Movement on to ‘hear the child’ in court

Kids need to have views considered in family breakups, activists say


Lawyer Suzanne Williams, with son Elijah, is with UVic

Lawyer Suzanne Williams, with son Elijah, is with UVic’s International Institute for Child Rights and Development: "This is about getting an important piece of the puzzle that shows what life is like for that child."

Photograph by: Debra Brash, Times Colonist, Times Colonist

As a new mother, Suzanne Williams is attuned to every gurgle and cry from her two-month-old son Elijah, who is safely nestled with both parents in his Victoria home.

As a child’s rights lawyer, Williams is equally attuned to the unheard voices of thousands of B.C. children whose parents have split up. Even on maternity leave as legal director of the International Institute for Child Rights and Development at the University of Victoria, Williams is "on duty" for calls about this issue: "There’s still a long way to go, not only in this province, but across the country," she said.

The trouble is that children’s rights — as defined by UN Convention and B.C. law– to have their views considered in decisions about their best interests is not reflected in a vast number of separation, divorce and access cases in B.C. courtrooms, Williams said.

"Bottom line, we talked to judges, lawyers, parents, service providers and children and they said this just isn’t happening," she said. "Children’s’ views are not being sought out, heard and considered."

And what does exist is often costly, time-consuming and inadequate. Kelowna is the likeliest exception, given pilot projects about children’s participation led there by the child rights institute and the Ministry of the Attorney General.

The B.C. Family Relations Act of 1979 is undergoing review and one of the categories is children’s participation.

"There are definitely some positives coming out of the province," Williams said.

Parents trying to address their own needs in family breakups can be brought up short when confronted by their child’s perspective in court. One submission to the Family Relations Act review said that avenues for child’s views are "the most effective catalyst for correcting parents’ bad behaviour."

In Canada, the best legislation is in Quebec, Williams asserts. There, "the court shall in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it."

Legislation in some other provinces insists that children must be listened to if they’re over the age of 12 but not in B.C., says Trudi Brown, a Victoria family law practitioner. Instead, B.C. allows lawyers to apply to make children a party to the legal actions that already involve them. "Which seems a bit strange," Brown says.

The prevailing norm has been that it’s too tough on kids to be put in the middle of custody cases. "But kids are in the middle of it and just not talking to them doesn’t actually change that," Brown says.

Many dedicated judges and lawyers do try to listen to children and bring forward their views, but it’s not built into the system. If a young boy is hockey-mad, for instance, the judge should know about his team before making visitation and custody decisions that undermine his game.

"The thing that I’ve found fascinating in doing this work is the number of adults who’ve come up to me and said, ‘I was the child of divorced parents and I wish someone would have come up to me to ask what I thought,’ " Williams says. "This is about getting an important piece of the puzzle that shows what life is like for that child and getting their perspective and helping paint the picture for the decision-makers."

Both Williams and Brown are part of the B.C. Hear the Child Society, still under formation to provide training for interviewers in the techniques of speaking and listening to children.

It’s not the first time that B.C. has provided for children’s advocates. Brown used to represent children in custody and access cases before the province eliminated funding in 2002. That program was expensive because it involved interviewing experts and children and attending court before the advocate came up with an interpretation for the best interests of the child.

The "hear the child" approach involves interviewing children, then telling the court their exact words about various scenarios and feelings. "I don’t try to say, ‘Even though this child says they want to live with mom, I don’t think that’s a good idea.’ And I used to do that as an advocate," Brown says. Now, she usually interviews the child for an hour or so, writes her report and then asks the child: "Is this right and are you sure you’re OK with me telling your mom and dad?"

It gives them the feeling that they’ve got some control, she adds. But she’s also firm that kids should have the right not to participate.

Advocacy for enshrining children’s views is gaining prominence with the Family Law Working Group of the B.C. Justice Review Task Force and the Continuing Legal Education Society of B.C. — something Williams hopes will end in action.

"In our justice system, children are not given an opportunity to be heard the way an adult would, even an adult who’s deemed to be incompetent."

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