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| Marvin Zuker |
Parental rights and the threats of violence towards children do not go together. I cannot go home because my parents have found out I am gay or believe I identify as another gender. My privacy at school no longer exists. As a transgender or gender-nonconforming student, I cannot express my gender identity. Parental Rights? Do they need to know? In fact, must they know?
The “best interest of the child” encompasses a substantive right, a fundamental interpretative legal principle and a rule of procedure. Dare I mention or even think of the 1989 United Nations Convention on the Rights of the Child (UNCRC) referencing Article 3 and the UNCRC General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration?
Hopefully, Pierre Poilievre would not withdraw Canada from the UNCRC. Naïveté perhaps, but, can you be a “successful” politician starting your podcast, “Dear rights of the child community…”?
Yes, as shocking as it may seem, children are independent rights-holders and civic actors.
Parents, of course, can align with the judgment of their children and their doctors, or medical providers, but what if they don’t?
There are many instances where the “discrete characteristics,” for example, transgender individuals, can be definitely ascertainable at the moment of birth.
Respectfully, parental rights should not be extended by New Brunswick, by Saskatchewan, by any province or federal government to ban gender-affirming treatment for transgender adolescents.
Research shows that a major barrier to adolescent healthcare is the fear that health providers will share confidential information with their parents and guardians. Some teens will withhold information about themselves, delay care or not seek help at all in order to keep their parents from finding out about a health need.
In one study, 35 per cent of the students who did not seek care reported that the one reason was “not wanting to tell their parents.” However, assurances of confidentiality increase adolescent willingness to discuss sensitive subjects and to return for healthcare.
Studies show that many sexually active girls who obtain sexual health-care services would stop using prescribed contraception and stop seeking testing and treatment for sexually transmitted infections if parental notification were required.
Confidentiality may be implied where minors may consent, and to take it one step further, legislation should expressly bar parental notification without the permission of the minor or allow it only if notification is essential to protect the minor’s health.
The Charter rights of parents to make decisions concerning their children is not an absolute — particularly where health is involved. Even Saskatchewan Premier Scott Moe knows that. (A.C. v. Manitoba (Director of Child and Family Services) [2009] 2 S.C.R. 181). The UNCRC is so powerful that he had to invoke the notwithstanding clause.
Neither parental nor religious rights “include [the] liberty to expose the community or the child to communicable disease or the latter to ill health or death (Prince v. Massachusetts). “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”
Aside from the normal adolescent desire for privacy as adolescents develop toward autonomy and adult decision-making, minors are also “possessed of fundamental rights which the state must respect,” just as adults are (Tinker v. Des Moines Indep. Cmty. Sch. Dist.).
The Charter of Fundamental Rights of the European Union states the rights of the child in Article 24:
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
As an example, in Australia, where the child is not mature enough to understand fully the nature and consequences of proposed treatment, in most cases their legal guardian or guardians can provide consent on their behalf. In cases where legal guardians provide consent on behalf of a child, they are obliged to undertake this role only in the best interests of the child.
Since Gillick v. West Norfolk [1986] AC 112 Australian courts have followed those of the UK in recognizing that children’s capacity evolves with age, and that when they reach a level of maturity where they are capable of providing consent themselves, the rights of their legal guardians to consent for them ends. The test of Gillick Competency is as follows:
…[T]he parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
This is the second installment of a series: Part one: Poilievre endorses parental rights.
Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is a professor at Ontario Institute for Studies in Education/University of Toronto, where he has been teaching education law for 42 years. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.
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