Ronald J. Smith, QC
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Voice of the Child or Views of the Child

January 19th. 2016 Share on FacebookTweetEmail story
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VIEWS OF THE CHILD OR VOICE OF THE CHILD; IS THERE A DIFFERENCE?

 From the wording of the Court Orders coming across my desk recently, it seems there is still some confusion over what kind of report the wording of Section 211 of the Family Law Act mandates.    S. 211 states:

            “(1)  A court may appoint a person to assess…one or more of the following;

  (a) the views of a child in relation to a family law dispute;”

 The problem with the wording of this section is the word, “assess”.   An assessment invites the interviewer to offer his or her opinion on the views of the child…”in relation to a family law dispute”.  An assessment requires some degree of expertise outside the expertise of the court to advise the court on the how the views of a child relates to decisions affecting a parenting plan for that child.

 The BC Hear the Child Society maintains a roster of interviewers who are qualified by the Society to interview children.  The roster members, many of whom are lawyers, have received extensive training on the stages of child development and proper interview techniques when interviewing children.  So their “expertise”, if it can be called that, is about the process of the interview.  They are not qualified to give an opinion on what would be an appropriate parenting plan, given what a child tells them.  They are not even qualified to tease out of the interview whether a child has been coached, or whether there are signs of parental alienation.

 There are psychologists and clinical counsellors on the BC Hear the Child Society roster who are qualified to offer opinion evidence to the court, and such evidence fits the s.211 requirements, but in this piece I will deal with the non-expert report.

 The reports that are prepared by the interviewers who are not psychologists or clinical counsellors are non -therapeutic and non- evaluative.  We ask a fairly set range of questions that are designed to get at the home, school, and peer life of a child at the date of the interview.  We attempt to accurately record our questions and answers, and we always review our report with a child before submitting it to the court or to parents. We never ask a child to choose between parents.  We often do, however, end our meeting with questions like:  “If you could wave a magic wand over your life, and change anything, what would you change?”  Or, we might ask, “What would you like to say to the court or to your parents at this time?”

As can be imagined, the answers to those questions can contain helpful insight to the trier of fact or to parents.

 The value of the non-evaluative report is two-fold:  First, the child, often for the first time since the marriage breakup, is genuinely and carefully asked to share how the breakup is affecting him or her.  This is a valuable healing opportunity for the child, and we are often told by children how much they appreciate the opportunity to share their feelings.  Second, the interview provides parents with an insight, as a result of an impartial interview, of what their child is thinking.  Parents will often tell their lawyers or the courts that their child is telling them how they want their parenting plan to look.  Parents are not, however, always the most accurate reporters of the wishes of their child, because children will often tell their parents what they think their parents want to hear.

 “Voice of the child” reports, as distinguished from s. 211 “Views of the Child” reports, are less expensive, usually in the range of $500 to $750 per child, and are quick to arrange and prepare.  The statutory authority for the reports is found in s. 202 of the Family Law Act, which states:

“In a proceeding under this Act, a court, having regard to the best interest of a child, may do one or both of the following;

(a) admit hearsay evidence it considers reliable of a child who is absent;

(b) give any other direction that it considers appropriate concerning the receipt of a child’s evidence.”

A “Voice of the Child” report is really hearsay evidence, so It is under this section that reports are admitted into evidence.

 The important take away from this piece is this:  Parents, counsel, and the courts should be clear what they want to receive when considering an interview of a child.  If the court or the parties require an assessment, then the report will be pursuant to s. 211.  If the court or the parties simply require an interview in order to hear the voice of the child, then such a report can be prepared by a member of the BC Hear the Child Society. When making or asking for an order to interview a child, if the wording of the order requires “a views of the child report pursuant to s. 211”, then what is required is an assessment.  If all that is required is an interview, then the order should not made pursuant to s. 211.  The roster interviewers have coined the phrase, “Voice of the Child” to distinguish the two kinds of reports.

 For further information on interviewing children, or a list of qualified interviewers in the province, visit the BC Hear the Child Society website.

 

 
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