Children’s Participation in Justice Process: Finding the Best Ways Forward was a two-day national symposium held in Calgary, Alberta on 15 and 16 September 2017 that brought together a broad, multidisciplinary spectrum of leading stakeholders to share information and dialogue about how the voices of children and youth are heard, how their interests are protected and how their evidence is received in justice processes. The symposium was preceded by a half-day conference on the fundamentals of family law in Canada on 14 September 2017, designed for mental health professionals and symposium participants who were not justice system professionals, intended to provide important context for the work of the symposium.
This note provides an overview of the symposium and describes its two primary outcomes, a report on participants’ views of children’s participation in justice processes and the symposium record of proceedings, both of which are now available online from the Canadian Research Institute for Law and the Family.
The symposium was organized by the Institute and the Alberta Office of the Child and Youth Advocate, and was attended by 179 professionals, including academics, judges, lawyers, mental health professionals and social workers, coming from every province and territory except New Brunswick. Twenty workshops were provided, organized in themed streams centring on specific issues, including representing children, hearing the voice of children, the UN Convention on the Rights of the Child and establishing legal service clinics for children, on topics including:
- best practices for representing youth in conflict with the law;
- the intersection of the UN Convention on the Rights of the Child, the Charter and human rights legislation;
- the experiences of young aboriginal leaders graduating from the care system;
- judicial interviews with children;
- the voice of the alienated child;
- the role of children’s counsel in family law and child protection proceedings;
- the voice of the child in parenting coordination;
- the limits to children’s participation in justice processes;
- assessing the competence and credibility of children;
- the privacy rights of children and youth;
- the Canadian Bar Association’s Child Rights Toolkit and the UN Convention on the Rights of the Child;
- considerations in establishing child interviewer rosters;
- hearing the voices of infants and toddlers; and,
- challenges and lessons learned establishing children’s legal clinics.
Workshops were presented by leading academics, lawyers, judges and mental health professionals, including:
- Professor Nicholas Bala of Queen’s University in Kingston, Ontario
- Hon. Gillian Marriott of the Alberta Court of Queen’s Bench in Calgary, Alberta
- Dale Hensley, QC, formerly of the Children’s Legal & Educational Resource Centre in Calgary
- Hon. Lynn Cook-Stanhope of the Alberta Provincial Court in Calgary
- Hon. Donna Martinson, QC, formerly of the British Columbia Supreme Court, of Vancouver, British Columbia
- Dr. Francine Cyr of the Université de Montréal in Montréal, Quebec
- Dr. Karine Poitras of the Université du Québec à Trois-Rivières in Trois-Rivières, Quebec
- Dr. Élisabeth Godbout of the Université Laval in Québec, Quebec
- Patricia Yuzwenko of the Youth Criminal Defence Office, Legal Aid Alberta in Edmonton, Alberta
- Carolyn Leach of the Office of the Children’s Lawyer, Ministry of the Attorney General in Toronto, Ontario
- Dr. Lorri Yasenik of Dr. Lorri Yasenik Child & Family Therapy Services in Calgary
- Patricia Hébert, QC, of the law firm Gordon Zwaenepoel in Edmonton
- Dr. Rachel Birnbaum of King’s University College in London, Ontario
- Alyson Jones, RCC, of Alyson Jones & Associates in North Vancouver, British Columbia
Six plenary sessions were provided and included presentations by: Del Graff, the Alberta Child and Youth Advocate; Sheldon Kennedy, a director of the Sheldon Kennedy Child Advocacy Centre; the youth panel of the Office of the Child and Youth Advocate; Dr. Nicole Sherren, scientific director of the Alberta Family Wellness Initiative; the Hon. Kathleen Ganley, Alberta Minister of Justice and Solicitor General; and, myself, executive director of the Canadian Research Institute for Law and the Family.
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. To this end, volunteer scribes were assigned to take notes of each workshop, and workshop presenters agreed that their workshops would be designed to produce an outcome of some sort, which could include:
- the collective conclusions and recommendations emerging from their workshop;
- the group’s observations and opinions on the subject matter of their workshop;
- suggestions for policy and policy reform;
- proposals for guidelines, protocols and best practices; and,
- suggested areas for further research and enquiry.
Workshop presenters also agreed to provide a written summary of the outcomes emerging from their workshops following the conclusion of the symposium.
Survey of Participants on Children’s Participation in Justice Processes
The congregation of so many leading experts and stakeholders at the symposium provided the Institute with an opportunity to survey an informed and involved pool of participants regarding their perceptions and experiences with children’s participation in justice processes. The results of that survey are published in “Children’s Participation in Justice Processes: Finding the Best Ways Forward, Results from the Survey of Symposium Participants” (Paetsch, Bertrand and Boyd, 2017).
Almost all survey respondents agreed that children should have the right to voice their views in family law proceedings that affect them, although less than one-third of respondents thought children’s participation should be mandatory. Respondents viewed legal representation for the child as the best mechanism to enable children to voice their views, followed by an assessment report. Almost all respondents said their jurisdiction has mechanisms to hear the voice of the child, and the most common were legal representation for the child, an assessment or evaluation report, and testimony by a mental health professional or social worker who has interviewed the child.
When asked which child legal representation approach is most appropriate, lawyers were most likely to say the instructional advocacy approach, while respondents in the other occupations thought the best interests approach was slightly more appropriate than the instructional advocacy approach. All respondents agreed that an instructional advocacy approach should not be adopted if it is believed that the child is too young to have the capacity to make a sound decision, or if the child wants an outcome that may expose him or her to serious risk or harm.
More than 90% of respondents thought the following factors were important when deciding what weight should be given to the child’s views: the age of the child; the child’s ability to understand the situation; and the ability of the child to communicate.
More than 80% of respondents thought the following factors were important when deciding what weight should be given to the child’s views: indication of parental coaching or manipulation; the child’s reasons for the views; and the child’s emotional state.
The older the child, the more likely respondents were to report that their preferences regarding custody decisions should be weighed heavily in making those decisions. The majority of respondents thought the preferences of children aged 10 and over should be weighed heavily in making decisions about custody and access, and the preferences of children under the age of 10 should be weighed lightly. Almost one-third of respondents thought the preferences of children under the age of 6 should be given no weight.
In general, in both custody and access and child welfare proceedings, approximately two-thirds of respondents think it is appropriate for judges to interview children aged 12 and older, just under half think it is appropriate for children aged 10 to 11, and one-third think it is appropriate for children aged 6 to 9. About one-quarter of respondents, however, reported that they did not think it was appropriate for judges to interview children at any age.
Two-thirds of the respondents thought that the information that children provided regarding their wishes should be made available to their parents. Just over one-half thought the information should be shared in the courtroom. When asked whose responsibility it should be to inform children of the court’s decisions in matters affecting them, one-half of the respondents said it is the responsibility of the child’s lawyer, if there is one, and one-fifth said it should be the child’s parents.
Given the lack of consensus on the most appropriate approach for children’s counsel to take when representing children and other areas of disagreement among respondents, including the sharing of information from children with their parents, sharing information from children in the courtroom and informing children of the court’s decision, the report suggests subjects for further research, including:
- Research that includes children who have had legal representation or have been interviewed by a judge to learn more about their experiences and perspectives on how to improve having their voice heard. What are the best mechanisms for hearing the voice of the child from the children’s perspective? Which mechanisms allow the children to participate in legal proceedings without further damaging their family relationship? While the respondents to the current survey were experienced, having worked in their primary occupation an average of 19 years, the majority of children’s lawyers reported that have never had a child client testify on the stand or speak to the judge in open court. Do children want to testify in court or is this undesirable to them?
- Research on the instructional advocacy approach and best interests approach to child advocacy involving lawyers, judges and mental health professionals. Which is the best approach to take when representing children? Does the optimal approach vary with the age and maturity of the child? Does it vary depending on whether the forum is adversarial or non-adversarial?
Record of Proceedings
The Record of Proceedings (Boyd, 2018), gathers the materials present at the workshops and plenary sessions, presenters’ summaries of outcomes, and the scribes’ notes digesting the themes and recommendations emerging from the workshops, and is the final outcome of the symposium.
The complete record, which runs to some 640 pages, and should be printed with caution as a result, contains:
- the symposium Program Guide, including the symposium agendum, workshop descriptions, the biographies of workshop presenters and a list of those participants agreeing to have their contact information published;
- the PowerPoint slides presented at the pre-symposium conference;
- the materials and PowerPoint slides prepared for each workshop, presenters’
- summaries of outcomes, where available, and scribes’ notes, where available; and,
- a digest of the themes and recommendations emerging from the workshops.
A number of repeating themes emerged over the course of the symposium, including:
- the challenges of representing children and youth, in a variety of contexts, including in criminal matters, in family law and child protection proceedings, and in parenting coordination and mediation processes;
- the ongoing debate between best interests advocacy and instructional advocacy in representing children;
- the benefits of working within a multidisciplinary, or interprofessional, framework when serving the needs of children;
- the additional considerations involved in hearing the voices of children in special contexts, when the child is an infant or toddler, the child’s attachment to a parent has been disrupted, and the child is being interviewed by a judge;
- other special considerations involved in hearing the voices of children, including when the Charter of Rights and Freedoms and human rights legislation may apply, taking children’s privacy rights into account, assessing children’s truthfulness and credibility, and the need for those listening to children to be culturally competent and sensitive to Indigenous contexts;
- the challenges encountered in establishing children’s legal clinics and child interviewer rosters;
- the importance of establishing and refining standards and best practices in how children are represented and their views and preferences heard in judicial processes;
- the presentation of children’s views through voice of the child reports, including evaluative reports prepared by mental health professionals and non-evaluative reports prepared by mental health and other professionals, and the appropriate roles of each;
- the gravity of the potential impact of parental conflict on children’s wellbeing; and,
- the importance, when representing or providing other services to children, of ensuring that the services provided are accessible and age-appropriate.
All presenters viewed the presentation of children’s views as important, some as imperative, in legal proceedings affecting their interests. Many presenters referenced the UN Convention on the Rights of the Child as the reason to hear the voices of children and youth; others referenced children’s views as a cornerstone consideration in establishing the course of action in their best interest, while others framed the expression of children’s views as an ethical obligation of adults involved in judicial processes, as an aspect of promoting children’s wellbeing or as a matter of children’s fundamental rights.
Regardless of the source of the obligation to hear the voices of children, most presenters pointed out that limits exist on how those voices are heard and how they should be taken into account. Some presenters highlighted evidentiary concerns with how the views of children are expressed, while others emphasized the age, development and capacity of children as factors which might limit not only the weight to be given to the children’s views but also their fundamental capacity to express them. The need to protect and promote children’s safety and wellbeing in expressing their views was mentioned by a number of presenters.
Although the symposium served to highlight the belief, shared among both presenters and participants, that children wish, and have the right, to be heard in justice processes, their ability to do so is frustrated by the patchwork of procedures, services and attitudes that exists within and between Canada’s various jurisdictions. Important work is being done to remedy different aspects of this situation, in British Columbia, Ontario and Quebec in particular, but little exists by way of national guidelines and best practices.
The issues most obviously lacking significant consensus include:
- whether and when judicial interviews of children are appropriate, the best processes and locations for these interviews, how the information judges receive should be taken into account in determining the cases before them, and how the information received should be shared with the parties;
- when evaluative versus non-evaluative views of the child reports are appropriate, the standards and best practices that should be observed by those preparing them, and the training and experiential prerequisites that should be required of professionals preparing views of the child reports;
- when children require representation in judicial proceedings, whether children should be represented by counsel acting as amicus curiae, best interests advocate or instructional advocates, and whether and how those roles should merge;
- how and to what extent children should be involved in out-of-court dispute resolution processes affecting their interests; and,
- the extent to which the UN Convention on the Rights of the Child is reflected in laws and processes relating to family law disputes, the criminal law, child protection proceedings and other legal processes affecting children’s interests.
A fair amount of research has already been undertaken on these issues, and other research is underway. Although this research is of critical importance, and more yet is required, perhaps we are at the point where what is needed to move toward effective standardization is a national gathering of researchers, academics, legal and mental health practitioners, policy-makers and government lawyers and analysts, along the lines of the Uniform Law Conference, to negotiate and recommend standards and best practices that could be adopted throughout Canada.
The Institute and the Office of the Child and Youth Advocate gratefully acknowledge the project grant provided for the symposium by the Alberta Law Foundation. Additional financial assistance was provided by Our Family Wizard, DivorceMate Software, ChildView, the Federation of Law Societies of Canada and the University of Calgary Faculty of Law. Without this funding, especially that provided by the Foundation, the symposium would not have been possible.