Difference between revisions of "Children's Rights"

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{{REVIEWEDPLS | reviewer = [https://rcybc.ca/about-us/staff/jeff-rud Jeff Rud] of the Office of the Representative for Children & Youth, Shannan Knutson of the  Ministry of Attorney General, and Heidi Sarrazin and Leslie Anderson of the Ministry of Children and Family Development|date= July 2018}} {{Dial-A-Law TOC|expanded = children}}
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The legal rights of children vary from those of adults. Learn the rights of children in several contexts, and situations where their views are considered in decisions that affect them.


Can children have input about things that affect them?
==The rights of children==
Sometimes—it depends on the situation. Section 37 of the Family Law Act says that in making an agreement or order about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. Subsection 37(2)(b) says that the views of the child are one factor to consider in deciding what the best interests of the child are, unless it would be inappropriate to consider them. And a judge may find it inappropriate to consider a child’s views.


On the other hand, decisions about child protection focus on safety (does the child need protection) not on their best interests or their views. But when it comes to adoption, any agreement or order to adopt a child aged 12 or older (and changing the child’s name) can proceed only if the child agrees to it.
===To consent to their own health care===
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-223/latest/rsbc-1996-c-223.html#sec17_smooth Under the law in BC], a child under age 19 may consent to their own health care — '''if they are “capable”'''.


Children in care have a right to be consulted and express their views. “In care” means a child is in the custody, care or guardianship of the director of child welfare or the director of adoption. And “care” means physical care and control. Children can say what they want in the following areas (though a judge can still decide not to consider what they say):
The law considers a child capable if they understand the need for the health care, what the care involves, and the consequences (the benefits and risks) of getting the care — or not getting the care.


which parent they prefer to live with if their parents separate or divorce.
If a health care provider explains these things to the child and is satisfied the child understands them, and that the health care is in the child’s best interests, they can treat the child if the child consents to the care. The provider does not need the consent of the child’s parents or guardians. The child might have to sign a consent form.
whether to receive or refuse medical or psychiatric treatment. This is a complicated area of law. For example, a parent or guardian can have a child under 16 admitted for psychiatric care and the child may not be able to leave without the consent of the parent or guardian. And the ability of a child under 19 to consent to medical treatment depends on whether they have the capacity to consent. A healthcare provider has to assess that capacity.
what they want in child protection cases. This information usually comes from the social worker. The child does not have their own lawyer or talk to the judge.
significant decisions that affect them while they are in foster care.
access to money held in trust for them.
what to do if they are charged with a crime.
As children get older, their capacity to make decisions increases and their input will generally have more influence on the decisions made about and for them.


Can children choose which parent to live with if their parents separate or divorce?
Generally, if a child is capable of consenting to health care, they are also capable of making a decision to refuse health care.
Children do not generally get to choose which parent they live with if their parents separate or divorce, but they can express their views. The parents can agree on which one of them their children will live with and how often each parent will see their children. The parents may decide not to consult the children or anyone else when they make these decisions. Or the parents may talk to the children, social workers, lawyers, counselors, or other professionals. If the parents make an agreement that their children are not happy with, the children can talk to the parents about it, but it’s still the parents’ decision.


If the parents can’t agree, a court may have to decide who the children live with. Section 37(1) of the Family Law Act says that the parties and the court must consider the best interests of the child only in making an agreement or order about guardianship, parenting arrangements, or contact with a child. Section 37(2) says that to decide what the child’s best interests are, all of the child’s needs and circumstances must be considered, including:
For more on this topic, [[Children and Consent to Health Care|see our information on children and consent to health care]].


The child’s heath and emotional well-being.
====If they are hospitalized against their will for psychiatric treatment====
The child’s views, unless it would be inappropriate to consider them.
A child under age 16 can be hospitalized against their will for psychiatric treatment in one of two ways:
The nature and strength of the relationship between the child and significant people in the child’s life.
The history of the child’s care.
The child’s need for stability, given the child’s age and stage of development.
The ability of each person (who is or seeks to be the child’s guardian, or who has or seeks parental responsibilities, parenting time or contact with the child) to exercise their responsibilities.
The impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member.
Whether the actions of a person responsible for family violence indicate the person’s ability to care for the child and meet the child’s needs may be impaired.
The appropriateness of any arrangement requiring the child’s guardians to cooperate on issues affecting the child, including whether it would increase risks to safety, security or well-being of the child or other family members.
Any civil or criminal proceeding related to the child’s safety, security or well-being.
As this shows, a child’s view is important, but it’s only one of many things that matter. Both the age and maturity of a child are important when a court considers a child’s views. A court often assesses a child’s maturity by examining how the child behaves at home and at school.


Do children need their parents’ or guardians’ permission to see a doctor?
* if a parent or guardian requests it and a doctor agrees it’s in the child’s best interest, or
It depends on the child’s mental capacity. BC’s Infants Act says that children under 19 can consent to their own healthcare if a healthcare provider has decided that the child understands the nature and consequences, and the reasonably foreseeable benefits and risks, of the healthcare. And the healthcare provider must also have decided that the healthcare is in the child’s best interests. In those cases, a child does not need the consent of a parent or guardian to see a doctor. So they could get a prescription for birth control, without a parent’s permission. A teenager could also get an abortion without their parents’ consent.
* if the child is admitted as an involuntary patient [http://canlii.ca/t/846j under the ''Mental Health Act''].


For more on this, check script 422, called “Children and Consent to Medical Care.”
In both cases, the child has the right to be told why they’ve been admitted and the right to contact a lawyer immediately. If they want to leave but their doctor won’t let them, the child can ask for a hearing by a review panel or court.


What rights do children have if they are hospitalized against their will for psychiatric treatment?
A child age 16 or older can be admitted against their will for psychiatric treatment only as an involuntary patient. To find out more about involuntary admissions, [[Hospitalizing a Mentally Ill Person|see our information on hospitalizing a mentally ill person]].
A child under 16 can be hospitalized against their will for psychiatric treatment in one of two ways:


if a parent or guardian requests it and a doctor agrees that it’s in the child’s best interest.
===If they are “in care”===
if the child is admitted as an involuntary patient under the Mental Health Act.
If a child is in the care of the province, or '''in care''', [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-46/latest/rsbc-1996-c-46.html#sec70_smooth BC’s child protection law] gives the child certain rights. They include the right to be consulted and give their views on decisions that affect them. They also include the rights to reasonable privacy, to be free from physical punishment, and to be informed about (and helped to contact) the Ombudsperson and the Representative for Children and Youth. (We give contact details for these two offices shortly.)
In both cases, the child has the right to be told why they’ve been admitted and the right to contact a lawyer immediately. If they want to leave but their doctor won’t let them, they can ask for a hearing by a review panel or court.


A child 16 or older can be admitted against their will for psychiatric treatment only as an involuntary patient. To find out more about involuntary admissions, check script 425, called “Hospitalizing a Mentally Ill Person.”
“In care” means a child is in the custody, care or guardianship of the child welfare or adoption authorities. “Care” means physical care and control. If a child is removed from their home by the child welfare authorities, the authorities have care of the child until the child is returned to their parents or a court makes an order. If a child is in care, the child’s worker, other people important to the child, and the child meet and develop a care plan for the child.


Can children have input in child protection cases?
For more information, [https://www2.gov.bc.ca/assets/gov/family-and-social-supports/foster-parenting/know_your_rights.pdf see the publication ''Know Your Rights: A Guide to Rights for Young People in Care''], published by the Ministry of Children and Family Development. Also, the Ministry website [https://www2.gov.bc.ca/gov/content/family-social-supports/youth-and-family-services/teens-in-foster-care includes a section for if you’re a teen in foster care].
Yes. The BC Child, Family and Community Service Act requires a child’s views to be taken into account when decisions about the child are made. The Act defines a child as a person under 19 years old.


If a child has been—or is likely to be—abused or neglected, child welfare workers will investigate and do their best to keep the child safe with their parents. For example, the worker may provide in-home support services for the family or obtain a court order to supervise the child in the home. The worker can remove a child from the child’s home if the child is in immediate danger or if the worker decides—after fully exploring all available options—that there is no other way to keep the child safe.  
===If they are charged with a crime===
[https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html The ''Youth Criminal Justice Act''] explains how police, courts, and the correctional system must treat young people age 12 to 17 who are arrested for, charged with, or convicted of a crime under federal laws.


If a child is removed from their home, a presentation hearing must be held within 7 days in Family Court. Children 12 and older must be notified in writing of the date and place of the hearing. They have a right to be consulted and express their views, but often this consultation is with a social worker who tells the court about the child’s views. A social worker must say in the plan of care (for the child) that they give to the court whether they considered the child’s views in making the plan. In some cases, a lawyer may be appointed to represent the child. Children under 12 may be invited to attend the hearing and say what they think.
The most important federal criminal law is [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html the ''Criminal Code'']. It covers common crimes like shoplifting, breaking and entering, car theft, and assault. Other federal laws deal with things like possessing and selling (or trafficking) illegal drugs.


A child may also be asked to consent to an agreement or court order that affects them. If the child is 12 or older, no agreement or consent court order can be made without the child’s consent, and the child has the right to speak to a lawyer.
Provincial laws cover many other crimes, such as drinking under age, trespassing, and breaking traffic laws.


For more information on child protection services, see the publication called Know Your Rights: A Guide for Young People in Care, published by the Ministry of Children and Family Development.
A young person who is stopped and questioned by the police has the right to remain silent. If a young person is arrested or detained, they have the right to legal advice. If they are charged with a federal crime, they have the right to a lawyer to represent them. For more on the rights of young people charged with a crime, [[Young People and Criminal Law|see our information on young people and criminal law]] and [[Youth Justice Court Trials|trials involving young people]].
==Common questions==


What rights do children in care have?
===What kind of input can children have on things that affect them?===
If a child is in the Ministry’s care, or “in care”, section 70 of the Child, Family and Community Service Act gives the child certain rights. They include the right to be consulted and give their views on decisions that affect them. They also include the rights to reasonable privacy, to be free from physical punishment, and to be informed about (and helped to contact) the Ombudsperson and the Office of the Representative for Children and Youth.
Under many laws, the views of a child must be considered in making decisions affecting them. Some laws require the child’s approval.


“In care” means a child is in the custody, care or guardianship of the director of child welfare or the director of adoption. And “care” means physical care and control. If a child is removed by the director of child welfare, the director has care of a child until the child is returned to their parents or a court makes an order.
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth Under the ''Family Law Act''], in making an agreement or order about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. The law lists the '''child’s views''' as one factor that must be considered in determining their best interests, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views.


If a child is in care, the child’s worker, other people important to the child, and the child, if possible, meet and develop an interim care plan for the child within 30 days of when the child is put in care. They then develop a care plan within 6 months of when the child is put in care. The same people review the care plan 6 months after it is completed and whenever a significant event occurs in the child’s life. They also develop a new care plan each year.
If a person other than a child’s parent applies to court for an order appointing them as the child’s guardian, the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth ''Family Law Act''] requires the '''child’s written approval''' (if they’re age 12 or older). The approval is not required if the court is satisfied the appointment is in the best interests of the child.


For more information, see the publication called Know Your Rights: A Guide for Young People in Care, published bythe Ministry of Children and Family Development.
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-46/latest/rsbc-1996-c-46.html#sec70_smooth Under BC’s child protection law], a child in care of the province has a '''right to be consulted and to express their views''', according to their abilities, about significant decisions affecting them. If the child is age 12 or older, any consent court order must have the child’s consent.


Can children access money held in trust for them by the Public Guardian and Trustee?
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-5/latest/rsbc-1996-c-5.html#sec13_smooth Under BC’s adoption law], if a child is age 12 or older, their consent to being adopted is required. The views of a child between seven and 11 must be considered.
It depends on the situation. BC’s Public Guardian and Trustee oversees the legal rights and financial interests of children under age 19. The Trustee holds money that children receive in the following types of cases—if another trustee is not appointed:


an injury award after an accident.
===When a family breaks up, can children choose which parent to live with?===
an inheritance.
Children do not generally get to choose which parent they live with if their parents separate or divorce, but they can express their views. The parents can agree on parenting arrangements, including where their children will live, how much time the children will spend with each parent, and how decisions about them will be made. To help them make these decisions, the parents may talk to the children, social workers, lawyers, counsellors, or other professionals. If the parents make an agreement their children are not happy with, the children can talk to the parents about it. But it’s still the parents’ decision.
life insurance proceeds.
part of the money that a child under 15 makes from acting in TV or films.
The Trustee pays all a child’s money (with interest) to the child when they turn 19. The Trustee may also use some of a child’s money—before the child is 19—to pay for things that a child or their family cannot afford, such as school fees, tutoring, camps and trips, transportation, computers, and dental needs.


For more information, check with the Public Guardian and Trustee. Call 604.660.4444.
If the parents can’t agree, a court may have to decide who the children live with. [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth Under the ''Family Law Act''], the parties and the court must consider the best interests of the child only. The law lists a number of factors that must be considered, including the child’s views, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views. A court often assesses a child’s maturity by examining how the child behaves at home and at school.


What rights do children have if they are charged with, or convicted of, a criminal offence?
===Can children access money held in trust for them by the Public Guardian and Trustee?===
The Youth Criminal Justice Act explains how police, courts, and the correctional system must treat young people, 12- to 17-years old, who are arrested for, charged with, or convicted of a crime under federal laws.
It depends on the situation. BC’s Public Guardian and Trustee oversees the legal rights and financial interests of children under age 19. The Public Guardian and Trustee holds money that children receive in the following types of cases — if another trustee is not appointed:


The most important federal criminal law is the Criminal Code. It covers common crimes like shoplifting, breaking and entering, car theft, and assault. Other federal laws deal with things like possessing and selling (or trafficking) illegal drugs.
* an injury award after an accident
* an inheritance
* life insurance proceeds
* part of the money that a child under 15 makes from acting in TV or films


Under the Youth Criminal Justice Act, children who are stopped and questioned by the police have the right to a lawyer and the right to remain silent, with some exceptions. Children who are arrested or who are charged with a crime but not arrested, have other rights. For more information, check script 225, called “Young People and Criminal Law.” As well, check Youth Justice on the Ministry of Children and Family Development website.
The Public Guardian and Trustee pays all a child’s money (with interest) to the child when they turn 19. The Public Guardian and Trustee may also use some of a child’s money — before the child is 19 — to pay for things a child or their family cannot afford, such as school fees, tutoring, camps and trips, transportation, computers, and dental needs.


Provincial laws, not the Youth Criminal Justice Act, cover many other crimes, such as drinking under age, trespassing, and breaking traffic laws.
For more information, check with the Public Guardian and Trustee. [http://www.trustee.bc.ca/ Visit their website] or call 604-660-4444.


Where can children, parents, and guardians get help?
==Who can help==
Call the Representative for Children and Youth at 1.800.476.3933. The Representative does not work for government. She is an independent officer of the BC legislature. She supports children, youth, and families who need help dealing with the child welfare system. She also suggests changes to the system.


Contact the Ministry of Children and Family Development. A child or youth receiving services from the ministry (or their family member or caregiver) who disagrees with something the ministry did or decided, has a right to complain and be taken seriously. For more information on how to make a complaint, go to Complaints Process on the Ministry website.
===For children===
Children who would like to talk to someone can call the '''Helpline for Children'''. This confidential service operates at any time of the day or night.


The Provincial Ombudsperson ensures that youth are treated fairly by people who provide service to them. This office can provide an independent review of a case. Call 1.800.567.3247.
* Call 310-1234 (toll-free)


For urgent help, dial “0” or “411” and ask the operator for the Helpline for Children. You can also dial it directly at 310.1234 (no area code). A social worker will answer 24 hours a day.
===For children and families===
A child receiving services from the '''Ministry of Children and Family Development''' (or their family member or caregiver) who disagrees with something the ministry did or decided, has a right to complain and be taken seriously. The Ministry website [https://www2.gov.bc.ca/gov/content/family-social-supports/data-monitoring-quality-assurance/child-family-service-complaints?keyword=complaints&keyword=process provides information on how to make a complaint].


* [https://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/children-and-family-development Visit website]


[updated July 2014]
The '''Provincial Ombudsperson''' responds to complaints about ministries, schools and other provincial authorities that affect children and youth.


* Call 1-800-567-3247 (toll-free)
* [https://bcombudsperson.ca/ Visit website]


----
The '''Representative for Children and Youth''' supports children and families who need help dealing with the child welfare system. The Representative does not work for government, but is an independent officer of the BC legislature. They also suggest changes to the system.
----


* Call 1-800-476-3933 (toll-free)
* [https://rcybc.ca/ Visit website]


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Latest revision as of 06:22, 9 November 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Jeff Rud of the Office of the Representative for Children & Youth, Shannan Knutson of the Ministry of Attorney General, and Heidi Sarrazin and Leslie Anderson of the Ministry of Children and Family Development in July 2018.
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The legal rights of children vary from those of adults. Learn the rights of children in several contexts, and situations where their views are considered in decisions that affect them.

The rights of children

To consent to their own health care

Under the law in BC, a child under age 19 may consent to their own health care — if they are “capable”.

The law considers a child capable if they understand the need for the health care, what the care involves, and the consequences (the benefits and risks) of getting the care — or not getting the care.

If a health care provider explains these things to the child and is satisfied the child understands them, and that the health care is in the child’s best interests, they can treat the child if the child consents to the care. The provider does not need the consent of the child’s parents or guardians. The child might have to sign a consent form.

Generally, if a child is capable of consenting to health care, they are also capable of making a decision to refuse health care.

For more on this topic, see our information on children and consent to health care.

If they are hospitalized against their will for psychiatric treatment

A child under age 16 can be hospitalized against their will for psychiatric treatment in one of two ways:

  • if a parent or guardian requests it and a doctor agrees it’s in the child’s best interest, or
  • if the child is admitted as an involuntary patient under the Mental Health Act.

In both cases, the child has the right to be told why they’ve been admitted and the right to contact a lawyer immediately. If they want to leave but their doctor won’t let them, the child can ask for a hearing by a review panel or court.

A child age 16 or older can be admitted against their will for psychiatric treatment only as an involuntary patient. To find out more about involuntary admissions, see our information on hospitalizing a mentally ill person.

If they are “in care”

If a child is in the care of the province, or in care, BC’s child protection law gives the child certain rights. They include the right to be consulted and give their views on decisions that affect them. They also include the rights to reasonable privacy, to be free from physical punishment, and to be informed about (and helped to contact) the Ombudsperson and the Representative for Children and Youth. (We give contact details for these two offices shortly.)

“In care” means a child is in the custody, care or guardianship of the child welfare or adoption authorities. “Care” means physical care and control. If a child is removed from their home by the child welfare authorities, the authorities have care of the child until the child is returned to their parents or a court makes an order. If a child is in care, the child’s worker, other people important to the child, and the child meet and develop a care plan for the child.

For more information, see the publication Know Your Rights: A Guide to Rights for Young People in Care, published by the Ministry of Children and Family Development. Also, the Ministry website includes a section for if you’re a teen in foster care.

If they are charged with a crime

The Youth Criminal Justice Act explains how police, courts, and the correctional system must treat young people age 12 to 17 who are arrested for, charged with, or convicted of a crime under federal laws.

The most important federal criminal law is the Criminal Code. It covers common crimes like shoplifting, breaking and entering, car theft, and assault. Other federal laws deal with things like possessing and selling (or trafficking) illegal drugs.

Provincial laws cover many other crimes, such as drinking under age, trespassing, and breaking traffic laws.

A young person who is stopped and questioned by the police has the right to remain silent. If a young person is arrested or detained, they have the right to legal advice. If they are charged with a federal crime, they have the right to a lawyer to represent them. For more on the rights of young people charged with a crime, see our information on young people and criminal law and trials involving young people.

Common questions

What kind of input can children have on things that affect them?

Under many laws, the views of a child must be considered in making decisions affecting them. Some laws require the child’s approval.

Under the Family Law Act, in making an agreement or order about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. The law lists the child’s views as one factor that must be considered in determining their best interests, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views.

If a person other than a child’s parent applies to court for an order appointing them as the child’s guardian, the Family Law Act requires the child’s written approval (if they’re age 12 or older). The approval is not required if the court is satisfied the appointment is in the best interests of the child.

Under BC’s child protection law, a child in care of the province has a right to be consulted and to express their views, according to their abilities, about significant decisions affecting them. If the child is age 12 or older, any consent court order must have the child’s consent.

Under BC’s adoption law, if a child is age 12 or older, their consent to being adopted is required. The views of a child between seven and 11 must be considered.

When a family breaks up, can children choose which parent to live with?

Children do not generally get to choose which parent they live with if their parents separate or divorce, but they can express their views. The parents can agree on parenting arrangements, including where their children will live, how much time the children will spend with each parent, and how decisions about them will be made. To help them make these decisions, the parents may talk to the children, social workers, lawyers, counsellors, or other professionals. If the parents make an agreement their children are not happy with, the children can talk to the parents about it. But it’s still the parents’ decision.

If the parents can’t agree, a court may have to decide who the children live with. Under the Family Law Act, the parties and the court must consider the best interests of the child only. The law lists a number of factors that must be considered, including the child’s views, unless it would be inappropriate to consider them. Both the age and maturity of a child are important when a court considers a child’s views. A court often assesses a child’s maturity by examining how the child behaves at home and at school.

Can children access money held in trust for them by the Public Guardian and Trustee?

It depends on the situation. BC’s Public Guardian and Trustee oversees the legal rights and financial interests of children under age 19. The Public Guardian and Trustee holds money that children receive in the following types of cases — if another trustee is not appointed:

  • an injury award after an accident
  • an inheritance
  • life insurance proceeds
  • part of the money that a child under 15 makes from acting in TV or films

The Public Guardian and Trustee pays all a child’s money (with interest) to the child when they turn 19. The Public Guardian and Trustee may also use some of a child’s money — before the child is 19 — to pay for things a child or their family cannot afford, such as school fees, tutoring, camps and trips, transportation, computers, and dental needs.

For more information, check with the Public Guardian and Trustee. Visit their website or call 604-660-4444.

Who can help

For children

Children who would like to talk to someone can call the Helpline for Children. This confidential service operates at any time of the day or night.

  • Call 310-1234 (toll-free)

For children and families

A child receiving services from the Ministry of Children and Family Development (or their family member or caregiver) who disagrees with something the ministry did or decided, has a right to complain and be taken seriously. The Ministry website provides information on how to make a complaint.

The Provincial Ombudsperson responds to complaints about ministries, schools and other provincial authorities that affect children and youth.

The Representative for Children and Youth supports children and families who need help dealing with the child welfare system. The Representative does not work for government, but is an independent officer of the BC legislature. They also suggest changes to the system.

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