Spotlight on child protection: Party status for children
December 16, 2020
BY Kevin Zakreski
This post is part of a series that spotlights issues discussed in the Consultation Paper on Modernizing the Child, Family and Community Service Act . To read other posts in the series please click here.
Brief description of the issue
The Child, Family and Community Service Act contains a large number of provisions that declare people to be parties to specific court proceedings under the Act. In the vast majority of these provisions, children (if 12 years of age or older) are required to be served documents in the proceedings but are not parties to the proceeding. Since having the status of a party has implications for a child’s role in the proceedings and for access to a lawyer, should these provisions, or some of them, be amended to provide that a child (if 12 years of age or older) is entitled to be a party to the proceeding?
Discussion of options for reform
The options to address this issue range from systematically amending all the listed provisions to add language making children parties to child protection proceedings to proposing to amend only some of the listed provisions to supporting the status quo.
The main advantage to amending the legislation and adding children as parties to child protection proceedings is that it ensures children’s voices are heard in those proceedings. Arguably, giving children the status of parties is the strongest possible way to achieve that outcome, as party status gives a person some measure of control over the proceeding. Party status for children would also have to go hand in hand with legal representation, which would give children a valuable safeguard for their rights in child protection proceedings.
The downside of amending the legislation is that it would put in place an idea that doesn’t have much of a track record and that could add significant administrative and financial costs to the child protection system. As a commentator has noted, “[i]n most instances of CLR [children’s legal representation], the child does not have party status.” There may be more limited tools that achieve results for children without imposing added costs and uncertainty.
The committee’s tentative recommendations for reform
The committee favoured a middle approach to this issue, one that would fall between automatically making children a party to child protection proceedings and retaining the status quo.
While children value participation in proceedings, having their views taken seriously by decision-makers, and legal representation (topics that are addressed later elsewhere in the consultation paper), party status goes well beyond these concerns. Party status requires a person to be an active player in litigation. Many children do not want to play this role. This reluctance is reflected in child protection legislation across the country, which contains few examples of legislative provisions that automatically make children parties to a child protection proceeding.
That said, the committee decided that there are ways to improve the status quo. A provision could be added to section 39 to deal substantively with the special case of a child applying to the court to become a party.
In discussing this issue, the committee noted that section 39 (like many other provisions in the Act) relies on an age cut-off. The committee noted that these references to a child’s age function as proxies for assessing a child’s capacity to participate as a party. This approach is open to question, as it excludes mature children, who don’t meet the age cut-off but who may have the capacity to benefit from this legislative provision. A better approach might be to carry out individual assessment of a child’s mental capacity, coupled with a legislative presumption of capacity. That said, the committee was aware that this issue was outside its mandate. It felt constrained to accommodate its tentative recommendation within the terms of the statute on this point. But further study of this issue (by an organization that has the mandate to directly take it on) would be welcome.
The committee tentatively recommends:
Section 39 of the Child, Family and Community Service Act should be amended to add a new subsection (2.1) that reads as follows: “A child, if 12 years of age or older, who appears at the commencement of a hearing is entitled to be a party, subject to the court’s discretion.”
In addition to proposing legislative reform, the committee decided that there were changes to practice that could help support its proposed new legislative provision. This support would come from the development of a new form, which could be used to record the child’s views on applying to become a party to a child protection proceeding.
The committee tentatively recommends:
A form should be developed for use by lawyers who give independent legal advice, which requires the lawyer to confirm whether or not the child wishes to be a party to a hearing.
The lawyer who gives independent legal advice to a child should provide to the social worker the new form that records whether or not a child wants to be a party, to be maintained on the child’s file, and made available to be filed with the court at the request of the child or any other party.