Yukon fails UN rights of child obligations

The territory’s lack of a child advocate is a “major oversight,” that violates Canada’s United Nations obligations, says…

The territory’s lack of a child advocate is a “major oversight,” that violates Canada’s United Nations obligations, says Marvin Bernstein.

The Yukon is one of the last Canadian jurisdictions without one, said Saskatchewan’s child advocate.

Bernstein, a child welfare lawyer for 28 years, was surprised the Yukon Children’s Act revisions lacked an advocate position, which is called for by the UN.

 “Now would be timely in terms of looking at amendments to your children’s act,” he said.

There must be oversight of the child-welfare system, he said.

“Mechanisms need to be in place to support young people having a voice.”

Government departments shouldn’t review themselves, he added.

“It doesn’t instil public confidence.”

“An objective eye” is needed, he said.

Bernstein is independent of the Saskatchewan government.

He reports to the legislative assembly.

“It’s a monitoring role,” he said.

“And it means that government can’t pressure you to not speak out because you’re going to be critical.”

Bernstein addresses systemic problems directly.

“It’s been brought to our attention, for example, that in some instances there are as many as 21 children in a foster home (in Saskatchewan) and there aren’t supposed to be more than four,” he said.

“If there wasn’t a children’s advocate you might have family members or foster families pushing for some kind of changes.

“But we’re able to speak out, elevate public accountability, create media pressure and community pressure.

“This encourages government to do the right thing.”

Family members and children in the system aren’t empowered, he said.

“They can’t achieve as much as a person who is independently appointed.”

In the territory, if a child advocate is needed the court appoints a local lawyer, said Yukon Foster Parents Association president Cathy Bradbury.

 “And in my personal experience, the lawyer appointed by the court is often acting for the court rather than the child,” said Bradbury, who’s been involved in child-welfare cases.

“The child advocate had a significant influence on the decision-making, but never met with the child of family.

“It’s very unacceptable — it’s clearly someone with a very major influence with no sense of the child.”

The child-advocate lawyers only play temporary roles in the process, she said.

“After a short-term intervention, they’re gone, then another one comes and then they’re gone.”

Court appearances are a small part of an advocate’s job, said Bernstein.

“We become involved if a young person, a family member or a professional feels as though there is some shortcoming in the way services are being provided to a child,” he said.

It gives children someone who will hear their concerns, he added.

Bernstein drafts plans and recommendations for government that draw on policy, planning and laws.

He also writes reports, which are released publicly.

His recommendations are tracked, to “hold the government accountable.”

Ongoing deficiencies are publicized.

An annual report card shows government progress, he said.

“They’re delivered once a year, and there is a media release and a press conference where I identify, critically, what is missing in the systems that are providing services to children and youth in this province,” he said.

“I don’t have to sit back and wait for government to determine that it’s now time to look at policy, or it’s time to look at legislation.

“I can say there’s a critical need to do something because there’s some urgency, or children are being placed at risk, or there are health-related issues, educational issues, or corrections issues.”

He has the power to investigate complaints about facilities, abuse or neglect.

“We give notice of investigation and that allows us to have access to information,” he said.

“I have subpoena powers under our legislation and I can make recommendations after an investigation.”

After the death or serious injury of a child, Bernstein can also conduct a facility-based or systemic investigation, to root out problems.

He can identify themes and patterns that emerge within the system.

“Many of the issues being raised by young people are a result of some larger deficiency within a larger system,” he said.

Bernstein talks to youth before advancing policy or legislative reform.

“We try and capture their voice and use their words so it has more impact,” he said.

The UN committee on the rights of the child monitors compliance with its convention.

Periodically, it makes recommendations to Canada, said Bernstein.

It specifically recommended all Canadian jurisdictions have a child advocate, he said.

“So you can speak out and say the (Yukon) isn’t meetings its obligations under the convention on the rights of the child.”

In meetings with the children’s act revision team, the need for a child advocate in the Yukon came up time and again, said Bradbury.

“The current situation is not optimal,” she said.

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