Chapter 7: Discussion and Implications

Although the majority of children want to have their views considered in family law decisions affecting them, children have been found to have mixed feelings about various methods for including their views (e.g., judicial interviews, legal representation…). The role of children’s views in family law decisions is unquestionably important, but there remains considerable debate about the role of family law professionals in giving voice to children.Footnote 166

From a broader policy perspective, little comprehensive discussion amongst practitioners (mental health and legal), researchers, and policy analysts has taken place about whether, and in what way, children’s participation can be integrated more effectively in the decisions resulting from their parents’ relationship breakdown. Only a fraction of the separating and divorcing couples who enter the family justice system to address their custody and access arrangements ever have their disputes ruled on by a judge. Most couples with disputes either reach a settlement by themselves, or with the help of mediators or counsellors. Many couples who reach settlements by themselves do so quickly. Most of those who fail to reach an agreement during mediation, or who do not use mediation, reach a settlement before a final hearing. This often happens after parenting plan assessments have been completed and the parents have absorbed the recommendations, sometimes with the help of further court program interventions.

There remains little discussion and empirical research on how best to: listen to and understand children from diverse cultures and backgrounds, or with language barriers; use other forms of communication with children (i.e., drawing, play, writing letters); and address possible learning and developmental challenges of children in providing their voice in the decision-making process. Further, increased ethnic and racial diversity is one of the most significant sociodemographic changes affecting North American families today.Footnote 167 High levels of immigration from diverse countriesFootnote 168 and significant changes in the composition of families are transforming notions of multiculturalism, multilinguistic services, and multi-religious observances.Footnote 169 Increased immigration to Canada adds to the complexity of working with children and families from diverse cultural backgrounds, since children in immigrant families generally experience additional adversities stemming from families’ migration and acculturation experiences. However, very little attention has been paid in the voice of the child literature to culture, religion, and gender issues.

Children’s participation and methods for including children’s voices within the family law context continues to be a major focus in the body of research. Much has been written about the importance of the voice of the child and consulting children and youth about issues that affect them particularly during times of separation and divorce.

Enhancing a Child-Centric Family Justice System

Meaningful integration of children’s voices into the family justice system requires that both parents and family justice professionals create genuine and authentic opportunities for listening to children and including them in decision making. Simply increasing the availability of methods to increase children’s involvement in family justice services will not necessarily assist children to have more say in decisions that affect them without a concerted effort to consider the various ways that families may most effectively use processes both within and outside the court system.Footnote 170 This can help ensure that children have meaningful opportunities to express their views and preferences and share their stories about the impact of separation and divorce.

Early dispute resolution approaches and non-court-based services can be bolstered to provide greater opportunity for children to share their voices about parenting plan decisions.

If a parenting dispute proceeds to trial, it is the court that ultimately makes decisions about the children’s best interests. Courts should therefore ensure that attempts have been made, where appropriate, to best reflect the children’s voices in decisions being made about them. This can help courts make fully informed decisions. Increasing opportunities for children to express their views helps judges make decisions in children’s best interests.

The inclusion of children’s voices in custody and access decisions is justifiable on several grounds: increased participation is likely to have positive effects on children, the integration of children’s voices will result in better legal decisions, and children have clearly expressed that they want to be included in decisions that affect them.

To effectively listen to children, it is imperative that mental health and legal professionals working in connection with the family justice system be trained on listening and interviewing children about family justice matters. All professionals working with children should be sufficiently trained to understand normal child development, considerations for children with special needs, the implications of culture, children’s capacity for decision making and the impacts of conflict and loyalty conflict on their ability to provide free and independent voices in these complex situations.

Practice considerations

The issues regarding children’s voices revolve around questions of how to enable children to participate in legal proceedings that both optimize the chances of decisions that serve their best interests and minimize the chances of decisions that may harm them. Harmful results can range from parental retribution to making children feel they are the sole decision makers, responsible for making everything work out. Specific practical considerations revolve around when, and if, children should directly participate in proceedings (and, if so, which ones). Another issue is when, and if, children should be heard indirectly through the voice of a disinterested third party, such as a mediator, custody evaluator or expert witness, or any third party acting as advocate for the child’s best interests.

There is no “best way” to hear from children during the family justice process. Each approach discussed above has its own strengths and limitation. The method chosen will include a number of factors, such as: issues in the family law dispute; resources available and efficiency of the justice system; getting the best information possible before the decision-maker; child’s age and capacity; attitude of child; stage of process (e.g., interim or final); nature of dispute resolution process (e.g., mediation/negotiation/litigation); concerns about fairness to parties; concerns about fairness to the child; the legal framework; and the attitudes of the decision-makers.

Family justice professionals can encourage parents to listen to and be acutely aware of their child’s views and wishes. From a parenting standpoint, they understand how their children express themselves, what vulnerabilities they may have, and their concerns. As mentioned above, many parents are able to come to post-separation and divorce arrangements themselves, sometimes with additional supports that help them absorb information from their children that is important for them to hear.

Considerations for Parents Hearing Children’s Voices

For parents to actively listen to their children during the separation and divorce process, it is important that both parents buy-in to the importance of listening to children and to ensure that they both understand and appreciate the importance of hearing their children without pressuring them to take their side in the disputes. Parents should consider how much weight they want to provide their children’s voices into the decisions regarding the parenting plan. Parents also need to be supportive to ensure that their children’s voices are at least one of the determining factors for creating parenting plans, as the creation of a plan will have significant implications for the children and the time they spend with both parents. Parents also need to reassure children that providing a say in the parenting plan does not mean that they will be required to make the final decision. Instead, parents can reassure children that their views and preferences will be considered by the parents when constructing the parenting plan.

Parents also need to ensure that they do more listening than talking when providing their children opportunities for input into decision making regarding the parenting plan, which can be challenging for parents when they themselves remain impacted by the family breakdown. If parents are unable to listen to their children’s voices in a way that is unfiltered by their own feelings of loss, disappointment, and anger, then parents should involve the assistance of mental health professionals. Involving professionals can help provide children the opportunities to share their voices without fear of retribution or strained parent-child relationships when children’s voices are not consistent with the expectations of a parent.

Future Research

While there are many excellent pilot projects that have been initiated across Canada, it is difficult to determine which methods are most effective in including children’s participation in family justice processes. There remains a lack of high-quality research about these various approaches, partly because of the challenges of completing comparative research on the various methods and due to the lack of ongoing funding to support this kind of research. Ongoing research about the various methods for including children’s voices is needed, particularly research that makes a concerted effort to evaluate the various approaches available for children rather than adding to the patchwork of research projects on individual methods.