Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support
Part 1: Parenting after Separation or Divorce (continued)
The Voice of the Child in Divorce, Custody and Access Proceedings, Ronda Bessner, Legal and Policy Consultant
Children are directly affected by decisions parents and judges make during separation and divorce. Understanding the children's perspectives of the way parents propose to care for them is essential if children's best interests are to remain the central focus of decision-making. There are varying opinions, however, about when and how to best hear children's views.
There are several aspects of this issue that need to be considered. One relates to decisions about how children's views should be heard when parents are negotiating their own agreement or are going through mediation. It is important for children's well-being that parents learn how to listen to their wishes and take them into account when making decisions, without making the children decision-makers. Parents should consider factors such as the age and maturity of the children, their ability to communicate, and their emotional state. Discussing living arrangements with children without making them decision-makers will allow them to feel that they are being listened to, and may even help ensure that the agreement between their parents lasts longer.
Another aspect of the issue is how governments can provide for children's input into legal proceedings. Article 12 of the United Nations Convention on the Rights of the Child, which Canada signed in 1991, reads as follows:
- State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
- For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
This means that governments should recognize that children who are capable of forming their own views, depending on their age and maturity, have the right to participate in a meaningful way in decisions that affect their lives. This participation may be direct (the children speak for themselves) or indirect (someone else presents the children's views or interests).
In Canada, the family law system currently provides a number of ways children's perspectives may be heard, including having judges speak directly with the children, custody and access assessments, and through lawyers or others representing children's interests.
Some provinces and territories have models of legal representation for children, including the following:
- The child advocate or lawyer:
- a lawyer represents children in cases that meet specific guidelines and criteria. Children are treated as clients and the lawyer ensures that each child's interests, wishes and preferences, along with relevant evidence about the child, are communicated to and understood by everyone involved.
- The amicus curiae, or friend of the court:
- a neutral person appointed by a judge does not act as an advocate for the children, but rather helps the judge by gathering relevant information and expert reports about the facts of the case and the circumstances and best interests of the children.
- The family advocate:
- government-appointed lawyers who act in children's best interests. The children are not clients.
Looking at Services and Approaches
Please check the five services from the list below that you think would be most effective in ensuring that children’s perspectives are heard and understood.
- Psychological assessments: prepared by a professional, these identify and provide an understanding of the children’s needs, views and preferences. The assessment report may help parents reach a settlement, or help the judge if they go to court.
- Parent education: these programs explain the importance of hearing and understanding the children’s perspectives on how parents will divide parenting roles and responsibilities.
- Education and support groups for children: these help children cope with their parents’ separation or divorce.
- Workbooks, self-help kits and parenting plan models: these cover considerations and options to encourage parents to appropriately involve their children in discussions about parenting arrangements, either directly or through a representative.
- Guidelines or training for mediators: these help ensure mediators consider the children’s perspectives when developing mediation agreements with parents.
- Specific training for lawyers and others who work with children: this helps ensure that these professionals are qualified to work with children and understand or interpret their views.
- Legal or other representation for children involved in disputes about parenting after separation or divorce.
- Special courts: these deal only with family and children’s matters.
- Dispute-resolution processes such as mediation: these services and approaches encourage parents to consider when children should be present for discussions, or when it is appropriate for them to participate in decisions about parenting.
If you have had any personal experience with any of these services, please comment in your feedback booklet on how useful the services were in ensuring that children’s perspectives were considered when decisions were being made about the way parents would care for them.
Please describe in your feedback booklet any other family law services that you think would be useful to help ensure children’s perspectives are considered when parenting decisions are being made.
In what circumstances should legal or other representation be provided for children?
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