Lawyer's Weekly article
It is a time of change in family law. The voice of the child is finally being elevated to its rightful place as an essential aspect of any custody determination. These children need lawyers, and lawyers need the specialized training required to handle these cases.
Although children are the focus of any child custody dispute, their views and preferences have traditionally been a secondary consideration, if not ignored completely. Absent an assessment, or some independent evidence, the interests of their parents have taken precedence, which may or may not be synonymous with the child’s best interest. Thankfully, that focus is now changing.
Custody law mandates that the merits of a case be determined through the lens of the best interest of the child. There are very few decisions with a more fundamental and lasting impact than a custody determination. Since a custody decision will determine the course of the child’s life in many ways, one would expect that the child’s evidence would always be before the court. However, research by Semple indicates that children’s evidence in any form is only before the court in 45 per cent of reported cases (The Silent Child: A Quantitative Analysis of Children’s Evidence in Canadian Custody and Access Cases (2010) 29 CFLQ 7).
Although the acceptance of a role for child’s counsel in custody matters is relatively new, its roots are decades old. The 1974 Canadian Law Reform Commission recommended independent representation for children where their rights were affected by a court proceeding. In 1991 Canada ratified the United Nations Convention on the Rights of the Child. Article 12 reads as follows:
1. 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.
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.
Despite its legislative and judicial foundation, such representation has been a long time coming. Moreover, the role of child’s counsel remains ambiguous. Child’s counsel often struggle with the child’s instructions if, in counsel’s view, those instructions conflict with best interest.
The 1981 Law Society of Upper Canada Report of Sub-Committee on The Representation of Children declined to revise the Rules of Professional Conduct to permit child’s counsel to depart from a child’s instructions if, in the lawyer’s opinion, they were not in the child’s best interests. The subcommittee did not recommend changes to the existing Rules, stating that, if the child is able to instruct counsel and a solicitor/ client-type relationship exists, counsel’s duty to the child is the same as that owed to an adult. As such, the personal beliefs of counsel are irrelevant and his or her statements of evidence should be disregarded.
This dissonance has been resolved in the U.S. with the adoption of Standards of Practice which require child’s counsel to adopt the role of either:
(a) "Child’s Attorney": A lawyer who provides independent legal counsel for a child and who owes the same duties of undivided loyalty, confidentiality and competent representation as are due an adult client; or
(b) "Best Interests Attorney": A lawyer who provides independent legal services for the purpose of protecting a child’s best interests, without being bound by the child’s directives or objectives.
Since, of late, private representation of children in custody proceedings has become more prevalent, the adoption of the above distinctions might be necessary in Ontario. Child representation is no longer the sole purview of the Office of the Children’s Lawyer, for fiscal and other reasons. As a result, private lawyers will act as counsel for children more often.
Law school hardly prepares counsel for how to respond when an eight-year-old client refuses to instruct because "the last time I said what I wanted, both my mom and my dad called me a traitor." Child development training alone does not provide the legal, statutory and jurisdictional framework required, for example, to secure interim variation of an arbitral award when a mother in custody litigation announces she no longer wants to parent a 10-year old client. Acting as counsel for children requires a myriad of skills that are not traditionally "legal," including an understanding of child development and parent-child relationships, and an awareness of the impact of separation and divorce on parents and children. It calls for a consistently child-focused approach and an intimate understanding of family processes pre- and post separation. An ability to communicate and bond with children is essential. Counsel for the child is often called on to mediate issues and, hence, talent for dispute resolution is also essential.
Along with specialized training, the following five "golden rules" will ensure that child counsel’s participation in the proceeding is productive:
(1) Only act when appointed or jointly selected to ensure independence and neutrality. You cannot be hired by one party or the other.
(2) Talk less and listen more. The child is the client. Hear him or her out.
(3) Relate to the client as a child, but also as a person. A child is not a baby, but a child also is not a mini-adult. Use age appropriate language, but never talk down to the client.
(4) Never make promises you cannot keep. Neither you nor the child is the final decision maker. Be clear with the child client about your role and about what you can and cannot do.
(5) Do no harm. Avoid exacerbating loyalty conflicts and further polarizing the child. Help your client negotiate the high conflict terrain in a healthier way.
Representing the voice of the child is becoming a fundamental aspect of the practice of family law. Lawyers need training and children need lawyers. Let’s get on it.