THE VOICE OF THE CHILD IN DIVORCE, CUSTODY AND ACCESS PROCEEDINGS

1.0 THE CONCEPT OF CHILDREN'S RIGHTS

1.1 The Emergence of the Notion of Children's Rights

Historians have argued that childhood, to a large extent, is a social construct.  According to Philippe Aries, in his renowned treatise Centuries of Childhood,[24]the concept of childhood emerged relatively recently, in the past 400 to 600 years.[25]

In the Middle Ages, the notion of childhood did not exist.  Children dressed in the same manner as adults and they engaged in the same pastimes.  Their education was carried out by means of apprenticeship during which they worked side by side with adults.[26]  It was not until the Renaissance and the Reformation that the concept of childhood developed.  During this period, children were perceived as innocent and weak.  They were considered to be in need of discipline to ensure that they developed into appropriate human beings.[27]  As Michael Freeman states in The Rights and Wrongs of Children, children in this era "were subjected to a special sort of treatment, a sort of quarantine before they were allowed to join adult society."[28]  Segregation of children from adults became the prevalent practice.[29]  From the 1500s, children were not considered to have independent wills and, consequently, young persons were in total subjection to their parents.[30]  The Victorian period, in particular, was characterized by the severe discipline of children and repressive child-rearing practices.

It was only in the latter part of the twentieth century, and specifically the 1970s and early 1980s, that the concept of children's rights emerged.[31]  A gradual shift could be discerned from a proprietal view of children to a perception that children had independent rights.[32]  There was "recognition that children have interests, perhaps even rights, that need to be considered distinctly and separately from those of adults, and particularly their parents…"[33]

Two decisions rendered by the United States Supreme Court were catalysts for the new perception of children in North America.  In Re Gault,[34] the court emphasized that children, like adults, are entitled to the protections enumerated in the U.S. Constitution. In the words of Mr. Justice Fortas, "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."[35]  The Supreme Court held that juveniles accused of crimes are to be accorded the following constitutional rights:  notice of the criminal charges, the right to counsel, the privilege against self-incrimination, and the opportunity to confront and cross-examine witnesses.  In Tinker v. Des Moines School District,[36] the United States Supreme Court reiterated that "minors, as well as adults, are protected by the Constitution and possess constitutional rights."

In the 1970s, members of the judiciary, academics, as well as legal and non-legal professionals, began to advocate the notion that children are autonomous individuals whose rights should be acknowledged and respected.  For example, in the 1975 Ontario judgment Re Brown,[37] Stortini Co. Ct. J. stated:

Every child should have certain basic rights such as:  the right to be wanted, the right to be healthy, the right to live in a healthy environment… and the right to continuous loving care.

In the same year, the British Columbia Royal Commission on Family and Children's law produced a report that contained an extensive discussion of  "Children's Rights."[38]  The Commission recommended that a Bill of Rights for children be promulgated by the provincial legislature.  Some of the rights articulated by the Royal Commission were:[39]

  • the right to be consulted in decisions related to guardianship, custody or a determination of status;

  • the right to independent adult counselling and legal assistance in relation to all decisions affecting guardianship, custody, or a determination of status;

  • the right to an explanation of all decisions affecting guardianship, custody, or a determination of status;

  • the right to an environment free from physical abuse, exploitation and degrading treatment;

  • the right to health care necessary to promote physical and mental health and to remedy illness;

  • the right to an education which will ensure every child the opportunity to reach and exercise his or her full potential;

  • the right to a competent interpreter where language or a disability is a barrier in relation to all decisions affecting guardianship, custody, or a determination of status; and

  • the right to be informed of the rights of children and to have them applied and enforced.

In some provinces such as Ontario, there were attempts to introduce children's rights legislation through private members bills.[40]

1.2 Child Liberationists and Child Protectionists:  Two Models

Two principal schools of thought have developed with respect to the concept of children's rights.  They are conventionally regarded as the child liberationist or self-determination model, and the child protectionist or nurturance model.  Americans John Holt and Richard Farson, in their respective 1970s publications, Escape from Childhood [41] and Birthrights,[42] are pioneers of the child liberationist model.  They subscribe to the view that self-determination is the root of children's liberation.[43]  According to these theorists, children's rights can only be realized when children have absolute autonomy to decide for themselves what is best for them.  This includes the right to sexual freedom, the right to choose their mode of education, the right to be free from corporal punishment, and the right to choose where they will reside.  It also encompasses the right to economic power which involves the right to work and achieve financial independence, the right to political power such as the right to vote, and the right to the information received by adult members of society.[44]

Another advocate of the child liberationist school, Hillary Rodham, also takes the position that children are the best judge of their own interests.  In an article published in 1973 in the Harvard Education Review entitled "Children Under the Law,"[45] Rodham argues that because children have interests independent of their parents, they cannot be represented by anyone other than themselves.  She asserts that the competence of children to make their own decisions must be recognized, and that children should be treated as rights-bearing individuals rather than as members of families.  Rodham advocates the reversal of the presumption of incapacity for children, the abolition of minority status, and the endowment to children of the same rights as adults.[46]

Advocates of the child protectionist or nurturance model take the position that because the physical and mental capabilities of children are different from those of adults, children require protection.  As one author observes, the "irrelevance of age" asserted by child liberationists "does not square with our knowledge of biology, psychology, or economics."[47]  Proponents of the nurturance model argue that children are dependent, vulnerable and at risk of abuse.  They advocate the provision of environments and services that will benefit children and allow them to develop into mentally and physically healthy adults.

Despite the philosophical shift from the perception of children as extensions of their parents to the view that children are rights-bearing individuals, courts and legislatures in North America have not taken a coherent approach with respect to the subject of children's rights.[48]  Harvard Law Professor Martha Minow states that "a heated debate about whether the rights of adults should extend to children occupies litigation and social commentary."[49]  In "Essay on the Status of the American Child 2000 A.D.:  Chattel or Constitutionally Protected Child-Citizen," Gill argues that children are currently in a transitional state between chattels and persons with full constitutional rights.[50]  While there is acknowledgement that children should have the right to make decisions that have an impact on their lives, there is also recognition that children are in need of protection.  As one author aptly frames the dilemma, "it is no easy matter to find one concept capable of integrating with any coherence children's demand for autonomy with the realities of their dependence and vulnerability."[51]

International conventions such as the United Nations Convention on the Rights of the Child[52] as well as proposed Bill of Rights[53] seem to incorporate both the child liberationist and child protectionist concepts of children's rights.  For example, the right to be free from poverty, the right to adequate health care, the right to a proper education, the right to adequate housing and the right to adequate nutrition do not entail giving children autonomy to make decisions for themselves.  As observed by Michael Wald in "Children's Rights:  A Framework for Analysis,"[54] the contrary is the case.  The assertion of such rights acknowledges that children are incapable of providing for themselves and, consequently, require the protection, care, guidance and support of adults.  Similarly, provisions that stipulate that children have the right to be free from sexual or physical abuse should be viewed as protections for young persons rather than rights to autonomy and self-determination.  Granting such "rights" to children does not alter the legal or social status of young persons.  Rather it reinforces the notion that children lack the capacity to care for themselves and require the protection of adults to ensure their proper growth and development.[55]

It is important to note, however, that these international documents[56] and proposed Children's Bill of Rights also contain provisions that seek to give young persons the autonomy to make decisions for themselves in different spheres.  They include the right to make medical decisions, the right to legal counsel, the freedom to practice a religion of one's choice, freedom of expression and thought, and the right to information and privacy.  The primary principle underlying these rights is that children have the capacity and maturity to make decisions that have a significant impact on their lives.  It rejects the arbitrary age limits imposed by parents, the courts, and the legislatures which obstruct young persons from making these decisions in different contexts.  Another rationale underlying the articulation of these rights is that if children are to be held responsible for their conduct, as is evidenced by such criminal legislation as the Young Offenders Act[57] in Canada "they should be given rights commensurate with their responsibilities."[58]

Proponents of children's rights should seek to accommodate both the empowerment and protection objectives of the child liberationist and child nurturance models.  As Freeman states "… to take children's rights more seriously, requires us to take more seriously both the protection of children and recognition of their autonomy, both actual and potential."[59]  This paper is concerned with the rights of children in the context of divorce, custody and access.  It will seek to propose statutory and non-statutory changes to ensure that children are given the right to have their voices heard in family law proceedings.  At the same time, recommendations will be made to ensure that protective mechanisms exist so that the voices of children, whose parents are in the process of separating and divorcing, can be heard in safe and protected environments.  It is the thesis of this paper that children in family law matters should be empowered in protective settings so that they can have an impact on decisions that will have a significant impact on their lives.

1.3 Article 12 of the United Nations Convention on the Rights of the Child: The Right of Children to Have Their Views Heard

The United Nations Convention on the Rights of the Child,[60] completed in 1989, is considered a "landmark in the history of childhood."[61]  As Professor Toope states in "The Convention on the Rights of the Child:  Implications for Canada," "for generations, a powerful myth shaped attitudes in many cultures; the myth contained a vision of the family as a purely 'private' sphere which was, and should be, shielded from public scrutiny."[62]  The U.N. Convention articulates the rights of children in economic, social, cultural and political spheres.  It is stated in the Preamble to the Convention that "the child should be fully prepared to live an individual life in society."[63]

The U.N. Convention on The Rights of the Child has been ratified by over 200 countries.[64]  States that have ratified the Convention must ensure that the rights enunciated in this international document are reflected in their internal laws and practices.[65]  Canada became a signatory in 1990.

Article 12, which asserts the right of children to participate in decisions that affect them, is considered the "linchpin" of the U.N. document.[66]  This provision says:

  • 12 (1)  State 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.

This document is the first Convention to state that children have a right to express their views in processes that affect their lives.[67]  As stated by one commentator, Article 12 is "significant because it recognizes the child as a full human being with integrity and personality and with the ability to participate fully in society."[68]  It acknowledges that children are individuals with interests distinct from their parents or family members.[69]

In Article 12, the Convention mandates the hearing of a child "who is capable of forming his or her views" and giving "due weight" to the views in accordance with the age and maturity of the child.  It recognizes that a young child may be mature beyond his or her years and that appropriate weight should be accorded by decision-makers to these views.[70]  The child's opinions must be sought so that he or she can become an active participant in the determination of his or her well-being.[71]  As one author states, the Convention perceives the child as an autonomous, though not independent human being, rather than a passive object of care.[72]

The rights specified in Article 12 extend to "all matters affecting the child" with the result that there is no longer a traditional area of exclusive parental or family decision-making.[73]  As stated by Van Bueren, "children have rights which transcend those of the family of which they are part."[74]  Signatories to the Convention no longer have the unfettered discretion to determine when to consider, and when to ignore, the views of children.[75]

Article 12 of the U.N. Convention places a duty on state parties to involve children who wish to participate in matters that may have an impact on their lives.  However, it does not seek to compel states to pressure children to express their views.  As Van Bueren writes, Article 12 is not to be confused with self-determination, a term which implies not only the right to participate in decisions, but to have the decisions followed.[76]  Rather it obliges signatories to ensure that children who wish to, have the right to convey their views.  The Convention also compels countries to adopt decision-making processes that are accessible to children.[77]

It has been argued by some that Article 12 should be read in conjunction with Article 13 of the Convention:

The child shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice. [78]

These provisions consider children as capable as adults of articulating rational views.[79]  It has been asserted that the child's right in Article 12 to participate in matters that affect him is a prerequisite to the achievement of many other rights specified in the U.N. Convention.[80]

The empowerment of children, provided for in Article 12, entails the establishment of mechanisms to ensure the participation of young persons.  Barn and Franklin take the position that to fulfill the objectives of Article 12, countries must:

  • (1) amend appropriate statutes to ensure that Article 12 is reproduced in domestic legislation;

  • (2) provide children with the support necessary to enable them to understand their rights and to allow them to express themselves either directly or through an advocate; and

  • (3) alter the status of the child to ensure that the child's opinion is listened to and considered.

Age and culturally-appropriate tools must be available to children to enable them to communicate their views.[81]  Note that Article 12(2) states that children have the right to be heard directly or through representatives, such as legal counsel.[82]

In For the Sake of the Children, the Special Joint Committee on Child Custody and Access made reference to Article 12 of the U.N. Convention on the Rights of the Children.[83]  The Committee stated that Canada must ensure that children in this country participate in a meaningful way in decisions that will affect their lives.