The short answer is yes. The long answer is, it’s complicated.
Children have a legal right to be heard and listened to according to the United Nations Convention on the Rights of the Child, specifically article 3 and 12. Whether their voice can lead to them having choices, that is where it can get complicated. Ultimately, parents have the authority to make decisions pertaining to their children. Parents also have the responsibility to ensure that decisions made are in their children’s best interests. The Divorce Act specifies that when considering the best interest factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security, and well-being. Amongst others, the child’s views and preferences is one of the factors that will be considered. There is no specific age when children get to decide who they want to live with. Each child is unique, and level of maturity varies significantly based on the child’s specific personality and life experiences.
To be done safely, child-inclusive separation requires the active participation of each party involved and a willingness to hear what their children are saying. There is often a fear in involving children in any conversation about their parents’ separation. There is a misleading hope that children are protected from the separation if we don’t talk to them about it, ultimately pretending that nothing has happened, when their world has been turned upside down. Historically, it was assumed that if children were isolated from the conversation, that they would be sheltered from the conflict. Further, children were seen as lacking the capacity to participate in adult decisions pertaining to them.
Due to the increasingly high number of children experiencing separation and later speaking up about their experiences, as well as ongoing studies on the importance of the children’s voices to be heard, these perspectives have shifted. Promoting children’s participation in decisions that are about them is being more and more talked about and encouraged. Judges, family lawyers, mediators, and clinicians are asking more questions about what the children are saying and what really matter to them.
Involving a child in separation discussion requires a very careful, child-focused approach. There are case by case pros and cons that need to be considered. There are several different mechanisms available to families who want the voice of their child to be included, all while ensuring child-focused protective factors are in place. These mechanisms include Voice of the Child Reports (VOC Report), child legal presentation through the Office of the Children’s Lawyer (OCL), judicial interviews, and Child Inclusive Mediation (CIM).
This blog post was written by a former member of the Family Law team. For further information, please email family@mannlawyers.com.
