Are there limits to parents’ rights to decide how their children are raised?

The thorny issue of whether there should be limitations to parents’ rights to raise their children cropped up in a news story this week involving a father-of-five who filed a legal challenge after the BC government banned him from allowing his children to use public transit unsupervised. In a blog post, Adrian Crook explained why he was taking the Ministry of Children and Family Development (MCFD) to the BC Supreme Court.

He said over the last two years he has been teaching four of his kids, aged seven to 11, how to ride the bus to school on their own in an effort to “instil independence, model sustainability and increase their safety”. After an anonymous tip, the MCFD carried out an investigation into the Crooks family and reportedly told the father his children could not travel unsupervised until they are 10-years-old.

Mr Crooks says the MCFD’s decision not to allow his children to travel on their own is a violation of his Charter rights to make decisions for his family. He has filed a petition in the BC Supreme Court asking the decision be set aside. It also seeks declarations that the Director of Child, Family and Community Services exceeded their authority and jurisdiction.

“Court decisions about whether there should be limitations to parents’ rights in relation to their children’s upbringing often come down to the child’s best interests.”

The task facing the BC Supreme Court

If a ruling is eventually to be made on this case, the BC Supreme Court will have to weigh the family’s Charter rights against the MCFD’s obligation to look out for the children’s safety. Section 7 of the Charter protects “life, liberty and security of person” – Mr Crooks essentially argues his liberty to make decisions for his family has been violated. He is also seeking a remedy under Section 24 which effectively enforces the rights and freedoms guaranteed under the Charter.

Mr Crooks claims the government “set out to avoid liability, rather than support responsible parenting” in reaching its decision. The MCFD was quoted as saying “there is no set ministry policy and every circumstance is different” when it comes to allowing children to take transit unsupervised.

In reaching a ruling, the BC Supreme Court will have to decide whether the decision-making power of a public institution leads to a reasonable infringement of the freedom a family has to make decisions for itself.

Balancing limitations to parents’ rights

Should there ever be limitations placed on parents’ rights to decide what is best for their children? It’s certainly a divisive issue. A more extreme example than letting your children ride the bus would be vaccinations. Some parents are strongly opposed to immunizing their children. The anti-vaccine movement is steadily growing across North America and in Europe, it has been blamed for a reemergence of measles. Governments across the world, including Canada, are now having to grapple with the conflict between parents’ rights and public health. Countries such as Australia have started to penalize parents who do not vaccinate their children.

This article from the McGill Journal Of Law And Health examined whether parents who decide not to vaccinate their offspring cause an acceptable level of risk to others. In other words, should Canada impose mandatory vaccinations?

According to the article: “Parents would likely launch a Charter challenge in response to any legislation which mandated compliance with the routine immunization program.” There is still a low but unavoidable percentage of adverse effects to vaccination and the authors state: “Determining which is favourable between competing risks is arguably a parent’s determination and not one that should be left to the state.”

Balanced against the rights of individual parents to decide whether to immunize their children are the wider public health concerns. The article states: “Holding conscientious objectors responsible for their decisions provides an alternative to absolute mandatory immunization, which tends to raise concerns about invasion of bodily integrity and other Charter issues.” Holding the group of parents of non-immunized children liable for an outbreak of a disease such as measles among vaccinated children would be difficult, however, because choosing not to immunize children can be seen as a conscientious decision. Holding the group that opts against vaccinations responsible for outbreaks would require parents to sign a declaration stating they know and accept the risk they pose to their own children and others in the community.

Court decisions about whether there should be limitations to parents’ rights in relation to their children’s upbringing often come down to the child’s best interests. In this case, the Supreme Court of Canada found that Jehovah’s Witness parents could not deny a blood transfusion their child needed to live on religious grounds. The Court interpreted the life-saving actions as a reasonable limit to the family’s Charter rights.

It will be interesting to see how the BC Supreme Court interprets Mr Crooks’ Charter rights in the context of the MCFD’s decision not to let his children ride transit unsupervised.

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