In mid-September 2017, the Canadian Research Institute for Law and the Family and the Alberta Office of the Child and Youth Advocate (“OCYA”) hosted an innovative two-day national symposium on children’s participation in justice processes in Calgary, Alberta. The symposium brought together leading stakeholders from across Canada, including judges and lawyers, mental health professionals, and government justice employees to talk about how children and youth are heard, how their interests are protected and how their evidence is received in justice processes. The symposium was intended to generate innovative proposals for policy reform, best practices, and recommendations for future research about children’s participation in justice processes.
As would be expected, the older the child was, the more likely respondents were to report that their preferences should be weighed heavily. The symposium included important plenary presentations by keynote speakers Sheldon Kennedy, the lead director of the Sheldon Kennedy Child Advocacy Centre, and Dr. Nicole Sherren, the scientific director and senior program officers of the Palix Foundation, as well as Del Graff, the Alberta Child and Youth Advocate, the OCYA’s youth panel and the Honourable Kathleen Ganley, Alberta Minister of Justice and Solicitor General. Those leading the workshops that made up the core of the symposium included Professor Nick Bala, Dr. Rachel Birnbaum, the Honourable Donna Martin QC, Dr. Francine Cyr, Patricia Hébert QC, Dr. Stephen Carter, the Honorable Justice Gillian Marriott, Dale Hensley QC and many others, all highly-regarded professionals.
The workshops held at the symposium covered a broad range of topics on the theme of children’s participation in justice processes, including:
- Best practices for representing youth in conflict with the law;
- Judicial interviews with children;
- Child participation in mediation and parenting coordination;
- Hearing the voices of infants and toddlers;
- The limits, if any, of children’s participation in justice processes;
- The privacy rights of children and youth;
- Assessing the competence and credibility of children; and
- Hearing the voice of the alienated child.
A total of 179 individuals attended the symposium, hailing from all parts of Canada save New Brunswick. The presence of so many people involved in one way or another with the family justice system gave the Institute a unique opportunity to sample the views of attendees on children’s participation in justice processes, and an electronic survey on these issues was completed by 102 participants.
To give a sense of those completing the survey, about four-fifths our respondents were women (81.2%), and most said they mostly work in Alberta (64.7%), which was not surprising given that the symposium was held in Alberta. Most other respondents came from British Columbia (12.7%), Ontario (12.7%), Saskatchewan (3.9%) and the Northwest Territories (2.9%). Almost two-thirds of the participants were lawyers (64%), 7% were mental health workers, and about one-quarter (24%) worked in other occupations, including as academics, government workers, and mediators. On average, participants reported working in their primary occupation for 19.1 years, although their responses ranged from 1.5 years to 45 years.
Most respondents agreed that children should have the right to voice their views in family law proceedings that affect them (93.1%). When asked if children’s participation should be mandatory, however, 58.4% said that they disagreed, 30.7% said that they agreed, and 10.9% said that they didn’t know.
Most respondents agreed that children should have the right to voice their views in family law proceedings that affect them (93.1%). Participants were asked their opinion as to which are the best mechanisms for enabling children to voice their views. The majority of respondents (82.4%) rated legal representation for the child as the best mechanism, followed by assessment reports (70.6%). Judicial interviews with children and non-legal representation for the child were considered the best mechanisms by about two-fifths of the respondents (40.2% and 38.2%, respectfully). One-fifth of respondents (18.6%) rated children’s testimony as a best mechanism, and only 11.8% of participants agreed that a legislative provision that parents should consult their children respectfully when making parenting arrangements upon separation was the best way to enable children to voice their views. Almost all respondents (98%) said that mechanisms exist in their jurisdiction to hear the views of children.
We also asked participants about the factors that should affect the legal weight to be given to children’s views, the extent to which a judge should rely on a child’s views in making a decision. More than 90% of respondents viewed the age of the child (93.1%), the ability of the child to understand the situation (93.1%), and the ability of the child to communicate (92.2%) as important factors. More than 80% of respondents viewed an indication of parental coaching or manipulation (87.3%), the child’s reasons for the views (86.3%), and the child’s emotional state (83.3%) as important factors to be considered.
The symposium was intended to generate innovative proposals for policy reform, best practices, and recommendations for future research about children’s participation in justice processes.
We then asked how much weight should be given to the preferences of children about their living arrangements at specified age categories. As would be expected, the older the child was, the more likely respondents were to report that their preferences should be weighed heavily. Almost all respondents (97%) said that the preferences of children age 16 and older should receive heavy weight. Decreasing numbers of respondents thought heavy weight should be giving to the views of children aged 14 to 15 (91.9%), children aged 10 to 13 (61.9%) and children aged 6 to 9 (17.3%). For younger children, respondents were more likely to say that the preferences of children aged 6 to 9 and children under the age of 6 be given light weight (73.5% and 62.9%, respectively). One-third of respondents (32%) thought the preferences of children under the age of 6 should be given no weight.
A number of other interesting results came from our survey of symposium participants. The complete report is available from the publications section of the Institute’s website at crilf.ca/publications.htm. Workshop materials are publicly available and remain online at the symposium website at findingthebestwaysforward.com.
The symposium was generously funded by contributions from the Alberta Law Foundation and the Office of the Child and Youth Advocate, with additional support provided by Our Family Wizard, DivorceMate Software, ChildView and the Federation of Law Societies of Canada.
About John-Paul Boyd
