This is where Parents should fear to tread. Is there a better way to hear your child’s voice?
One of the topics I receive the most requests to write about is the topic of child counsel (also known as counsel for the children). Some parents see it as a panacea to the repercussions of the conflict between them (the parents). Others see it as getting a voice with authority that will support their view of what their children are thinking or experiencing – often anticipated to be one that supports one parents proposed solution to the parenting situation.
Child counsel is not a panacea. They can a bring voice ’to the table’ on the children’s experience but they will not be able to solve the issues created by the parenting conflict. In fact, rarely will they bring a lot of light on the situation if they adopt a traditional lawyer role.
Child counsel is a voice of authority – the same voice of authority as brought by the parent’s lawyers – that is given regard by the Courts.
This brings me to the real issues parents who are considering asking for child counsel to be appointed need to think about before ‘jumping down the rabbit hole’.
Does the child have legal capacity to instruct counsel?
In Alberta children under 18 are not considered capable of having the legal capacity to contract. Yet, in the absence of a cognitive disability, children’s counsel is usually not appointed for children 18 years of age or over. If a child is to enter into a contract before they reach the age of 18 years, they must be able to show a court they understood the nature of the contract and the duties / responsibilities of the contract. Parents are chided for bringing their children into the parenting conflict. At the same time, it is not unusual for a child as young as 12 years old to be allowed to make parenting decisions.
There is a move away from the idiom ‘children should be seen and not heard’ to one that states, ‘voice not choice’. Children should be listened to but their words should not necessarily dictate the end decision. There is even a United Nations Charter document that states that children’s participation of their own lives should evolve with their abilities to make that decision. And the child should be able to make that decision without undue pressure or influence (in the parenting context that means the parents or others who may exercise influence or authority over the child) https://www.unicef.org/rightsite/files/uncrcchilldfriendlylanguage.pdf
Who decides that a child is ready to make those decisions? Judges do not usually meet with a child. So that role is left to Child Counsel.
The next question is what is the character and quality of the services child counsel will be asked to provide.
First the Character of the services.
Child Counsel can have three basic roles:
- Friend of the Court (also known as Amicus Curiae)
This is the usual role most parents expect child counsel to fulfil. It means a professional person or organization) that is not a party to the litigation (court case) but is permitted by the court to advise it in respect to some matter of law that directly affects the case in question. Essentially an advisor to the Court.
- Best Interests Guardian
Every Parenting decision is required to be made In the Child’s Best Interests or with the child’s best interests in mind. This is the Amicus Curiae role plus the ability to speak with the court and to present evidence on the child’s behalf. Given that the courts will rarely, if ever, allow a child to be questioned by the lawyers for the parents this is a very powerful role that can shift the outcome of a parenting decision. Imagine how a parent’s ability to influence court decisions would be different if everything their lawyer said was presumed to be true and reliable. Well, that is the influence of the Best Interest Guardian role for the child. The challenge in this role is to recognize were the child’s views and Best Interest end and the lawyer’s own biases, beliefs and self-interests begin. This requires a lot of insight into oneself.
- Child Advocate
The Child Advocate takes Instructions from the child(ren) in the same way as the parent’s lawyers take instructions from the parents. The Child Advocate represents the child and the primary responsibility of the Child Advocate is to carry out a child’s directions (instructions). The child is still not able to be questioned by the parent’s lawyers and the Child Advocate is presumed to have satisfied him or herself that the child can give Instructions on their own behalf.
- Ask Yourself
How many parents would hire a babysitter without interviewing them firs
Would it surprise you to know that the appointment of child counsel does not give an opportunity, nor usually allow, the parents to interview the proposed lawyer who is going to speak for their child(ren)? Would your decision e influenced by knowing of the potential lawyer’s own parenting experiences as a child? How about the potential lawyer’s own parenting experiences as a parent?
An adult client can stand up and tell the court when their lawyer is not following the instructions given by the client. Children are not able to do that because they are not in the Courtroom to begin with. The children’s lawyer has Carte Blanche to say whatever they want. They are presumed to accurately reflect what they have been told by their child ‘client’ and usually do not even file an affidavit (a sworn statement of evidence) as, despite being capable of instruction counsel, children are not considered of an age that they can sign an affidavit.
So, what if the child confides in a parent that their children’s lawyer is not saying what the child wants the court to know? If the children’s lawyer is saying what the parent wants to hear then it is unlikely that the parent will raise any objection. If the children’s lawyer is not saying what the parent wants to hear then it is likely that the parent will raise the objection and be ignored because they are assumed to be complaining because the children’s lawyer is not saying what that parent wants to hear
Parents should be encouraged to ask
- What techniques the children’s lawyer has learned and uses to get the child’s wishes and perspectives uninfluenced by adult influence?
- What are the children’s lawyer’s own views about parenting and parenting roles?
- What interview techniques the children’s lawyer will use?
- Children do not think the same way as adults do, so adult interview techniques will not reflect the child’s thoughts expressed through the child’s symbolic expression and language (child friendly methods to invite the child to tell their own experience of the divorce narrative)?
- What criteria will the children’s lawyer use in deciding the child’s maturity level and ability to give Instructions to a lawyer?
- What is the wheel of child development and how does the lawyer use it in their representation of children?
- For how many years has the lawyer been practicing Family Law and what other types of law, has or does, that lawyer practice? Consider using the law of 10,000 hours as a gauge of how long it takes to develop a competence.
Now ask yourself,
Do we need a Children’s lawyer or would our family (yes you remain a family as long as you have children who outlive you) be better served finding a child consultant?
Child Consultant?
What would happen if the person working with your child were not there to recommend to the court what should happen? Instead, their role is to inform the parents, lawyers and the court of how the child sees, has adapted to and operates within the child’s own world?
Here is a link to two of my own mentors I would trust to meet with my own children. I have taken courses from Lori Yasenik and Jon Graham (more than one time for each course) and it has revolutionized how I carry out my role as children’s counsel and how I can best serve the families who come to me to uncover their children’s views and needs so that with that information they can make the best decisions for their children and keep both parents in the children’s lives
Click on the link saying “child consultant’ – is this the kind of help and input from your children that you are really looking for?
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