Section 17 - Protection of families and children

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Section 17 provides for protection of families and children.


Section 17(1): Protection of families

Meaning of ‘family’
In international human rights law, ‘family’ is given a broad interpretation and includes a range of types of family.
As previously mentioned in the discussion on s. 13 (the right to privacy and reputation, including the right not to have one’s family unlawfully or arbitrarily interfered with), the approach of the UN Human Rights Committee regarding ‘family’ is not to provide a definitive list of who is, or is not, included in the term, but to provide general guidance on the definition. Thus, the UN Human Rights Committee says:

‘Regarding the term “family”, the objectives of the Covenant require that for purposes of article 17 [reflected in s. 13 of the Charter], this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned.’ 138


Similar considerations apply to articles 23 and 24 of the ICCPR, upon which s. 17 of the Charter is partly modelled. The meaning of ‘family’ in the ICCPR has evolved in the case law of the UN Human Rights Committee to reflect social developments that have occurred since the ICCPR commenced.139 For example, the UN Committee has said that family is not confined by marriage.140 A family may take various forms under this section and should be defined broadly. The question is likely to be whether there are sufficiently close and permanent personal relationships to constitute a family.


Scope


The Charter provides that families are to be protected by society and the state. This provision is related to the right to privacy in s. 13 which prohibits (among other things) a public authority from unlawfully or arbitrarily interfering with a person’s family.

The UN Human Rights Committee has interpreted the equivalent ICCPR provision to require countries to adopt legislative, administrative and other measures to protect families. In other words, protection refers at least to legal protection but may also extend beyond this to other forms of protection. There may be a rights violation if the absence of accommodation or financial support is in itself used to justify taking children from their families.141


This right has commonly arisen in a number of contexts.


Removal of children from a family unit


Legislative provisions that provide for a child to be removed from a family unit will need to be considered in light of s. 17(1) but also s. 17(2) and s. 13 of the Charter.


While family unity is an important Charter value, it is not absolute and in this context, as in others, different rights may overlap or conflict. Section 17(1) might be qualified by the right to protection in s. 17(2) (for example, when children are removed from a situation of family violence).

Public authorities should ensure that there are adequate procedural safeguards in place to ensure that any decision to remove a child from a family unit is both lawful and not arbitrary. The meaning of these terms is discussed in the discussion on s. 13 in these Charter Guidelines. For example, in the United Kingdom, social workers who have concerns about family welfare are required to inform parents in a clear and timely way of their concerns and to give parents the opportunity to make representations about any actions that may affect family unity (such as the removal of a child or the making of a negative report about the family).142 Refer to the section on Measures to Achieve Compliance (on page 110) for more information.

Incarceration of parents


Sections 17(1) and 17(2) may also be engaged by the incarceration of a parent. Consideration needs to be given to ways of allowing the family relationship to continue within the prison context which may, in the case of infants, extend to being allowed to stay with their mothers in prison.143 This will also be relevant in the context of an interstate transfer of a prisoner who is a parent.


Identity of a biological parent


The right to family life may extend to a person knowing the identity of his or her biological parent, for example, in situations where he or she has been adopted or born as a result of sperm or egg donation, but this right to know the identity of a biological parent must be weighed against privacy rights.144


Residency and family unity


Another key area in which this right has arisen in international law is residency rights and family unity. This should not arise under the Charter, however, as migration law is a matter of Commonwealth law.


Section 17(2): Protection of children


Section 17(2) recognises that children are entitled to special protection. It is premised on the recognition of children’s vulnerability because of their age. A child is defined in s. 3 as being a person under 18 years of age.
Under the Charter, children are entitled to the enjoyment of all of the rights, as human beings (except where there is an eligibility criterion that they do not satisfy, for example the right to vote, under s. 18(2)). Section 17(2) is one of a few provisions in the Charter that grant special rights to children as opposed to children and adults generally. The Charter also confers special rights on children in ss. 23 and 25(3).

Scope


The UN Human Rights Committee has interpreted the equivalent ICCPR provision (article 24) to require countries to adopt special measures to protect children, in addition to the measures that are required to protect children and adults generally under the ICCPR. The best interests of the child should be taken into account as an important consideration in all actions affecting a child.


The purpose of the measures, according to the committee, is ‘intended primarily to ensure that children fully enjoy the other rights enunciated in the Covenant’.145 In other words, public authorities should first seek to ensure that children’s human rights outlined in the Charter are protected. This may require consideration of social or economic circumstances. For example, when examining a report from Canada, the UN Human Rights Committee noted its concern with the way in which the National Child Benefit Supplement for low-income families had been implemented in some Canadian provinces. It was concerned that some children were being unfairly denied benefits under the scheme. The committee noted that the equivalent ICCPR right (article 24) may be invoked in this situation because ‘… the very high poverty rate among single mothers leaves their children without the protection they are entitled to under the Covenant.’146


Note that the obligations imposed under s. 17(2) must be carried out without discrimination.

 

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138 Human Rights Committee, General Comment 16 (Thirty second session, 1988), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 142 (2003) [5].

139 International Covenant on Civil and Political Rights, opened for signature, ratification and accession (all ways in which a state can agree to be bound by a convention in international law) on 19 December 1966, 999 UNTS 171 (entered into force on 23 March 1976).

140 Hendriks v. Netherlands, Human Rights Committee, Communication No. 201/1985, UN Doc. CCPR/C/33/D/201/1985 (12 August 1988).

141 Anufrijeva v. Southwark [2004] QB 1124.

142 Re C [2002] EWCH (Fam) 1379.

143 R (on the application of P&Q) v. Secretary of State [2001] EWCA Civ. 1151; R (on the application of L) [2001] I FLR 406.

144 Re T (a child) [2001] 2 FLR 1190.

145 UN Human Rights Committee, General Comment 17, Article 24 (Thirty-fifth session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 144 (2003) [3].

146 UN Human Rights Committee, Concluding Observations on Canada (1999) UN Doc. CCPR/C/79/Add.105 [20].