Adoptalk & Publications

Ensuring Children’s Well-Being: Analyzing Policies and Practices through a Child Rights Lens

by Marv Bernstein, chief policy advisor, UNICEF Canada, and Pat Convery, executive director, Adoption Council of Ontario

Before joining UNICEF Canada in 2010, Marv spent 28 years in legal and policy positions in child welfare in Ontario and five years as the Children’s Advocate for Saskatchewan. Pat is the executive director of the Adoption Council of Ontario. She has worked in child welfare since 1975 and in adoption since 1982.

Although North Americans typically greet one another with the phrases “How are you?” “Comment allez vous?” or “Como estás?”, Masai warriors say “Kasserian ingera?” (meaning “Are the children well?”). This phrase—which puts children front and center—resonates nicely for our work in child welfare, permanency planning, and adoption, and can help those of us in the child welfare and adoption communities remember the importance of having a child rights focus at all levels of our work. What better way to guide our discussions, our advocacy, and our policy than to ask: “Are the children well?”

United Nations Convention on the Rights of the Child

Almost universally around the world, we believe children have the right to be safe from physical harm, abuse, neglect, and exploitation. We believe children have the right to education, family relationships, and access to their culture. The list goes on. These beliefs in children’s rights have been translated into obligations for us to consider in our practice by the United Nations Convention on the Rights of the Child (available at www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx). 

The four guiding principles of the Convention on the Rights of the Child are:

• Non-discrimination: All rights set out in the Convention apply to all children,  who shall be protected from all forms of discrimination, regardless of race, colour, gender, language, opinion, origin, disability, birth, or any other characteristic.
• Best interests of the child: In all actions concerning children, the best interests of the child shall be a primary consideration.
• Life, survival, and development: Every child has the right to life, and the state has an obligation to ensure the child’s survival and development. This includes the right to a standard of living, health, and education that is adequate for the child’s physical, mental, spiritual, moral, and social development.
• Respect for the child’s views: Children have the right to participate and express their views freely, and have those views taken into account in matters that affect them.

Since its adoption by the United Nations in 1989, this treaty has received near-universal ratification by 193 countries. (Canada has ratified the Con­vention; the U.S. has signed but not ratified it, although it has ratified two Optional Protocols.) The treaty has inspired changes in policies to better protect children, altered the way organizations see their work for children, led to a better understanding of children as having their own rights, and served as a catalyst for children’s rights advocacy and collaboration.

Children Need Special Attention during Program and Policy Design

The Convention on the Rights of the Child reminds us that we must consider the potential impacts on children’s rights and interests in all legislation, policies, programs, and practices. Children need this special focus for many reasons:

• Children are particularly vulnerable by virtue of their developmental stage and dependence on adults.
• Children can be disproportionately affected by adverse conditions. For example, the adverse impacts of poverty in a child’s early years can be much greater than the effects of poverty in adulthood.
• As non-voting citizens, children do not have the same opportunities as adults to influence or complain about public policy; instead, they must rely on adults to advocate for them.
• Children are a significant segment of the population and are more affected by the action—or inaction—of government than any other group.
• There is no such thing as a child-neutral policy. Almost every area of government policy affects children to some degree.
• Children are also among the heaviest users of public services, such as education, health, child care, and youth services. As a result, children can suffer the most from the fragmentation of public policy and services or from policies or services that have unintended consequences.

Using a Child Rights Impact Assessment to Ensure the Best Outcomes for Children

So how do we bring the “Are the children well?” philosophy to bear on our policy and practice development? The Convention on the Rights of the Child helps us do just that.

To make sure children’s best interests are given priority consideration and all the Convention’s provisions are respected in policy, the monitoring United Nations Committee on the Rights of the Child has stated that Child Rights Impact Assessments (CRIA) are required of all ratifying nations, and that “this process needs to be built into government at all levels and as early as possible in the development of policy.”

But a CRIA is not just something that governments should use. It can be used to good advantage by parliamentarians and legislators, child and youth advocates, schools, universities, hospitals, child welfare organizations, professionals advocating for child-centred policy and legislative change, and the private sector.

In Canada, the U.S., and internationally, the CRIA framework has already found some support. In New Brunswick, for example, a proposed law or policy going to Executive Council must have a completed CRIA. Edmonton, Alberta, and Saskatchewan have also been using aspects of CRIAs. In Tennessee, the Shelby County and Memphis governments use a web-based application to develop, modify, and assess proposals concerning safety, health, education, and land use for their potential impacts on children. England, Scotland, Wales, Western Australia, New Zealand, Belgium (Flanders), and Sweden also regularly use these assessments. 

A CRIA involves a structured examination of a proposed law or policy, administrative decision, or action to determine its potential impact on all children or a specific group of children, and a determination of whether it will effectively protect and implement the rights set out for children in the Convention. Potential impacts may be positive or negative, intended or not, direct or indirect, short- or long-term. A CRIA should be undertaken whenever children might be affected by new policies, proposed legislation, regulations, or budgets being adopted, or other administrative decisions at any level of government.

There are three key steps to a CRIA:

• Selection, screening, and scoping — CRIA should be used on those decisions most likely to have a significant impact on children, including those that directly concern children—such as child welfare or child health policy—and those that may have a more indirect impact, such as immigration or economic policies.
• Assessment — Advocates, policymakers, and administrators can use a variety of tools to assess potential impacts, including administrative data, research, checklists, and detailed modeling. The assessment should explicitly address the Con­vention’s four core principles and the other relevant articles. The analysis can also help identify needed changes to the policy or practice.
• Communication — Publicizing the CRIA’s results and recommendations is essential to informing the decision-making process. Commun­ication may be within government agencies or to the broader community depending on where advocacy is most needed.

From time to time, legislation and policy have unintended negative consequences for the children they are meant to benefit. Sometimes ideas that work well for one group may have unintended negative consequences for another group of children. A Child Rights Impact Assessment can help avoid or mitigate such adverse impacts and balance competing rights of different groups of children.

How an Assessment Can Make a Difference

Ensuring that all policies, practices, and actions have been thoroughly examined through a lens of how they affect children can help in a number of ways. Such assessments:

• Balance the interests and rights of various groups of children by analyzing the different and potentially inequitable impacts, particularly for children who are often marginalized and most vulnerable, rather than treating children as one homogenous group.
• Improve coordination across government by examining potential impacts on the whole child across the full scope of their rights, which can lead to departments jointly engaging in a stronger integrated policy development model.
• Provide an opportunity for the child’s best interests to be explicitly considered in the decision-making process, improving the likelihood of positive outcomes.
• Improve the quality and quantity of information available to decision-makers.
• Recognize the need to consult with children as legitimate stakeholders in relevant policymaking areas, giving their views due consideration in the process.
• Consider second and third order effects on children—not just the immediate effects, but also those that can affect them in the long term, including future generations.
• Avoid or mitigate costly errors by addressing potential negative impacts at an early stage of the policymaking process.
• Improve public support for policy decisions by creating more transparent, collaborative, and defensible policy processes, and by bringing together external stakeholders, including children and those involved in policy development, for focused discussion concerning potential impacts on children.

Consider these examples of how a CRIA can avoid unintended consequences and achieve better outcomes for children:

• An agency makes a policy to never separate siblings in adoption. A sibling group of five waits for many years to be adopted because the oldest child is severely autistic and needs extensive support that many families cannot provide. If stakeholders had conducted a CRIA, they might have built in some limited, specific exceptions for adoption to proceed where it is in the best interests of the other siblings with provision for post-adoption sibling contact and expanded funding and counseling support services.
• A policy provides health coverage and educational support to youth who age out of care. A 17-year-old youth who has been in foster care for most of his life must now choose between being adopted by a relative or remaining in foster care to access the benefits. A CRIA would likely have uncovered this potential conflict, and perhaps led to extended benefits being made available to older adopted children. 

The child rights framework can also help advocates frame their arguments. In Canada recently, adoptive parents and adoption organizations advocated for an increase in employment insurance maternity benefits for adoptive parents. (Biological mothers currently receive 15 weeks of maternity benefits plus 35 weeks of parental leave; adoptive parents receive only the 35-week parental leave).

Ultimately, the parliamentary committee refused the increased benefits, basing its decision not on adopted children’s needs, but on a belief that biological mothers have rights that adoptive parents do not. It is possible this result may have been due, in part, to adult-focused, rather than child-centred advocacy. Instead of talking about the impact of the law on adopted children and discriminatory impacts upon those adopted children, many advocates talked about maternity benefits as a competition between biological and adoptive parents. A CRIA would have likely identified bonding as a critical element that must occur in the early stages of a parent-child relationship. In a birth family, bonding starts before the child is born. When an adopted child has experienced loss, neglect, abuse, or difficult transitions, her ability to form healthy relationships and feel secure is damaged. Adoptive families therefore need at least as much time to help adopted children adjust, recover, and bond—a consideration that wasn’t properly raised by advocates or addressed by the committee.

Child Rights-Proofing Legislation, Policy, and Practice

Even when a Child Rights Impact Assessment is not required, advocates, policymakers, administrators, and others can use it as a tool to help ensure proposed changes result in the best possible outcomes for children. We have a collective responsibility to give the protection of children’s rights the highest priority. Dialogues on the implementation of children’s rights should not be the limited purview of elected officials, but should be taking place in our homes, schools, workplaces, and government offices.

Using Child Rights Impact Assess­ments with greater frequency will enable us to ensure laws, policies, and practices have been child rights-proofed—that we have considered carefully how they will affect children. This, in turn, will lead to more positive and affirmative responses when we pose the question “Are the children well?”

Learn more about Child Rights Impact Assessments at www.unicef.ca/en/policy-advocacy-for-children/what-is-a-child-rights-impact-assessment.