A Child’s Right to Be Heard: Thoughts on the Intersection of Family Law and Human Rights

For those of us who practice family law, or who are involved in the family justice system in some way, there is a tendency to focus on the minutiae of the law and the specific cases we are involved in. What is the proper parenting schedule for this particular family? Is horseback riding a reasonable and necessary section 7 expense for these parties? What are the tax implications of dividing the parties’ property and debts?

However, it is important to take a step back and remember how the justice system and our law, in general, is developed to be in line with the concepts of fundamental human rights developed over many decades in the international arena. Further, it is important to continually reassess whether we are doing enough to ensure our legislation and legal systems are aligned with these important concepts.

Canada is a party to the United Nations Convention on the Rights of the Child (“UNCRC”), which is a treaty outlining the fundamental human rights of the child. It addresses a child’s social, physical, cultural, economic and political rights in specific detail. While many of these clauses may seem obvious in a country like Canada (for instance, Article 6 states that children have the right to live a full life and governments should ensure they survive), others are more complex and have specific bearing on children’s legal rights. For example, Article 12 of the UNCRC reads:

1. Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular 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.

Children’s views are not heard by the decision-maker in the great number of family law cases. Processes have been put in place by the Alberta Courts which allow for a child’s views to be heard (including counsel for the child, a Voice of the Child Report or Practice Note 7 Report by a Parenting Expert), but in order for those processes to be engaged, an adult with the legal standing and resources to do so must advocate for the child’s right to be heard. Where the ability for the child’s views to be heard is opposed by a party, a court application will be required to ask the Court to dispense with the opposing party’s consent. Even then, the child is not able to speak directly to the decision-maker who will ultimately make a decision that will fundamentally affect their lives.

In the Alberta family justice system, it is far from a given that a child will have an opportunity to state their view on the issues before the court which affect them. There are a number of reasons for this, some of which stem from the Court’s concern that an intimate knowledge of the legal matters will not be in the child’s best interests. Additional concerns are that children do not necessarily know what is in their best interests, or may say whatever they think their parent/s want to hear. Some children may find being given a voice more stressful than not having one; they may feel that they are being asked to choose between their parents, or to make the decision themselves.

It is worth considering, however, whether most or all of these concerns can be addressed with training, procedures and sensitivity to the particular child’s circumstances. Further, do these concerns give children enough credit? For instance, a child does not need an intimate knowledge of the legal matters: they can be given an age-appropriate overview, but they likely know enough to be able to voice their views as they are living the reality of their situation. Children may not know what is in their best interests, but being allowed to voice their views is very different from being given the power to dictate the result. Children may say what they think their parents want to hear, but a trained professional who knows the child’s circumstances will be able to determine that. And finally, if a child does not want to make their views known, they can express that to the professional themselves, in which case they are still being given agency and being engaged in the process.

It may well be time for our family law decision-makers (both the Courts and alternative dispute resolution professionals) to assess whether they can and should be doing more to align their processes with the human right of the child to have their views heard in matters that directly affect them.

A simplified version of the United Nations Convention on the Rights of the Child is available here.