Uncertainty and Indecision in the Legal Regulation of Children: The Albertan Experience

(2007) 23(2) Canadian Journal of Family Law 159

47 Pages Posted: 11 Dec 2012  

Lucinda Ferguson

University of Oxford, Faculty of Law

Date Written: March 14, 2007

Abstract

In this article, the author uses Alberta legislation and case law to test two common perceptions held in relation to the historical treatment of children’s (legal) status in Canada: first, that legal regulation oscillates between welfare- and rights-oriented perspectives; second, that the same uncertainty in approach applies in relation to all regulation contexts, including child welfare and youth justice. These perceptions are often used as the baseline of analysis from one explores (any number of) recent developments in Canada, federally or provincially. Yet, examination of the Albertan experience calls into question the accuracy of this view of the shifting approach to the legal regulation of children's status.

Using definitive cases from the Alberta courts, the author argues that neither of these perceptions accurately reflects the narrative of children’s status in Alberta. The article reveals the greater complexity of the changing approach to legal regulation of children’s lives. In addition, the article suggests that the nature of the uncertainty and ambivalence evidenced in court decisions and legislative reforms is context-dependent, but ultimately driven by tensions inherent within the modern conception of childhood. Consideration of the Albertan experience is particularly revealing because it was the Alberta courts that both introduced the concept of the “mature minor” into Canadian common law in the mid-1980s and then determined that child welfare legislation superseded the child’s common law status as decision-maker.

[Written whilst the author was Assistant Professor of Law at the University of Alberta Faculty of Law, Canada.]

Keywords: Alberta, legal history, children's rights, welfare, mature minor

Suggested Citation

Ferguson, Lucinda, Uncertainty and Indecision in the Legal Regulation of Children: The Albertan Experience (March 14, 2007). (2007) 23(2) Canadian Journal of Family Law 159. Available at SSRN: https://ssrn.com/abstract=2187938

Lucinda Ferguson (Contact Author)

University of Oxford, Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
23
Abstract Views
153
PlumX