by Suzanne Williams

“Where children’s rights are at stake, perhaps more than anywhere else, reactive legal solutions are inadequate. It takes pro-active attitudes in lawyers and judges to bring children’s problems to light and to find solutions to them.”
-Chief Justice Beverley McLachlin, Supreme Court of Canada

B.C. lawyers and judges can be pro-active in supporting a child’s right to participate in family justice proceedings. How best to do it remains a challenge for most. This is a finding in, Through the Eyes of Young People: Meaningful Child Participation in B.C. Family Court Processes – www.iicrd.org/familycourt, a report of the International Institute for Child Rights and Development (IICRD) based at the University of Victoria, and part of a project funded by the Law Foundation of British Columbia. Key advisors to the project include Hon. Chief Judge Hugh Stansfield of the Provincial Court and B.C. lawyers.

The report captured views from more than 150 B.C. lawyers, judges, children, and service providers involved in family justice matters. It draws on law-supporting children’s participation, as well as research highlighting the protective nature of children’s participation and its positive impact on decision-making and determining a child’s best interests. Despite these positive findings, improvements are needed in B.C. to overcome barriers such as a fear of harming children, lack of time, lack of resources, and lack of training for those speaking to or impacting children.

Some barriers are addressed in a pro-active practice in Kelowna that involves an independent party interviewing a child affected in a custody/access case and providing the judge with the child’s views for consideration. Together with members of the Kelowna legal community, and in particular the CBABC Family Law and Alternative Dispute Resolution sections, clinical counsellors and judges, IICRD built on this practice to create the “Hear the Child” interview pilot. This involved creating a roster of interviewers, providing inter-viewer training, establishing a system for the verbatim views of children aged eight and older to be obtained and provided to the parties and judge, and raising awareness within the legal community. Initial feedback and support by the B.C. Attorney General resulted in the pilot being extended from three months to one year ending in 2006. While the pilot has concluded, many participants are continuing the practice because of it benefits. IICRD will release an evaluation of the pilot in 2007.

Better equipping lawyers and judges is a starting point for pro-active attitudes on children’s participation, particularly when just one caring adult can make a positive difference to a child’s experience. According to one child, “I was so happy that someone was listening to me finally. You know, of all the people involved [social workers, foster parents, etc.], he [the judge] treated me as if I was an intelligent young man which was very different than my other experiences where people in the system were treating me as a young child.” Education, training, practice standards, and a framework for all stakeholders are some of the ways that the adults can be better equipped. In this regard, IICRD is developing education modules that will be piloted and launched in partnership with the Continuing Legal Education Society of B.C. in 2007.

Suzanne Williams is a lawyer and Deputy and Legal Director of the International Institute for Child Rights and Development (IICRD) based at the Centre for Global Studies at UVIC.

This article was published in the February 2007 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2007, all rights reserved.