Parental Rights are only to Act in the Best Interests of Children

Alberta’s Bill 24 has passed that ensures youth attending Gay-Straight Alliances (GSAs) are not outed to parents for mere attendance in the student clubs. Although the legislation has passed, the debate in the public square continues regarding if parents should be informed of their children’s attendance in these clubs. Some have suggested they will challenge the legislation in court, based on a charter challenge.

RMCLA conducted a province-wide public consultation on GSAs in schools in 2015. The recommendations from this report were submitted to the Premier and Minister of Education. It contained many recommendations that were repeated by the government of the day and enacted in legislation. The report contained additional recommendations and rationales on parental and child rights.

Given the current debate, on whether or not parents need to be informed about children club choices, we feel it is time to repeat the findings of the public consultation and our review of law regarding the issue.

We feel that youth have the right to choose the clubs they wish to attend, regardless of their parental wishes. There is no strong rationale for schools to inform parents regarding their attendance in these clubs. We also feel that a constitutional challenge of Bill 24 regarding children’s choices would fail.

The reason for these conclusions are below and come from the original RMCLA Report and Recommendations on Gay-Straight Alliances in Alberta Schools. You can read the full report at the link below. Major segments are as follows:

http://www.rmcla.ca/GayStraightAllianceFinalReportRMCLA2015.pdf

Parental Rights are Not to Act in their Personal Interest

“Parental rights are not rights in a vacuum but rather emanate from the children themselves. Neither such ‘rights’ are absolute. Parental rights as described by the United Nation’s statements on the rights of the child are conferred so that parents may care for their children and act in the best interests of the child, not necessarily of the parent’s personal interests.

Canadian laws and Supreme Court of Canada decisions are consistent with this principle. The duty to protect minors takes precedence over any “right” or other authority of their parents. Parental rights are more akin to a privilege to exercise the rights of another individual (the child); and such authority diminishes over time as the minor matures. Thus parental “rights” are not analogous to the other rights listed in the Alberta Bill of Rights, and merely including “parental rights” in that legislation together with other rights would not clarify or identify these underlying principles or the complex nature of parental rights.

Arguably, the law relating to parental authority is already well established or settled. Unintended consequences are likely to flow from enshrining parental rights into the Bill of Rights by diminishing the importance of the underlying duty to protect minors or diminishing a parent’s responsibility to act in the best interest of the child through whom the ‘right’ flows to the parent. A great deal more study of such unintended and other consequences is required in various areas of law such as child welfare, family, adoption, health and mental health, criminal, agency, trusts, banking and many others. Paradoxically, including ’parental rights’ in the Bill of Rights without a great deal of definition and without amendment to numerous other laws may point toward many of its limitations and actually erode in the public’s mind the sense of what parental rights ought to be.

Mature Minor Doctrine

The mature minor doctrine underscores the importance of self-determination and choice in a young person’s life. The Supreme Court of Canada has determined that, as children mature, their capacity for making decisions on their own increase, and the influence of their parents decrease. The Court noted that,

The purpose of the Child and Family Services Act is to defend the “best interest” of children who are “in need of protection” — this means, in this context, children who do not have the capacity to make their own decisions about medical treatment. When applied to young persons who possess the requisite capacity, the presumption has “no real relation” to the legislative goal of protecting children who do not possess such capacity. The deprivation in the case of mature minors is thus arbitrary and violates section 7 of the Canadian Charter of Rights and Freedoms.[1]

The ‘mature minors doctrine’ enables and affords legal protection for the rights of persons under the age of majority to make (sometimes significant) medical and life choices, including the undertaking of practices and behaviours — such as pre-marital sex and the use of contraception — that are contrary to some religious teachings and can have serious and life—altering consequences.

The Child, Youth, and Family Enhancement Act17 includes (at s.2) the provision that, when “a child is in need of intervention, a Court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider” [among other things]:

2(d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child.[2]

It is clear that in scenarios such as those suggested by s. 2, a child’s opinion in relation to her or his interests must be considered. It is just as appropriate that a student’s opinion in relation to the formation of, or participation in, GSAs should be considered.

GSAs are voluntary clubs that exist typically in secondary schools. Legislation allowing GSAs in any school based on student requests would acknowledge students’ right to associative and expressive liberty and self-determination. Given the entirely voluntary nature of the club, a GSA does not infringe on any students who wish not to be involved in this same club. However, not allowing GSAs in schools does diminish the fundamental liberties of LGBTQ students.

In January 2015, the Supreme Court of Canada reiterated that freedom of association is “essential to the development and maintenance of the vibrant civil society upon which our democracy rests”.[3] The purpose of freedom of association is “to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends”. The associative freedom includes collective activity that enables those who would otherwise be vulnerable and ineffective to meet on terms that are more equal with the power and strength of those with whom their interests interact and, perhaps, conflict. The guarantee of freedom of association empowers vulnerable individuals to form supportive groups and helps them work to right imbalances in society.

The School Act (and the Education Act) give students rights to be involved in certain decisions at age 16. In addition, Bill 10’s amendment providing that children could appeal the decision of a school board was a tacit acknowledgement by our government that minors, especially mature minors, have a role in determining their treatment and their future. Nevertheless, minors might not yet have the resources to enable their decisions to be put into action. As noted in the section 5.2.5, the Child, Youth, and Family Enhancement Act also notes the importance of mature minors being involved in decisions affecting their lives.

GSA members are youths who have or are in the process of developing the capacity to make informed decisions about when, where and with whom they wish to associate. The absence of legislation permitting or mandating GSAs means that many students who would otherwise form GSAs will be denied their associative rights to seek the support of a group and will have to face, alone, the oppressive climate that, according to various participants in the public consultations, is an everyday occurrence in Alberta schools. Legislation mandating the formation of GSAs when they are requested would permit the exercise of the students’ Charter right to freedom of association.

The law enables mature minors to be involved in decision-making in a variety of respects. Some of those decisions may entail life-altering consequences; yet, in a variety of respects society and the government recognize that the minor should, at a certain stage, be involved in those decisions. Accordingly, we suggest that such recognition should also extend to the establishment of, or participation in, student clubs or societies.

Parental Rights

As has been noted throughout this report, one of the hallmarks of a GSA is that participation is entirely voluntary. No student is required to join or participate. The panel did not receive any evidence or submission that the formation of a GSA or the voluntary participation of students in a GSA would eliminate the possibility of any parent from involvement in their child’s life, or involvement in decision making with the child.

Parental rights are neither enjoined nor infringed by the presence of a GSA. Parents retain the same unencumbered scope to instruct their children in their values and beliefs, make informed choices as to their children’s education, support their children’s wish to participate in a GSA or instruct their children not to.

Freedom of religion and conscience encompasses the right of parents to educate their children in their own values and religious beliefs, and rear their children according to those values and beliefs.

Parents who do not wish their children to participate in a GSA have no right, individually or as a group, to impose that view upon parents who would like their children to participate in a GSA or indoctrinate other parents’ children by way of the school system or otherwise. Nor do they have a right to deny other children the opportunity to participate if those children’s parents support participation.

The responses to our public poll — from public, separate and private schools supporters —suggested that there is not unanimity of views regarding GSAs, although the clear majority of people in all types of schools supported GSAs. Consequently, the minority parent view to impede the formation of GSAs so that all students (even those with parents that support GSAs) cannot voluntarily join such a club would be the imposition of a few parental views upon the majority of others.

We did hear, in our public consultation, information about parents who are abusive or do not act in the best interest of their children. We are all aware that within our society, and in all sectors of our society, there are parents who abuse their children or who fail or are unable, for various reasons, to look after the best interests of their children or provide them with the support and comforts that the children need.

The government’s duty to protect minors from, amongst other things, abuse and neglect trumps parental authority. We see that principle enshrined in a number of our laws. Our consultative process heard descriptions of LGBTQ students experiencing parental abuse and rejection, and of others who do not receive support from their own parents. We heard that in such cases a GSA might be the only safe place in the student’s life. In these cases, especially where the mature minor doctrine applies, the student’s own decision-making abilities must be recognized in determining whether the student should participate or not in a GSA. In cases such as these, respecting the student’s privacy and maintaining confidentiality of their choices regarding is also vital to the student’s safety and well-being.

Responses to our poll — from public, separate and private schools supporters — showed little support for entrenching parental rights within the Alberta Bill of Rights or elsewhere. We also advise caution in light of the unintended consequences of proclaiming ‘parental rights’ in the Alberta Bill of Rights or other enactments. Albertans have seen, in the past and even today, where unencumbered ‘parental rights’ lead to horrific consequences for children. A review of the Leilani Muir case is one such example.19 Forced marriages of children20, honour killing and the view of some on aggressive corporal punishment for misbehaviour are other examples at the extreme of the spectrum.

Beyond these examples, the law relating to parental authority is, arguably, already well established or settled. Unintended consequences are likely to flow from enshrining parental rights into the Bill of Rights by diminishing, or being interpreted or perceived to diminish, the importance of the underlying duty to protect minors or diminishing a parent’s responsibility to act in the best interest of the child through whom the ‘right’ flows to the parent. A great deal more study of such unintended and other consequences is required in various areas of law such as child welfare, family, adoption, health and mental health, criminal, agency, trusts, banking and many others. Paradoxically, including ’parental rights’ in the Bill of Rights without a great deal of definition and without amendment to numerous other laws may point toward many of its limitations and actually erode in the public’s mind the sense of what parental rights ought to be.

There simply is neither strong evidence nor support for placing “parental rights” in the Alberta Bill of Rights or other legislation.”


[1] A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7795/index.do

[2] Child Youth and Family Enhancement Act, RSA 2000, c-12

[3] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

 

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