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Tuesday, September 28, 1999Noble words -- and not much else
The Convention on the Rights of the Child does little for those it purports to protect
On Sept. 30, at the Palais des Nations in Geneva, the United Nations' Office of the High Commissioner for Human Rights and the Committee on the Rights of the Child will be hosting a commemorative 10th anniversary meeting on the matter of the Convention on the Rights of the Child. In less than 10 years, all of the UN member nations but Somalia and the United States have ratified the convention. UNICEF proclaims the convention's "... uniqueness stems from the fact that it is the first legally binding international instrument to incorporate the full range of human rights -- children's civil and political rights as well as their economic, social and cultural rights -- thus giving all rights equal emphasis."
For example, Articles 3 and 12 of the convention require that in all legal decisions affecting a child, her best interests shall be given primary consideration and that she be heard in respect of any legal process that might affect her interests. Article 22 requires that member states ensure that all children of refugee parents receive appropriate protection and humanitarian assistance consistent with the convention and other international human rights instruments. Article 32 stipulates that member states must respect the right of a 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, and to take whatever legislative measures are needed to see that this occurs.
Canada, like the other member states, is bound by Article 4 which requires our country to take all appropriate legislative, administrative, and other measures, to the maximum extent of its available resources, for the implementation of the rights recognized in the convention.
But, like the experience of the child who dared to declare the emperor to have no clothes, children's rights advocates and children are seeing through the rhetoric. They have observed the convention to be a hollow and weak authority that offers little precedent for change, or remedy to the injustices around them.
Consider a few encounters with the convention within Canada:
- Consistent with the convention's Article 28 requirement that all children receive an education, Ontario's Education Act states that a child who is otherwise admitted to attend school shall not be refused admission because her parents may be unlawfully in Canada. The Canadian Council for Refugees raised the issue with the provincial government's enforceability of this right. The Education Minister answered in a June 24, 1998 letter, advising that, "... if a parent thinks a board is not complying with the Education Act, the parent should bring the situation to the attention of the school board's trustees." Just how is a parent living unlawfully in Canada and likely living in hiding to come forward and speak to school board trustees? More importantly, how is this a response in fulfillment of our undertaking to use all resources to ensure that every child receives an education?
- The Federal Court of Canada has ruled that the convention has no applicability to Canadian law, including the Charter of Rights and Freedoms. That court has rejected the convention as having any legal effect on the rights of Canadian children of deportees. Recently, the Supreme Court of Canada upheld that conclusion. The court said that while the convention has no direct application within Canadian law, it is an international human rights law and its values may help "inform the contextual approach to statutory interpretation and judicial review." Obviously, more rhetoric, because in at least one decision since the Supreme Court's ruling, the Federal Court has repeated the assertion that children have no charter or other rights of action when their parent is subject to a deportation proceeding. What exactly are children to make of Articles 3, 9, 12, and 27 of the convention that, by any reading, would suggest otherwise?
- Under the convention, children are to be spared the rod. Provincial child protection laws and measures taken by school boards throughout Canada rid the use of corporal punishment from the measures of appropriate discipline to be invoked by a parent or teacher. Nonetheless, Canada clings to Section 43 of the Criminal Code. Under that section, a mother who struck her 11-year-old child 10 times causing contusions and swelling on her buttocks received an absolute discharge in 1992. The presiding judge said that, "Parents are entitled to use a belt ... far be it from this court to say when a parent can and cannot use a belt. There are welts, but I guess you expect to find welts when you use a belt."
- Children, under the convention, are to be spared economic exploitation. A Canadian anti-slavery group located in Burns Lake, B.C., thought this was important enough to warrant a 1995 letter to the government about the importation into Canada of carpets made with child slave labour, pointing out the Canadian law that, if invoked, could stop this. Our government's response was to ignore the convention, applaud the group's initiative, and conclude nothing would be done under that section of the Customs tariff so as to prohibit the importation of goods into Canada that were the product of exploitative and forced labour.
- Children, under the convention, are to be spared cruel, inhumane or degrading treatment. Cast your attention, if you might, to the young Chinese children recently plastered on the pages of our newspapers and whose hands were shackled when removed from the boat that illegally harboured and left them in Canada.
- Most authorities are unaware of the convention. Immigration officials put forward by the Minister of Immigration in court cases in 1993 and 1997 involving the interests of children had no knowledge of the fact, let alone the content of the document. This, in spite of Article 41 which requires Canada "... to make the principles and provisions of the convention widely known, by appropriate and active means, to adults and children alike."
The imbalance between the interests of children and adults is best portrayed by the fact that there is no remedy under the convention when its provisions are contravened or ignored.
Unlike other international conventions, the child is denied the right to petition an international tribunal for relief or refuge when all other avenues have been exhausted within her country. In this respect, the convention, in its essence, discriminates against children. It is an adult-authored document that allows adults to wear the clothes of concern and care. That is its real problem.
The next time a not so properly attired green-purple-pink haired, nose-tongue-ear-belly-ringed squeegee youth invades your space and asks to wash your window, let her. Give her a buck. That's the least we owe.
Jeffery Wilson is a family law lawyer and will be an NGO representative for Canada at the upcoming 10th anniversary meeting.
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