Voice of the Child in Court Proceedings

By Elizabeth Jollimore Q.C.

Introduction

Since children are at the heart of parenting disputes, it is not surprising that our clients ask how their children's views will be presented to the Court. But for our training, we would likely be as surprised as they are that there is no routine procedure for allowing children's voices to be heard in Court.

In "Voice of the Child in Court Proceedings", Linda M. Tippett-Leary outlines the importance of hearing children's views: the child's right to be heard in any proceeding affecting the child is enshrined in Article 12 of the United Nations Convention on the Rights of the Child[1] and the Joint Committee's report[2] recommended the Divorce Act[3] be amended to refer to the Convention's principles and that children have an opportunity to be heard when "parenting decisions affecting them are made"[4].

From her experience as counsel for children, Tippett-Leary offers insight into the appropriate context for children's views. She reviews legal writing on the significance of children's wishes and selected jurisprudence on when children's wishes should be given separate representation.

The article reviews and assesses the different ways in which a child's voice can be heard: judicial interviews; allowing the child to testify; a letter, statement from a parent or other out of Court statement; and assessments. It also provides an overview of programs available in each province and territory. Most jurisdictions have some form of representation available to children, though often this is restricted to child protection proceedings. Amicus curiae, litigation guardian (guardian ad litem) and the child's lawyer alternatives are all discussed.

From her experience as a lawyer representing children, Tippett-Leary highlights the issues to consider when acting in this capacity:

  1. Take the responsibility for the result away from the child;
  2. Provide representation;
  3. Write detailed reports to Court;
  4. Keep things age-appropriate;
  5. Focus on the child;
  6. Restrict the child's access to Court documents;
  7. Isolate children from legal discussions;
  8. Avoid partisan interviews by either parent's lawyer; and
  9. The timing of presenting the child's views in Court.

  • [1]  United Nations Convention on the Rights of the Child.

  • [2]  See "For the Sake of the Children" Report of the Special Joint Committee on Child Custody and Access December 1998).

  • [3]  R.S.C. 1985 2 nd Supp.), c. 3.

  • [4]  Recommendations 1-3. In particular, recommendation 3.1.

 

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