Upholding Children’s Participatory Rights Through a Child’s Lawyer


Upholding Children’s Participatory Rights Through a Child’s Lawyer

The rights of children to be heard in family law proceedings is enshrined in the Family Law Act (FLA) under the best interests of child framework at s. 37 (2)(b). Children presumptively have a right to have their views taken into account. Currently, children’s views are most often expressed by snapshot in time reports such as a Views of the Child or Hear the Child Report — with judicial discretion on other options for how a child’s views/evidence will be received by the court. Not every child may wish to be heard or involved in decision-making that will impact their lives, but every child that is capable of forming their own views has a right to be heard with due weight being given to those views according to the child’s age and maturity under Article 12 of the Convention on the Rights of the Child. Article 12 (2) further states that “the child shall … be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

Despite the participatory rights envisioned under Article 12, section 203 of the FLA circumscribes the right to have counsel appointed by making it contingent on a finding that “the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child.” Confining a child’s access to counsel to an assessment of the parent’s conduct derogates from the rights of the child to be heard in a participatory manner consistent with their expressed wishes. In highly contentious and protracted parenting disputes where repeated applications are made to the court on matters that will impact the child — snapshot in time reports fall short of accounting for changes in the child’s circumstances and therefore, significantly limit the child’s right to be heard and fully participate. If a child expresses an interest in participating through a representative, then any assessment about the appointment of a child’s lawyer should consider that child’s best interests only. A child’s lawyer has the ability to positively contribute to decision-making from the perspective of the child as the matter progresses especially when parents present polar opposite viewpoints on the same issue.

Opposition to a child’s lawyer often stem from disputes where allegations of parental alienation vs. legitimate estrangement are at issue or in cases involving family violence. These cases are complex and indeed a child’s views may be adversely impacted by parental influence. However, there are safeguards imbedded in the FLA that allow for the child’s views to be considered as one factor in a holistic assessment of a child’s needs and best interests. Any concerns with undue parental influence or harmful conduct can be mitigated by tendering other evidence that informs decision-making on what is best for the child in the particular circumstances. In these more complicated cases where difficult decisions must be made, the child’s lawyer may assist in helping the child understand the proceedings underway and assist in fashioning a remedy that minimizes the actual harm caused by completely disregarding the child’s perspective.

Parents are often in family court because they cannot agree on decisions that would be best for their child.  The child’s lawyer can play an invaluable role in ensuring that the child’s views and preferences do not get lost in the contest over the needs of the parents. Importantly, by ensuring the court has current evidence of the child’s perception of their needs and by giving effect to their participatory rights, this enables the child to have an independent voice when they need it most.

There continues to be a checkerboard pattern in law on the approval of counsel appointments for children. But, with recent increases in funding to the Society for Children and Youth of B.C., advocacy support for children, including legal representation is on the rise, in keeping with the right of children to be heard and participate in decisions that will impact their lives.

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