Why Use This Cue Card
Considering potential impacts of decisions on children and youth will help make them visible to decision-makers and elevate their interests; provide a systematic approach to due regard and due diligence that results in better decisions and better outcomes; and support governments to fulfil their obligations.
“The Committee believes that using [child impact] assessments…could work to ensure that children’s rights and Canada’s international obligations under the Convention are actually enforceable in Canadian law. Although not necessarily apparent at first glance, almost every area of government policy and law affects children to some degree: consider the example of health, environmental, and economic legislation. As stated by the UNICEF Innocenti Research Centre, ‘there is no such thing as a child-neutral economic policy.’”
Canada ratified the Convention on the Rights of the Child in 1991, outlining the obligations of Canada’s governments to respect, protect and fulfill its principles and provisions. In all actions concerning children, the best interests of children must be a primary consideration. Both elected and executive officials have a duty to consider the interests and rights of children in their decisions, and to ensure decisions are compliant with the Convention.1 Incorporating a process of Child Rights Impact Assessment is an obligation pursuant to article 4 of the Convention, outlined in a number of General Comments of the UN Committee on the Rights of the Child and in their Concluding Observations to Canada.
The most effective way to determine if an action is in children’s best interests is to consider how it might optimally fulfil their rights in the Convention on the Rights of the Child. The Convention provides a comprehensive framework to consider a wide range of potential impacts on diverse children, taking the guess-work out and providing a common basis for assessment.
Giving explicit consideration to children corrects an imbalance of interests in political decision-making. Children are a large population (20 per cent of the Canadian population) whose interests are often overlooked or subordinate. Children do not generally have the opportunity to participate in the political process, as non-voting citizens, nor to engage in other processes that influence public policy.2 Children are also overlooked because it is often assumed that they won’t be affected by a decision or that the impacts on them will not differ from those on adults. There is no child-neutral public policy.
Children have the right to due consideration because they are the most vulnerable group affected by public decisions. Children are vulnerable because of their developmental stage, dependency and lack of legal status. They generally lack power to control or affect fundamental decisions over their bodies and lives. With one chance at a childhood, they can be disproportionately affected by adverse conditions, and may have overlapping vulnerabilities related to age, gender, disability, ethnicity and other status.
Members of Parliament generally do not have access to child-focused information and analytical tools, yet they have a duty to ensure that government proposals have undertaken due regard or due diligence for children. The Government of Canada Cabinet Directive on Streamlining Regulation does not make any reference to children, nor do the commonly used impact lenses of gender and privacy. The Department of Justice is required to develop and assess proposed laws, policies and programs on children, considering the Convention on the Rights of the Child, as outlined in the department’s Applying a Children’s Lens in Policy Development and the Common Considerations Checklist, but does not produce these analyses for parliamentary scrutiny.
The daily lives of children are affected by policies, legislation, regulations, programs and the allocation of resources by all levels of government. Federal decisions in the domains of Indigenous rights, immigration and citizenship, health, divorce, income benefits and taxation, public safety, justice and budgeting have significant direct and indirect impacts on Canada’s children. Developing the full and equitable potential of younger generations is essential for sustainable economic and social well-being. Members of Parliament should know how children will be affected by a proposed law or policy change, including different groups of children in different circumstances.
Canadian courts have determined domestic law should comply with international law as a minimum standard. There is ample evidence that government and parliamentary decisions are not consistently informed by their potential impacts on children and their rights, sometimes with undesirable and usually unintended social, economic and political consequences and costs. Children may pay for these costs for decades, across their lifespans. Systematic mechanisms are needed to support Parliamentarians to exercise their responsibility to protect the best interests of all children in Canada, and help assure Canadians of the legitimacy and quality of the decision-making process.
1 The Government of Canada ratified the Convention on the Rights of the Child in 1991 and it has been endorsed by provincial and territorial governments.
2 Department of Justice, Applying a Children’s Lens in Policy Development
Example 1
In Inglis v. British Columbia (Minister of Public Safety), 2013, children’s rights violations may not have occurred had a Child Rights Impact Assessment been applied prior to a public policy decision. The case involved the Mother-Baby program at Allouette Correction Centre for Women, which was offered to women giving birth while incarcerated. It enabled infants to remain with their mothers for the critical period of bonding and initiation of breastfeeding, which have significant and lifelong impacts. The program was cancelled in April 2008. The Court found this violated the rights of babies and their mothers to stay together and that the corrections system was obliged to accommodate and respect these rights. The Court found the Convention on the Rights of the Child relevant to the Court’s analysis (at para 364):
The best interests of the child is a primary consideration in all actions taken by the state concerning children.
A child shall not be separated from his or her parents against their will except with due process and where it is necessary in the best interests of the child.
The state’s responsibilities with respect to prisoners shall be discharged in keeping with its fundamental responsibilities for promoting the well-being and development of all members of society.
Example 2
The 2008 Supreme Court decision of R. v. D.B. involved a Charter challenge to provisions in the Youth Criminal Justice Act. The Court identified a new principle of fundamental justice: the presumption that youth are less morally blameworthy than adults. In identifying this principle, the court relied in part on article 40: children in conflict with the law are entitled to treatment that takes into account the child’s age and the desirability to promote reintegration and to help the child play a constructive role in society. This decision also reflects article 1 (definition of a child) in treating children as a distinct population; article 2 (non-discrimination) given the disproportionate incarceration of racialized youth and boys; and many other rights that are supported with an orientation to diversion and reintegration, including education, health, optimal development, access to culture, etc.