Law Times

Page 14 July 7, 2014 • Law Times www.lawtimesnews.com New CBA section focuses on children's law Group looks to ensure 'child-friendly lens is applied to any legal issues' By Michael McKiernan For Law Times hildren should be seen and not heard, accord- ing to the old adage, but not if you ask a group of Canadian Bar Association mem- bers who have formed a commit- tee to give the country's youth a legal voice. Marv Bernstein, co-founder and vice chairman of the CBA's national children's law committee, says that because children's issues cut across virtually every area of legal practice, their interests have sometimes fallen between the cracks of other CBA sections. "Our view was that there was a bit of a vacuum because no one section had responsibility for re- ally promoting children's legal interests," says Bernstein, whose day job is chief policy adviser of UNICEF Canada. Even in sections with more direct exposure to children's rights, such as family law, he says children's perspectives don't always get full consideration. "ere are some issues where they get less attention than the parents. ere can at times be a conflict between advancing the interests of parents and advanc- ing best interests of the child," says Bernstein. "We wanted to ensure there is a group responsible for making sure a child-friendly lens is applied to any legal issues coming up." New Brunswick's acting child and youth advocate, Christian Whalen, who has chaired the committee since its formation last year, says lawyers involved with children have to be more proac- tive about promoting their in- terests than counsel working for more conventional clients. "If you have wealthier clients, they might be able to drive the issues. Unfortunately, children are not deep-pocketed clients, so unless there is a dedicated effort on the part of legal professionals to look to the legal interests of children as rights holders, they may end up getting the short end of the stick," he says. Before joining UNICEF Can- ada, Bernstein held senior posi- tions at children's aid societies in Ontario as well as a five-year stint as Saskatchewan's advocate for children and youth between 2005 and 2010. Across almost four decades of legal practice, he says the emphasis on represen- tation for children in the court process has grown markedly. However, his own experience has given him insight into the patchy nature of the growth. "Ontario is probably at the highest end in terms of provid- ing legal representation. When I started in child protection, there were very few situations where you would have direct legal rep- resentation for the child. at began to change around 1980 and you now have a very strong program through the office of the children's lawyer," he says. "Out in Saskatchewan, there was no program, no clear statu- tory basis, and no funding for children to have legal representa- tion in child protection cases." During his time as a child and youth advocate, Bernstein helped introduce a pro bono service to deliver representation to children and he hopes the CBA committee will help highlight best practices as well as areas in need of atten- tion. Right now, he says the com- mittee is pushing the federal gov- ernment to establish a national children's commissioner. While most provinces have a youth ad- vocate of one form or another, Ot- tawa lacks one to speak for chil- dren caught up in legal matters under federal jurisdiction such as immigration and aboriginal law. In its short history, the com- mittee has already had a big im- pact by making submissions to the federal government on subjects as diverse as cyberbullying and the presumption of equal parenting following divorce. e United Na- tions Convention on the Rights of the Child has proven a particularly prominent issue aer a UN review criticized Canada's failure to fully implement it despite being one of the first nations to sign onto it. e review also highlighted concerns about the overrepresentation of aboriginal and African-Canadian children in custody as well as inadequate data collection and monitoring of child well-being. Last summer, the CBA coun- cil adopted a committee resolu- tion demanding the government come up with an action plan to fully implement the convention and has since asked for a meet- ing with the prime minister to discuss the issue. In turn, the flurry of activity has prompted numerous enqui- ries from CBA members want- ing to get involved, according to committee member Cheryl Milne, executive director of the David Asper Centre for Consti- tutional Rights at the University of Toronto. "Once the commit- tee was formed, the interest has been really quite significant," says Milne. "ere's not that many people for whom working with children is their primary practice. Most encounter chil- dren's rights issues as a part of their practice, but it seems to be one of the most enjoyable parts." Matt Boulos, a lawyer who runs the Teen Legal Helpline, says he welcomes the progress of children's law at the CBA. "I think we're long overdue to start asking how do we serve young people as opposed to the classic lawyer trick of thinking that we can just do what we've always done with a slightly dif- ferent label on it," he says. "It can be very hard for chil- dren to get access to legal protec- tion. You're talking a very narrow band where the family can afford it and is willing to pay and where the adults in their lives are not part of the problem. Everyone else is kind of le on their own. e other thing is that how you deliver advice to young people is different. If you write them a long legal memo, what on earth are they going to do with that?" Boulos started his helpline aer a teen he was mentoring came to him for help dealing with a serious criminal allegation made against him. Boulos was able to put him in touch with a criminal lawyer who guided him through the issue. "It was a quick, relaxed ex- change and there was a good out- come because the accusation was unfounded, but it le me think- ing that he isn't the only one in that sort of situation," says Boulos. e helpline boasts a roster of lawyers who can answer legal queries made by teens through the web site. Most concern fam- ily, criminal, immigration and employment matters, according to Boulos. 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