The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Script 238 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Can children have input about things that affect them?
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.
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 express their views on the following topics (though a judge can still decide not to consider what they say):
- which parent they want to live with if their parents separate or divorce. If a child is being returned to a parent, a social worker would assess the parents to decide who the child would live with.
- 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 to happen in a child protection case. This information usually comes from the social worker. The child does not have their own lawyer or talk to the judge.
- important decisions that affect them while they are in foster care.
- their 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?
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 the child’s needs and circumstances must be considered, including:
- The child’s heath and emotional well-being.
- The child’s views, unless it would be inappropriate to consider them.
- 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?
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. And healthcare providers must keep the healthcare private. So a child could get a prescription for birth control, without a parent’s permission. A teenager could also get an abortion without their parents’ consent.
For more on this, check script 422, called “Children and Consent to Medical Care.”
What rights do children have if they are hospitalized against their will for psychiatric treatment?
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 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, 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.”
Can children have input in child protection cases?
Yes. The BC Child, Family and Community Service Act requires a child’s views to be considered 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 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.
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.
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. Also, see the Ministry website section called If You’re a Teen in Foster Care.
What rights do children in care have?
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.
“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.
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.
For more information, see the publication called Know Your Rights: A Guide for Young People in Care, published by the Ministry of Children and Family Development. Also, see the Ministry website section called If You’re a Teen in Foster Care.
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 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 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.
What rights do children have if they are charged with, or convicted of, a criminal offence?
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.
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.
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 the Youth Justice section of the Ministry of Children and Family Development website.
Provincial laws, not the Youth Criminal Justice Act, cover many other crimes, such as drinking under age, trespassing, and breaking traffic laws.
Where can children, parents, and guardians get 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.
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.
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.
[updated November 2016]
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