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By IM McDOWELL

Speaking in English and
French to a Vancouver
conference of the Canadian
Association of Statutory
Human.
Supreme Court Justice Tom
Berger called for province-

wide unified family courts, .

family advocates, and lay
panels to’ ensure legal
protection of. family and
child rights, -

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“The law offers virtually _

no protection to the family

as.a social institution,” said |

Berger. “The family is less
protected than corporations
or trade unions.” The law
recognizes the ‘need to
maintain and protect the
family as a matter of public
policy, but it only defines a
series of general legal
relationships between family
members.

Seeing this problem
several years ago, child
welfare advocates demanded
a B.C. Royal Commission on
Family and Children’s Law,
which Berger headed, to

_ Study law reforms in this

area. To understand the
rights of families and

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JUSTICE THOMAS: BERGER, of the
Family and Children’s Law Commission. (Hendrik de

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children, the commission
looked at human rights, state

intervention, and due
process. ;

The commission ended its
year-and-a-half study in 1975
after making 12 reports
recommendin many
changes. ;

“The most important
developmert _in_ the
evolution of. family law,”
said Berger, “has been the

emerging emphasis on the -

‘rights of children.” Under

18th century common law
children were considered
chattel property. Only in the
last 100 years has the family
become centered around the

-welfare of the child, leading

to school systems for mass
education, .a prolonged
childhood, and the strains of
adolescence.

Now state intervention to
protect the needs of children

‘is widely ' accepted, « but

children still:have no clearly
defined rights under the law.

Yet, says Berger, “The
most profound questions of
human rights arise within the
family.” For example: does
an adopted child have the
right to know his natural

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parents? When can the state -
intervene to remove a child
from the parents? “These are
guestions of first im-
portance,” claimed Berger,
“when you consider 80,000
children in Canada needed

‘protection in 1977.”

Then there are questions
of due process. Must there
be a fair hearing before an
impartial tribunal with both
sides represented by
lawyers? Should a child have
a lawyer of his own, or does
the law assume his interests
are the same as those of his
parents? Should the child
have the right to speak for
himself? At what age?

‘But the big question is how.
to enforce these rights. The
Commission decided’ “the
family is entitled: . to
recognition and protection
under the law,” said Berger.
And he saw promise in the
unified family courts now
being called for
Canada.

Two of these courts have
been tried out in Richmond
and Surrey since 1974. This
scheme placed family court
judges under the same roof
with other judges for better

~ coordination of resources

and services. A_ staff of
counsellers was also at-
tached to the Family Courts
to try and work out disputes
or provide follow-up.

“As far as the rights of
children are concerned,”
noted Berger, “one of the
most important legal in-
novations in the B.C. pilot
project is the establishment
of the office of family ad-
vocate.”

These are lawyers ap-
pointed by, but independent
from, the Attorney General.
Their job is to represent the
interests of children in any
case where it is necessary.
Berger noted, “This is an
office unique in Canada.”

LAY PANELS :

Another new aspect of the
B.C. pilot project is lay
panels made up of two
community people who sit
with each judge in cases
involving the protection of
children. Lay panels were
pioneered in Scotland and
Sweden. Legislation has
been passed to permit them

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across _

f children’s r

in’ B.C. so better decisions
can be made on standards of

child care. These panels do-
not decide issues of law or

evidence.
Berger said the family
court judge and the family

whose case he is hearing.

often have different views.on
child rearing. The lay panel
can bridge this gap. For
example, Berger noted,
“40% of the children taken
away from their families in
B.C. are native Indians.
We've said two native people
should sit with the judge in
such cases and the majority
decides what’s best for the
child.”- |

“A beginning has been
made with these lay panels,”
said Berger. “The panels

consisted of-a cross section
of the community, and all —

the judges were enthusiastic
about their usefulness. If lay
panels work out, I feel they
should be used in juvenile

Lid

Cases. :

The commission’s
recommendations have been
studied for three years by the
Law Reform Commission of

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Canada, which will soon
make a
report. Berger wouldn’t
predict what their finding
would be, nor would he
comment on which reforms
should get priority from the
government. But he did say:
“Lay panels are an idea I
pushed. Id like to see it put

_ to work in B-C7 Legislation is
‘already in place to permit

them. Pressure has to come
from the community.”
PARENTS SUED

On children’s rights
Berger said: “We decided a
child as a human being is
entiteld to human rights. If a
child is handicapped, his.
handicap should not
diminish his rights.”

He said the passage of a
bill by the U.S. Congress
specifying the rights. of
handicapped children was
“not a sound way to ap-
proach the problem. I think
it’s better to lay out the
rights of all children.” The
U.S. has no federal bill of
rights for all children, but it
does have a strong one for

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_ Page 71, Jane 13, 1979 - North Shore News

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handicapped youth that has
been controversial.

“I urge you to remember,”
warned Berger, “the notion
of children’s rights can easily
be misunderstood. It does
not mean a child can call his
lawyer when you tell him he
can’t go out to play after
dark.” .

In the U.S. some children, .

now grown up, are suing
their parents for neglect.
Berger says, “I can’t chink of
anything more destructive to
the family, or more of @
mockery to a serious sub-
ject.” He wants a general
standard for support, ser-
‘vices, and due process that is
“centered on strengthening
the family.” = — :
“We are entering a new
era,” said Berger, “when the
idea is becoming widespread.
that. children have rights
under the law. But he
warned people not to expect
too much of the law,
reminding them it ‘can only
go so far-and. government
Officials only have so much

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