Voice and Support: Programs for Children Experiencing Parental Separation and Divorce

5. VOICE OF THE CHILD IN CUSTODY AND ACCESS PROCEEDINGS

Just over 67,000 Canadian couples divorce each year and 50 percent of these couples have dependent children (Child Support Team 2000). In addition, thousands of common-law couples also separate annually and many of them also have dependent children. About half the total number of divorcing and separating Canadian couples have court orders specifying their post-separation custody and access (Marcil-Gratton and Le Bourdais 1999), while the rest may have formal agreements forged with the help of lawyers, or informal arrangements. Court programs and proceedings that help separating or divorcing families resolve custody and access disputes therefore affect the lives of many thousands of Canadian children each year.

5.1 Legal Proceedings for Custody and Access Disputes

Only a fraction of the separating and divorcing couples who enter the Canadian court system to resolve 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 agreement during mediation, or who do not use mediation, reach a settlement before final hearing, often after custody assessments have been completed and their recommendations have been absorbed by the couples, sometimes with the help of further court program interventions.

Children's voices may be included at several stages during the litigation. Two of the most important times are during mediation or conciliation, and during the preparation of custody evaluations (known as home studies or family assessments in some jurisdictions) which help judges in their decision making. For difficult cases, other programs sometimes exist (e.g. the Ontario Office of the Children's Lawyer's programs discussed below) to help families reach an agreement before a final court hearing.

Children's voices may also be heard in the courtroom, either directly as parties to the hearing with counsel acting on their instructions, or through counsel or other legal representatives mandated to advocate for their best interests and to present information about their needs and interests that would otherwise be overlooked. (However, this section focusses mainly on the possibilities for including children's voices in programs and proceedings outside the actual courtroom.) In some jurisdictions, children's voices may also be heard through lay advocates, but, as already noted, this report does not explore this possibility.

Most federal and provincial legislation in Canada permits children to participate in custody and access proceedings, although it does not specifically provide for it. Quebec is an exception: its Civil Code requires the courts to give children an opportunity to be heard if their age and power of discernment permit it (L'Heureux-Dubé 1998; Bessner 2001).

Most other English-speaking jurisdictions similarly permit, but do not specifically provide for, including children in proceedings. One exception is Scotland, where The Children Act 1995 requires that children have a say in custody and access decision making. Parents pursuing a custody and access or parenting writ (filing and application) are required to "crave" (request) that notification be sent to each of their children asking them whether they want to tell the sheriff their views on the matter. The courts then approve or reject the crave. Parents not wanting their children involved must crave that no notification be sent (Samuel 1999).

Canadian provinces lacking specific legislative provisions may still include children in custody and access decision making through specific programs and proceedings, although parents often become gatekeepers to their participation. Appendix B outlines how Canadian provinces and territories currently include children's voices in such proceedings.

5.2 Children's Voices in Mediation and Counselling

Most English-speaking jurisdictions have introduced, or are introducing, counselling, mediation and/or arbitration programs to help parents resolve their custody and access disputes before they reach the final court hearing. Courts in many Canadian provinces now offer mediation or conciliation to separating or divorcing parents.

Mediation is more agreement-driven than (non-therapeutic) counselling, which typically mixes techniques to effect change in parents with agreement seeking (Nicholson 1994). However, the distinction can be subtle and the Family Court of Australia recently renamed its counselling and conciliation services mediation services.

The number of Canadian parents using counselling or mediation to settle custody and access issues is unknown. Australia's federal family court reports that 95 percent of families with custody and access disputes settle before a final court hearing and 75 percent during conciliation or mediation provided at each court location (Australian Law Reform Commission 1997).

Parents may use mediation to settle custody and access arrangements at divorce or separation, to vary existing arrangements or to resolve other access disputes such as access denial or breach of access. Parents can use mediation for specific issues or to resolve all their post-separation parenting issues together (comprehensive mediation).

Provincial court officials uniformly report that mediators only occasionally include children in court-provided mediation. When children are included, they tend to be older (12 and over). How they are included appears to vary with the individual mediators. A recent study found that 87 of the 250 practitioners involved in significant amounts of private family mediation do not involve children in the mediation. Twenty-eight mediators said that exploring children's feelings directly with them was one mediation strategy they used, and 30 reported using meetings involving children as a strategy (Kruk 1998). It is not known how often these strategies are used.

Quebec is considering extending funding for its free mediation services to include meetings between mediators and the children alone. Currently it funds only meetings between mediators and parents, or parents and children (Tanguay, pers. comm., see Appendix D).

5.2.1 How Other Jurisdictions Include Children

Practitioners in other jurisdictions tend not to include children in mediation either. In Scotland's family conciliation services, for example, conciliators included children in 20 percent of their 186 mediation cases between 1986 and 1988, despite the stated policy to include children whenever possible (Garwood 1990). By the late 1990s, most children were still not participating in mediation in Scotland, despite the passage of the Children Act 1995, although the researchers predicted this pattern would change once the new law gained more hold in practice (Lewis 1999). The study of Lothian conciliators (Garwood 1990) found that all the children included in mediation met the mediators separately (siblings were seen together). Another 20 percent of children also participated in a subsequent family interview with parents and mediator.

An earlier survey in England (Ogus 1989, cited in Garwood 1990) found even fewer English and Welsh children being included in conciliation. They were involved in only 13 percent of the court-independent conciliation cases, and 15 percent of the court-connected conciliation cases involving children. By a random sampling of private mediators in the first half of 1997, an Australian survey found children directly included in only 11 percent of the mediations provided to families with children (Strategic Partners 1999). However, half of the 70 family court counsellors surveyed said they included children more than 25 percent of the time.

An earlier study of private mediators in California found a similar picture. It also provides insight into which children were included and how (Paquin 1988). Half the 124 mediators did not involve pre-schoolers at all, but 90 percent did involve school-age children; all felt that adolescents should be involved. In practice, mediators usually involved adolescents, particularly when the parents disagreed about the youth's feelings or needs, when the child requested it, or when the mediation was stuck. They involved pre-schoolers largely when they feared or suspected parental abuse or neglect, when the child was fearful of one parent, or was very stressed. They usually involved school-age children when parents were in great conflict or had agreed to give the child some decision-making responsibility.

5.2.2 Specific Ways to Include Children in Mediation

Children can be included in mediation in different ways (Saposnek 1991). They may be present during the mediation, either for all sessions or intermittently. As they did in the Scottish study, children may meet with mediators separately and have the mediator bring their concerns and interests back to the bargaining table on their behalf. The California mediators were most likely to see older children alone, and they were almost equally likely to see pre-schoolers alone or with both parents (Paquin 1988). In indirect mediation, the children's meeting with the mediator may occur at the outset of mediation or later. Both direct and indirect inclusion allow children's needs and interests to be heard in the mediation, assuming the mediator faithfully reflects the children's views. Including children directly in mediation deliberations, of course, makes them possible participants in the deliberations.

Children may also be included in mediation another way: they may be brought into the mediating room after the agreement has been reached, so that the mediator and parents can tell them what has been decided and seek their acceptance.

As indicated in section 2, programs designed to help children adjust to separation and divorce may be linked to mediation proceedings. In such cases, they have a secondary function of incorporating the children's needs and interests into mediation deliberations (as in, for example, the Centres jeunesse de Montréal's Confidences program or the Family Centre of Winnipeg's Giving Children Hope). Such programs may be a safe way for children to be included. They may also be more responsive to mediators if their meeting comes at the end of a program designed to solicit their feelings and soothe their distress.

5.2.3 The Arguments for Including Children in Mediation

Researchers and practitioners disagree strongly about whether to include children in mediation and conciliation. One complexity in discussing this is that participants do not always distinguish the different ways that children can be included. They may say they oppose or support including children, but in reality they only support or oppose some ways of including children.

Researchers and practitioners who support children's inclusion say it helps the children, helps the parents focus on their children's best interests, gives parents a better sense of their children's wishes and feelings overall, produces better agreements for the children, and increases the chances that parents will comply with their agreements (Drapkin and Bienenfeld 1985, Landau 1990, and Saposnek 1983, cited in Saposnek 1991; Brown 1995). Specific purported benefits include:

  • children can disclose their genuine feelings to mediators, which they often cannot or will not disclose to their parents;
  • the mediator gives the children a nonaligned confidant while their parents battle, which can help reduce their fears and anxieties and at least makes them feel someone cares;
  • the children feel they have more input and some, if limited, control during a period when their lives seem out of control;
  • the children can deal better with their feelings by talking about their concerns and interests;
  • the children are often confused and may be helped by hearing what agreements their parents have reached;
  • children may cope better with changes if they know and understand the reasons for them; and
  • parents are encouraged to recognize adolescents' growing independence and ability to develop their own lives.

Some supporters also argue that children should be included because they have a right to know (Brown 1995).

It is clear that children can receive most of the benefits listed above if they meet with the mediator separately, rather than participate directly in deliberations. However, some researchers say children need to be present at the table to force their parents' attention away from their own feelings of injustice, and toward problem-solving aimed at helping their children (e.g. Saposnek 1983, cited in Saposnek 1991; Paquin 1988). These researchers are most adamant about having children present in high-conflict mediation, when parents get stuck because of their mutual hostility. They suggest that the children's momentary exposure to intense conflict is worth the long-term rewards of an equitable agreement and subsequently less conflict (Paquin 1988).

Other researchers and practitioners who generally support including children believe they should be excluded in cases in which they are likely to feel responsible for resolving their parents' disagreements. However, there seems to be little research on whether including children directly is always likely to make them feel responsible, or on what the long-term effects of direct participation may be (McKenzie, pers. comm.). Many experts appear to feel that directly including children is not advisable in most cases because of the burden it places on the children (Kruk, McKenzie, pers. comm., see Appendix D; also Brown, 1995).

Given the risks in involving children directly, it has been proposed that parents and mediators sit down at the outset of the mediation process to agree beforehand about the role the children will play, and how the parents will conduct themselves during the mediation (Austin et al. 1991). Mediators can then use their judgement, based on this meeting, to assess the risks involved in including the children. The meeting can also be used to commit parents to responding more positively to their children if they do participate.

Some researchers believe that, when children are involved, it should be for a limited number of sessions only (Austin et al. 1991). Researchers are more likely to allow that adolescents who want to express their views in mediation should have that option, but urge that mediators proceed with caution (Kruk, pers. comm., see Appendix D).

Australian court mediators surveyed have said they would exclude children in cases when:

  • parents could misuse information;
  • parents were likely to manipulate children;
  • one or the other parent has no interest in knowing the child's needs;
  • parents do not want, or disagree about, the effect of including the child;
  • the children are too young (the age limit varied);
  • involving children will not help; and
  • child sexual abuse is involved (Strategic Partners 1999).

Australia's Attorney General recently endorsed children's inclusion in mediation on a case by case basis (Australian Law Reform Commission 1997a). The government argued that children would receive a positive image of their parents communicating, negotiating and reaching an agreement, and that parents would be more likely to abide by their agreements (Australian Law Reform Commission 1997a). The Australian Law Reform Commission also has urged that children should participate in mediation and conciliation if they want to, and that ways should be found to encourage their participation (Australian Law Reform Commission 1997).

5.2.4 The Arguments Against Including Children in Mediation

Researchers and practitioners who oppose including children in mediation argue that it harms the children and undermines parental authority. The harmful effects cited for children (Marlow and Sauber 1990, Emery 1994, Meggs 1993, cited in Brown 1995; Australian Law Reform Commission 1997a; Strategic Partners 1999; Myers and Wasoff, 2000) include:

  • placing responsibility on children for making decisions their parents are unable to make;
  • creating further stress for the child who may have divided loyalties;
  • putting children at risk of retribution from disappointed parents;
  • exposing the child further to parental conflict;
  • placing the child in a position of power and so possibly eroding parent/child relationships;
  • exposing the child to "system abuse" by which a child is damaged by repeated professional probing; and
  • making the child the "problem" in families where parents do not want the child involved.

Many mediators also resist including children because they feel doing so violates their own neutrality and, therefore, their professional responsibility to their clients, the parents. By introducing the children's feelings, needs and interests into the process—which may be inimical to the arrangements the parents are trying to negotiate—the mediator is impelled to become the child's advocate (Beck and Bianck 1997; Wallerstein 1986-87). This seems to be a concern more of private mediators than court-appointed mediators, because the latter's work is also governed by the principle of the child's best interests. Nonetheless, some practitioners argue that private mediators do not violate their obligations by bringing a child's concerns into the process (e.g. Beck and Bianck 1997).

In a recent study, Australian mediators and counsellors expressed reluctance to include children because they felt they themselves lacked sufficient confidence or expertise (Strategic Partners 1999). Court mediators overwhelmingly wanted more training, even though half of them already had child-oriented training at a university level. Other experts have also expressed concerns about mediators' qualifications for working with children effectively (e.g. Brown 1995; Beck and Bianck 1997; Austin et al. 1991). Younger children generally express their feelings through their actions rather than words; indeed, they may be uncommunicative verbally or their words may be misleading. Canadian practitioners and service providers interviewed emphasized repeatedly that interpreting a child's behaviour accurately requires considerable skill and knowledge of child development. Mediators typically do not receive this kind of knowledge during their training.

Many practitioners and researchers oppose including children in mediation both indirectly and directly. For example, the Australian Association of Social Workers told the Australian Law Reform Commission's inquiry into children's voice in custody and access that one of the results of counselling for many children is that they say they want their parents to leave them out of the dispute (Australian Law Reform Commission 1997a).

5.2.5 Research on the Effects of Indirectly Including Children in Mediation

Including children indirectly in mediation appears to be gaining ground. Australian researchers recently piloted an indirect inclusion program as part of their recent study of children in mediation. Studies of both the Scottish pre-reform mediation practice and the Australian pilot explored children's and parents' responses to indirect inclusion, but the long-term impacts on children and their post-parenting circumstances are not yet known.

The small study in Scotland has explored the effects of involving children in their parents' conciliation by means of separate meetings with the conciliators (Garwood 1990). Most of the 186 families in the Lothian Family Services program between 1986 and 1988 participated in order to decide custody and access arrangements, but some were there to initiate access before taking on access arrangements independently. Individual children (or, if there was more than one child, groups of siblings) usually met with the conciliator separately at the beginning of the conciliation, and the conciliator reported the children's wishes, concerns and feelings to the parents in subsequent sessions with them. A few conciliators only involved children through family sessions because they felt that seeing them separately undermined the parents' authority. The children's main concerns tended to focus on specific aspects of access, such as having to go to the football game with Dad every Saturday afternoon, rather than the central issue of custody. A few children wanted to reduce or limit access.

Follow-up with some of the families revealed that 25 of the 28 children who had seen conciliators separately thought the process had improved their communication with their parents, and helped them express their feelings. Several felt that it had improved or renewed their access to their parents. Children were more likely to think the experience unhelpful when their parents did not respond to their requests (and ended up in court). The children liked the conciliators and the sessions (Garwood 1990). Many of the children were unclear why they had met with the conciliator (although conciliators felt they had explained carefully), and some said they did not understand much of what the conciliator said. Some would have preferred individual meetings without their siblings present. However, none of the children appeared worried about their parents hearing what they said (although this did worry some of the conciliators).

In the Australian study, researchers explored the effects of including children in mediation through single-session private consultations, as part of their larger study of child-inclusive practice in family and child counselling and mediation (Strategic Partners 1999). They were forced to run the pilot after finding low inclusion of children in existing mediation and counselling programs. The pilot was modelled on the U.S. Center for Families in Transition's "separate representative" program. The small Melbourne-based study found that almost all the 17 children who had the single-session consultations were unequivocally positive about their experience (McIntosh 2000). The children cited having the opportunity to talk to someone, express their feelings, and have their parents hear their feelings and wishes as the main benefits. They even seemed to feel they benefited in these ways when their parents did not accommodate their feedback. Only four children thought there were situations in which their involvement would not help; these were when the children's involvement produced no changes in their parents' behaviour or when the children did not want, or need, to participate.

The mediation pilot included four sessions, with children interviewed by a child consultant after the parents' first mediation session, and the results fed back into the mediation. Children were carefully briefed about the boundaries of the 60 to 70 minute session, and were told that their parents would be informed about how they generally seemed to be handling the family changes. They were also told that particular issues would not be discussed if the child did not want it. In sessions with the parents, the mediator discussed his or her general assessment of the impact of the separation on the child, the child's current needs, as well as any specific issues the child wanted raised.

Almost all the parents whose children participated thought the mediation had benefited the children, compared to about 60 percent of another group of parents whose children did not participate. Families were included in the study if parents and child had agreed to participate, and the parents were willing, with support from the mediator, to listen to and discuss their children's views. Most were families in low to medium conflict, although two were in high conflict. Parents mediating property-only cases were included. Earlier Australian studies of mediation services in Melbourne and Sydney (Moloney et al. 1996, 1995, cited in Strategic Partners 1999) had found that 40 percent of participating Melbourne parents thought their children had benefited from the mediation (which rarely involved children) through improved parental communication or improved parenting arrangements.

In the Strategic Partners pilot, the parents whose children were involved mainly felt their children had had a chance to "offload," share and find solutions. They frequently considered that this had led to more open communication between them and their children, and that the children had gained from their resolved conflicts. Several parents felt it was good for their children to have an outsider to talk to—someone they could speak to honestly—because their own conflict and distress was so great. Parents also indicated that they thought taking part in mediation, rather than counselling, avoided stigmatizing the child as troubled, and made the child feel he or she was trying to find a way through the problems, just as his or her parents were.

Mediators overwhelmingly supported the children's involvement. Still, they had reservations in several kinds of cases, believing that the model did not work well when parents remained overwhelmed, when the couple was in high conflict, when the children's feedback was given too much weight, or when parents could not reach agreement on parenting plans.

The Scottish and Australian studies suggest that including children indirectly in mediation may not harm them, and may help their parents reach agreements that serve their best interests, as well as improve communication between the parents and children. Without further longitudinal follow-up, however, it is difficult to assess the long-term impact of these children's participation on their own well-being, on the durability of the agreements reached with their participation, or on whether the agreements reached better served their best interests.

Still, some experts remain cautious about one-on-one interviews between mediators and children (Kruk, pers. comm., Appendix D). Experts emphasize that when children are included in mediation, they should be clearly told that whatever they discuss with the mediator will be shared with their parents, and perhaps with lawyers and judges (Brown 1996). Yet, in spite of what conciliators thought were clear explanations, many children in the Scottish study, for instance, did not really know why they were meeting with the mediator, or by implication, how their words would be fed back into their parents' mediation.

Given these problems, experts also warn that children should not be pressured to go beyond their comfort zones in expressing themselves to mediators, since they may later pay a price for their words to vengeful parents (Brown 1996). Moreover, even without parents present, eliciting genuine feelings from a child is difficult. Experts appear to agree that younger children should never be directly asked questions such as "Who do you want to live with?" Moreover, when children state preferences, as older children usually do, the experts urge mediators (and other professionals eliciting the child's voice in proceedings) to balance the children's wishes against their knowledge of the family context (Brown 1995, 1996; Austin et al. 1991).

5.2.6 When to Include Children During Mediation

There is no consensus about when children should be included in the mediation process. Researchers identify both disadvantages and advantages in including them at the beginning, middle or end of the process (Brown 1995). Including them at the beginning may help parents focus on their children's needs from the outset, but one expert likens it to "traversing a minefield without having first cleared the mines or finding out where they are" (Brown 1995). On the other hand, if mediators include children only at the end of the process, to comment on the arrangements, children may be spared any participation in the conflict, but may also feel that their voices have not really been heard.

5.2.7 Child Assessments in Mediation

Some practitioners have proposed that mediators include child assessments as part of their mediation (Beck and Bianck 1997). The assessments would be done by a child therapist, and information about the child's mental state and needs would be reported back to the parents by the mediator. Practitioners argue that commissioning child assessments is an effective way to help ensure that mediated decisions are in the child's best interests, while also taking account of mediators' concerns about neutrality and the level of mediator skills and training in dealing with children.

5.2.8 Mediation and High-conflict Families

As indicated above, most researchers and practitioners strongly oppose including children directly in mediation when parents are in high conflict, although a minority do favour it. There is less agreement on whether children should be indirectly included by independent meetings with the mediator. In any case, children in high-conflict families are the most likely to be manipulated, put in the middle, and even punished by their hostile parents, and are therefore more at risk than other children even if their participation is indirect.

As indicated in section 2, hybrid therapy-mediation programs for parents and children can provide a safe vehicle for including children in the mediation; children can report back to their parents as a group, and there are therapists to mediate their reports with the parents. As indicated above, no studies were found that specifically assessed the impact on high-conflict children of either their participation in the children's groups (with other children of high-conflict parents) or, indirectly, in their parents' mediation. Studies have found benefits for the parents, especially their ability to resolve their disagreements and abide by them without returning to the courts (see citations in Johnston 1994).

5.3 Children's Voices in Other Proceedings

Outside mediation and conciliation, children's voices may be indirectly heard in custody and access proceedings in three main ways: family assessments, the testimony of expert witnesses, or a separate children's representative (Australian Law Reform Commission 1997a). All three of these methods can include the child's voice in courtroom hearings, insofar as they are used in, or participate in, courtroom deliberations. However, all three provide means by which children's voices can be heard in the courtroom, without the children themselves having to participate as parties to the hearing or by providing testimony (Shear 1996; Australian Law Reform Commission, 1997a). Moreover, custody assessments and the roles sometimes played by children's lawyers outside the courtroom often help parents reach an agreement at the courtroom door, thereby averting courtroom battles that most experts believe are stressful and frequently damaging to children (Kruk, pers. comm., see Appendix D; also Shear 1996), and may no more capture children's genuine preferences than proceedings outside the courtroom (Grassby, pers. comm., Appendix D).

5.3.1 Family Assessments (Court Evaluations, Family Reports, Home Reports)

Federal and provincial legislation in Canada permits courts to order assessments for families and children who are litigating custody and access (or other) disputes. Parents and attorneys may also initiate court or family assessments privately, or request them from the court. The basic purpose of a typical full assessment is to evaluate the children's needs, and the parents' willingness and ability to meet those needs (Austin et al. 1991). If the case reaches final hearing, the report is usually presented to the court and used by judges in making their ruling.

It is not known how often courts commission family assessments in custody and access cases in Canada, although every jurisdiction contacted for this report uses them to some extent (see Appendix B). However, about 60 percent of Australian cases proceeding to trial involve family reports (Australian Law Reform Commission 1997a). Australian courts also report that, when they are involved, family reports either prompt settlement before final hearing, or are followed by judges 76 percent of the time (Australian Law Reform Commission 1997a). Canadian officials estimate similarly high rates of settlement and influence on judges' rulings in Canada (Behr, pers. comm., Appendix D). In the United States, too, studies show that judges follow custody assessment recommendations about 85 percent of the time. In 70 to 90 percent of the cases, parties reach a settlement after hearing the recommendations, which is then entered as a consent judgement (see citations in Johnston 1994).Footnote 2

Assessments are governed in most jurisdictions by the principle of the child's best interests. They are not intended to be vehicles for children's wishes and preferences. Evaluators typically see themselves as neutral parties evaluating the child's best interests. An exception is Ontario's Office of the Children's Lawyer, whose social workers see themselves as advocates for the best interests of the child. Social workers, psychologists, or sometimes mental health professionals, typically prepare the assessments. They are used as alternative or additional expert testimony presented to the court.

A typical comprehensive family assessment will include interviews with each parent and the child in the home(s), and may include further interviews with the child alone. Most family assessments done for Canadian courts are comprehensive family assessments (see Appendix B).

5.3.1.1 The Children's Voice in Family Assessments

There is no agreement about whether family assessments provide an effective vehicle for hearing children's voices. Several submissions to a recent Australian Law Reform Commission inquiry argued, for example, that family assessments are effective because they allow children's wishes and opinions to be expressed without making them decision-makers (Australian Law Reform Commission 1997a). The assessment allows experts to decide whether, and to what extent, a child's views should be put forward to the court, thus, promoting the child's best interests and protecting him or her.

Critics of family assessments argue, however, that they leave too much room for experts' biases, experiences, training and values to shape the result (Bala 1990, cited in Huddart and Ensminger 1995). Some of these critics insist that counsel should have the right to be present at the examination on which the assessors' judgements will rest, or that these be video-taped (Sachs 1985, cited in Huddart and Ensminger 1995).

One way around this problem is to permit courts to commission investigations by any person satisfactory to the court at the parties' expense (Huddart and Ensminger 1995). However, a report commissioned by a parent—one of the parties to the dispute—is no less likely to reflect the investigator's bias; it would also likely add the parent's bias, and would open the door to the battle of competing assessments in courtroom deliberations.

Most experts and practitioners hold the same view about the role of children's wishes in custody assessments as they do about children's wishes in mediation. They resist giving children's wishes much weight in family assessment recommendations, except in certain cases when children are older and the issues are delimited (see sections 4.3.a.ii and 4.3.a.iii below). This resistance is motivated by the rationality and authenticity concerns raised in section 3, as well as a mandate to serve the child's best interests, which most experts and practitioners believe does not always coincide with the child's best interests.

Experts argue that assessors need to consider children's wishes in the context of their needs, which are identified using legal and clinical criteria of "best interests" such as parenting ability or the length of time children spend in a stable home. The more congruence between children's wishes and the assessment of their needs, the more congruence there will be between their wishes and the report's recommendations (Austin et al. 1991; Brown 1996a). They emphasize that there is no easy formula for combining age and maturity in measuring wishes, but the broader context of children's needs must always be considered.

In Ontario, the Office of the Children's Lawyer prepares 1,500 to 1,700 social work reports or family assessments a year for Ontario courts. Office officials say that the child is always interviewed in these reports (McTavish, Moyal and Martin, pers. comm., Appendix D). However, as advocates for the child's best interests, rather than neutral assessors, Office investigators only include children's preferences in the report when doing so is in the child's interests and does not pose harm. The Office considers the child's wishes to be one piece of the puzzle in assessing the family; it is why the child is saying what he or she is saying that is most important (McTavish, Moyal and Martin, pers. comm., Appendix D). The Office deals with high conflict families (average time in litigation is more than three years) and many cases involve violence and abuse, or allegations of them.

Youth advocates have criticized family assessments for stifling teenagers' voices that could and should be directly heard. Youth advocacy organizations told the Australian Law Reform Commission inquiry that family assessments fail to uphold many teenagers' rights under the Convention for the Rights of the Child when they substitute for youth who can speak directly to the court. The Commission concluded that "it is important to remember that a family report may not adequately discharge the obligation under CROC to provide children who desire to participate directly in proceedings with an opportunity to be heard as required" (Australian Law Reform Commission 1997a). It recommended that when children are old enough, they should be allowed to give evidence on their wishes directly in court (Australian Law Reform Commission 1997a).

5.3.1.2 Focussed Assessments

Focussed assessments, when they are relevant, may provide a better vehicle for children's voices than traditional comprehensive assessments (although they do not overcome all the criticisms raised above). Pioneered and studied in Canada by Ontario's Office of the Children's Lawyer and the Clarke Institute of Psychiatry (Birnbaum and Radovanovic 1999), focussed assessments may reduce the burden of traditional assessments, and provide opportunities for children's perspectives to be given greater weight. Focussed assessments were researched in the 1990s as a short intensive pilot intervention for high-conflict litigious parents in access denial disputes that did not involve violence or abuse (Birnbaum and Radovanovic 1999). Whenever possible, parents were seen together or with the child early in the intervention, and this was followed by parent-child interviews as well as interviews with the child alone.

Researchers found that a 10-hour intervention focussing on specific problems in dispute was more effective than the conventional, comprehensive and more usual 22-hour assessments. Just under half of the 40 parents in the pilot continued to have disputes, 30 percent reported continuing poor to very poor parent cooperation, and 55 percent said the intervention had not helped improve their communication with their spouse. However, 35 percent said their existing visitation arrangements had been arranged with the assistance of the clinicians, and 63 percent said the evaluators' suggestions were incorporated during court motions covering their disputes shortly after the intervention.

The Office of the Children's Lawyer estimates that 10 to 15 percent of the 1,500 to 1,700 social work reports it does each year are now focussed assessments (McTavish, Moyal and Martin, pers. comm., Appendix D). The assessments are used for access-based disputes involving specific problems (such as a child wanting to visit with Dad on Saturday morning rather than Friday night) and usually involving older children aged 14 and 15. Typically, the child's wishes and the facts of the dispute are clear, and the assessment is to satisfy the court that the proposed arrangement is what the child really wants, and is without detriment to the child (McTavish, Moyal and Martin, pers. comm., Appendix D). The focussed assessment enables families to concentrate on a specific dispute involving the child while bracketing other ongoing conflicts.

While courts in several provinces appear to be using focussed assessments more frequently, how many assessments are actually focussed assessments is not known (see Appendix B). In Alberta, focussed or mini-assessments are usually prepared when cases are not likely to go to court (and not as an adjunct or follow-up to mediation) (Delanghe, pers. comm., Appendix D). They provide an alternative tool for parents trying to resolve disputes, and lawyers may recommend them for that purpose.

5.3.1.3 Views of the Children Reports

Courts in British Columbia may order short reports specifically to ascertain children's views when a full report is not justified (Morgan, pers. comm., Appendix D; also Huddart and Ensminger 1995). These are typically used to assess and present teenagers' wishes in specific access disputes. In preparing the reports, counsellors try to describe the child's character and personality, and the child's capacity to state his or her views. Counsellors give their opinion as to whether the views are authentic (Huddart and Ensminger 1995). Focussed assessments appear to fulfill this function in Ontario, and possibly elsewhere.

Views of the children reports are not available in all parts of the province because some family court counsellors are unwilling to interview children directly in this way (Huddart and Ensminger 1995).

5.3.1.4 Reducing the Harmful Effects of Family Assessments

There is some concern that family assessments may harm children. One Australian organization providing legal services for children told the Australian Law Reform Commission inquiry that family reports are intrusive and traumatic for children, partly because they take so long to prepare and often have to be updated by the time of final hearing. They therefore add to the excessive interviewing and probing of children who are caught in the middle of protracted high-conflict litigation (Australian Law Reform Commission 1997a). Recognizing this problem, Australia's Family Law Council recently recommended that courts determine whether other relevant reports already exist in the community before commissioning a family assessment through the court (Family Law Council of Australia 1996).

The Australian Law Reform Commission, while acknowledging the problem, suggested that family reports are nevertheless useful tools, and integral to expanding children's voices in custody and access proceedings (Australian Law Reform Commission 1997). Its report argued that including independent evidence from family reports early in court hearings of disputes frequently led to early settlements and avoided lengthy court battles. The reports were also a better use of finite court resources, and a better way for children to be heard than having them participate in court hearings (Australian Law Reform Commission 1977a). Most experts appear to believe that younger children should be kept out of the courtroom whenever possible (Kruk, pers. comm., Appendix D).

5.3.1.5 Modifying the Role of Assessments and Assessors

Several ways have been proposed to enhance the role of family assessments and assessors to better serve children's best interests in custody and access decisions. The Australian Law Reform Commission has proposed a number of recommendations aimed at expanding the investigative powers of court counsellors preparing family assessments, and linking these counsellors more effectively with the legal side of proceedings, including the children's representatives (Australian Law Reform Commission 1997a). Ontario's Office of the Children's Lawyer has developed a social worker-lawyer team program for high-conflict parents that integrates the family assessment and legal guidance functions (see section 5.3.3.1 below).

The Australian Commission recommended that family reports be prepared sooner, that court counsellors' investigative powers be expanded to permit wider examination, and that court counsellors writing the reports take on a greater role in providing information to the court about the child's best interests (Australian Law Reform Commission 1997a). The Commission suggested that counsellors' report gathering should include many of the functions currently performed by the child's representative, such as conducting relevant collateral interviews with school and other community officials (Australian Law Reform Commission 1997). Moreover, in cases when a child has not been assigned a representative solely because he or she is unwilling to express a view, the court counsellor should be responsible for keeping the child informed about the progress of the litigation (Australian Law Reform Commission 1997).

As outlined in section 2, the children's program of the Centres jeunesse de Montréal also provides a link between the assessors and the counsellors providing group therapeutic emotional help to the child. When possible, the assessors are present at the counsellors debriefing with parents at the end of the program (see Appendix A).

5.3.2 Expert Witnesses

Expert witnesses may be ordered by the court to testify in custody and access court hearings. These expert witnesses are usually mental health or counselling therapists who have had dealings with the family. Several of the counsellors and therapists who operate children's programs in family service agencies or mental health institutions said they are often called to testify as expert witnesses (and some also prepare custody assessments in other cases).

Parents may also call their own expert witnesses to testify at hearings. However, mental health evaluators are generally most useful if they serve as an impartial expert appointed by the court (or by stipulation of both parties), rather than as an expert retained by one party, and who is then pitted against the other party's expert (Johnston 1994).

Some concerns have been expressed about harm to children resulting from experts' excessive interviewing of children (Australian Law Reform Commission 1997a). At present, Australian courts can appoint experts, or any party can request their appointment. The Australian Law Reform Commission concluded that experts are often appointed when a family report would do. It recommended that the court take the child's wishes into account when deciding whether to grant application for the child to be interviewed (Australian Law Reform Commission 1997a).

Some Canadian therapists who run programs for children experiencing parental separation and divorce, and who are often required to testify in court for the children, say that being forced into the dual role of therapist and expert undermines their therapeutic effectiveness (Sinclair, pers. comm., Appendix D). Children need to feel that the programs are providing a safe space for them. When the counsellor appears in court to testify, this trust is broken.

5.3.3 Separate Representatives

Many jurisdictions allow for the appointment of children's representatives—usually lawyers—to represent children's best interests in the courtroom and outside it. The roles and responsibilities of children's representatives vary widely across jurisdictions. They may act, traditionally, as the child's counsel in court hearings (governed by either his or her instructions or best interests, depending on the child's age), or as a friend of the court, presenting information and considerations that might otherwise be ignored (e.g. Shear 1996; Australian Law Reform Commission 1997a; Huddart and Ensminger 1995; Bessner 2001). In some jurisdictions, the representatives assume certain powers of the court and can make binding decisions on custody and access disputes outside the actual courtroom. Other representatives may play investigative, supportive or advocacy roles outside the courtroom.

In Ontario, the Office of the Children's Lawyer expands the traditional separate representative role in a program that integrates the legal roles of children's representative with the investigative and assessment roles of social work reports (family assessments). The Australian court system expands the traditional separate representative role in a different direction by giving the representative the dual responsibility of communicating the child's perspective to other parties and representing the child's best interests.

5.3.3.1 Social Worker-Lawyer Teams in Ontario

Ontario's Office of the Children's Lawyer has pioneered social worker-lawyer teams for high-conflict, extremely hostile families who are entrenched in litigation and who are seen to need both clinical and legal services. The interdisciplinary team provides family assessment and legal advice to the families, but integrates these services for maximum effect. Once team members are assigned to a family, they work together to decide what should be done and by whom, meeting repeatedly with parents and with the children on their own. The primary goal is to forge a resolution that is in the child's best interests before the case reaches final hearing. The social worker prepares an assessment of the family, often involving collateral interviews with school and other officials, which is used by the lawyer providing legal advice and guidance in discussions with the parents. Alternatively, the lawyer can help the social worker use the assessment to forge resolution by focussing parents and their counsel on the legal options. If the parents do not settle, the lawyer proceeds to pre-trial conference to represent the child's best interests, and the social worker presents his or her report to the court.

Office officials believe about 75 to 85 percent of social worker-lawyer team cases settle without going to court (Moyal, Martin, McTavish, pers. comm., Appendix D). It is not known how many of the families who do settle re-litigate later. The Office expects to be able to track outcomes soon, but officials caution that settlement rates are not a good measure of program success. About one third of the Office's 3,000 to 3,500 cases are assigned social worker-lawyer teams.

Office officials believe that integrating the social work assessments with legal deliberation provides a safe, effective way for children's voices (mediated through the family assessments) to be heard and to influence decisions to reflect their best interests. Yet they do not expose children to the harm and retribution they risk if the case goes to court and they have to testify there (as high-conflict parents often want). Australia's Family Law Council, in a 1989 report, also recommended that the role of separate representative be undertaken by a team made up of a solicitor and social worker (Family Law Council of Australia 1989, cited in Australian Law Reform Commission 1996).

5.3.3.2 Separate Representatives in Australia

In a 1995 decision, the Family Court of Australia ruled that children's representatives should act in an independent and unfettered way in the child's best interests, that they should impartially make submissions to the court suggesting courses of action in the child's best interests, and that they should convey the child's wishes to the court. In addition, the representative should arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the court (Brown 1996).

Separate representatives in the Australian courts are therefore expected to speak to the children outside the court, and when appropriate seek their wishes. At the same time, they are required to work closely with custody evaluators or mediators when these have been appointed in cases. When opinions among these professionals differ, the separate representative's job is to present all the differing opinions to the courtroom. However, the representative has no duty to make submissions to the court which represent the child's wishes or argue for best interests, or argue for a case outcome in line with the child's wishes. This hybrid role is applauded by experienced mediators in the Australian court system for bringing together the children's preferences (articulated needs and concerns) and the family context in which they occur, and bringing the whole picture before the court (Brown 1996). The separate representative functions as a kind of cipher for the children's best interests, rather than an adjudicator of those best interests. In many cases the representatives play a critical role in brokering settlements outside the courtroom that are in the children's best interests rather than a parent's (Nicholson 1996).

However, the Australian Law Reform Commission has expressed several reservations about the current model of separate representation in Australia. It has asked whether this kind of separate representation goes far enough in meeting the requirements of the Convention on the Rights of the Child (Australian Law Reform Commission 1996). It has also suggested that the multiple roles of separate representatives may conflict. They may be asked to conduct investigations and make assessments that are properly within the range of expertise of social scientists, and then to draw conclusions in submissions on the basis of that assessment which are properly within the province of the judiciary (Australian Law Reform Commission 1997).

The Commission has indicated that separate representatives' investigative roles and dispute-resolution efforts with the parties outside the courtroom could be done instead by court counsellors or family assessors (Australian Law Reform Commission 1997). It has also urged that the separate representative's role be kept fluid (Australian Law Reform Commission 1997). Since the multiple separate representative roles require multiple skills, the Australian family court has conducted extensive training for representatives, and believes the quality of representation has improved significantly as a result (Nicholson 1996).

In addition, the Commission has expressed concern that children may not appreciate the complexity of their separate representatives' responsibilities. One New South Wales study of children in child welfare hearings revealed that the children expected their lawyer to act as their advocate or interpreter of their views, but few lawyers thought this was their job (Australian Law Reform Commission 1997).

5.4 Children's Coordinators

The discussion so far in section 5 has looked at ways in which children's voices can be included at specific stages and in specific ways in custody and access proceedings. However, some methods exist that may be able to ensure that children's voices are included all the way along the litigation pathway as needed. In its 1989 report, for instance, Australia's Family Law Council recommended introducing a children's coordinator in addition to a separate representative in family law proceedings (Family Law Council of Australia 1989, cited in Australian Law Reform Commission 1996). Under this model the separate representative would retain full control over the conduct of the child's case in court. The coordinator, on the other hand, would perform such functions as producing a report on the child's best interests, interposing the child's interests in discussions between the relevant parties, working with the separate representative and explaining some of the processes to the child. (The social worker in Ontario's team model fulfils many of these functions.)

The Family Law Council suggested further that the coordinator could be appointed alone in appropriate cases (Family Law Council of Australia 1989, cited in Australian Law Reform Commission 1996). It also suggested that the coordinator role could be filled by a number of professionals, including court counsellors and welfare officers, depending on the case.

In its recent report, the Australian Law Reform Commission raised the idea of appointing "child's interest coordinators" to oversee and manage complex cases before the courts (and thereby take over some of the current separate representatives' and counsellors' functions) (Australian Law Reform Commission 1997a). It indicated that the major unanswered question was whether the use of these coordinators or special masters would reduce litigation in cases in which litigation would otherwise be likely (Australian Law Reform Commission 1997a). It also wondered whether coordinators would be more effective if arbitrators or judicial registrars, who could provide advice and decision making where necessary, provided support.

In some American jurisdictions, mental health specialists (variously called court masters, custody commissioners, co-parenting counsellors or guardian ad litems) are appointed by the courts, or at the parties' request, to help families with custody and access decision-making on an "as needed" basis at any point in the proceedings (Johnston 1994). These coordinators may provide counselling, mediation, recommendations or arbitration, depending on parents' requests. They are considered most useful in high-conflict cases in which parents repeatedly litigate, in families with children who have special needs or with parents who have mental health problems, or in cases in which the children are very young and initial custody and access arrangements may need frequent revision. The effectiveness of these specialists in easing conflict and reaching speedy agreements, or in allowing children greater voice in decisions, is not known.

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