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5The Rights of Participation How has Canada fared in implementing children’s rights of participation? To what extent has the child’s right to participation been provided for in family decision making, in schools, and in legal proceedings affecting the child? This category of rights is a new and demanding one, not only for Canada but also for all countries that have signed the Convention. However, as with the other categories of rights, Canada is obligated under the Convention to provide for participation. We now review the situation of participation in families, schools, and legal proceedings affecting the child. Finding a serious lack of provision for participation in each area, we explain why participation is so necessary to meeting children’s needs and the rights of the child under the Convention. Participation in Families The key article of the Convention on participation is article 12. Article 12, which applies to decision making within families as well as within other institutions, calls on Canada to assure ‘‘to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child.’’ This does not mean that the child’s view must always be taken into account. Parents and the state have the authority to apply limitations. For while the views of the child are to be given ‘‘due weight,’’ they are to be given due weight ‘‘in accordance with the age and maturity of the child.’’ The views of the child need not be decisive in family decision making. But that said, a child does have an unqualified right to express his or her view. In association with the article 12 right to be heard, the child also has the right to freedom of expression under article 13, the right to freedom of thought, conscience, and religion under article 14, and the right to Notes to chapter 5 start on p. 202. / 101 freedom of association and freedom of peaceful assembly under article 15. These rights also have limits. The rights to freedom of expression (which includes freedom of information), freedom of religion, freedom of association, and freedom of assembly, may be subject to certain restrictions as long as they are ones that are prescribed by law and prescribed as necessary for the interests either of national security, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. In other words, if the state restricts the participatory freedoms of the child, it must do so in law and for specific purposes. As well, the child’s freedom of thought and conscience is subject to the authority and direction of parents or guardians. However, such directing must be done ‘‘in a manner consistent with the evolving capacities of the child.’’ In other words, while parents have the right and duty to provide direction, they also have the obligation to grant increasing amounts of autonomy to the child as the child matures. Canada has made little progress during the 1990s in furthering respect for the views of the child and in providing for the child’s right to participate in the decision making of families and other institutions. Indeed, the UN Committee in its 1995 review of Canada’s record noted such lack of progress.1 This was one of the Committee’s principle subjects of concern about Canada. In very general terms, Canada may be congratulated for providing children as well as adults with the right to exercise freedoms related to participation, such as freedom of expression and freedom of religion. This has been done through constitutional provision for fundamental freedoms in the Charter of Rights, through the enactment of anti-discrimination protections in human rights legislation, and through the provision of means of redress when the freedoms of children (as well as of adults) are violated or unduly restricted.2 However , that children have the legal right to exercise their rights does not mean that they the capacity or confidence or motivation to practise their right to freedom of expression or to participate in the decision making of the family. They may be inhibited from doing so for a wide variety of reasons. Before children and young people are either able or willing to participate in family life, they must feel empowered and respected.3 They must be encouraged to do so through education and through a culture of listening to children, one that takes their views and rights seriously . However...

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