The United Nations Convention on the Rights of the Child requires countries to observe the fundamental human rights possessed by all children. Article 12 requires that children “be provided the opportunity to be heard in any judicial proceeding affecting the child.”
British Columbia has adopted this and the Family Law Act RSBC section 37(2) states:
37 (2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.
This leaves the issue of how to present children’s views to the court. In B.C. judges rarely want children to have to attend court to testify so other ways of presenting a child’s wishes have evolved.
An older child, usually age 12 or older, can write a letter which can be incorporated into a sworn affidavit which the child will sign but there are evidentiary issues and courts are reluctant to receive these as evidence.
A better process is to have the child interviewed by a professional psychologist who will prepare a written report stating their opinion. These reports typically take at least six months to prepare and often cost $10,000 or more.
A quicker and less expensive way to obtain the views of a child is to have a Views of the Child Report prepared by a professional, usually a lawyer or a counselor, who has been trained to interview the child and who will summarize what the child has said without analyzing it or giving their opinion. The child is not asked questions like “which parent do you want to live with” but instead is asked “tell me the things you like to do with your mom/dad” or “is there anything you would like to change.”
The problem with these reports is that they are often ambiguous or unclear and are of little assistance to the judge.
Deborah A. Todd
