Objectives of the Project
The objective of this project is to collect and collate research, describe existing methods to include the children’s voices in family law in Canada (and internationally where relevant), to identify themes, and to develop a comprehensive and accessible literature review. This review provides descriptions of promising practices applicable to various aspects of the voice of the child and discussions of case law.
There is a heightened awareness that children’s views and preferences must be taken into consideration when making decisions regarding their living arrangements. Article 12 of the United Nations Convention on the Rights of the Child, a treaty that Canada has signed and ratified, specifies that children capable of forming their own views have the right to express those views freely in all matters affecting them and that the child’s voice should be given due weight according to the child’s age and maturity. The Convention does not, however, specify how children’s voices should be heard. There remains debate in the literature about the strengths and limitations of the various approaches that have emerged for facilitating children’s voices within family justice services.
There is now recognition in both Canadian legislation and case law of the importance and value of children’s participation in family justice procedures. Family legislation in almost all Canadian jurisdictions now explicitly provides that the views of children must be considered as a factor in making decisions based on their “best interests”, frequently with a proviso, such as “where these views can reasonably be ascertained” or considering the age and maturity of the child.
To meet the need for hearing children’s voices in the context of separation, there has been a growing emphasis on court-based services (Voice of the Child Reports, custody assessments, child-inclusive parenting coordination, judicial interviewing) to provide children and youth with the opportunity to provide their views about parenting plan considerations to complement the views of their parents in the context of child custody disputes.
Less attention has been paid to providing children the opportunity to share their views about parenting plan issues outside of the court context. This is especially concerning given that the majority of parenting disputes will be resolved without ever going to trial, thus leaving many children without adequate alternatives to share their views about decisions made regarding parenting time post-separation.
Given that, for some children, there may be a risk associated with speaking to their parents about their views and preferences, children need to be safeguarded from potential strain caused by their parents’ inability or unwillingness to listen to their children.
Parent education programs and support groups can teach skills that help parents learn to listen to their children and to talk with their children about their experiences of the separation process and how parenting plan issues may affect their daily lives.
Children may report their views and preferences to their teachers, which may place the teachers in the family law dispute as third-party collateral sources of children’s views. There has been a lack of attention to the role of the teacher and further attention is needed to help teachers support children’s voices when they are shared within the school setting.
When there is ongoing conflict between parents, children should be given the opportunity to speak with a mental health professional. These professionals can listen to children outside of the court process to provide children with the opportunity to talk about their views on their parents’ separation, their views about parenting options and any frustrations they may be experiencing due to being caught in their parents’ dispute.
For the majority of families, parenting plan issues will be resolved without necessarily going to court. For families involved in the courts, specialized methods for child inclusion and legislative support for these programs have been established. It is important to consider children’s unique needs and situation to determine which method may work best for a particular child to share their experiences.
In situations of court involvement with lower levels of parental conflict and little risk of the child developing loyalty conflicts with their parents, it may be useful for parents to use mediation offered to them at entry into the courts. Mediation can quickly and efficiently create a parenting plan that meets the needs of their children. Child-inclusive mediation approaches (e.g., interviewing children about parenting plan issues and then integrating these views into the mediation with the parents) can enhance children’s voices and provide opportunities for children’s participation process.
A Voice of the Child Report allows children to have their views and perspectives shared in family disputes without necessarily requiring involvement of a lawyer or a full assessment by a mental health professional. Voice of the Child Reports may provide a low-cost method for children to share their experiences and provide input into parenting plan issues.
In higher-risk situations, such as cases involving child abuse, intimate partner violence, or alienation, a parenting plan assessment may be the preferred approach for considering children’s views. Parenting plan assessments typically entail a systematic and comprehensive consideration of the various factors and issues involved in the dispute.
Judicial interviewing may be best reserved for cases moving towards trial preparation. The judge is given the opportunity to speak with the child to understand from the child’s point of view and to have a better understanding of the factors of the case to determine whether and when a trial should proceed.
The extent to which children’s voices can be heard will depend on the services available to elicit information and the adults and professionals’ ability to facilitate children’s input in post-separation decision making.
There is no “best way” to hear from children during the family justice process. Several methods have been developed to facilitate children providing their voices in the context of family law, but many of these methods seem underutilized. For example, child-inclusive mediation and independent legal representation for children are available in only a small portion of the high-conflict cases in the courts.
It is clear from children’s reports that they want their voices included in decisions that affect them. Article 12 of the United Nations Convention on the Rights of the Children also supports hearing children’s voices in all decisions that affect them. Based on the research, there needs to be increased opportunities to hear children’s voices in family justice processes and a substantial investment to support children’s access to these services, regardless of geographical location, culture and language.
Another way to support hearing children’s views is to develop innovative services and approaches outside of the court system to hear children’s voices. It seems counterproductive to give children the opportunity to have input into the parenting plan only if the parents are unable to resolve these issues and therefore turn to the courts to assist in these matters. To maximize children’s voices, the family justice field needs to consider innovative ways to hear children’s voices outside of the court process.
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