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December 18, 2017

Balance between best interest rule, adolescents’ rights

The constitutional rights of children are set out in Article 53 which stipulates that every child has the right to healthcare and to parental care and protection among other rights.

Parents are under a duty to ensure that the children are at all times provided for and guided spiritually under the Children’s Act.

Under the act, a child means any human being under the age of 18 years. Section 8 (1) says every child shall have a right to religious education subject to appropriate parental guidance.

Section 9 provides that every child shall have a right to health and medical care, the provision of which shall be the responsibility of the parents and the government.

The rights of the child are constantly evolving and the law must at all times offer safeguards and guarantees per the need.

Article 43 (1) of the constitution states that every person has the right (a) to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health care.

Article 32 (1) provides that every person has the right to freedom of conscience, religion, thought, belief and opinion. (2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship. (4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.

Article 27 (1) says every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

No doubt the dynamic teenagers falls under the foregoing state of affairs. These members of the family are in the process of becoming adults. They are usually very assertive and many a times rebellious. It is a moment that many parents dread most. Peer pressure, independence and autonomy, experiments and defiance are just some of the things parents have to deal with. Ultimately, decisions have to be made even though unpopular for benefit of the child.

Definitely, with all these complex rights and obligations, there comes a time when the rights of the children compete closely with parental authority and parental responsibility limits. The courts have attended to such complicated issues.

In the matter of A. C. V Manitoba (Director of child and family services), supreme court Mclachlin CJ, Binnie, Lebel, Deschamps (Canada June 26, 2009), Abella, Charron and Rothstein JJ, C — a child and a Jehovah’s Witness — suffers from Crohn’s disease. She had signed an advance medical affidavit containing her instructions not to be given blood under any circumstances. When 14, she was admitted to hospital and refused to consent to the receipt of blood. The director of child and family services sought a treatment order from the court under Section 25(8) of the Manitoba Child and Family Services Act, by which the court may authorise treatment that it considers to be in the child’s best interests. Section 25(9) of the act presumes that the best interests of a child 16 or over will be most effectively promoted by allowing the child’s views to be determinative, unless it can be shown that the child does not understand the decision or appreciate its consequences. Where the child is under 16, however, no such presumption exists.

The applications judge ordered that C receive blood. C and her parents appealed the order arguing the act was unconstitutional and breached C’s rights under sub section 2(a),3 74 and 15(1)5 of the Canadian Charter of Rights and Freedoms. The Court of Appeal rejected the appeal. C appealed to the Supreme Court. In dismissing the appeal (Binnie J dissenting), it was held that: Per Abella J (LeBel, Deschamps and Charron JJ concurring): (1) The question is whether the statutory scheme strikes a constitutional balance between what the law has consistently seen as an individual’s fundamental right to autonomous decision making in connection with his or her body and the law’s equally persistent attempts to protect vulnerable children from harm. (2) At common law, adults are presumptively entitled to direct the course of their own medical treatment and generally must give their ‘informed consent’ before treatment occurs, although this presumption of capacity can be rebutted by evidence to the contrary. A competent adult can therefore reject specific treatment or all treatment. There is a specific exception to this principle in the case of emergencies.

The latitude accorded to adults in common law to decide their own medical treatment had historically narrowed dramatically when applied to children. However, the common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. This is known as the common law ‘mature minor’ doctrine. However, the court retains the right to intervene if thought necessary in the best interests of the child.

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