Why Hear Children?

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The Law

Legislation such as the British Columbia Family Law Act (ss. 37(2)(b), 202, 211(1)(b)) case law such as E.G. (L) v. G. (A.), 2002 BCSC 1455 and the UN Convention on the Rights of the Child (Article 12) ratified by Canada, support hearing the views of children in family justice processes where a child’s best interests are being determined.

In 2010, the Yukon Supreme Court ruled that “all children in Canada have legal rights to be heard in all matters affecting them, including custody cases”, and that, “obtaining information of all sorts from children, including younger children, on a wide range of topics relevant to the dispute, can lead to better decisions for children that have a greater chance of working successfully”. In addition, “receiving children’s input early in the process, and throughout as appropriate” can reduce the intensity and duration of conflict between parents.

For more information read the full case B.J.G. v. D.L.G., 2010 YKSC 44 that was cited by the BC Supreme Court in N.J.K. v. R.W.F., 2011 BCSC 1666.

For further information about the legal basis of hearing from children see “Hear the Child–The Legal Framework: Why Children in Canada Have the Legal Right to Be Heard”, prepared by The Honourable Donna Martinson, QC, LLM, Justice of BC Supreme Court (retired).

Social Science Research

Children want an opportunity to be heard, and hearing children’s views in family justice matters can be beneficial to both children themselves and their families (Morrow, 1998; Smith, Taylor & Tapp, 2003; Parkinson, Cashmore and Single, 2006).

Research is clear that the psychological and social well-being of children is profoundly impacted by separation and divorce (Amato, 2000; Kelly, 2003; BC Ministry of Attorney General, 2006), and that there may be immediate and longer term effects of excluding children or not consulting them when decisions are made about their best interests (Cashmore & Parkinson, 2008; Kelly, 2002; Smart, 2002; Smart & Neale, 2000; Wallerstein and Kelly 2000).

Hearing from children early in a family dispute can help focus on the needs of children and reduce both the intensity and duration of a family conflict (Garon & Whitfill, 2003; McIntosh, 2003), and may be empowering, improve child-parent relationships and the quality of the agreement reached (BC Ministry of Attorney General Justice Services Branch, Family Justice Division, 2003; O’Connor, 2004).

At the same time, it is important that hearing from children is voluntary for the child and that it is done in a way which supports the child’s best interests and well being.

See “The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Process: A Literature Review” (Birnbaum, 2009).