Chapter 6: Decisions for including child-inclusive methods
With the heightened awareness of the importance of considering children’s views and preferences post-separation and divorce, several methods and approaches have been discussed in both the social science literature and Canadian case law as promising opportunities for including children’s voices in decisions that affect them. These various approaches provide different levels of child participation in the decision-making process at different stages of parents’ involvement in the family justice system.
There is growing attention as to the importance of listening to children’s views outside of the courts. The central focus for including children’s voices within Canadian family justice system remain court-based methods, including child custody assessments, Voice of the Child Reports, appointment of children’s lawyer, and judicial interviewing. These methods are thought to provide the court with assistance in its decision-making regarding children’s best interests and to ensure children’s voices are included and considered in these decisions. In addition, children’s voices in the courts are now supported by family law legislation in almost all Canadian jurisdictions which provides that the views of children be considered as a factor in making decisions based on their “best interests.” Frequently there is also a proviso, such as “where these views can reasonably be ascertained” or considering the age and maturity of the child.Footnote 165
To explore the multiple pathways for including children’s views, a decision tree for considering the various options for hearing children’s voices is provided based on the review of the social science research and the case law. The decision tree is a tool to assist mental health and legal professionals to best consider the pathways though the various stages of the legal process and the opportunities within these approaches for including children’s voices (See Figure 1).
When using the decision tree, it is necessary to consider all types of methods that have been developed or currently in place for understanding children’s views. The initial question to guide the decision tree should be to consider whether the family is involved in a court process. If parents are not involved in the court process then there may be more challenges to integrating children’s voices in the parenting plans that affect them. Special consideration must be made in these non-court involved situations to understand and assess the degree of risk for children when they share their stories, experiences and views. Children need to be able to share their views without putting them into loyalty conflicts between their separating parents or placing them at risk of creating strained relationships with a parent.
Children need to be protected from potential strain caused by parents unable or unwilling to listen to them. Parent education programs and child-inclusive parent coaching for parents should be accessed to better support parents to be able to listen to their children and to talk with their children about their experiences of the separation process. This also includes listening to their children about their views about the parenting plan issues that may impact their daily lives. Professionals working with children following separation and divorce should be aware of families’ involvement in the court process and whether children have been afforded opportunities to share their views about the parenting plan decisions that impact them. When professionals (e.g., children’s mental health services, child protection workers) become involved, it is important that they remain neutral to the parental disputes while providing the children with a safe place to share their experiences.
When there is ongoing and/or high conflict between parents, parents should provide their children with the opportunity to speak with a mental health professional. These professionals can listen to children outside of the court process to provide them with the opportunity to talk about their views about their parents’ separation, their views about parenting options and any frustrations they may be experiencing due to being caught in their parents’ dispute.
Mental health professionals can also work with parents to facilitate healthy parent-child relationships post-separation and develop coping strategies. Parents unable to resolve their disputes may also consider mediation services to assist in resolving parenting issues outside of the court process. Parents should consider engaging with a mediator who embraces a child-inclusive mediation model to ensure that the children can be involved in this process.
For families involved in the courts, specialized methods for child inclusion and legislative support for these methods have been developed. But choosing which method may work best for a particular child to share their experiences needs to be assessed on a case-by-case basis so that the method best matches the unique needs of the children involved.
In situations of court involvement with lower levels of parental conflict and little risk of the child developing loyalty conflicts with their parents, options may include a Voice of the Child Report or child-inclusive collaborative law to provide children the opportunity to share their experiences. Although currently not offered in Canada, the Australian model of Child-Inclusive Conferencing has the potential of providing children with the opportunity to speak with a child specialist about their views and experiences relating to the parenting plan decisions.
The Voice of the Child Reports offer a cost-effective method for capturing their experiences and providing input into the parenting plan. For the feedback to the parents about the children’s views to be meaningful, parents must be both ready and willing to accept the views of their children and to be ready to integrate their children’s views into the parenting plan.
With lower-conflict families involved in the courts, it may be useful for parents to make use of existing mediation and family dispute resolution services offered to them at entry into the family justice system. Family dispute resolution processes often provide a quick and efficient means of creating a parenting plan that meets the needs of their children and includes their children’s voices into the decision-making process. When parents can be amenable to resolving their differences, even in higher-conflict situations, having the opportunity to meet with a mediator who uses a child-inclusive approach may provide the family with the opportunity resolve the conflict, and agree to a parenting plan, while still integrating the children’s voices.
In situations of higher risk family dynamics, including where there has been child abuse, intimate partner violence, or alienation, Voice of the Child Reports may create more strain for children by providing too much focus on the children’s voices to determine the preferred parenting plan. When resources are available, children should be assigned a lawyer to represent their voices in court proceedings. Parenting plan assessments may also provide children with the ability to share their experiences and to provide their views about the preferred parenting plan as these assessments typically entail a systematic and comprehensive consideration of the various factors and views of the dispute, including children’s interviews. Parenting plan assessments may be particularly important when there are clinical issues to address (e.g., substance abuse, mental illness, etc.). Parenting plan assessments typically include multiple data sources, including children’s interviews, so that the assessor is able to make recommendations about the children’s best interests, having considered the voice of the child. Despite the benefits of parenting plan assessments for higher conflict families, these can take a long time to complete which may further delay the court process. In addition, due to the limited resources for publicly funded assessments, these may be too costly and so may not be a viable option for most families.
Judicial interviewing may be best reserved for cases moving towards trial preparation where the judge is given the opportunity to speak with the child to understand issues from the child’s point of view and to have a better understanding of the factors of the case to determine when a trial should proceed.
Given that only a small fraction of families remain involved in litigation over time and since many of them will resolve their disputes within the first year of the initial application to the courts, it is foreseeable that the child’s testimony will not play a significant role in advancing the children’s views. Despite the many safeguards put in place to protect children from the challenges of providing testimony in court, children’s testimony in court should be considered the last resort. This method should only be used when no other means of including children’s voices seem reasonable for the children to share their experiences.
Once a court has made an order, the family may still benefit from family justice services to assist in meeting the expectations set out in the order. Child-inclusive parenting coordination is a dispute resolution method for assisting families to manage their court orders while integrating the voices of the children within the parenting coordination process. Although not all parenting coordinators use a child-inclusive approach, those who do can provide children with ongoing opportunities to express their views and report any changes as they continue to grow and develop within the parenting plans.
For some children, the only safe means for maintaining a relationship with a parent will be with the use of supervised access and exchange, particularly if there has been a history of violence and/or abuse. Based in part on the recent research about the importance of including children’s voices in supervised access and exchange programs, most programs that offer these services have protocols for hearing children’s voices. With the use of child orientation activities at the beginning of the service and constant feedback from the children throughout their involvement, children have opportunities to be part of decisions about how they use these services and to what benefit.
With the heightened awareness of the need to include children’s voices in decisions that affect them, there is now a range of options for hearing children’s voices both within court-based services and prior to families coming into the family justice system. While there is no one-size-fits-all for hearing the voices of children post-separation and divorce, mental health and legal professionals have several options when selecting among the methods for hearing children’s voices both inside and outside the court.
The review of these methods suggests that no one approach guarantees that children’s voices will be considered when decisions are being made that affect them. Choosing the right method based on the family’s involvement in the family justice system can help to facilitate children’s voices by connecting families to the most appropriate services. Special considerations need to explore the suitability and accessibility of the method, including the family’s income and the cost that may be associated with these approaches. These considerations are especially important when child-inclusive approaches involve extra cost for including a child specialist within traditional methods (e.g., the cost of hiring a child specialist to meet with the child within child-inclusive mediation). Other considerations include the children’s age and developmental stage, including any special needs for acquiring the capacity to share their views about the parenting plan, the level of conflict between the parents and whether the child is capable of expressing an independent voice free from the pressures of a parent.
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