Voice of the Child in Court Proceedings

Representation for Children

As noted above, most provinces have some type of child representation, if only limited to child welfare cases. There are a number of options for child representation. Indeed, the form which this representation should take has been hotly debated in various jurisdictions and is still under much discussion.

  1. Amicus curiae are neutral and do not advocate for the child and have no obligation to present a child’s wishes.
  2. A litigation guardian (guardian ad litem) represents the best interests of the child in Court. Reports are generally submitted, expert testimony can be solicited and the guardian can examine and cross-examine witnesses. Although the guardians listen to the child’s instructions, they can completely disregard the instructions if they think they are not in accordance with the child’s best interests.
  3. An advocate or child’s lawyer is under an obligation to put forward the child’s preference and wishes, regardless of whether they are in the child’s best interests.

The roles of litigation guardian and amicus curiae have been criticized by Courts as being improper roles for counsel to take. Similarly, counsel for children have been criticized for doing nothing more than reiterate the position of either or both of the parents in the litigation or, in the case of a child welfare proceeding, that of the agency. In Nova Scotia , this issue is often hotly debated and it is one that troubles me a greatly. In my view, a child’s counsel should be independent and appointed by the Court, rather than engaged by one of the parents.

I refer the reader to the Ontario Court of Appeal’s decision in Strobridge.[48] Briefly, the parties were married but separated and had a Separation Agreement. The Agreement provided that the children lived with their mother and the father had access to them. Following the separation, the children refused to communicate with the father. The father started proceedings regarding access and blamed the children’s lack of communication on the mother and her new partner. The Office of the Children’s Lawyer in Ontario appointed counsel who sought to advise the Court of the custodial preferences and wishes of the children in oral submissions. Counsel for the father objected and the Court of Appeal stated, essentially, that counsel for the children could make these submissions only with consent of the parties. Without that consent, counsel needed to find another way to present this evidence to the Court. Some alternatives are raised in the Trial Division decision and referred to by the Appeal Court.

Puszczak[49] makes it very clear that the Courts frown upon one party retaining a lawyer for a child in the absence of notice to the other. In Puszczak, the father had retained a lawyer for the child, met with that lawyer and paid that lawyer without the knowledge of the mother, who had custody of the child. The child’s lawyer came to Court and not only asked to be appointed as counsel for this child, but also asked that the custodial arrangements change. This decision contains a helpful discussion about the appointment of independent counsel for the child and the role this should take and also sets out some guidelines to determine when counsel should be appointed in private custody matters and, if so, how this should be done. It outlines several guidelines, quoting the decision of the Full Court of the Family Court of Australia In the Matter of: Re: K[50]:

In Australia, the Full Court of Australia In the Matter of: Re: K (1994) FLC 92-461, enumerated some broad general rules for appointing counsel in custody cases. Those guidelines have been considered by the Ontario Superior Court of Justice in Stefureak v. Chambers (2004), 6 R.F.L. (6th ) 212. The Australian Court, which emphasized that the list was not exhaustive or intended to inhibit discretion, suggested that when the child’s best interests require independent representation, appointments should normally be made where:

  1. cases involve allegations of child abuse,
  2. cases where there is an apparently intractable conflict between the parents,
  3. cases where the child is apparently alienated from one or both parents,
  4. where there are real issues of cultural or religious differences affecting the child,
  5. where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge on the child’s welfare,
  6. where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare,
  7. where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child,
  8. any case in which, on the material filed by the parents, neither seems a suitable custodian,
  9. any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing of a long standing custodial arrangement or a complete denial of access to one parent,
  10. where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practical purposes exclude the other party from the possibility of access to the child,
  11. cases where it is proposed to separate siblings,
  12. custody cases where none of the parties is legally represented, and
  13. applications to the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties.

This decision also indicates that before appointing counsel for a child in a custody/access matter, a Court should be satisfied the child has the capacity to instruct counsel.

However, how does one determine if a child has the capacity to instruct counsel? In Nova Scotia, it generally has been interpreted to mean that a child has the ability not only to articulate what the child wants (even three years olds can usually do this) but that the child has the ability to understand the consequences of the decisions, especially the long term consequences. In other words, the child has to be able to do more than articulate a position, the child must know the impact the position will have. That could be a tall order for young children but it is something that needs to be carefully considered.

Mediation

In my review of the situation across the country, I noted that children are seldom involved in mediation.

The British Columbia Ministry of Attorney General (Justice Services Branch, Family Justice Service Division) authored a paper in March 2003, to which I refer the reader as it contains a useful discussion of the current literature in this area about how to involve children in mediation and the training and qualifications of mediators.

As a member of the Mediation Roster for the Department of Justice in Nova Scotia, I rarely involve children in mediation. However, when I do, I do not bring them into the joint session with the parents which would risk exposure to more conflict. Rather, I meet with them individually and report back to the parents’ mediation session, with the child’s permission. This involvement requires a lot of advance agreement. Essentially, if you are interested in involving the children in mediation, I recommend that the following considerations be taken into account:

Privacy

The child must have the opportunity to speak privately with the mediator. Great care must be taken to protect the child’s interests and ensure the child’s comfort.

Confidentiality

There must be prior agreement whether the child’s wishes about disclosing what he or she has told the mediator will be respected.

Consent

Must be obtained from all parties (including the parents, the child and, in some cases, the Court) before the child’s interview is conducted.

Knowing all this – what do we do now?

OK, so what do we do with all of this information about options for the child’s voice to be heard and the availability of resources – who is at the head of the totem pole? Who is second in command? What does a Court do with all of this information? What is the best way to present the information? These are issues that continue to be under much discussion.

As Nicholas Bala pointed out, there are strengths and weaknesses in all of the above noted mechanisms for getting a child’s views before the Court.[51] Putting a child on the stand may seem to be the most democratic method for his or her voice to be heard, especially with an older child, and to help the child feel more involved in the process. On the other hand, it can also be damaging to some children.

Assessments can be very helpful if the assessor is skilled and qualified, but time and resources can be an obstacle. Perhaps more provinces should have the Voice of the Children Assessment that is available in Saskatchewan or be as innovative as Manitoba with its approaches.

Although there are flaws and certainly inconsistencies in the way a child’s counsel might present information to the Court, this option gives the child an independent representative on whom they can call throughout the proceeding. Independent legal representation, in my experience, is something to which most children react well.

I have a close connection to some of the children I represent. I visit children in foster homes, treatment centers, secure care facilities, etc. As a result of our relationship of trust, they have made disclosures to me because they are convinced that I am there to represent their interests and their interests only. In some cases, I am the only one they want to talk to.

It is important that the following be considered when representing parents or children:

  1. Take the ownership away from children – children should never think that they decide the issue. First of all, they do not decide. Second, it puts too much weight on their shoulders. I tell every child I represent that they have "a" say, but not "the" say.
  2. Representation - For most of the children I represent, I am officially appointed guardian ad litem. I write reports for the Court with consent. When I write reports, I become a compellable witness, although, as yet, I have never had to take the stand. If there is an objection to the report, I have to find another way to ensure the voice of a child is heard. As the child’s representative, a relationship of trust with the parents can facilitate settlement.
  3. Reports to Court - I put great detail in my reports to the Court. They are letters that contain summaries of the background information, the child’s circumstances, likes and dislikes. I try to describe surroundings and provide a total picture. I even once discussed a child’s collection of "mighty beans" because I felt it was important to him. One little guy always wants me to advocate for a laptop for him (although I tell him that these are not the kind of instructions that I am looking for!) and one little girl wanted me to tell the judge that she finally had the hockey teams sorted out and that she liked the "Montreal Maple Leafs" and her brother liked the "Toronto Canadians" (well sort of straightened out). Children’s instructions are presented along with the background information in the reports. I do not offer my personal opinion of what is in the best interests of a child. As in Ontario , I do agree that there are times when a child’s wishes should be articulated if they are well formulated. The trouble is, ascertaining maturity and capability to articulate interests often proves difficult.
  4. Age-appropriate language - When dealing with children, it is important to speak with them in their language and be familiar with their interests. (Most of the kids I represent are floored by how familiar I am with their rap stars and programs!) The first thing I do when I first meet a child is try to make them laugh. I am very conscious of how it must feel to be a child in a proceeding like this, having to talk to so many people about such serious issues. Kids have a right to be kids and I stress this to every child I meet. I believe it is very important to remove the burden from them.
  5. Focus on the child - As representatives of parents, we need to encourage our clients to focus more on the children’s needs and less on their own. We need to coax them to put aside the anger they may have against a former spouse, boyfriend, agency, etc. and focus on the issues at hand. This, of course, is much easier said than done but in child welfare proceedings especially, it is vital. They need to understand how destructive it can be for children caught in the conflict and the resulting consequence should a parent try to alienate a child from the other parent. I would refer the reader to a paper written by Nicholas Bala and Nicole Bailey for a helpful discussion on parental alienation.[52]
  6. Limit access to Court documents - When representing parents, you should encourage your client to limit a child’s access to Court documents. Most of these documents are written in sophisticated legal language that is difficult for a child to understand and, as a result, can be very upsetting. They also may contain distressing information. For example, a child was once begging me to see the agency’s affidavits. I did not want her to see them because there were statements contained in the documents that I knew would hurt her. Her determination finally won, however, so I raised the matter with the judge. The judge gave me permission to let her read them in my office but not copy them for her. The child left my office in tears. She said she did not know her father had said he hated her.
    In fact, the major reason I prefer to take the role of guardian ad litem in most cases is to limit the child’s exposure to Court documents and Court proceedings. While a Court could order counsel for the child not to disclose documents to the child, in my opinion, this is a troublesome prospect. If I am acting as someone’s lawyer, my view is that I do not have the right to withhold any information from them. Therefore, taking the role as guardian ad litem instead of lawyer for children in a family law proceeding seems more appropriate because I can avoid burdening the child with exposure to damaging documents. Clearly, the situation is completely different in a criminal proceeding. If a child is charged with a criminal offence, then he or she needs and has the constitutional right to have access to all information.
  7. Legal discussions - Encourage your parent client not to involve the children in Court discussions or legal issues. Bringing a child to Court without the Court’s permission is not a good idea either. Some children are too involved in the process and have too much knowledge of what goes on in Court. One twelve year old called me and protested that her mother did not show her how to "strip" the way the documents said. Something like this would not impress a Court. Another child told me that none of this was his mother’s fault: her boyfriend had a way of making her do things she did not want to do. Yet another child told me that it was "stupid, absolutely ridiculous" for his mother to behave that way. This phrase happened to be a direct quote from his father’s affidavit. We should all advise our parent clients that there is nothing to be gained from coaching their children, and that coaching is usually quite easy to detect.
  8. Interviews - I think it is poor practice for one parent’s lawyer to interview a child. There is nothing to be gained by putting yourself in a position of being a possible witness. I remember one judge stating to counsel who proposed to interview the child (having pointed out that he had enough experience with children that he thought he would be able to do a good job) that he did not care if he thought he were Mary Poppins - it was not going to happen.
  9. Start early - If you feel that you are in a situation where a child’s views are relevant, discuss with opposing counsel and the Court how this might be handled as early in the proceeding as possible.

Conclusion

In "Access to Justice for Children: The Voice of the Child in Custody/Access Disputes"[53] Professor Davies wrote that it has been accepted in Canada, Australia and New Zealand that "children that are excluded from custody/access decision making generally feel alienated, angry and fearful..." and "... a child’s wishes must not only be considered, but must be shown to have been considered...".[54]

In their article, "The Voice of Children in Canadian Family Law Cases"[55] Nicholas Bala, et al., state:

…we know relatively little about how children who are involved in the process think about it, and how those who are not involved feel about their exclusion. There is a clear need for research about the short and long term effects on children of different types of involvement and non-involvement in the disputes that most profoundly affect them (emphasis added).

As I indicated above, the Federal Special Joint Committee on Child Custody and Access heard from many witnesses, including children. One particularly compelling piece of testimony came from Clayton Giles. Clayton, from Calgary, Alberta, was fourteen years old when he was involved in a custody dispute. On May 27, 2001, Clayton started a "journey for kids", bicycling to Ottawa and Washington, D.C. , collecting petition signatures from children and parents. The petition was presented to then Prime Minister Jean Chrétien on September 18, 2001. On his website, Clayton recounted the story of Daniel:

Daniel was eleven when his parents divorced. A bitter custody battle followed with both sides seeking Daniel as the prize. Two years later and a $120,000.00 poorer, one parent emerged victorious and Daniel was relegated to one weekend a month visit with the other parent. One week later, Daniel left school, walked home, started an old truck in the garage and closed all of the doors and windows. Neither lawyer attended the funeral.

Much more study is needed and more information must be obtained about how children feel about their involvement in those Court decisions that affect their lives in a very profound way. While Courts can never delegate their ultimate authority to decide the best interests of children, one of the major concerns that Clayton had about his own situation was that nobody asked him how he felt. As is evidenced by his cycling crusade and hunger strike, he went to great lengths to make his voice heard. Clayton’s story is but one illustration of the frustration that children feel when they believe they are not being consulted about the most important event in their lives.

As counsel, we need to advise our clients about the significance of the child’s voice. When we represent children in any type of proceeding, we must be very careful to involve children appropriately in the process and provide them with age-appropriate information. When we represent parents, we must orient their thinking to the child’s perspective. It is very important that we provide children with a healthy mechanism to express their feelings and never assume that we always know what’s best for them.

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