Chapter 5: Prevalence of child-inclusive methods in family law

Recent surveys of professionals have documented the types of methods used to integrate children’s voices within family law matters. A recent online survey of professionals’ views of the various services within the courts and issues related to access to justice found that lawyers most frequently preferred to obtain children’s views and preferences within parenting plan assessments, suggesting that the reports are used to help settle cases that may otherwise have gone to trial. This practice may avoid the very significant financial and emotional costs to the families.Footnote 158

In 2016, the Canadian Research Institute for Law and the Family conducted a survey of lawyers and judges at the National Family Law Program and found that judges (35.9%) were considerably more likely than were lawyers (19.7%) to say that they often or almost always are involved in cases where efforts are made to seek children’s views. They also found that the manner of soliciting children’s views that was most frequently used by most lawyers was a parenting plan assessment report prepared by a mental health professional (62.9%), followed by a legal representative for the child (46.6%), and a non-evaluative report prepared by a lawyer or mental health professional (41.0%).Footnote 159

A recent survey of judges about their opinion on the best mechanisms for enabling children to voice their views found that the majority of judges (85%) rated evaluative Views of the Child report by a mental health professional as the best mechanism, followed by a parenting plan assessment report by a mental health professional (70%). Legal representation for the child (65%) and a non-evaluative Views of the Child report by a mental health or legal professional (60%) were also considered to be among the best mechanisms by the majority of judges. Only one-fifth of respondents (20%) rated judicial interview with child as a best mechanism, and only one judge (5%) thought non-legal representation for the child was a best mechanism. None of the judges thought a legislative provision that parents should consult their children respectfully when making parenting arrangements upon separation was a best way to enable children to share their views.Footnote 160

Judges were also asked what methods the court used to enable children to share their views. The majority of judges reported that methods used in their court included: legal representation for the child (100%); Views of the Child report (95%); parenting plan assessment (90%); and testimony by a mental health professional or social worker who has interviewed the child (80%). Just over one-half of judges also reported that a judicial interview with the child (55%) and testimony by other adults who know the child (such as parents or teachers) regarding the child’s wishes (55%) were used in their court. Relatively few respondents said that testimony by the child in court (15%) or voluntary mediation involving the child and parents (15%) are used by the court, and only one judge each reported that mandatory mediation involving the child and parents (5%), non-legal representation for the child (5%), and a legislative provision that children’s views must be considered (5%) are mechanisms that are used in their court.Footnote 161

Although surveying legal professionals about their choice of methods is an important step in estimating the frequency of use of the various methods, there is a need for caution when assessing the actual use of these various methods to include children’s voices.Footnote 162 A recent study of two thousand closed court files in Ontario and Quebec found that only a small percentage of family law court cases engaged in services available to support children’s voices, including child legal representation and parenting plan assessment.Footnote 163

Despite the heightened awareness that children’s views and preferences must be taken into consideration when decisions regarding their living arrangements are being made,Footnote 164 and despite Article 12 of the United Nation Convention of the Rights of the Child, there remains no systematic method to ensure that children’s voices are considered. Further, there remains little consensus on how children’s voices should be heard and there remains debate in the literature about the strengths and limitations of the various approaches for facilitating children’s voices within family justice processes. So while facilitating children’s voices within family justice processes remains important, and there are many methods for facilitating children’s voices in family justice, many opportunities remain for research and practical developments on the topic.