly spoken out, in court, against the way these assessments were being prepared. We told them how one of these psychologists, in a recent public information meeting, had candidly expressed her concerns about what was going on with these assessments, done for Children’s Aid/ Children’s Services, all across Nova Scotia, but that their was a “particular problem in the Metro area”, so much so that, now, she rarely took cases dealing with CA/CS in the Metro area, despite the her office location in Halifax.

We informed told them that the right to have the assessment interviews taped were continually and adamantly denied - a right, we were told at the information meeting, that was meant to protect both parties. We informed them that in some cases, original notes taken during these interviews had been shredded (with signed letters admitting to this!)- such notes, we had been informed, were suppose to stay with the file and were suppose to be available to any person reviewing the assessments. We also told them that many of the persons doing these assessments were doing so under lucrative contracts with Children’s Aid/Services and that an important assessment establishment had already admitted, under oath, that most of their work came from Children’s Aid/Services - this situation, we had been informed, was not ethically appropriate. We also explained to them that according to the professional reviews of assessments, tests utilized in these assessments were wrongly given and incorrectly used to guarantee a negative outcome.

As a result of these serious transgressions, many people were complaining about being misrepresented and misquoted in the body of the written assessments, some reporting 100% inaccuracy! We informed them that formal complaints had been lodged to the Nova Board of Examiners in Psychology, that the investigative process was done in total secrecy, that basic information about the complaint process was denied the complainants, despite repeated requests for this information, and that suddenly, after 1 year of the complaints being before the board, the complaints were dismissed. Then, when letters requesting an appeal were filed with the board, the registrar of the board quickly sent out letters to the complainants stating that “there was no right to appeal” and, to add insult to injury, she was “not prepared to discuss this investigation” with the complainants.

We then touched upon some of our concerns with the judicial system, including the justices, the lawyers, and the court administration. Preparing to leave I told them that I would be willing to e-mail them the concerns that I had compiled about the assessments and the Children and Family Services Act. Agreeing to this, they informed us that they would contact us about a second appointment with the assistant ombudsman as soon as it could be set up.

After we were escorted through the security doors and while we were walking down the hallway to the elevator, the three of us, me, Thelma, and the other woman expressed to each other the thought that we felt we could be hopeful about the Ombudsman’s Office but that we were still realistic enough because of our past experiences to know that the door might very well suddenly slam shut in our faces. We have learned the art of keeping the balance of being forever hopeful, so that we will not give up seeking the help that we need, but at the same time realizing that this will probably turn into another dead end, so that when it does happen we are not devastated. We keep saying to ourselves, “There must be someone out there with the ability and knowledge to help us who will do the right thing” We want to change the system for the families that are being victimized now and in the future. For some of us, me included, it is too late to make a difference in my individual case, but we struggle on to make a difference for others.

The Sham Revealed (More Grips continued)

It would be 2 months before we got in to see the assistant ombudsman. First we were told that they needed more time to scrutinize the documents I had e-mailed them. Then it became a problem of finding a date when we could meet. Meanwhile Thelma kept requesting to see the head ombudsman, but the same reply was continually given: we needed to “follow protocol”, we needed to meet with the assistant ombudsman first, before we could see the ombudsman. Thelma was annoyed by this but I didn’t see that we were being given much choice in the matter. “Let’s jump through the hops”, I suggested. If we don’t see the ombudsman after following their “protocol”, then we will complain.

So, in October Thelma and I toddled off to meet the assistant ombudsman. The third woman who had accompanied us to the first meeting was out of town and though we had arranged for another woman to take her place, she, unfortunately, ended up making a scheduling error so that Thelma and I had to make the meeting ourselves.

This time, they showed us into the inner sanctum immediately. The young wind-tossed lassie from the Children’s Division was there, as was the assistant ombudsman, but the polite and gentle spoken man from our last visit was nowhere to be seen. In his stead was that sparkling smiler I had seen months previous shining from the newspaper picture, the person assigned to look after complaints from seniors. The rapport in this meeting was much better, stemming, I believed, from the eye contact made possible from only one woman, the smiler, taking the notes this time. Thelma and I both felt we were treated with respect during this meeting, and we also sensed that the interest expressed was genuine.

Much of the information given at the first meeting had to be reiterated for the assistant ombudsman. Concerning the complaints submitted to the Nova Scotia Board of Examiners in Psychology (NSBEP), we were informed that the ombudsman’s office could not interject if there was an established complaint process, but if the complaint process had been followed through and dissatisfaction still remained, then, they could intervene. Thelma and I assured them that this was indeed our situation, but in response, we were told that they would first have to determine if they had jurisdiction over the NSBEP. I was perplexed about any hesitation over jurisdiction. The NSBEP is an organization that was formed in response to a provincial act, The Psychologist Act . In addition, 2 of the board members are lay person who are appointed by the provincial government. To me, it seemed cut and dry, but obviously, to them, it was not.
Referring to my copies of the financial statements of the ombudsman’s office, I informed them that I was aware of the unspent budget money apportioned to the Ombudsman’s office by the legislature. I stated that was I was also aware that, according to the financial statements, this money had not been spent because they had not yet implemented their jurisdiction over the children in care. In response, we were told that they had not implemented jurisdiction over the children in care because, having jurisdiction only in provincial and municipal matters, they did not have jurisdiction over the Children Aid Societies, which are private organizations.
What we understood these people to be telling us was that because they did not have jurisdiction over all the children in care they opted to protect none of the children in care. The logic of doing nothing for the children they did have jurisdiction over, the children under the care of Children Services, totally escaped me, especially when they had the money from the legislature to do so! However, at this time, though it was right under my nose, an important deduction was still eluding me.

In the meantime, endeavoring to forge a positive relationship this office, I bit my tongue about this seemingly illogical lack of action. Then the assistant ombudsman, showing me an added insert to a booklet version of the Ombudsman Act went on to explain that they had recently gotten the amendments required to extend their jurisdiction over the Children’s Aid Societies, though, according to her, this had taken years to push through. I expected that to be true.
Having had this jurisdictional glitch explained, I now thought to ask about their jurisdiction over the children in foster care. In response, we were told that the Ombudsman’s Office felt no need to secure jurisdiction of these children. This response disturbed me greatly because in my original telephone conversation with the representative of the Children’s Section, I had been assured that their jurisdiction did indeed include complaints children might have against their foster parents.

“Oh no, no I told them, the children in foster care NEED your protection.” From here I proceeded to convey to them the concerns that I had experienced about cigarette burns on my grandson as well as the mysterious red marks around his knees. I also related to these women that disturbing things had come to light about what was going on “below the 49th parallel” (in the U.S.) as well as what was going on in Central and South America, and that we should not be so naive to think that similar things were not also going on in Canada. I referred them to recent finding of children in the US foster system being used for sex and pornography, and that the bodies of missing children in Central and South America had for some time now been surfacing in ditches and garbage dumps badly mutilated after their organs had been harvested. I also referred them to the Florida case it was found that a young girl had been missing from the system for 2 years, with the case worker filing false reports of visitation while the foster parents continuing to receive money for the child’s care. The exposure of this case had set off a state wide review of all children in care with the conclusion that over 500 children were missing from the system. Where were our missing children?

What was interesting about this was that not a word of dissention came from the lips of these women as I related these “worse case possibilities” about what might be happening to our children. In fact they were nodding their heads as I spieled on. From this reaction, I deduced that they were also aware of these cases and situations. If there was any surprise on their part, I think they were surprised that someone outside of their circle was also knowledgeable of this information and was spitting it back to them. As we concluded this meeting, both Thelma and I understood that the Ombudsman’s office did agree that they now needed to work towards an amendment to acquire jurisdiction over the children in foster care. In ending, I implored them to work towards this a quickly as possible, that the children could not afford waiting for this jurisdiction to take years to implement, as did the implementation of the jurisdiction over the children in the Children’s Aid Societies.

As Thelma and I walked out of that office that day, we were hopeful that these women we had spoken to were sincere in their intentions to help our children, the children in care in Nova Scotia, but from all of our past experienced, we also knew that the other shoe could suddenly drop. We reminded ourselves of this and the need to keep that balance between hope, to enable us to keep going forward, and preparing ourselves for the worse, so that we would not be utterly discouraged and give up “the fight”.

Within 6 weeks Thelma and I were back in the Ombudsman’s Office. We had finally made the “big time” - we were going to able to meet with the head honcho, Mr. Ombudsman, himself. Thelma had made a number of phone calls to set this appointment up. When the secretary finally phoned back to verify an appointment date, Thelma reminded the secretary that I would be accompanying her. To this the secretary informed Thelma that this appointment was for her alone.

When Thelma informed me of this, I was greatly distressed. Was this the divide and conquer routine? I informed Thelma that even if this was a meeting set up to discuss only her concerns, she had a right to have a support person, and besides this she would want to have a witness present if anything inappropriate transpired. I also concluded that this might also be a mistake on the part of the secretary. She might not know any better.

As a result, we decided to just go to the meeting together as we had always done. I have learned a lot about dealing with people over the last 5 years. One is fawning ignorance, and just pushing forward despite the obstacles. I take no pride in learning these tactics, but one needs to fight fire with fire, especially when the other side keeps erecting barriers and slamming doors shut. For me, it is not the fight that invigorates me. I come from an extremely shy childhood and youth. I was that child who literally hid behind her mother’s skirt, peeking out at the world when I dared. I rarely looked at or watched people. As a youth, I was the one with that down-turned Princess Di gaze.

As at the first meeting, the dark windowless conference room was originally opened for us. But once again, it was quickly determined that we would be escorted into the “inner sanctum”. No one made mention of my presence, so together Thelma and I sauntered through the “back door”. As usual, I took my place at the end of the long table and proceeded to lay out my 3 extremely thick binders, one with information pertaining specifically to the Ombudsman’s Office, one concerning, Children’s Aid/ Children’s Services, and the last concerning the psychologists/ psychology in Nova Scotia. The ombudsman, and two of the women who had seen us at the last meeting, the assistant ombudsman and the representative of the Children’s Section were present at this meeting.

It should be noted, the ombudsman is an ex-RCMP officer. A friend of mine, whose father was RCMP, was troubled by this. She stated that no RCMP officer should be appointed to such an office, that the RCMP are trained to follow orders unquestionably from the government and that this was not the sort of person you would want in this position. In response to this concern, I am determined to do a thorough web search of this man as soon as I am able to find the time.
As soon as this man entered, he strapped his eyes upon Thelma. He acknowledged Thelma but he did not acknowledge me. Whenever I spoke, his eyes drilled even more intensely on Thelma, interrupting my sentence with some sort of remark to Thelma. At first, I thought he was just being rude and I wondered at his audacity. “Excuse me, I am here . . . .” I began to say at one point. “He’s totally ignoring me” I mouthed to the assistant ombudsman at another. But as the hours progressed (the meeting lasted 2 ½ hours), I realized this was a deliberate maneuver on his part, never swerving from his tactic, consistent and persistent. He was following his training, training that, according to my friend, included espionage interrogation.

I watched as this man controlled the room. The other two women sat there and said nothing as he continued this bizarre behavior towards us, not even flinching when he contradicted things they had told us in the last meeting. Even when I challenged the wind tossed lassie by telling her that I had been the person who had phoned enquiring over the jurisdiction of the Children’s Section, she didn’t even flinch, sitting there completely silent. It was a surreal situation. I recall, at one point, saying that I wished I have taped this meeting (not that they would have let us). And as I watched this man continue his manipulation, I couldn’t help but think, “You are ignoring me at your peril”. When I came home, I immediately began writing the chapters concerning the Ombudsman’s Office.

For my 10 or 15 minutes of fame, at the end of the meeting, I held nothing back. Between me and Thelma we quickly gave the large overview of all the departments connected with this corruption. The ombudsman replied with the comment that what we needed was an inquiry, to which we replied, “How do we go about getting an inquiry?”. What was important here was that the Ombudsman shot back without any time for thought or consideration in a blase tone, “I don’t know”. - I’m sorry, but don’t tell me that an ex-RCMP officer doesn’t know anything about inquiries.

As the meeting wound down, I was so proud of Thelma, she stood her ground with this man despite his penetrating glare and near the end she quoted Martin Luther King:
"Our lives begin to end, the day we become silent about the things that matter."

She also quoted Anne-Sophie Dumetz, of Ottawa from a clipping in MacLean’s magazine, Dec 8, 2003 in reference to the use of children in the sex trade in Asia and North America.
“If we participate in the silence, then we participate in the crime”.

Afterwards Thelma told me she felt like a fool quoting these statements. But I assured her that I was proud of her. She had spoken truth. Because she had spoken truth on corrupt ears it had not been received but I assured her “I heard you and God heard you. You spoke truth and I am very proud of you” And then I added, “When they do the movie version of this story, this will be the scene they’ll show on television.”

As soon as I got home, while everything was still fresh, I began to write the chapters concerning the Ombudsman’s Office. I also wanted to write a letter to the editor concerning this office, but such letters need to be precise and poignant. Where was my focus? Then, as I wrote, suddenly the pieces fell into place. It had been right in front of my face all the time but I just hadn’t seen it. Now it all made sense, and the realization of what was before me shocked and disappointed me. Now I knew this Ombudsman’s Office was a farce and a shame.

At the beginning of the last chapter, I related how the ombudsman was telling us how impressed he was by the foster homes through the presentation they had put on.

The foster homes! That was the key! That was the key!

You recall, I could not understand why the office had not taken over the jurisdiction of the children who had been taken into care through the provincially run Children Services. (Dartmouth is Children Services, Halifax is Children Aid Society). Then the office stalled implementation of their jurisdiction for years claiming that they wanted to get jurisdiction over the Societies before implementing their protective powers over the children. But, here is the rub, what I didn’t see until now: having jurisdiction over children taken into care by Children Service Agencies and Children’s Aid Societies is meaningless without jurisdiction over the children in foster care, because when the children are taken into care by either the agencies or the societies, except for a few older children in group homes, they are all placed in foster care! This distinction of foster care and Children’s Services and Children’s Aid was legally emphasized in a recent court ruling that came down from the province of British Columbia that stated that the Children’s Aid/ Children’s Services were not responsible when children were abused in foster care. To top this off, when Rollie Thompson, the family law expert at Dalhousie had spoken for us at a public meeting, he had commented on this very ruling, stating that this court ruling was applicable not only in British Columbia but it was also applicable across Canada.
So you see, the children are taken away from their families and than the provincial agencies or the private societies place them in foster homes where they wash their hands of all legal responsibility. If the Ombudsman’s Office gets jurisdiction of the Agencies and the societies but does not have jurisdiction over the children in foster care, then they have nothing! Nothing! Nothing!

It is the determination to protect the children of this province, children who have no voice and no protection that spurns me on. There is horrendous devastation going on and no one seems to care. There is a lot of collusion, a lot of corruption, and, I suspect, a lot of important butts to protect. When I try to explain the way I feel to my friends, I tell them that I am no hero. I am driven from within to do this . I have no chose. “I cannot not do this” I express. I tell them if I felt I had a choice maybe then I could accept this heroic label some like to throw on me. But I truly feel I do not have a choice. I must do what I can for those who do not have a voice of their own

One Ongoing Futile Attempt to Obtain an Independent Lawyer for a Child Over 12 Years Old as Mandated by the Nova Scotia Children And Family Services Act

My name is Linda Youngson. In June 2005, with another fellow advocate, Marilyn Dey, we filed a mandamus application in the court of Nova Scotia against the Nova Scotia Minister of Community Services, David Morse, to force him to obey Section 88 of the Children and Family Services Act 1990 whereby the Minister was to appoint a committee to review the Act and its implementation on an annual basis. Two of these committee members were to be parents who had had their children apprehended by the Minister, or in fear of having their children apprehended. Since the implementation of this Act, in 1990, there had only been 2 such committees doing the job specified: in 1993 and 1996.

In December of 2005, our application went to trial with the provincial government’s main argument being that “the Crown only owed its duty to the Crown” and that individual citizens like Marilyn Dey and I did not have the right to bring this action to Court to force the government to obey its own laws!

I am part of an association of people who have had their family members apprehended by this notorious system. Though I am active in many aspects of advocacy work concerning our many serious concerns, including speaking to, encouraging and directing currently victimized families, and appearing as a witness to the court proceedings, as well as accompanying individuals as a support person, my forte is research and writing. My academic credentials include B.A. (highest aggregate), B.Ed., and M.Ed.( Psychology with a focus on Human Relations with a 4.00 GPA).

From our years of advocacy work and research, we have come to know that there is serious systemic corruption that runs through a number of provincial government departments. These departments include the Department of Community Services, The Health Department, the Justice Department, the Education Department, and the Finance Department.

The following is just one example, amongst many. Though there are many grave issues that are apparent in this case, the persistent concern that has followed this family is their inability to get independent legal representation for the child who was apprehended by this province at the tender age of seven and has been in the system for 9 years now.

Section 37 of the Children and Family Services Act states that a child who is 12 years of age or more shall receive notice of a proceeding and, upon request by the child at any stage of the proceeding, the court may order that the child be made a party to the proceeding and be represented by counsel, where the court determines that such status and representation is desirable to protect the child’s interest.”

Section 41 (4) of the Children and Family Services Act states that “Where a parent or guardian consents to a disposition order being made pursuant to Section 42 that would remove the child from the parent or guardian’s care and custody, the court shall:
(a) ask whether the agency has offered the parent or guardian services that would enable the child to remain with the parent or guardian
(b) ask whether the parent or guardian has been consulted and, where the child is 12 years of age or more, whether the child has consulted independent legal counsel in connection with the consent; and
(c) “satisfy itself that the parent or guardian understands and, where the child is 12 years of age or older, that the child understands the nature and consequences of the consent and consents to the order being sought and every consent is voluntary.”

Despite this law, the mother has been struggling to get a lawyer for her, now, 16 year old daughter for 4 years. I and another advocate, Marilyn Dey, sat as witnesses in the courtroom 4 years ago, when the daughter was 12 years old, as this mother requested a lawyer for her daughter. Despite the law declaring a 12 year old to be mature enough to be a party to the proceedings, the Children’s Aid lawyer argued that he did not believe a child of this age should have her own lawyer because he felt that access to certain documentation would be upsetting to a child of this age.

It is important to note that this was a general observation linked to the lawyer’s personal understanding of the abilities of a twelve years old. The lawyer did not make any specific observations about the abilities of this particular child. On this statement alone - the justice disallowed the child her right to have her own lawyer.

We were appalled! Since when should the personal opinion of a lawyer come before the law! The law had declared 12 year olds to be capable - what gave the lawyer, and the justice, the justification to flippantly wave away this legal right?

It should be noted here that when senators representing the Federal Senate Committee came to Halifax in June of 2005, they raised the issue that they believed that 8 year olds were capable of having their own lawyers and were inquiring why the age had been set at 12.

While this mother struggled through the courts attempting to rescue her daughter from this system, she was denied access to her daughter. However, approximately 4 years ago, when her daughter was twelve, the Halifax Children’s Aid Society allowed the daughter to write letters to her mother. Upon receiving these letters, the mother immediately replied, but it was not until 2 years later, when the mother finally saw her child, that she discovered that none of these letters were given to her daughter.

This poor child had finally been allowed to write her mother, but because she was never allowed to receive any of her mother’s letter’s, she was left wondering why her mother had not answered. One could only imagine the rejection this child was made to feel through this ordeal. The Halifax Children’s Aid Society cannot possibly defend this action as being in “the best interest of the child”? Indeed, to do such a thing is mental cruelty!

When the daughter, was 14 years old she located and contacted her mother. When they met, the daughter stated that she wanted her own lawyer and it has been a roller coaster ride ever since.
First, this mother and daughter were directed to provincial legal aid. It is important to note that there is grave concerns with legal aid because both legal aid and Halifax Children’s Aid is overseen by the provincial government - Many see trying to get a legal aid lawyer to battled Children’s Aid/Service or the provincial government Agency as nothing more than a conflict of interest!

When the mother attempted to make arrangements to see a legal aid lawyer, she was then informed by the provincial legal aid officials that she could not assist her daughter in finding a lawyer, that the child would have to do this herself. Finding a lawyer can be an daunting experience for adults. To expect a 12 year old child to do so by herself is not realistic.

Then, after being told that the child had to look for her own lawyer, the story suddenly changed - the mother was then informed that the child already had a lawyer, that the guardian ad litem’s lawyer was the child’s lawyer. This is totally incorrect information. The guardian ad litem’s lawyer is there to protect the legal interests of the guardian ad litem NOT the child.

And let me also clarify, the guardian ad litem , a person appointed to represent the child’s wishes in court in their absence, is not the child’s lawyer either. This person is NOT independent from the system, and works very closely with Children’s Aid/Service or the provincial government Agency. From our advocacy work, we are aware of blatant disregard for the children’s requests through their guardian ad litems and that there are no checks and balances in place for the children to determine if their concerns or requests have indeed been brought forward. All to often, the children naively believe the guardian ad litems have done their jobs.
Children and parents are told they are not allowed to discuss court concerns during their visitations but in our advocacy work we have determined that when parents have discussed these issues with their older children, that it is not unusual that the parents realize that issues the children believed were being brought before the court were NOT!

Back to the family in question - Finally, the child did contact legal aid on her own and she was informed by the secretary that a particular lawyer had been assigned to her and she was given a card with the lawyer’s name on it. The child made many frustrating phone calls attempting to set up a meeting with this lawyer, but her calls were never returned. Eventually, this lawyer contacted the mother’s lawyer stating she had never received any communication from this child!

After this, the daughter, on her own accord, at the age of 14, left the group home in which she was residing and went to live with her mother. The Children’s Aid Society responded by serving the mother a “Protective Intervention Order” demanding her appearance in court July 5, 2005. Though the police had been contacted, the mother understood that they do not see grounds to intervene.

During this time, the Halifax Children’s Aid was refusing to allow this child to have her personal items including her prescription medication. Please note that Children’s Aid/Services and the government Agency will use such an action against a parent if they are attempting to justify taking a child away from their family.

When the mother and daughter visited the daughter’s doctor, the same doctor who was seeing this child while she was at the group home, the doctor made a direct call to the group home, in front of the mother and daughter requesting her medicine - The doctor was shocked to be told that the medication would not be forth coming .

Frustrated, the mother finally approached an independent lawyer to represent her daughter. This lawyer had already heard a number of disturbing things about the system and he indicated that he was keen on representing this child. But this possibility was shut down when the legal aid office refused to issue a certificate of service for this lawyer.

Over the next two years, the daughter spent time at the group home and with her mother. These were not visitations that were sanctioned by the system but it was apparent that both mother and daughter were determined to have a relationship. Unfortunately, no services were offered to assist with this reunification, services that were desperately needed for a mother who had last been a mother to a seven year old and a daughter who had long ago forgotten how to respond to a mother.

It is important to note that up until the child found her mother, there had been no unusual problems with her in the group home. When the child returned from meeting her mother she reported being deliberately provoked by the staff. This goading resulted in angry outbursts by the child. The first incident was throwing milk in the face of one of the house workers.

As advocates, we have no problem believing this intentional goading by individuals in the system because we have witnessed this ourselves, even during court appearances! In one case, totally unprovoked, a self-representing woman was tackled by the security guard after she had gathered her notes and was walking down the aisle towards the door. There were at least 5 court witnesses that day- one a World War 2 Vet who shouted out to the justice to do something. Instead, the justice just stood there, silently watching the spectacle for a few seconds before she turned on her heels and retired to her chamber.

In response, I quickly followed the guard and this poor woman as they rolled through the doors into a small outer chamber. When I got there, the woman was pinned half on the floor and half on the wall. Then I calmly repeated to the guard 3 times - “I am a witness- I am a witness- I am a witness” In response the woman simply stated twice “She is a witness- She is a witness”. And then, the guard backed off, without a word, and let the woman go home.

One night, a fellow advocate was shocked to get a phone call from this child. This 14 year old had been hauled off to the police station in handcuffs for the aforesaid incident, throwing a glass of milk at the worker! We were appalled . What were they trying to do to this child? Scare her into compliance? She was in tears.

Again, I ask, where is “the best interest” of this child being served? Is criminalizing this child for such action in this child’s best interest?

Over the next 2 years, this group home managed to rack up over 30 charges against this child, including missing curfew, smoking cigarette, damaging the carpet etc, as well as punching a worker in the face.

A few times this child left the group home, spending nights on the street and at times phoning one of our advocates, begging for a place to stay. Unfortunately, this was an act that was deemed too risky because this advocate had a child of her own that she had only recently gotten out of the clutches of this system. We have been informed that one absence from the group home resulted when the child had phoned to inform the staff that she was going to be a bit late making curfew and she was told that the police would be waiting to haul her off when she came in! Under these circumstances, could you blame the child for not going back?

We are aware that this child was eventually sent to “ the province’s secure treatment facility in Truro” that professes to assist troubled children. However, children in the system have reported that being sent to Truro is often used by workers to threaten them.

Now, we are deeply upset to find out that there is talk of sending this child out of province or even out of country. There is also grave concern that this child is now being deemed to be functioning at a grade four level, (she is in grade 10) and that she has all kinds of psychological problems. We do not agree with this assessment. The advocate who has been working with this child over 4 years has always described this child as being bright, well mannered (please, thank-you, your welcome), with a good head on her shoulders. When meeting with this advocate over the Christmas holidays, she was touched when this young lady brought small gifts for her and her daughter, a coffee mug and a small teddy bear.

Understand, the criminal charges against this child starting racking up only after the group home staff started goading this child after she located her mother, and all of these action are specific to the group home and group home workers.

We are also well aware that it is not beyond this system to produce fraudulent assessments. We have had assessment done by this system reviewed by well known and respected PHD psychologists. In court, they have testified vehemently against these assessments with nothing good to say about them at all! Here in Halifax, we arranged to have a PHD psychologist speak publicly on this issue. In this meeting, she candidly confessed there were a grave problem with assessments done for Children’s Aid/Services and the government Agency here in Nova Scotia .

Besides using this assessment to justify sending this child to out-of- province facilities, we have no doubt that Halifax Children’s Aid will now bring this forward to justify not allowing this, now, 16 year old child to have her own lawyer. If you review the history this child has had trying to get her own lawyer, it is not difficult to ascertain that this is the basis of this negative assessment against this child - Not to mention that this would then classify her as special needs giving the system, and the group home, more money for this child.

How ironic that this child had to be criminalized before she was allowed to have her own lawyer - a criminal lawyer- yet she has been persistently denied a family court lawyer for her dealings with Halifax Children‘s Aid!

Please understand, that we have not been able to find one child in the system who has been able to find an independent lawyer. One of our advocates, when her family was being victimized, approached a number of regular, non-legal aid lawyers to represent her child and was informed repeatedly that they did not even know a mechanism by which they could represent a child “in care”.

5 The Cry for Help that Went Unheard

See link top left or hyperlink here

11. The Cry for Help that Went Unheard

6. They're Sending Our Children to Utah

See link top left or hyperlink here

12.They're Shipping our Children to UTAH!

4. Newspaper Announces Senate Report

2007-06-25T00:45:00.001-03:00

If you are new to this site, hyperlink to first posting Feb 27th to read 1.UN Convention on the Rights of the Child and then work downward
Visit our important sister LINKS to the right

Senator's Report Slams Gov.-No Children's Rights in Canada

See one Presentation to Senate Committee on Human Rights-Oct 30,2006
See the Senators report hyperlink - Children: The Silenced Citizens

Canada Ignores Children's Rights, Senators Say: Government Slammed for Not Living Up to UN Charter

By STEPHEN THORNE The Canadian Press

Halifax Chronicle Herald and Toronto Star
2007-April-26, Canada

OTTAWA — Canada is failing to live up to its international obligations by denying children their right to influence government decisions, the Senate human rights committee says in a report critical of the lackadaisical manner in which international treaties are implemented.

Released Thursday, the report from the all-party committee calls on the federal government to appoint a children's commissioner to stand up for what it describes as a voiceless segment of Canadian society. It also says Ottawa should take steps to eliminate spanking and other forms of corporal punishment of children.

``Children's voices rarely inform government decisions, yet they are one of the groups most affected by government action or inaction,'' says the committee's 296-page report, entitled Children: The Silenced Citizens. ``Children are not merely underrepresented; they are almost not represented at all.''

The UN Convention on the Rights of the Child, which Canada ratified in 1992, puts children at the centre of family, community and culture, but the senators say there is a gap between ``the rhetoric and the reality'' of children's lives in Canada.

``Children must be in the room,'' Liberal Senator Jim Munson told a news conference. ``Children must be at the table. "

``Too often we dictate ... to children and it's just not right.''

The committee, which made 24 recommendations on the rights and freedoms of children, says many Canadians continue to resist full implementation of the UN convention on the subject.

It calls Ottawa's commitment to children's rights inadequate due to ``jurisdictional complexities, the absence of effective institutions, an uncertain approach to human rights law, and lack of transparency and political involvement.''

The senators say compliance with children's rights undertakings needs better accountability, increased parliamentary and public input [this includes us], and ``a more open approach that promotes transparency and enhanced political will.''

``The Convention on the Rights of the Child is not solidly embedded in Canadian law, in policy, or in the national psyche,'' says the report.

``Canadians are too often unaware of the rights enshrined in the convention, while governments and courts use it only as a strongly worded guiding principle with which they attempt to ensure that laws conform, rather than acting as if they are bound by it.

``Also, no body is in charge of ensuring that the convention is effectively implemented in Canada, and the political will is lacking. Implementation is key to making the convention work, and for Canada to claim that it fully respects the rights and freedoms of its children, it should improve its level of actual compliance.''

Ottawa doesn't have effective mechanisms in place to ensure compliance with its international human rights treaty obligations, the report says.

``Canada possesses no modern, transparent, and democratic international human rights treaty implementation process,'' it says. ``Further, no institution has ultimate responsibility for ensuring that international human rights conventions are effectively implemented.''

It calls for a formalized system to monitor implementation of international conventions and treaties, including — in the case of child rights — a group to co-ordinate and monitor federal legislation and policy along with an independent children's commissioner to monitor progress and meet with provincial child advocates. [this includes us!]

2. Protecting Parental Liberty in a Child-Centered Legal System

2007-06-24T22:44:00.010-03:00

Centre for Cultural Renewal
Discussion Paper #3
- originally published July 1, 2006

Protecting Parental Liberty in a Child-Centered Legal System

by Cindy Silver

1. Preface and Summary
2. About the Author: by Cindy Silver
3. Family Autonomy and the Charter of Rights: Protecting Parental Liberty in a Child-Centered Legal System

Preface and Summary

Throughout history the relationship between the state and the family and the role and duties assigned to each has been much debated. Some have seen the family as a servant of the state while others have seen the state's role as essentially to provide families with the security they need to do their work as the primary unit for raising children as future citizens. In his book, The Socialist Phenomenon (New York: Harper & Row, 1980), Igor Shafarevich, once a professor of mathematics at Moscow University, catalogued the historic tendencies of a certain type of utopian socialism which sought a perfected or utopian state it believed could be achieved if only society was restructured in certain ways.

Shafarevich traced this type of socialism through antiquity, the heresies of the Middle Ages and the Reformation, the utopian writings of philosophers such as More and Campanella, the state socialism of the Inca Empire, the 18th Century Jesuit state in Paraguay and the ancient Orient. Over this wide expanse of time and place, Shafarevich noted three trajectories common to utopian restructuring: the abolition of private property, the abolition of religion and the abolition of the family. One does not need to become paranoid in order to notice that in Canada today these three institutions are, in fact, under considerable strain.

Particularly with respect to the family, there are signs that it is once again time to renew the discussion about the proper role of the family in a free and democratic society.

There is always a tension between the state and the parts that make it up. The state and its institutions must always be careful to facilitate the function of the family without usurping its proper role. The state has a role to play in ensuring that the lives of children are not threatened by neglect or abuse but must be careful not to tread on the independence of the family. The state exists, so the principle of subsidiarity tells us, to facilitate and assist the smaller units, not to occupy their proper "space" in society.

In past decades, ideological camps have arisen which have called, on occasion, for the abolition of any demarcation between the family and the state. This idea, as old as Plato, threatens the notion that the family is, and ought to be, the first "school of virtue" for citizens. Unfortunately, as virtue itself has slowly evaporated from consciousness (a result of its gradual disappearance from formal education itself), the family's role in the teaching and propagation of a coherent understanding of virtue and character has also become misty. When key aspects of social life cease to be argued for, debated and taught, it is only a question of time before they become threatened by acts of commission or by neglect.

There is growing evidence that this tension between the state and family may be in need of examination and correction at this time. Such correction will involve, as part of its task, the re-articulation of the family, its nature and its proper place in civil society. If this task of description or re-membering does not occur, there is a risk that those who seek deliberately to weaken the family will triumph, not because their arguments are better but because the rest have lost any sense of what the family's proper role and duties are and how to argue for them. But, prior to any proper prescription, one must first be convinced that the diagnosis is sound.

In this paper Vancouver lawyer Cindy Silver, who has followed developments in this area for some years, has chosen to examine the effects of recent development in national and international law that touch on the issue of "family autonomy". She notes the importance of seeking "the best interests of the child" in certain circumstances but sounds a note of warning lest the ambit of such inquiries extend beyond those where the lives of children are actually at stake. It is not the state's place, for example, to make determinations about the religious education a child gets from its family nor should a family's religious beliefs be a relevant factor in "child apprehension" cases. It will come as a considerable shock to some people to realize that just this sort of inquiry has occurred in Canada in recent years.

We do not need to subscribe to the view that the family is under threat of imminent abolition in Canada in order to decide that it is time to start asking some hard questions. First amongst these are questions that relate to how we are to protect family autonomy in a society that is given over more and more to forms of state control and state regulation that allow less and less scope for the exercise of meaningful family autonomy. It is useful to reflect, for example, on whether parents in Canada at the present time have an effective choice about the type of curriculum their children are going to be taught from in systems supported by their own tax dollars. How accountable is the public school system and what can be done to make it effectively accountable? While these questions are not dealt with in this paper, they arise when its central theme is considered more broadly. Effective family autonomy is not something we can take for granted even within existing institutions in Canada and, as Silver shows in her paper, there is now a sufficient basis in documented cases for politicians and policy makers to take positive steps to ensure that valid concerns about the welfare of children are not used in ways which inject the state and the courts into areas they have no proper place to enter.

Considerable work will be necessary in the future if we are to discover what aspects of civil society need to be strengthened so that families will have the resources they need. It is hoped that by showing some key recent developments that touch on the place of family autonomy in Canadian society, this paper will contribute to a broader discussion of the issues so that the state and the family can begin to occupy their proper places.

About the Author: Cindy Silver

Cindy Silver obtained a Bachelor of Arts cum laude from the University of Saskatchewan, a law degree from the University of British Columbia and was called to the British Columbia Bar in 1992 as a Barrister and Solicitor. She has worked as a consultant on issues related to public education and matters relating to the status of the family in society.

Family Autonomy and the Charter of Rights: Protecting Parental Liberty in a Child-Centered Legal System by Cindy Silver

Recognition of due process and the retained rights of parents promotes values essential to the
preservation of human freedom and dignity and to the perpetuation of our democratic society.

The family is the principal conservator and transmitter of cherished values and traditions. Any invasion of the sanctity of the family, even for the loftiest motives, unavoidably threatens those traditions and values.

Family autonomy helps to assure the diversity characteristic of a free society. There is no surer way to preserve pluralism than to allow parents maximum latitude in rearing their own children. Conversely, there is no surer way to threaten pluralism than to terminate the rights of parents who contradict officially approved values imposed by reformers empowered to determine what is in the 'best interests of the child. "1 Canadians live in a world where post-modern human rights are now a driving force, challenging the philosophical and legal traditions on which our social institutions are based. 2 This is nowhere so evident as in the radical restructuring of the roles and relationships of the family and the state, while the state takes an evermore active role in protecting child rights as defined under the United Nations Convention on the Rights of the Child. 3 This paper discusses the impact on the family of state attempts to both define and protect "the best interests of the child." In particular, it brings to light internal contradictions in childrights jurisprudence, particularly when the state's power collides with the parent's right to liberty under Section 7 of the Charter of Rights.

This paper discusses:
- recent ideological and legal developments that challenge the a priori right of parents to nurture, maintain and educate their children free from undue interference of the state.
- It reviews the macro-social, philosophical and legal traditions that underlie Canada's long- standing policy of respecting the autonomous nature of the nuclear family.
- It examines changes in federal and provincial policies as a result of Canada's commitment to the United Nations Convention on the Rights of the Child, the plan for which is contained in Brighter Futures: Canada's Action Plan for Children.4
- It discusses the role that nongovernmental organizations (N.G.O.s) currently play in initiating policy changes and how this might be affected by a recent Supreme Court of Canada decision that places parental rights squarely within Section 7 of the Charter of Rights.

Deconstructing the Family, Promoting the Child

As Canadian law and policy moves from an implicitly Christian framework to an explicitly secular one, the conceptual roles and legal rights of family members are being redefined. The once implicit right of parents to raise their children free from the undue intervention of the state has become obscured, while the individual rights of children have become a primary focus.

Before the Charter, family autonomy and parental rights enjoyed a quasi-constitutional legitimacy. This was derived primarily from the Canadian Bill of Rights, the preamble of which states:

The Parliament of Canada affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions.
Affirming also that men and institutions remain free only when freedom is founded upon respect for social and spiritual values and the rule of law.

As a constitutional document, the Charter of Rights is now primary in determining human-rights issues and, in practical application, prevails over the Canadian Bill of Rights. The Charter's preamble, now the definitive purpose statement for the protection of human rights in Canada, is much shorter and has deleted references to the family: "Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law."

By deleting express reference to the family, the Charter of Rights removed from plain view the grounds for constitutional protection of parental and family rights. This omission has contributed significantly to the demise of family autonomy and the devaluing of the family in law and legislation.

Although the Charter failed to mention the family, it did specify age as a prohibited ground for
discrimination within Section 15(1) , a characteristic not mentioned in the anti-discrimination provisions of the Canadian Bill of Rights. Section 15(1) states:

Every individual is equal before and under the law and has the right to the equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.

The inclusion of age as a prohibited ground for discrimination effectively changed the constitutional status of children to one of prima facie equality with adults. Although age-based challenges have proved unlikely to succeed, the fact remains that any legislation that distinguishes children from adults based on age is vulnerable to challenge under Section 15 (1) .

Even as the Charter was being developed and implemented in Canada, there was a growing sense elsewhere that the rights of children were being ignored. Initially there was concern than, at the very least, children should be guaranteed protective rights, including the right to proper nutrition, basic medical care, hygiene and literacy, and the right to be protected from child labor, child prostitution, and the atrocities of war. Then, as child-rights theory became more sophisticated, human-rights groups included their concern that there was an 'epidemic' of family violence, including child abuse, in the developed world. 5

Child-rights advocates argued that abuse within the family was rooted in and perpetuated by the hierarchical authority structure of the traditional family and by the veil of privacy that discouraged government intervention in family matters. The solution, they believed, was for the state to shift the balance of power in the parent-child relationship through policies that would define and limit the power of the parent while increasing the power of child. This would necessarily include changing the legal status of the child from an integral part of the family unit to an individual rights-possessor, and then conferring on the child explicit decision-making choice rights.

In 1979, the United Nations (U.N.) proclaimed the International Year of the Child, an event that set in motion a ten-year process that culminated in the drafting of the United Nations Convention on the Rights of the Child. The final document reflects an attempt to address all of the concerns raised by child-rights groups. As a result, the U.N. Convention confers both protective rights, and choice rights, thereby establishing a presumption that children should be able to act autonomously whenever possible.

The Convention, which Canada ratified in December, 1991, includes the following choice rights: 6

Article 13 - the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds...whether orally or in writing, in the form of art...or through any other media of the child's choice.
Article 14 - the right to freedom of thought, conscience and religion.
Article 15 - the right to freedom of association.
Article 16 - the right to privacy.
Article 19 - the right to be free from all forms of physical and mental violence.7

The U.N. Convention and the Charter of Rights have become powerful companions for defining the scope of child-rights. Together, these documents function as the reference point for the development of childrights law in Canada. Both documents emphasize the state's role in protecting the autonomy of the individual against the institutions of society. In functional terms, this has recast the state and its courts as child-advocate against parents.

In a recent article, Iain Benson, Executive Director of the Centre for Cultural Renewal, discusses the theoretical and functional chaos that is being created as our society attempts to separate the technique of the academic disciplines from a shared understanding as to their purpose within the social good. 8 Recent developments in child-rights law illustrate the problem Benson describes. The technique, or theory, that defines child rights has expanded and become more sophisticated, while a shared understanding as to the purpose of child rights as components of the social good has become increasingly narrow. This separation of technique and purpose largely explains the present confusion as to the goals of child-rights law reform, not only among academics but among the offices of government and the courts. Having severed the connection between its technique and its purpose, child-rights theory, policy and law are in chaos; our society is trying to define child rights without clear reference to family autonomy or parental rights, and without deference to the best interests of society. This is a no-win situation, analogous to placing children in a speeding vehicle on an unmarked road with no clear destination.

Constitutional Challenges and the Role of N.G.O.s

A brief review of a few recent cases best illustrates the present chaos in child-rights law reform. In May 1995, in the case of R. v. Carmen M. , the Ontario Court of Appeal struck down Section 159 of the Criminal Code after the defendant argued successfully that this section violated Section 15(1) of the Charter of Rights. 9 In this case, the defendant was charged under Section 159 for engaging in anal sex with a fourteen-year-old youth. Section 159 made it a criminal offense to engage in anal sex unless both parties consented and were at least 18 years-old or married. In contrast, the age of consent for heterosexual sex was 14 years. Focusing on the discrepancy in the law regarding the age of consent, the accused argued that this section violated the equality rights of youth to consent to anal sex after age 14.

The Crown conceded that the age distinction created by Section 159 was discriminatory, but argued that the distinction was justified under Section 1 of the Charter. They argued that the section had a legitimate objective in protecting young persons from engaging in a specific form of sexual activity, anal intercourse, for which there were increased risks of physical and psychological problems, including the transmission of HIV. However, Madame Justice Russell, relying on the recent federal court decision in Halm v. Canada, struck down the law on the grounds that it discriminated on the basis of both age and sexual orientation.10 In Halm v Canada, Mr. Halm was denied immigrant status and faced extradition after authorities learned that he had recently failed to appear for sentencing after being convicted of ten sex offenses in New York State, including five counts of sodomy and three counts of endangering the welfare of a child.11

Halm appealed Canada's decision to deport him back to New York State for sentencing. He argued that Section 159 [of the Criminal Code], the Canadian equivalent of the charge for which he had been convicted, contained an age discrepancy that violated Section 15(1) of the Charter, therefore rendering the section unconstitutional and invalid. He argued that, in the absence of Section 159, the acts for which he was convicted would have been legal if they had occurred in Canada, therefore the immigration officials lacked the grounds necessary to deport him.

In Halm v. Canada, Madame Justice Reed held that Section 159 [ of the Criminal Code] violated the Charter [of Rights] on both the enumerated ground of age and the analogous ground of sexual orientation. Like Madame Justice Russell in Carmen M., she rejected the government's argument that the section served three legitimate objectives, reinforcing moral precepts, inhibiting youth from engaging in anal sexual activity and protecting youth from the increased risk of HIV transmission.

In rejecting the first objective, Madame Justice Reed stated:

I agree that there has always been a close connection between the Criminal Code and moral values. That does not mean, however, that today in our pluralistic society, moral values alone can justify making an activity criminal. If it could, one immediately has to ask, by whose moral values is the state to be guided? I am not persuaded that in a free and democratic society it is justifiable to make an activity criminal merely because a segment, indeed maybe a majority, of the citizenry consider it to be immoral. 12

Responding to the second and third legislative objectives, to discourage anal sex and prevent HIV transmission among youth, Madame Justice Reed stated:

All of the evidence indicates that AIDS is spread by a number of activities (sharing needles among drug users, blood transfusions, both anal and vaginal sex). In absolute numbers, it would appear that anal sex is the least frequent method of transmission. It is not rational to make one such activity a criminal offense and not the others. Also, while unprotected anal sex may be riskier, as a potential conduit for HIV transmission than vaginal sex, in both cases it is unprotected sex which is the cause, not the activity itself. 13

In both Halm and Carmen M. , the government did not appeal, notwithstanding the fact that a Quebec court facing the same issue that year upheld Section 159 [of the Criminal Code] in a well-reasoned judgement. 14

Several child-rights groups, including a government-funded N.G.O. [One has to really question whose views are represented when a NGO is government funded] called Justice for Children and Youth, intervened in Carmen M. to strike down Section 159 [of the Criminal Code]. The final ruling of the court was described by the interveners as a victory for the right of youth to make sexual choices and to have equal legal access to all sexual activity.

It is difficult to understand how this could be construed as a significant advance for children's rights as contemplated by early proponents of protective rights for children. However, the issue in this case was one of choice rights and was based on an unqualified concept of youth as individual rights-possessors.

This accounts for the complete failure of the court to justify its decision in terms of the "best interests of the child," or to refer anywhere to the autonomy of the family or to the interests of parents in policy issues that could potentially effect their children.

Justice for Children and Youth is one of several child-rights N.G.O.s presently playing a leading role in child-rights law reform in Canada. This is unsettling given that the ideology of many influential child-rights N.G.O.s is not only inordinately child-centered, but in many cases, antipathetic to established authority.

The focus of these organizations is too often on defending the child against authority, whether exercised by social agents or parents.

The activities of organizations such as Justice for Children and Youth illustrate the functional chaos that is resulting as the Canadian government funds and mobilizes N.G.O.s in order to promote child rights without a contextual framework that gives due weight to parental rights.

Since 1992, the federal government has allocated $459 million toward conforming Canada's law and policy to the provisions of the U.N. Convention. Part of this amount was used in 1992 to create the Children's Bureau of Health Canada, whose mandate is to "ensure consistency and coordination for all federal programs and policies for children."15 From its inception, the Children's Bureau has worked with federal and provincial N.G.O.s to develop and implement Brighter Futures: Canada's Action Plan for Children, which is a massive effort "to work through all sectors of society - business, labor, communities, other governments, N.G.O.s, families and individuals -- to improve the lives of children." 16 Most state intervention in the parent-child relationship occurs at the provincial level. Provincial legislation empowers social workers to undertake measures that intrude on the autonomy of the family and the rights of the parents. For example, social workers are empowered to conduct inquiries and petition the court for a variety of orders with regard to a family under investigation. The court may give child protection authorities supervisory powers over the family, including unannounced "spot visits" to the family home, the power to interview children on demand or in the absence of a parent, and the power to require a suspect parent to attend one or more counseling programs. As well, the authorities may seek an order restraining a parent from being alone with the child, or having any direct contact with the child, or returning to the family home. It may make recommendations to the court regarding parental access to, and alternative placement of, the child. Finally [unfortunately, this is usually the 1st, NOT the final action taken] the child protection agency may seek an order for wardship of the child.

The powers of government authorities in child protection proceedings are manifold compared to those of the parent. The state, with all of its personnel and money, is pitted directly against the parent. Yet the procedural safeguards are minimal. The cases indicate that even though protection authorities exercise quasi-judicial powers, the standard of proof in child protection proceedings is, at best, based on a balance of probabilities.17 Under provincial law, all that authorities require before initiating an intrusive investigation of a family is one complaint by an anonymous third party. Under provincial legislation, a child may be apprehended if the social worker decides they fit within the catch-all term a "child in need of protection" . Although this term is well defined by the legislation, unclear procedural and evidentiary standards often mean that state interference in the family is based on assumptions rather than facts, leaving a disquieting margin for error. 18 The powers of social workers might be necessary, but it is imperative that these powers expressly require not only justification and responsibility but procedural safeguards as well.

The following cases illustrate the tragic impact this can have on a family. Until February, 1995, Charles and Sandra Butler home-schooled their children, ages eleven, eight and five.19 According to Newfoundland law, parents are allowed to home-educate their children as long as the curriculum they use is accredited by the district school board. The Butlers followed a home-school curriculum developed by the Seventh Day Adventist Church, one that the school board had refused to accredit. The family had no past history of neglect or abuse.

In February 1995, the Department of Social Services decided that the Butler children were in need of protection as contemplated by the province's Child Welfare Act on the ground that the Butlers had neglected to provide adequately for the education of their children. However, within hours of apprehending the children, the Butlers realized that their five-year-old was not required by law to begin school until September; therefore, the grounds for apprehension could not rightly apply to her. Not wanting to release any of the children without further investigation, Social Services reapplied to the court to amend the application. Four days after the initial apprehension, Mr. Justice Handrigan granted Social Services four months temporary custody of the children based on an expanded list of grounds. These included, not only concerns about the education of the children, but also concerns about the children's health and medical care, the possibility of physical and / or mental abuse of the children and the religious zealotry and fervor of the parents.

The Butlers retained counsel and appealed the order on several grounds: that the judge applied an improper standard of proof, that he relied on inadmissible evidence and hearsay, and that the hearing violated the principles of fundamental justice in that the appellants were unrepresented, were not properly informed of the nature of the hearing, and were not given an opportunity to call evidence.20 On appeal, Dunn J. reviewed the evidence that the trial judge had relied on:

[The Butlers] are adherents to a breakaway sect of the Seventh Day Adventist Church. They associate with people of like religious views and practice a lifestyle which may be regarded, by some, as out of the norm. They are vegetarians and follow a strict dietary regime. The children are permitted two meals a day. They are not allowed liquids with their meals or for one hour prior to and one hour after same. The children have not been immunized as recommended by the Department of Health, Newfoundland.
Instilling certain religious beliefs in reference to the Bible is fundamental to the lifestyle of the appellants. For example, they believe that the end of the world is fast approaching and are teaching their children to expect and prepare for same.

In December 1995, the court granted the Butler's appeal and ordered that the children be immediately returned to their parents. In her conclusions, Dunn J. found that the Butler's parental rights under Section 7 of the Charter of Rights had been violated. She concluded that the children's academic abilities seemed normal for their age, they appeared well-adjusted, were physically healthy, were rarely sick and that there was absolutely no evidence that the parents physically or mentally abused the children. In response to the Butler's claims of fundamental and procedural injustice, Dunn J. stated:

Where parental rights to custody of children and the possible deprivation of such custody are at issue, proper procedure and reasonable notice are essential to the process. The application was not conducted in a manner in keeping with the principles of fundamental justice and on this basis alone I would have been prepared to grant the appeal. 21

Although the Butler children were eventually returned to their parents, they had spent more than six months in foster care. The devastating results that this has had, and will continue to have, on the family and on their relationship to their community cannot be underestimated.

The Butler's case is not isolated. Similar incidents are occurring across Canada. In June 1995, for example, a Nanaimo couple's three children were apprehended by Social Services on grounds later described by an attending psychiatrist as diagnostic speculations. The event occurred after Terry and Lisa Neave's two-year-old daughter, Karianna, was transferred from Nanaimo General Hospital to B.C. Children's Hospital in Vancouver for testing and treatment of a choking disorder. One day before the transfer, the Nanaimo pediatrician taught Mrs. Neave a jaw-thrust manoeuvre that would clear her daughter's airway when she was choking. This manoeuvre involved raising the child's jaw with a hand at her neck.

At Children's Hospital, Lisa and Karianna Neave were assigned to a double room, which they shared with another mother and her sick child. The mother observed Mrs. Neave perform the manoeuvre during Karianna's choking episodes, suspected that this was abuse and reported her suspicions to hospital authorities. Soon after, the head of the hospital's child protection unit (C.P.U.), together with a social worker, questioned Lisa Neave, at which time she explained her doctor's instructions.

The C.P.U. director did not contact the Neave's pediatrician or family doctor because, as she later told the court, it was not her responsibility to do a thorough investigation. She diagnosed Mrs. Neave as having Munchausen by Proxy Syndrome (M.P.S.) , an unusual form of child abuse in which a parent fabricates an illness for their child and allows multiple unnecessary investigations and treatments. The next day, social services apprehended all three of the Neave's children. Later, in family court, the judge accepted the social worker's recommendation that Mrs. Neave was high-risk and that the children should be temporarily placed with their grandparents. The order allowed Mrs. Neave to visit her children under supervision, but she could not be alone with them.

The only evidence before the court was the C.P.U. director's diagnosis and an affidavit by Mrs. Neave's cousin, a social worker, who stated that Mrs. Neave was "emotionally troubled and a good person struggling with huge problems...who may very well be crying out for help in the only way she knew how."

At trial, the cousin conceded that he had never seen Mrs. Neave do anything in his presence that could be misconstrued as abuse. In fact, no one had ever seen Mrs. Neave abuse her children. In the meantime, the Neave's family doctor and pediatrician tried to contact the acting social worker but reported that their calls were not returned.

In December, the children were allowed to come home, with Mr. Neave acting as supervisor over his wife.

In January, the results of a court-ordered psychiatric assessment of Mrs. Neave concluded that Mrs. Neave's only psychological problem was caused by the apprehension of her children and by an R.C.M.P. interrogation shortly thereafter. In February, the Ministry of Social Services applied to the court to have all orders against Mrs. Neave set aside. At the time the orders were set aside, the Neave children had lived away from home for five months and the Neave's legal bills exceeded $10,000.

As these cases illustrate, the margin for error in Canada's child protection laws place families in a
vulnerable position. This is not to say that the state has no role in protecting children. Society has a vested interest in ensuring that a child's best interests are served. There are times when the state's power to intervene in cases of genuine physical or sexual abuse or neglect are crucial. A parents rights do not trump the rights of their child. Neither are the two necessarily opposed. The rights of the child must be paramount. However, where the parent and the state disagree on the child's best interests, the law must begin with the presumption that the parent, and not the state, is right. Beginning at this point places the onus on the state to rebut the presumption according to the principles of fundamental justice.

For example, when a parent administers corporal discipline in a manner that a child-protection worker decides is abusive, but which the parent believes is appropriate in the circumstances, it should be presumed that the parent is in the best position to assess the situation and act with the child's best interests in mind.

In Ogg-Moss v. R (1983) , 41 C.R. 297 (S.C.C.), the Supreme Court concluded that if corporal discipline was administered reasonably, and was intended for the benefit and education of the child, this constitutes legitimate discipline falling within Section 43 of the Criminal Code. A chronological study of the case law suggests that the risk of successfully invoking Section 43 to justify physical injury to a child is steadily diminishing. Prosecutors and judges are more aware of child abuse and are more responsive to protecting children's rights than were earlier courts. This observation was recently made by one of Canada's leading authorities on family rights, Queen's University law professor Nicholas Bala. In a presentation made to the Consultation on Section 43 of the Criminal Code, Professor Bala stated that:

The law and its application has clearly changed in the last two or three years. Court decisions interpreting Section 43 are moving away from tolerating the levels of physical injury to children cited from earlier years. While there are differences between judges and even between the courts of appeal of the different provinces, positive change may best come about through the development of case law to reflect changing attitudes toward the acceptance of severe corporal punishment of children. 22

It then becomes incumbent on the child protection worker to rebut the presumption with evidence that is directly probative of the ultimate question, is this child in need of protection as contemplated by the legislation? Speculative allegations would not in and of themselves be sufficiently probative to justify apprehension.

Placing family autonomy and parental rights squarely within Section 7 of the Charter of Rights would be a significant step toward ensuring a more equitable child-protection system. Deference to parental rights would not detract from the rights of the child; it would protect the child against the trauma that accompanies wrongful apprehension and temporary placement away from home and family. In addition, it would provide some protection to parents against the formidable powers of the state, which are sometimes exercised in ways that do not comply with the principles of natural justice.

In December 1994, for example, the Children's Aid Society (C.A.S) began to investigate an Ontario family after someone in the change room of a local swimming pool noticed a bruise on the boy's bottom. A C.A.S worker requested that she be allowed to come into the family home and examine the child. The parents refused, insisting instead that they would have their family doctor examine the child as quickly as possible and submit a report to the C.A.S. The doctor s report indicated that there was a transient bruise on the boy's bottom. The father readily admitted to the C.A.S. worker that he had spanked his son after the boy kicked the family cat and then refused to go to his room. The father explained that he had carried his son, kicking and screaming, to the boy's bedroom, where he proceeded to smack the boy's bottom with a belt. The father acknowledged that the spanking in question was excessive and that bruising a child was not within the purview of reasonable corporal discipline. However, he maintained that this was an isolated incident, unlikely to recur. 23

The C.A.S. tried to have the couple sign a contract agreeing to refrain from using corporal punishment to discipline their children. The couple had six children between one and nine years of age. This was the first allegation of abuse against either parent. The couple refused, stating that they believed corporal punishment was an appropriate form of discipline reserved for instances of blatant disobedience or defiance. They retained a lawyer and attempted to negotiate with the C.A.S. The next day, with no advance warning to the father, two police officers arrested him at his place of work. In the presence of his co-workers, the father was charged with assault causing bodily harm and assault with a weapon. He was handcuffed and taken into custody pending a bail hearing.

In May 1995, six months and eight court appearances after the father was charged, the Crown, without explanation, asked the court to stay the proceedings. By this time, the family had incurred approximately $8,000 in legal fees and much emotional stress. As a result of the ordeal, the husband believed his opportunities for advancement with his employer had been seriously undermined.

This case, like Butler and Neave, raises questions about fundamental justice and procedural fairness in child-protection cases. Much of what occurred would not have, if family autonomy and parental rights were clearly understood to be within the scope of Section 7 of the Charter.

The theoretical and functional chaos that characterizes much of Canada's child-rights policies is due in large part to Parliament's failure to ensure that the Charter of Rights expressly protects family autonomy and parental rights. In order to reintroduce the contextual purpose into child-rights theory, policy-makers must recognize again that protecting family autonomy is foundational to ensuring the best interests of the child.

Recently, the Supreme Court of Canada took steps to initiate the recognition of family autonomy by importing American jurisprudence that supports the inclusion of both parental rights and family autonomy as protected liberties within the meaning of Section 7 of the Charter.

What is Family Autonomy?

In 1982, the Utah Supreme Court provided that family autonomy should be among the primary objectives of the state:

The parental liberty right at issue...is fundamental to the existence of the institution of the family...Recognition of the due process and retained right of parents promotes values [that are] essential to the preservation of human freedom and dignity and to the perpetuation of our democratic society. The family is the principal conservator and transmitter of cherished values and traditions . . . Any invasion of the sanctity of the family, even with the loftiest motives, unavoidably threatens those traditions and values. 24

Family autonomy is recognized and protected in several international human-rights documents of which Canada is a signatory. For example, the Universal Declaration of Human Rights provides:
Art. 12. No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence.... Everyone has the right to the protection of the law against such interference. 25

Similarly, the International Covenant on Civil and Political Rights provides:
Art. 23.1 The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 26

As referred to earlier, the Canadian Bill of Rights states in its preamble:
The Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions. 27

In addition, the United Nations Convention on the Rights of the Child states in its preamble:
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities in the community. 28

The pro-family provisions of these documents reflect an age-old philosophical tradition that it is in the public interest to support and protect the family. This tradition has developed out of the commonly-held belief of societies throughout history that the family is the principal social institution, uniquely equipped to carry out various functions that advance the public interest (including care for the physical, economic and relational needs of its members) with minimal reliance on the state. 29

Today, child-rights advocates argue against using the traditional concept of family. They want to change what they consider as blatant inequalities and injustices within the traditional family structure. It is increasingly common for child-rights groups to call on the state to invoke its parens patriae jurisdiction in order to remedy these injustices. 30

Events of the U.N. Fourth World Conference on Women, held recently in Beijing, illustrate this ideology in action on an international level. In 1948, the Universal Declaration of Human Rights defined the family as "the natural and fundamental group unit of society...entitled to protection by society and the state."

Contrast that statement with the dismissive mention of the family in the conference's Platform for Action:

"In many cases, violence against women and girls occurs in the family or in the home...violence against women throughout the life cycle derives essentially from cultural patterns, in particular the harmful effects of certain traditional or customary practices. . ."

This statement would be fine if it were clear that traditional and customary practices referred to such things as genital mutilation, female infanticide, and child marriage. When read within the context of the Platform for Action though, this statement has a wider application which includes the traditional family structure. Mary Ann Glendon, Learned Hand Professor of Law at Harvard University and leader of the Vatican delegation to the Beijing Conference, made the following observations about the treatment of the family and the role of the parent in the Platform for Action, "The documents barely mention marriage, motherhood, and the family - except negatively as impediments to women's self actualization (and as associated with violence and oppression)." 31

Professor Glendon also noted that a coalition of countries, including Canada, opposed any affirmation of parental rights. "Though the Beijing documents had identified the situation of the 'girl child' as a 'critical area', the coalition attempted to eliminate all recognition of parental rights and duties from the draft.... They seemed indifferent to the fact that the Universal Declaration of Human Rights and subsequent human rights documents have consistently protected the parent-child relationship from outside intrusion."32

Conclusion: Extending Charter Protection to the Family

In January 1995, in R (B.) v. Metro Toronto Children's Aid Society, the Supreme Court of Canada undertook an in-depth analysis of the liberty right referred to in Section 7 of the Charter of Rights and its application to family autonomy and parental rights. In this case, the appellants, Jehovah's Witnesses, declined to allow their infant daughter to receive blood transfusions which the attending medical doctors believed necessary to preserve the child's life. Responding to their refusal, the C.A.S. secured an order for temporary wardship of the child and authorized the hospital to perform the transfusions. Authorities returned the infant to her parents once the transfusions were complete. The appellants challenged the Ontario Child Welfare Act, arguing that its power to force temporary wardship of their child, based only on their refusal to consent to a blood transfusion, infringed the appellants' right to choose medical treatment for their infant, contrary to Section 7 of the Charter of Rights.

Although the Supreme Court of Canada rightly rejected the appeal on the ground that the child's right to life will always supersede the parent's right to make medical decisions for the child, this case is extremely significant for what it says about parental rights and family autonomy. The court considered "instructive" a series of court decisions defining the relationship between family autonomy and liberty in the American Bill of Rights. The court followed the reasoning in these cases to conclude that the liberty right in Section 7 of the Charter includes the right of individuals to pursue family life free from undue interference by the state. The court concluded that the individual's right to pursue family life included the right of parents to make decisions on matters that affect their children. Writing for Gonthier, McLachlin, L'Heureux-Dube, JJ. and himself, Mr. Justice LaForest made the following statement:

...the American experience can give us valuable guidance as to the proper meaning and limits of liberty.

The United States Supreme Court has given a liberal interpretation to the concept of liberty, as it relates to family matters. It has elevated both the notion of the integrity of the family unit and that of parental rights to the status of constitutional values through its interpretation of the Fifth and Fourteenth Amendments.... Although [in Canada the parents'] liberty interest is not a parental right tantamount to a right of property in children, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself.

...I would have thought it plain that the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent.

We must accept that parents can, at times, make decisions contrary to their children's wishes -- and rights -- as long as they do not exceed the threshold dictated by public policy, in its broadest context. 33

In conclusion, the chaos that characterizes child-rights law reform can be remedied only by substantive and procedural recognition of the value of the family and the importance of its autonomy within society.

This requires recognition that the present direction of child-rights law is in some respects unbalanced and thus corrosive of the importance of the family in society. The way to affirm its importance would be to, once again, give it explicit recognition within the Canadian constitution. This would be best achieved by an amendment to the Charter of Rights to include the family, and continued development of case law built on the Supreme Court of Canada's judgement in R.(B.). The former could be done in tandem with provprovincial measures to affirm the importance of the family in provincial human-rights legislation or in separate legislation for that purpose. Amendment of the Federal Human Rights Act could be important to clarify Justice Minister Rock's assurances that the recent inclusion of "sexual orientation" as an enumerated ground for the purpose of protection from discrimination was not intended to indicate any alteration to definitions of "spouse" or "family" for matters under federal jurisdiction (this would be in line with the decision of the Supreme Court of Canada in Egan v. Canada). 34

By extending Charter protection to parental rights and family autonomy, the Supreme Court of Canada has laid a foundation for renewing the constitutional status of the family. It is significant that in Butler and Butler, the Newfoundland Supreme Court relied on the majority judgement in R. (B.), and quoted the words of Mr. Justice LaForest as authority for the protection of parental rights within Section 7 of the Charter of Rights. At best, this renewed recognition of the family could restore a much-needed balance to the administrative and judicial policies of the state on matters relating to the parent-child relationship.

Endnotes

1. Re J.P., 648 P. 2d 1364 at 1375-76 (Utah 1982). Quoted in Family Law and the 'Liberty Interest': Section 7 of the Canadian Charter of Rights, Nicholas Bala and J. Douglas Redfearn, 15 Ottawa L. Review 274.

2. I use the term "post-modern human rights" to distinguish the present objectives of human-rights initiatives from those of 1948. According to the United Nation's 50th anniversary report, Our Global Neighborhood, the post-war objective was to develop an international community to foster commonality on economic and social matters. The guiding principles were general and included a respect for life, a sense of liberty, justice, equity, and integrity, and a commitment to mutual caring.
This contrasts with post-modern human rights theory in which the focus is on protecting individual autonomy and eliminating perceived inequalities between social groups.

3. Convention on the Rights of the Child, Can. T.S. 1992 No. 3 Art. 1-54.

4. This document is available free of charge upon request from the Human Rights Directorate, Department of Canadian Heritage, Ottawa.

5. Children's Rights as Communication: "Reflections on Autopoietic Theory and the United Nations Convention," The Modern Law Review, 1994, Vol. 54, at 385.

6. Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Art. 1 - 54.

7. Article 19 has been interpreted by the U.N. Convention Review Committee to include freedom from reasonable corporal discipline by a parent for the purpose of correction. In its report, entitled Concluding Observations of the Committee on the Rights of the Child: Canada, June 19, 1995, available from Heritage Canada, the Committee criticizes Canada for failing to repeal Section 43 of the Criminal Code, the section that allows parents to use corporal discipline reasonable in the circumstances to correct their children. In this document, the Committee specifically recommends that Canada prohibit all corporal discipline of children. Lobby groups within Canada, including the Canadian Coalition on the Rights of the Child and the Repeal 43 Committee, have relied on the Committee's recommendation to argue that the government is obliged to repeal Section 43 in order to fulfill its commitments under the Convention. In fact, neither the Convention nor the Committee's recommendations have legal force in Canadian law. However, they have added considerable political and persuasive weight to the arguments of no-spank lobbyists.

8. Iain Benson, "The Meaning of Renewal," Centrepoints, September 1995, Vol.1 No.2, p. 1.

9. Indexed as R. v. M. (C.) , 23 O.R. (3d) at 629.

10. Halm v. Canada (Minister of Employment and Immigration) 27 C.R.R. (2d) 23.

11. Ibid.

12. Halm v. Canada, p. 32.

13. Ibid., p. 33.

14. R. v. Roy (C.Q.) [1995] R.J.Q. 282. This case contains a careful analysis of the law, and it comes to the conclusion that Section 159 does not violate the Charter.

15. Convention on the Rights of the Child: First Report of Canada, May, 1994, Human Rights Directorate, Department of Canadian Heritage, Ottawa.

16. Ibid., p. 5.

17. Some academics recommend that the evidence against a parent be "clear and convincing," a degree higher than a mere balance of probabilities, but not as strict as the "beyond a reasonable doubt" standard. See "Family Law and the Liberty Interest: Section 7 of the Canadian Charter of Rights", Nicholas Bala and J. Douglas Redfearn, 15 Ottawa Law Review 274.

18. For further analysis of potential parental rights violations under provincial child-protection legislation, see "A Family Law Hitchhiker's Guide to the Charter Galaxy," D.A. Rollie Thompson, [1989], 3 C.F.L.Q. 314, 327-339. [Rollie is from Nova Scotia - a legal professor at DAL]

19. The Director of Child Welfare v. Butler and Butler, Provincial Court of Newfoundland, Family Division, March 23, 1995, File No. 015, unreported. Appeal decision, Butler and Butler v. The Director of Child Welfare, Supreme Court of Newfoundland, Trial Division, December 15, 1995. File # G.B. No. 46, unreported.

20. Butler and Butler v. The Director of Child Welfare, supra, at 1-2.

21. Ibid., p.27.

22. Final Report -- Consultation on Section 43, 31 March 1994: An Examination of Physical Interventions with Children Summary Paper, p.6, presented by The Canadian Coalition for the Rights of the Child to the Children's Bureau, March 31, 1994.

23. R v. Joseph Cleary, Ontario Court, Provincial Division, December 15, 1994. 24. Supra, see note 1.

24. The Universal Declaration of Human Rights, as adopted by the United Nations General Assembly , Resolution 217A (111), 10th December, 1948

25. The International Covenant on Civil and Political Rights, U.N. General Assembly, Resolutions, reported in 21 C.A.O.R. Supp. 16, U.N. Document A/6316 (1966).

26. The Canadian Bill of Rights, 8-9 Elizabeth II, c. 44 (Canada), assented to 10th August, 1960.

27. supra, see note 6.

28. There is a wealth of scholarly research to support the primacy of the family throughout history. For instance, Max Rheinstein, the comparative law scholar from the University of Chicago, in an article in The International Encyclopedia of Comparative Law describes the family as "pre-legal," noting that, for most of history, the state existed not as an aggregate of individuals, but of "family clans" or "houses."

29. Parens patriae, translated into English means "the state is the parent of society." However, child-rights groups advocating greater state control of the family stretch the doctrine of parens patriae beyond what the jurisprudence can support. In Hepton v Matt, [1957] S.C.R. 606 at 607-08, Mr. Justice Rand made clear that parens patriae was never intended or used to justify the broad regulation of family life by the state. The kind of state authority that child-rights advocates promote more accurately describes what some academics have termed the therapeutic state. The therapeutic state refers to a government structure in which the casework method of social philanthropy is linked to the coercive power of the state, with the result that "there are no rights except those of individuals and the state." See Mary Ann Glendon, The Transformation of Family Law, Chicago: University of Chicago Press, 1989.

30. What Happened at Beijing, Mary Ann Glendon, First Things, January 1996, Number 59, p. 31.

31. Ibid., p. 32. The coalition referred to included the fifteen-member European Union, Barbados, Canada, Namibia, and South Africa.

32. R (B.) v. Metro Toronto Children's Aid Society et al. , 1995 1 S.C.R. 315.

33. Egan et al v. Canada (1995), 124 D. L. R. 609 (S.C.C.).

1. UN Convention on the Rights of the Child

2007-02-27T04:01:00.000-04:00

UN Convention on the Rights of the Child

Adopted and opened for signature, ratification and accession
by General Assembly resolution 44/25
of 20 November 1989

entry into force 2 September 1990, in accordance with article 49

Preamble

The States Parties to the present Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom,

Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,

Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children,

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth",

Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) ; and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict,

Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration,

Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child,

Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries, Have agreed as follows:

PART I

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 4

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

Article 5

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 6

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

Article 11

1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

Article 12

1. 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.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 13

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.

2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 14

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

Article 15

1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

Article 17

States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;

(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;

(c) Encourage the production and dissemination of children's books; (d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;

(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.

Article 19

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.

Article 21

States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;

(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.

Article 22

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention.

Article 23

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development

4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.

Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventive health care, guidance for parents and family planning education and services.

3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.

Article 25

States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.

Article 26

1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.

2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

Article 27

1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

Article 28

1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

(d) Make educational and vocational information and guidance available and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.

3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.

Article 29

1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.

2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Article 30

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

Article 31

1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.

Article 32

1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

Article 33

States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.

Article 34

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

Article 35

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

Article 36

States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Article 38

1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

Article 39

States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

Article 40

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

Article 41

Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:

(a) The law of a State party; or

(b) International law in force for that State.

PART II

Article 42

States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.

Article 43

1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.

2. The Committee shall consist of ten (replaced the word "ten" with the word "eighteen - amended by the 97th plenary meeting, 21 December 1995) experts of high moral standing and recognized competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems. (amendment)

3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.

4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention.

5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting.

7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee.

8. The Committee shall establish its own rules of procedure.

9. The Committee shall elect its officers for a period of two years.

10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.

11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.

12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.

Article 44

1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights:

(a) Within two years of the entry into force of the Convention for the State Party concerned;

(b) Thereafter every five years.

2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.

3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided.

4. The Committee may request from States Parties further information relevant to the implementation of the Convention.

5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities.

6. States Parties shall make their reports widely available to the public in their own countries. Article 45 In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:

(a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;

(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children's Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications;

(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child; (d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.

PART III

Article 46

The present Convention shall be open for signature by all States.

Article 47

The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 48 The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 49

1. The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.

Article 50

1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval.

2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties.

3. When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted.

Article 51

1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General.

Article 52

A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

Article 53

The Secretary-General of the United Nations is designated as the depositary of the present Convention.

Article 54

The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

IN WITNESS THEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective governments, have signed the present Convention.