Last month I was asked to provide testimony to the Quebec Commission into Child Protection. My testimony centred upon questions provided to me by the Commission. The Commission took the notes below following my testimony. They are close to verbatim.
It is my belief the Commission will recommend the creation of an Office of the Quebec Child Advocate.
Présentation du témoin
Irwin Elman was the Child and Youth Advocate in Ontario from 2007 to 2019. In May of 2018 at the end of his second and by legislation last term his Office was decommissioned. Mr. Elman worked with children for most of his forty year career and continues to act as a children’s rights consultant for governments and organisations.
Mots-clés
Défenseur des droits, convention relative aux droits des enfants
Résumé des idées et messages importants
Irwin Elman was the Child and Youth Advocate in Ontario for more than a decade. With his testimony in front of the Commission, he is honoured to provide his best advice to the province of Quebec as it thinks about the form and the function of its Child Advocate. During his testimony, he will underline certain aspects that are crucial when thinking about an Advocate’s office.
Form Follows Function—The Importance of Good Legislation
A good Advocate and exemplary child advocacy flows from well-drafted legislation. Mr. Elman finds that the legislation that existed in Ontario provided a good foundation for an Office of a Child Advocate.
In considering creating a Child Advocate for the Province one must first ask “what is the problem we are trying to solve?” What is the purpose of the Advocate? The answer to those questions must be found in the needs and concerns of children and youth. You start with the purpose/the function and then, you think about the form. Two important principles were embedded in Ontario’s legislation: (1) every action of the Advocate was to be taken in “partnership” with children and youth and (2) the Advocate’s office was instructed in legislation to be an ‘exemplar” in child and youth participation. This forced the Office, to focus its work on children and not systems. It allowed the Office to develop a child centred approach to child advocacy and in turn influence the Province to establish through legislation, prior to the election of 2018, direction to all service providers to offer “child centred service “to young people in the Province.
Mr. Elman underlines that the Advocate’s Office should not be part of the government. The office should be independent. The Child Advocate must be seen and have the ability to stand with no one but the children and youth he/she serves. There is a saying where you sit is where you stand. A child advocate must sit and stand with children. He also believes that the role of the Advocate is not as an oversight body. The primary responsibility for oversight sits with the government in care and control of the services it provides and funds. A Child Advocate should have investigation powers in order to access the information in order to conduct advocacy services and to ensure the government is accountable for its own oversight. The role of the Advocate is one of partnership with children.. This allows the Advocate to undertake advocacy in a way that children determine is best for them. He asks us to think of the Advocate as walking alongside children. Sometimes the Advocate will walk in front of the child as children may have decided that they wish someone to speak for them or perhaps they are unable to speak for themselves. Sometimes the Advocate will walk alongside the child. In this way sharing the work of advocacy. Sometimes the Advocate will move out of the way and walk behind the child supporting them on their advocacy journey. In this way the Advocate can work with decision makers, government and service providers, at times supporting children and youth to bring their lived experience to the legislation, policy, and service decision making process.
Youth Participation: a core principle
When you ask Mr. Elman why it is important to listen to the voice of children, he talks about a young girl that he met at the beginning of his role as an advocate. He says that he made the mistake of asking her what she wanted to dowith her life. The answer of the girl was life changing for him.
She answered: “You asked us what we want to do once we complete high school” she said, “I don’t want to answer that. I want to tell you this”. She sighed and started quietly. “I was a young child in a home where bad things were happening. I don’t need to tell you the details as you already know that no child everr came into care because of something they did. Lets just say I have not overcome yet what was happening but as a child I did learn how survive. I sort of ducked and covered. What was happening was certainly outside of my control. But I was trying to cope…Then one day a knock came on my classroom door. I think it was around Grade 3 and I was about 8 years old. They said I had to go down to the office. I met some lady. She asked if she could talk to me. She said she was a social worker and began asking questions about my life at home. My head started spinning. I could hardly breathe. My secret was out and I was panicking. This was all outside of my control. She rolled up my sleeves and my pant legs to check for bruises. Outside of my control. Eventually she said we had to go to my house and see my Mother. Outsideof my control. I knew all hell would break loose. And it did. It was awful. My Mom was screaming at the worker and yelling at me. The worker said we had to go. Outside of my control. I was taken to a temporary foster home. Outside of my control. New rules. New people to live with. New everything. Outside of my control. I remember the worker said a new worker would come see me the next day. I liked this worker well enough but she said she was Intake and the next worker was a family worker. That was the first in at least 15 worker changesI have had in the past 9 years.in care. I am not blaming them they have lives too, but each change was outside of my control. When the new worker came she said I was going to a new foster home outside of the city. The move outside of my control. This was the first of 10 changes in homes over 9 years. Each move, even though I think some of them were my fault, seemed outside of my control. My last foster home they told me I had to leave and live on my own because I was turning 18 years of age. I liked the home but they said it was the rules. I moved. Outside of my control. Now I am looking at leaving the system completely when I turn 21 years old. I am getting the golden boot dropped off the edge of the world alone and scared. Outside of my control.
So you ask us “ she said, “ what we want to do when we leave care. Its an unfair question. What makes you think we can have any hope to make any plans when our whole lives and experience in care has been outside of our control. We would have to be stupid or ill to believe we can have that hope. We learn nothing is within our control so why bother. That’s why the Child advocate Office is so important. Any time you can help us have a voice and have a sense of control of decisions made about us you will be helping us be part of our own lives. You will be helping us have a sense of control and helping us have an answer to your question about our plans”
In everything the Office did whether it was handling individual calls, whether it was a systemic review, whether it was an investigation whether it was determining the location of the offices, whether hiring, outreach, everything , staff at the Office were responsible for determining how young people would be involved. One such example was the participation of young people in Inquests in the Province. In any Inquest called by the Coroner relating to a child in the mandate of the Office the Child Advocate would bring together an advisory group of young people with similar life experiences to the deceased and apply for standing at the Inquest. The goal was to ensure that the Inquest remained child focussed and that the voice of the child was heard at the Inquest.. The initiative was so successful that the Coroner of Ontario has created a new community table child deatb review process for Ontario Inthis process, the coroner meets with people that were in relation with the child (doctors, social workers, etc.). The Coroner in the first year of pilots of the process asked that the former Child Advocate to play the role of an “amicus” to the process and meet with young people with similar experiences to the deceased, meet with family members and facilitate their voice being heard at the community table. It is important to note that this groundbreakingcommunity child death review process was created in partnership between the Coroner and the Child Advocate Office.
It is very easy for a Child Advocate Office to view child and youth participation as an add-on, not a core. Mr. Elman believes that if you work that way, you are in danger of working against children, and silencing them. It is not good enough to provide children with simply the right to participate although it is crucial. Children are at a distinct disadvantage in exercising their rights sometimes due to age and capacity, trauma and personal history. It is therefore incumbent on adults, service providers and legislators as duty bearers to create the conditions in which every child can access their rights according to their abilities.
An Advocate for All Children and Youth
Every child was under the jurisdiction of the advocate. Mr. Elman underlines that this was another example of how well the legislation was drafted. The Act specified that the advocate should help “every child seeking services” and therefore, did not specify which services or which rights. That allowed them to help all children seeking any type of services. Another example of the leeway the Act gave them was the fact that it did not specify to whom the children needed to be seeking services from. That allowed them to help children that were seeking services from private businesses and not only from the government.
Necessary powers of the Advocate
For Mr. Elman’s office, investigation powers were notprovided at first. Mr. Elman believes that every advocate office should have investigation powers. In their case, it began to be necessary because they often needed more information to be effective in their advocacy cases. Often, they were denied access to confidential information about a child because they were “only advocating.’ The investigation powers allowed them to go further.
Mr. Elman does not think that the investigation power of a child advocate is the same as the investigation powers of an ombudsman, for example. He gives the example of administrative fairness. In the case of the ombudsman, administrative or procedural fairness is at the core of their investigation power. For Mr. Elman, administrative fairness was not the main goal when investigating. His office found that respecting the voice of children and their right to be heard were more important.
Incorporating the Convention on the Rights of the Child
Mr. Elman believes that the rights and principles of the Convention on the rights of the child (CRC) should be incorporated into the act and the work of the advocate. When the Ontario Act came into force, the legislature heard many groups and persons that urged them to incorporate the rights of the CRC in the Act. Mr. Elman believes that the furthest the legislature was willing to go was to incorporate the principles of the CRC. They may have been afraid of the responsibility of making sure that all of the rights of the CRC were respected within Ontario legislation.
Mr. Elman mentions that one of the advantages of incorporating the CRC in our legislation is the great deal of work that is done at the UN level to interpret and guide the application of those rights. Therefore, the advocate and the government can rely on this work to apply those rights and principles and not allow the principles to be only aspirational.
Changing Paradigm: An Advocate for First Nations Children
Much has changed in Canada since the Office of the Child and Youth advocate was created in Ontario. The Office at the outset did work carefully and respectfully with First Nation, Metis and Inuit partners. The Office thought a great deal about the concept of “prior informed consent”. With this in mind a great deal of outreach to Communities and leadership was undertaken in order to build relationships. It was important and enriching work that led to a second office in Thunder Bay with First Nation staff. and a Feathers of Hope initiative led in partnership with First Nation youth. It is true, however, that the Office was on the cusp of supporting the development of an independent First Nation , Metis, Inuit child advocacy system. The form that this system might have taken was not decided and the role of the Office in it undetermined.
Mr Elman indicates that he feels honoured to contribute even in a small way to the deliberations ongoing in Quebec. He indicates his willingness to walk alongside Quebec as the Province begins its new journey with its children