A relatively new concept in Canada, voice of the child reports are one technique to ensure that children have the opportunity to be heard in custody proceedings. Such a report, sometimes known as the views of the child, provides information about what the child thinks about his or her life and the issues in dispute between the parents to the court to assist in the decision making process.
Article 12, UN Convention on the Rights of the Child, states that:
- States’ 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.
- 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.
A voice of the child report is written by a mental health professional, who interviews the child. Unlike a report by the Office of the Children’s Lawyer or a section 30 custody assessment, this report is non-therapeutic and does not usually contain the professional’s opinion because the report really is intended to simply inform the judge about the views of the child and not to be an assessment of those views. It also contains less information that those reports. The child’s views, as expressed in the report, are considered by the judge, but the report has less influence than if the child had given instructions to a lawyer appointed by the OCL.
Voice of the child reports are cheaper than assessments and can be completed more quickly. They are also less intrusive because they are not clinical.
They really are intended to be what they are called – the voice or the views of the child – and, as a result, the child usually has a say in what is and is not included in the final report.
These reports, although there is little research on them because they are so new in Canada, are seen to be helpful in a number of ways. A report, conducted by a professional is better than the child being drawn in by the parents. There are not always sufficient clinical issues to warrant either a section 30 assessment or the involvement of the OCL. If there are no child protection concerns, the Children’s Aid Society will not play a role. And, while judges meeting with children is becoming more common, many judges are still reluctant to do this.
Voice of the child reports were first introduced in a pilot project in British Columbia in the early 2000s. The project was very successful: judges said the reports made their jobs easier and either shortened the length of trial or contributed to an early settlement.
There is no specific legislation about views of the child reports beyond the language of the best interests of the child test section of the Children’s Law Reform Act, which states that the court must consider all of the child’s needs and circumstances including, as set out in section 24 (2) (b) “the child’s views and preferences if they can be reasonably ascertained.”
Both parents must consent to the report being prepared. While it is considered by the judge, it is not binding. Judges will generally consider such factors as:
- How clear the child’s wishes are
- How informed their input is
- The maturity and age of the child
- How strong the child’s wishes are
- How long a time the child has held those wishes
- The practicality of what the child is asking for
- The ability of the parents to provide adequate care
- The influence of each of the parents on the child’s expressed wishes
In reports to date, the child’s wishes are often more about access details than about custody itself. For example, the child might indicate a preference for a particular access schedule, what extracurricular activities s/he wants to be involved with, whether or not s/he is comfortable with moving with one parent, where s/he wants to go to school, etc.
The report may be prepared by a lawyer, social worker, psychologist or counsellor. The parents pay for it. It is much cheaper than a section 30 assessment, costing on average in Ontario between $1,000 and $2,000.
The person preparing the report will clarify with the parents’ lawyers what is expected and will communicate with the parents to set up interviews. To attempt to offset any manipulation by the parents, the person writing the report will generally meet with the child at least twice, once while the child is staying with each parent. Court documents are not generally reviewed by the person writing the report. The author of the report seldom has to testify in the court proceeding.
If use of these reports is going to continue to expand, some regulation and guidelines would be useful. This would create uniformity in how the reports are developed and written and how confidentiality is managed, among other things.
There does not appear to be any research focused on the use of voice of the child reports in cases where the child’s mother has been abused. Obviously, unique challenges arise in such situations. Parental alienation and manipulation by the abuser are significant possibilities, as is the concern that the child might just be further drawn into the abuser’s tactics or might express views that are not real but are rather expressed out of fear of their father.