[Jeremy Bruneel for The Lawyers Weekly] Click here to see full sized version.

In most provinces, judges rarely meet children who are the subject of litigation between parents. More judicial interviewing of children would improve decision-making and outcomes for children, and better respect their rights.

Practice discouraged

While legislation and Canadian case law have long recognized that judges have the discretion to meet privately with children who are the subject of a custody or access dispute, the traditional judicial view has been that such direct involvement of children in the family court process should be “discouraged.”

A central concern of judges is that even listening to children, without their parents present, has the potential to be emotionally traumatic, since the children may have a loyalty conflict or guilt at expressing negative attitudes about a parent. Judges are also concerned that they lack training in interviewing children, and in any event the views expressed by a child may not accurately reflect the child’s true feelings.

Many judges also believe that private meetings with a child are inconsistent with the traditional judicial role, and even if parents are told what the child said, such a procedure is not consistent with due process. Judges prefer to have a mental health expert interview the child, and report to the court about the child’s preferences, often in the context of a broader assessment. In some jurisdictions, a lawyer may be appointed to represent a child, although there are questions about how far counsel can go in presenting evidence about a child’s wishes. Parents or other witnesses may also be permitted to give testimony about a child’s “state of mind,” as an exception to the hearsay rule.

Comparative perspectives

Although uncommon in most Canadian provinces, in a number of jurisdictions, including Quebec, it is increasingly common for judges to meet with children without parents being present. There is a belief that children have the right to meet with the person who will make such an important decision about their lives. Children may benefit from being able to ask questions of the judge and gain information about the court process.

We are presently undertaking a comparative study of attitudes and practices regarding judicial interviewing of children. We started our research in 2009 by surveying judges in Ohio, where the practice is common, and Ontario, where such meetings are rare. All of the surveyed judges in Ohio have regular experience with interviewing children, whose ages ranged from 3 to 17 years of age. Almost all of them consider the practice useful, as a way of getting to know the child better, but they are aware of the limitations of the information gained.

Fewer than half of the Ontario judges had ever interviewed a child, and even judges with experience as children’s lawyers expressed concern about their lack of training for undertaking such an activity. It is clear that the “culture of the court” affects judicial attitudes and practices.

Suggested practice

There are controversial issues about judicial interviews, and especially in Canada, there is a lack of appellate authority or legislation to provide guidance. In Ontario, legislation gives the child the right to have counsel present, and it may be appropriate, if the child has no counsel, for a therapist who has worked with the child to attend. Although parents’ counsel may be asked to suggest questions that should be posed to the child, they should not be present.

Ontario legislation specifies that a record is to be kept of the interview. Some judges inform the child that they will be giving the parents a transcript of the interview. Other judges provide the parents a summary of what transpired, but do not provide a verbatim account; in the absence of appellate direction, this seems a preferable practice as it may spare the child needless embarrassment and distress.

Most children don’t want to “choose” between their parents, but they have views that may influence the specific parenting arrangements that are made. While judges (as well as assessors and lawyers) should avoid directly asking children their preferences, children with strong views will inevitably tell their story. The judge should make it clear to the children that “they have a voice, not a choice.”

Mediators and judges at settlement conferences should also hear from children, as their opinions may help forge an agreement about a parenting plan. In more contentious cases that go to trial, clear rejection of one parent by the child could be an indication of alienation, but might also be a reflection of genuine problems or even abuse.

While high-conflict separations are emotionally traumatic for children, a properly conducted judicial interview with a child who wants to meet the judge is not likely to further traumatize the child. There is some research to suggest that children who feel that they have been heard in the course of parental separations may actually have better outcomes.

Judges will often benefit from meeting with children, though this meeting must never be the sole source of the judge’s information about the child. Except for urgent cases, judicial interviews are not replacements for child legal representation or an assessment by a mental health professional, but should be viewed as supplements.

Not all children want to or should be interviewed, but judicial interviews should occur more often than is current practice in Ontario; similarly, arbitrators should arrange to meet children. Training and education would greatly assist decision-makers in conducting these interviews.

The study of how to best involve children in the family justice system is still in its infancy. We are continuing our research, and in particular, are surveying children and young adults who have had experience with the family court process (some having been interviewed by judges and others not) to learn more about their perceptions of what would be the fairest and most effective way to involve children in the process. 

Nicholas Bala is a professor of law at Queen’s University and Rachel Birnbaum is an associate professor of social work at the University of Western Ontario. They will be presenting results of their SSHRC-funded research on judicial interviewing of children at the National Family Law Program in Victoria on July 15.