Chapter 3: Brief Review of Children’s Experiences of Providing Voice
This section provides a summary of the experiences of children providing their views in family law matters.Footnote 26 Increasingly children and youth are expressing that they want to share their “voice” in the decision-making processes that fundamentally affect their lives post-separation. The research on children’s desire to be included suggests that they want to be kept informed, and want their needs and interests heard, but usually do not expect to make decisions. Adolescents are much more likely to be involved when major decisions affecting them are made, and to want to express explicit preferences about these decisions.Footnote 27
Children’s Input into Parenting Plans
Research suggests that despite advances in actively involving children, children have largely remained absent from the decision-making process during parental separation and/or divorce.Footnote 28 Qualitative studies of children’s experiences of providing input into parenting plans consistently show that, despite wanting to have their voices heard, many children report not being provided the opportunity to provide their input.Footnote 29 According to one study, for example,Footnote 30 half of children report no involvement in the decision of where they will live following parental separation. Other research indicatesFootnote 31 that youth are typically unsure of their rights, and youth report that adults, including their parents, do not listen to them. Those who have “some say” are typically adolescents at the time of parental separation. Children who report having some say in the decision making about parenting plans were generally satisfied that their views were considered.Footnote 32
Children also describe wavering between wanting to be involved and feeling hurt by the processes of their parents’ separation. While children want to be treated with respect and as capable of being involved in the process, they also describe feelings of vulnerability, change and loss.Footnote 33 A study in Scotland found that children’s voices can be overlooked and/or dismissed when the parents are preoccupied with the interparental conflict.Footnote 34
Reasons why Children want their Voices Heard
Children want the opportunity to express their views within custody disputes and feel that their voices should be represented in discussions about their living arrangements and relationships with their parents. Children express a number of reasons for why they think it is important to have their voices heard, including wanting to be acknowledged as an important voice in the family dispute and to be better informed about parenting plan decisions.Footnote 35
Children emphasize the importance of fairness and equal opportunity to be part of the decision-making processFootnote 36 and that they want to be consulted.Footnote 37 Other reasons for wanting to be heard include to make sure that the decisions reflect their needs and to be made aware of the parenting plan so that they are more informed and better able to cope with changes and transitions.Footnote 38 When children aged eight to twelve years rank, in order of importance, a number of reasons why children should be involved in decision making, children consistently put at the top of their lists: “to be listened to”; “to let me have my say”; “to be supported”, and at the bottom: “to get what I want.”Footnote 39
Although some adults may perceive that children’s voices in family justice matters equates with allowing children to become the sole decision-makers, it appears that many children actually want an opportunity to express their views and be heard, not the power to ultimately make custody and access decisions.Footnote 40
Children’s Capacity in Decision-Making
Several factors are generally considered with respect to the capacity of children and adolescents to make decisions including age, context and development.Footnote 41 The amount of weight given to the child’s voice increases proportionally with the age of the child.Footnote 42 Children and adolescents are not generally invited to share their views in final decision-making post-separation, yet the weight assigned to their voice and their input as they get older is often akin to determination.
When assessing children’s capacity to provide input, it is also important to consider the context of the family dynamics. For example, in family breakups that include higher levels of interparental conflict, children’s age should not be the only factor to consider. Older children and adolescents experiencing interparental conflict can be more vulnerable to the influence of their parents and therefore the extent to which their decisions are independent is questioned.Footnote 43 When stuck in their parents’ conflict, some children may be motivated to protect their relationships with their parents and may not want to upset their parents by expressing views that may be contrary to the expectations of their parents. When these factors prejudice children’s input, there is a question as to what their independent views might be if they were isolated from these dynamics. Moreover, children attempt to predict what they believe their parents wish to hear, which often results in inconsistent statements of their wishes.Footnote 44
Effects of Children’s Participation
Researchers have come to recognize the advantages of talking directly to children about their experiences with sharing their views of parenting plans, rather than relying on reports mediated by adults.Footnote 45 Child participation is considered essential to making good decisions that affect children, whether the child is a party to court proceedings, the subject of a proceeding, a witness or an affected third party to the decision-making.Footnote 46 Children’s lived experiences are considered distinct from those of adults and considering these experiences can help make legal decisions better for the children.
Researchers report that children generally view their participation in family justice services as beneficial.Footnote 47 Including children’s voices in decision making contributes directly to their well-being and adjustment, and can help them cope more effectively with the transitions of separation and divorce.Footnote 48 Including children in parenting plan determinations may also increase their feelings of competency and independence.Footnote 49 The most significant theme emerging from the research is the importance of keeping children informed, respecting their views, listening to them, and considering them in decision making.
Conversely, excluding children from meaningful participation in parenting plan decisions can have a negative impact on their overall adjustment and understanding of the separation process. Research suggests that when children are excluded from parenting plan decisions, they can feel more distressed, insecure, rejected and angry.Footnote 50 Children report a sense of helplessness due to the lack of control and limited input they have regarding divorce-related decisions.Footnote 51 Many of these children experience confusion due to the failure of their parents to explain divorce-related decisions.Footnote 52
Children’s main advice for other children experiencing parental separation is not to let their parents decide on parenting arrangements alone and to talk to adults, including their parents, mental health professionals and legal professionals, about what they want to happen in terms of the parenting plan post-separation and divorce. Studies indicate that children believe that other children should be consulted and that they should have someone they could talk with about their adjustment problems (e.g., parents, friends, counsellor, a judge).Footnote 53 Children state that they should be included in decisions, they should be provided the opportunity to share their views and they should be able to talk about their feelings about the separation and divorce. They also suggest that sharing their views should not compromise their relationship with their parents.
Children’s advice for professionals working with children post-separation is to talk less and listen more, get to know the children outside of the parental conflict, including their hobbies and interests. Children also want more feedback about what is happening in the decisions regarding the parenting plans.Footnote 54
This chapter reviews experiences of children providing their views in family law matters. Children are increasingly expressing a desire to share their “voice” in the decision-making processes in family justice processes that fundamentally affect their lives. Research emphasises the importance of considering the voice of the child, giving children the opportunity to share their voices, and giving sufficient weight to children’s views based on the age, developmental stages and capacity to make decisions that affect them. The next chapter considers the various methods that have been developed both within Canada and abroad as means for hearing the voices of children in family justice services.
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