But in divorce, separation and custody matters, the voice of a child is not always directly heard. Parents will ask counsel and the Court ‘Why can’t my child say what they want?’ or ‘Can’t my child say where they want to live?’ or even ‘ Ask him if he wants a vaccination! There is no exact response to theses questions but fortunately there are some options. This is because each child matures at a different level. A very mature and eloquent eight-year-old may be able to vocalize their wishes a lot clearer than a fourteen year old.
On occasion a child may give evidence. A child who makes an application may be required to make an affidavit (and there are court forms that contemplate a child making an affidavit) but rarely, a child may give oral evidence in court. In Re DN, 2017 ABPC 169, the Children had been apprehended by Child and Family Services from the home of their mother. Counsel for the children expressed to the Court the stated intention of each of the children with respect to whether they wanted to return to their mother. All three of the children, according to legal counsel, expressed an intention to return to their mother. However, during the Permanent Guardianship hearing, the eldest child indicated to his counsel that he wanted to testify. He did so on “a promise to tell the truth. “ He explained his desire not to return to his mother during his testimony and explained to the Court what he saw at his mother’s home with her new partner. Further, he expressed that he did not think his mother could take care of all of the children because there was not enough rooms for all the children and he was happy in his current placement.
The more common options for the Court to hear from the child include obtaining a Practice Note 7 Intervention: Voice of the Child Report, and/ or obtaining counsel for the child. It is important to note that the Court will not necessarily do whatever the child wants. It is the Court’s responsibility to do what is in the child’s best interest.
VOICE OF THE CHILD
As per the Court of Queen’s Bench of Alberta, a Practice Note 7 Intervention may be appropriate in a Family Law case where decisions concerning children are before the Court and families are experiencing a state of conflict. There are two primary types of Interventions that fall under this Practice Note:
- Evaluative Interventions that provide information to the Court to assist in decision-making; and
- Therapeutic Interventions that work toward resolution of disputes, manage conflict and make changes in the existing family dynamic.
Under a Practice Note 7, the Parenting Expert is not there to provide recommendations, but rather to evaluate, provide observations, and describe what is happening with the family and the children to the Court. They may also be involved in a therapeutic role, to help the family work towards a resolution and/or manage conflict.
A Practice Note 7: Voice of the Child Intervention, allows the Parenting Expert to canvass the actual desires and needs of the children. The role of the Parenting Expert is to interview both parents and each child separately to identify any special needs or risks. Following the interviews, the Expert will put their findings in to a report and provide it back to the Justice and the counsel who had it ordered.
There does remain a risk, however, that a child’s opinion may drastically change from one week to the next and this may not be effective in the report. The Parenting Expert then must ensure that their role is that of a neutral party with no allegiance to one parent or the other and with a goal of being the eyes and ears for the Court. A Parenting Expert therefore in this role is more than just relaying the verbalized thoughts, feelings, and opinions as stated by the child.
COUNSEL FOR THE CHILD
The Court can also determine that it is best that the child has his or her own counsel to speak his or her mind to. To obtain counsel for your child, you must either obtain the consent of the other parent to get a lawyer for your child or obtain an Order from the Court allowing you to get a lawyer for your child.
The lawyer for the child can either be a private retainer or through Children’s Legal and Educational Resource Centre (CLERC) or Legal Aid. In Alberta, the Office of the Child and Youth Advocate provides a service called Legal Representation for Children and Youth (“LRCY”). LRCY provides lawyers at no cost to children who are the subject of or somehow part of an application under the Child, Youth and Family Enhancement Act, the Protection of Sexually Exploited Children Act, or the Protection Against Family Violence Act.
After they are retained, the Counsel for the Child may be seen in three different roles:
Friend of the Court: where the counsel must ensure that all evidence has been provided to the Court and will discuss the child’s opinions, views, and wishes; but will not take a position or argue on behalf of the child.
Best interests guardian: where the counsel must ensure that all evidence has been provided to the Court and will discuss the child’s opinions, views, and wishes. The lawyer will also take a position and will argue on behalf of the child in what the lawyer believes to be the child’s best interests. As with the Friend of the Court, there is no confidentiality between the child and the Counsel.
Advocate: the child and counsel have a lawyer-client relationship and there is confidentiality. The child must be able to instruct the lawyer and cannot communicate the child’s evidence without the child’s permission.
This process begins by working with an experienced family lawyer who has undertaken applications in the Provincial Court of Alberta or the Court of Queen’s Bench of Alberta that directly ensure the voice of your child or children is heard. To learn more about having your child’s voice heard before the Courts, contact our office today. Your child may have so much to say. Contact us today for your free 20-30 minute consultation on your matter by calling our office at: 587-392-7970 or emailing firstname.lastname@example.org, or our consultation page directly on our website so we can get back to you within 24 hours of contacting us.