This article examines how children’s voices can be heard in Family Court hearings when there are allegations of child sexual abuse.

Using a case study approach, three judgements are examined to see how judicial determination centralised the information from and about children. In these three purposively selected cases the voices of children was identified from conflicting evidence presented by professional assessors and counsellors. These three cases were selected because of the primacy given to evidence that was presented from and about children. In these cases allegations were not assumed to be artifacts of a parental dispute, instead, the Judge who heard them worked actively to discern the child’s voice within the conflicting evidence. Further, these three cases were also distinguished by the range of evidence available that included family reports and assessments from professionals as a result of Court Orders, but also evidence from those who had ongoing involvement with the children in counseling roles.

These counsellors were located outside the Family Court, in the child protection sector. The evidence from counsellors was preferred by the Judge as it provided a higher level of detail about the children and their allegations.

The ‘voice of the child’ was constructed by the Judge in their interpretation of professional evidence.

Foote (2011)- Children in law proceedings

While the new law is a step in the right direction, resources are needed to actually implement its intent, consistent with the rights of all BC children.   For example, while the Province currently funds 7 family justice counsellors to listen to children and complete “Views of the Child Reports”, this service does not reach every child in BC and there is a waiting time of 2 – 9 months from the time an order is made to the time the Report is in hand.  The BC Hear the Child Society is working with the International Institute for Child Rights and Development with funding from the Vancouver Foundation that helps educate and train justice professionals to listen to children and address this gap.

Below is the proposed provision relating to best interests of the child.

Division 1 — Best Interests of Child

Best interests of child

37  (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(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.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

Recent legal developments make it clear that children have a right to have their views heard when their best interests are determined in family law decisions.   “It’s no longer about whether to hear from children but rather, how to best hear from children” said David Dundee who together with Trudi Brown presented the law underpinning a child’s right to participate.   Options to hear from children were highlighted on Day 1 of the program including “hear the child” interviews that are privately funded, “views of the child” reports that are completed by a family justice counsellor and paid for by the Province, expert s. 15 reports prepared by a psychologist, and a mediator listening to children’s views and bringing them into the mediation.  Judge Gallagher from the BC Provincial Court noted how helpful it is for judges to have someone else listen to the child and bring forward their views for consideration when the court decides the best interests of the child.

Renowned expert, Dr. Joan Kelly, led Day 2 that focused on skills required to interview children.  She outlined the recent research base and emphasized the importance of providing information to children about what is going on, “the more appropriate information you have in a crisis the better you cope with it”.   Dr. Kelly led the group through the 6 stage interview process and a series of experiential activities.

Thank you to all who contributed time to present or participate!  This was the 3rd bi-annual CLEBC-IICRD Child Participation program and we look forward to the 4th in 2013.

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