Toward guaranteed legal representation for children in care

Abstract

In most jurisdictions in Canada, the children and youth apprehended into care by way of Provincial and Territorial child protection legislation are not recognized as parties to the court proceedings that follow, even though it is their lives that are arguably being most affected and impacted by the decisions and outcome. In these court proceedings, the interests of the parent, the youth and the State are not necessarily congruent but only the parent and State are automatically afforded legal representation. Of all the rights holders, children and youth are often relegated to a position of not being afforded the right to be heard in matters that gravely impact their lives. They are often silenced and have no avenue to voice their opinion. The methods of this research are qualitative in nature. The methodology of this study follows a human rights-based approach to research in that the main objective is to advance the realization of human rights for children and youth in care in Manitoba. The theoretical approach used to frame the analysis will be that of legal positivism. While there are moral arguments to be made as to why children and youth are entitled to legal representation, this research is focused instead on the identification and utilization of the existing laws and policies. These include the obligations through international treaties on the existence of the commitment to human rights through the Canadian Charter of Rights and Freedoms. The acknowledgement of those rights already established, and the political will in those jurisdictions that have established legal offices for children and youth will be relied upon to make the argument for a similar office in Manitoba. This research found that the current system of legal representation provided to youth in care does not meet obligations under international legislation given the federal/provincial division of power in Canada’s legal system and the inconsistencies youth face to access legal representation in child welfare court proceedings constitutes a violation of the rights guaranteed in section 7 and 15 of the Canadian Charter of Rights and Freedoms.