Points to Consider: Voice of the Child in Court Proceedings

By Elizabeth Jollimore Q.C.

• [ Previous Page |
• Table of Contents ]

Points to Consider: Voice of the Child in Court Proceedings^[1]

Significance of the wishes of a child in family law (from Bala, Nicholas; Talwar, Victoria, Harris, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221).

• Can both parents provide adequate care?
• The clarity and certainty of the child's wishes.
• The extent to which the expression is informed.
• The child's age.
• The child's maturity.
• The strength of the child's preference.
• The duration of time the child has held the preference.
• The practicalities of the preference.
• Any influence of the parent(s) on the expressed preference .
• The overall context of the preference.
• The circumstances of the preference, from the child's point of view.

Consider how to make the child's voice heard:

Amicus curiae are neutral and do not advocate for the child and have no obligation to present a child's wishes.

A litigation guardian (guardian ad litem) represents the best interests of the child. Reports are generally submitted, expert testimony can be solicited and the guardian can examine and cross-examine witnesses. Guardians listen to, but can completely disregard the child's instructions if they think they are not in accordance with the child's best interests.

An advocate or child's lawyer is under an obligation to put forward the child's preference and wishes, regardless of whether they are in the child's best interests.

The Full Court of Australia "In the Matter of: Re: K" (1994) FLC 92-461, listed broad rules for appointing counsel for a child in custody cases:

• Cases involving allegations of child abuse.
• Cases where there is an apparently intractable conflict between the parents.
• Cases where the child is apparently alienated from one or both parents.
• Where there are real cultural or religious differences affecting the child.
• Where the sexual preferences of either or both of the parents or another person having significant contact with the child are likely to impact the child's welfare.
• Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare.
• Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child.
• Where neither parent seems a suitable custodian.
• Any case in which a mature child is expressing strong views which would involve changing of a long standing custodial arrangement or a complete denial of access to one parent.
• Where one of the parties proposes that the child will be permanently relocated so as to greatly restrict or for all practical purposes exclude the other party from the possibility of access to the child.
• Where it is proposed to separate siblings.
• Where none of the parties is legally represented.
• Applications relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties.

Voice of the Child Report (where available) is a limited assessment, appearing only to gauge the wishes of a child.

Child as witness: potential that child will be subject to parental influence, misunderstanding court process,

• Child files an affidavit.
• A letter, statement from a parent or other out of Court statement.

Assessments describe parent and child interactions, contain home studies and discuss interviews with parents and others. They usually include an interview with the child.

Judicial interview – lack of proper training may result in inaccurate result.

Practice points when acting in parenting cases:

• Take the ownership away from child: let the child know that he or she is not responsible for the decision.
• Representation: When we represent a child, remember that a relationship of trust with the parents can facilitate settlement and serve the family as a whole.
• Reports to Court: when authoring one, provide a rich detail of background information, the child's circumstances, likes and dislikes. The information is useful to the Court and demonstrates to the child that the message is being conveyed.
• Reports to Court: when authoring one that expresses the child's views, offer as much detail as possible, so the Court may assess the child's maturity and decision-making ability.
• Age-appropriate language: when we represent a child, we need to make ourselves understood.
• Focus: When we represent parents, encourage them to focus on the child's needs.
• Court materials: when we represent parents, discourage them from providing a child with access to court documents. Be vigilant about reminding parents to shelter their children from disputes, including those which occur in mediators' and lawyers' offices.
• Conflict: Encourage your parent client not to involve the children in Court discussions or legal issues.
• Interviewing a child: as counsel, we have nothing to be gained by making ourselves possible witnesses as a result of interviewing a child.
• Child's views – Where a child's views are relevant, discuss with opposing counsel and the Court how this might be handled as early in the proceeding as possible.

---

Endnotes

[1]  Adapted from Linda Tippett-Leary, "Voice of the Child in Court Proceedings."

• [ Previous Page |
• Table of Contents ]