April 23, 2007

6/23 Children have the right to their own Lawyer to Party to the Proceeding

Children are Suppose to Have the Right to Participate in Court as a Party to the Proceeding:

Parties to the Proceeding - Section 36 (1) (pursuant to Sections 32 to 49)
(c) the child, 16 years of age or more, unless the court otherwise orders pursuant to Section 37 (1)
(d) the child, 12 years of age or more, if so ordered by the court pursuant to Section 37 (2)
(e) the child, if so ordered by the court pursuant to subsection (3) of section 37.

Children 16 Years or Older - Section 37 (1)
“A child who is 16 years of age or more is a party to a proceeding unless the court otherwise orders and, if a party, is, upon request of the child, entitled to counsel for the purpose of a proceeding.”

Children 12 Years or Older - Section 37 (2)
“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.”

Other Sections of the Act that States that Children Should Be Able to Participate in the Process

Preamble to Act
“And Whereas children are entitled, to the extent they are capable of understanding, to be informed of their rights and freedoms, to be heard in the course of and to participate in the process that leads to decisions that affect them”

Section 3 (2)
“Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interest of the child, the person shall consider those of the following circumstances that are relevant:
(j) the child’s views and wishes, if they can be reasonably ascertained”

Section 41 (4)
“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.”

Section 48 (3)
“A party to a proceeding may apply to terminate an order for permanent care and custody or to vary access under such an order, in accordance with this Section, including the child where the child is sixteen years of age or more at the time of application for termination or variation of access.


Comments and Recommendations:



  • How many children are actually made parties to the proceedings with their own independent lawyers? We have found none.

  • Children are NOT being informed of their right to become a party to the proceeding and to have their own legal counsel. There is nothing in the Act that specifies that children need to be informed of their rights to be a party and have legal counsel.

  • There is concern that if it is the responsibility of Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services to inform children of these rights, that children would be informed in such a manner that they would not request such status. However there is no evidence that Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services has been informing children of these rights.

  • If the children do realize they have the right to be made a party to the proceedings, there is no process described in the Act for the child to do so. Children are afraid to make their wishes known to their social workers - afraid of repercussions, or pressures to change their minds through foster parents, social workers, group home workers, or parents who may not support this action.. This is another argument for the involvement of the an independent body - the Ombudsman office is not independent - it is a provincial office.

  • The Children’s Section of the provincial Ombudsman’s Office has had money specifically allocated to them by the legislature since 2001 to protect the interest of the children in care ( see Nova Scotia Office of the Ombudsman Annual Accountability Report for the Fiscal Year 2001/02 (pg 11), Nova Scotia Office of the Ombudsman
    Annual Accountability Report for the Fiscal Year 2002/03     (pg 12), and
    Nova Scotia Ofice of the Ombudsnan Annual Accountability Report for the Fiscal Year
    2003-04     (pg 10 ) . This money was repeatedly unspent “due to the delay in the implementation of the Children’s Ombudsman service to children in care of the government”. In 2005, the office finally claimed to be doing something for these children (we have not seen it) but they still have NO jurisdiction over children in foster care where the youngest and most vulnerable children are placed

  • No one is watching out for the children who are shipped out of province or out of country to such places as the deserts of Utah in southwestern United States. See the article Our Children are being Shipped Out to UTAH!

  • Section 37 (2) makes it very clear that a child can request a lawyer at any stage of the proceeding. The child needs to be formally informed of this right at the beginning, and there should be some sort of mechanism by which the child is reminded, in writing, on a regular basis, that they still have the right to have their own lawyer.

  • When parents have tried to get their children independent lawyers, they have been told a number of lies:
    Parents are told the guardian ad litems are the children’s lawyers -THEY ARE NOT!
    Parents are told the guardian ad litems’ lawyers are the children’s lawyers THEY ARE NOT !
    Parents are told they cannot assist their children to find a lawyer - yet the social workers will manipulate the children and the parents on this issue.
    When parents have found lawyers willing to take the case, Nova Scotia Legal Aid will not issue certificates for these lawyers.

  • We have witnessed Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services lawyers argue against the court allowing children independent lawyers using the general argument that THEY believe children are not mature enough to have their own lawyers. The justices /judges then just dismiss the children’s rights to independent lawyers. ismissed by the justice. BUT the Children and Family Services Act states children 12 years and older are indeed mature enough. BY dismissing the children‘s rights to an independent lawyer on the basis of a general argument, both the justice and the lawyer have raised themselves above the law , as if their personal opinion was more important than the law ! - For shame !

  • If children have court appointed guardian ad litems, we are aware that the wishes and concerns of the children are not being brought to the court through the guardian ad litems as they should. There are no mechanisms in place for the guardian ad litems to be accountable to the children. Gardian ad litems are dependent on repeat contracts through the system. As a result they work co- operatively with Children’s Aid Societies/Family and Children Services Agencies/ Department of Community Services at the expense of the rights and wishes of the children they are suppose to be representing.

  • Children in the care of the state have told us they are afraid to ask permission to be allowed to come to court and they are also afraid to come to court on their own to make a request to be made a party. They state they are afraid of possible repercussions because of missed school or because they are aware that their social workers do not want them to attend court.



  • Not allowing children to have their own lawyers is contrary to Article 12(2) of the United Nations Convention on the Rights of the Child (UN CRC) which states that “the child shall in particular be provided the opportunity to be heard in any judicial or administrative proceeding affecting the child, either directly or through a representative or an appropriate” It is also contrary to Article 9(2) of the UN CRC wherein the Article states that: "…[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." The United Nations Convention on the Rights of the Child is a legally binding international document that Canada signed in 1990 and ratified in 1991 - The Senate Committee on Human Rights is designated to report back to the United Nations on a regular basis to report on Canada’s implementation of this obligation - We are not doing well - The latest report, Children: The Silenced Citizens: Effective Implementation of Canada's International Obligations with respect to the Rights of Children , released in April of 2007 does not speak well of children’s rights in Canada.

Canada ignores children's rights, senators say
Government slammed for not living up to UN charter
By STEPHEN THORNE The Canadian Press
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, 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.

See additional information connected with this issue under Section 37 (3) Guardian Ad Litem

posted by Strong Families for Healthy Children ! @ 4/23/2007