View of the Child Reports: Case Comment

Context

There has been increasing use of the Views of the Child Reports as a means to involving children in the resolution of parenting disputes across Canada.^[2]It is now widely recognized that children’s inclusion in the post-separation decision-making process is important to the promotion of their well-being. The recognition of the ‘rights’ of children has been supported by the adoption of the United Nations Convention on the Rights of the Child that guarantees children the right to express views on matters that affect them. Article 12 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 states:

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.

Canada signed the Conventionon May 28, 1990 and ratified it on December 13, 1991. It came into force in Canada on January 12, 1992. The Conventionhas not been incorporated into domestic law (it hasn’t been implemented by Parliament or any of the Provincial Legislatures), but some courts do refer to the Convention when interpreting the rights of children. 

Case Comment

I raise the context in light of the recent decision of The Honourable Associate Chief Justice Lawrence I. O’Neil in Irwin v. Irwin, 2019 NSSC 397. The Court was asked to rule on whether there should be a Voice of the Child Report. The mother was seeking the Report on behalf of their two children ages, 12 and 11 years of age. The father was opposed to having the children be interviewed in this manner.   

His Honour refused to order a Views of the Child Report and his decision was correct.  Both parents were alleging serious parenting difficulties in the other’s home, engaged child welfare authorities, tried to obtain mutual peace bonds against one another, the mother was charged with uttering death threats against the father and both children had been negatively impacted by the parental conflict.  The case cried out for a thorough parenting assessment.

However, the Principles used to deny the mother’s request conflate what a parenting assessment is and what a Views/Voice of the Child Report is. 

His Honour raised the following Principles:

A Voice of the Child Report should be ordered when it is necessary and appropriate to the determination of the best interests of the child; 

•     Given that assessments are, by their very nature intrusive, they should not simply be ordered as a matter of course or as part of a “fishing expedition”; 

•     The burden is on the party requesting the report to demonstrate that a professional opinion is needed; 

•     Reports should be ordered where there is a specific need for the type of information they generate, and the information would not otherwise be available because it falls within the special knowledge of the expert; and 

•     Special information and knowledge of the expert referred to above could include, but is not limited to, situations where there are clinical issues to be determined and/or situations where the conflict between parents makes it unlikely that the court would receive objective evidence upon which to determine the views and preferences of the child.^[3]

Let’s unpack some of these Principles in light of social science literature and the Convention.

Views of the Child Reports provide information about children’s perspectives on their lives and their preferences, if any, on the matters at issue in the parenting dispute, based on one or more interviews with a lawyer or mental health professional, retained solely for the purpose of preparing this Report. The Reports can be evaluative and include the interviewer’s opinion on the strength and consistency of the child’s views, but more commonly they are non-evaluative, providing no evaluation or commentary on the child’s remarks. They provide less information than would be found in a typical custody and access assessment and offer less opportunity for children to directly influence outcomes than if they were represented by counsel….. (Birnbaum & Bala, 2017, p. 346).  

Views of the Child Reports are notparenting assessments that provide much more detailed information about children, parent-child relationships, collect personal and professional collateral information, and make parenting recommendations for the court’s consideration about children’s best interests (Birnbaum, 2017; Birnbaum & Bala, 2017; Birnbaum, Bala, & Boyd, 2016; Hayes & Birnbaum, 2019). 

Views of the Child Reports gather information based on the views and preferences of children and NOT to obtain ‘clinical information’ about children.  Only children are interviewed, and no other independent evidence is being gathered about parent-child relationships as would occur in a more in-depth parenting assessment.  If the author of the Report believes that there are clinical issues that require further investigation, then a parenting assessment is recommended to the court.

The court concluded,

The older of the children is on the lower end of the age and maturity level when I would consider ordering a Voice of the Child Report because of the typical development and maturity of a child of that age.^[4]

The social construction of childhood in western culture has shaped the ability or inability for children to participate meaningfully as citizens in Canada. That is, adults (ie. gatekeepers of the justice system) are more likely to focus more on the protection of children rather than their rights to participation asserting that,

unlike the morass of adult-made policies … that treat a child’s competence as oppositional to a child’s claims for protection, the children’s movement demonstrates through its activism that children can participate in shaping their own life conditions (Stasiulis, 2002; p. 23).   

We would all agree that the protection of children’s needs and advancement of their best interests are the primary goals of family justice processes in all Canadian jurisdictions. Views of the Child Reports have a place in the continuum of services provided to children and families and are an effective means of ensuring their voices are heard in family law disputes. 

References

Birnbaum, R. (2017). Views of the child reports: Hearing directly from children involved in post separation disputes. Social Inclusion, 5(3), 148-154.

Birnbaum, R., & Bala, N. (2017). Views of the Child Reports: The Ontario Pilot Project. International Journal of Law, Policy and the Family. 31(3),344-362.

Birnbaum, R., Bala, N., & Boyd, J.P. (2016). The Canadian experience with the Views of 

the Child Reports: A valuable addition to the toolbox? International Journal of Law, Policy and the Family (16),145-180.

Hayes, M. & Birnbaum, R. (2019). Voice of the child reports in Ontario: A content analysis of interviews with children. Journal of Divorce & Remarriage, DOI: 10.1080/10502556.2019.1619379.

Stasiulis, D. (2002). The active child citizen: Lessons from Canadian policy and the children’s movement. Citizenship Studies, 6(4), 507–538. DOI: 10.1080/1362102022000041286

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^[1]Professor of Social Work, cross appointed to Childhood Studies, King’s University College, Western.

^[2]See Views of the Child Report Guidelines across Canada. In British Columbia, as provided by legislation in BC at s. 211 of Family Law Act and Hear the Child Reports at s. 37 of Family Law Act. In 2016, the BCHCS developed practice guidelines and protocols based on a survey of their membership who conduct these interviews.

Parents generally pay for these reports. See their website at: http://hearthechild.ca. In Alberta, Family Law Practice Note 7. In Saskatchewan, a Child’s Voices Report can be ordered by the court, with the government paying for the report; see website link: http://www.justice.gc.ca/eng/fl-df/fjs-sjf/view-affic.asp?uid¼219.  In Manitoba, the Brief Consultation Service allows for courts order reports paid by the government to help address the wishes and concerns of children ages 11–16 years: https://www.gov.mb.ca/fs/childfam/family_conciliation.html.

In Nova Scotia, the government has introduced Guidelines for the preparation of VCR at: http://www.nsfamilylaw.ca/other/assessments-VCR/VCR/VCRGuidelines. In New Brunswick, a court may order Voice of the Child report, paid for by the government:

http://www.legal-info-legale.nb.ca/en/court_ordered_evaluations_support. In Prince Edward Island, Focused or Brief Assessment such as a views and preferences interview of a child 12 years old can also be obtained. 

^[3]  Irwin v. Irwin, 2019 NSSC 397 at para 26

^[4]Irwin v. Irwin, 2019 NSSC 397 at para 32.