When working with young people it is first of all important to let them know that we are for them, we respect them, we love them.
A web-based version (HTML) of this publication is available here
A youth-friendly summary of the report is available here in PDF(301KB)
The full document (Through the Eyes of Young People: Meaningful Child Participation in BC Family Court Processes) can be downloaded here in PDF(1 MB).
The following excerpt is taken from the Executive Summary of, "Through the Eyes of Young People: Meaningful Child Participation in BC Family Court Processes"
Executive Summary
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Family breakdown can victimize children in many ways. It can effectively deprive them of a parent. It can have them living in poverty. It can result in abuse. And it does all this without allowing them an adequate voice. 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 Beverly McLachlin, Supreme Court of Canada) |
This Report highlights work undertaken by the International Institute for Child Rights and Development (IICRD) in Phase I of its project on Meaningful Child Participation in BC Family Court Processes (“Project”), funded by the Law Foundation of British Columbia. With the starting point of the UN Convention on the Rights of the Child (“CRC”) and British Columbia (“BC”) legislation that requires consideration of the views of young people in decisions affecting them, the Project work was aimed at reviewing what happens between the intent of these laws and their actual implementation. The Project involved interviews with young people, lawyers, judges and service providers who have experience in BC family court processes, a review of research and good practices, and identifying existing strengths supportive of young people’s meaningful participation as well as the gaps. Suggestions to bridge theses gaps form part of this Report, presented through an introduction and three chapters.
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“I kept wishing I was 12 so someone would listen to me.” (BC young person)
“Many more cases would benefit from reports but the costs are prohibitive to many parties and the Family Justice resources are often so slow as to be unhelpful.” (BC lawyer)
“I want to hear the views of all children if at all possible. And so it’s really a choice of mechanism.” (BC Provincial Court Judge)
“Leave children out of the fight. Child advocates were excellent when they were available.” (BC Supreme Court Judge) |
Introduction
The Introduction outlines the current context of young people’s participation, including what is meant by meaningful young people’s participation, the decision-making processes that could include young people’s participation in BC family court processes, and evidence of the benefits of young people’s participation in decisions affecting them. Young people want to have an opportunity to have things explained to them and share their “voice” in the legal processes that fundamentally affect their lives. They want to meaningfully participate, but they recognize that they are not the ultimate decision makers. Meaningful participation of young people can be a protective factor for young people during a time when family breakdown puts them at risk. The involvement of young people helps to ensure that better decisions are made, and can promote a settlement of family disputes, saving resources in the legal system. Further, engaging young people in the process can help to ensure that the social and legal systems affecting them are held accountable.
Chapter I: The Current State of Young People’s Participation in BC
Chapter I outlines what is happening in BC family court processes. While the adverse impact of recent government cuts to family court processes are noted, so too are the opportunities for improving BC family court systems. The experiences of young people, lawyers, judges, and service providers are highlighted as well as the relevant law, and significance that culture can play in how young people participate in family court processes.
According to the young people who have been involved in BC family court processes, they do not always get information about what is going on in a way they understand, and adults do not always listen to them especially if they are younger than 12 years old. At the same time, most young people want decision-makers to listen to and consider their views. A trend that emerged from the young people’s experiences is the difference that one caring adult, who listens to them, can make to their experience in the system. This corresponds with the reality that parents are often dealing with their own emotional needs and sometimes not able to adequately support their children when their family breaks down.
Most lawyers have had direct experience with young people’s involvement in family court proceedings and at various stages (e.g. case conferences through to trial), and see themselves as playing an important role in young people’s participation. They however, have reservations about young people’s participation such as: (1) judges should not speak to young people directly because they are not adequately trained; (2) s. 15 FRA reports are too costly, slow and dependent upon the quality of the interviewer; and (3) involving young people in processes could be harmful to the young people, particularly in situations of abuse or improper influence by a parent or caregiver.
Judges have a very important role to play in BC family courts, and have the responsibility for making decisions based on young people’s best interests, which includes taking account of their views.[1] They consider a variety of factors in determining whether to hear from young people including age, maturity, potential for emotional harm to the young person, and the ability of the young person to express his or her own views. Nonetheless, many judges are reticent about speaking to young people directly and identify procedural rules, lack of training, lack of resources and lack of time as some of the barriers to young people’s participation. They also identify the former family advocate, existing duty counsel and family justice counsellors as good resources that could be reinstated or expanded to assist them in supporting young people’s participation.
Several service providers express their frustrations in the patchwork approach to young people’s participation in BC family court processes, while encouraging more advocacy support, education and practice standards to improve the situation.
The legal underpinnings to young people’s participation such as Article 12 of the CRC and BC legislative provisions in the Family Relations Act and Child, Family, Community Services Act are outlined. In addition, the findings of Madam Justice Martinson in the BC Supreme Court case of L.E.G. v. A.G. that judges may speak to young people directly, even without parental consent, are also noted.
Chapter I on the current state in BC Family Court processes concludes with a section on the influence and importance of cultural considerations in young people’s participation.
Chapter II: Good Practices in BC, Canada, and Internationally
Chapter II identifies a few good practices in supporting young people and their participation in family court processes. These include the “Hear the Child” interview practice that was developed in Kelowna during the Project, and is now being piloted there. The advanced state of legal representation for young people in Quebec and Ontario are highlighted as national good practices. Other practices profiled include child focused processes from Australia, a dedicated family court in the United Kingdom, a common framework guiding the work of all service providers working with a young person in child protection matters in South Africa, judges speaking to children as young as four in Germany, and practice standards and an integrated model in the United States.
Chapter III: Building on Strengths: Suggestions for the Way Forward in BC.
Chapter III puts forth some suggestions for improving BC family court processes and in particular, support for young people’s meaningful participation in decisions affecting them. The suggestions are based on the experiences shared by BC family court users and stakeholders, good practices, and research. The suggestions put forth are summarized as follows:
1. Changes in Attitudes and Approaches to Equip Adults in the Family Justice System to Support Young People and Their Participation
a. Approaching Young People with Trust, Respect and Understanding
b. A Common Framework for Professionals
c. Education & Training for Decision-Makers and Those Supporting Young People
d. Practice Standards, Screening and Accreditation
e. Monitoring and Evaluation
2. Improved Supports to Young People Directly a. Information for Young people in a Way They Understand
b. One Caring Adult to Support Each Young Person and Their Participation
3. Systemic Improvements to Support Young People and Their Participation a. Legislative and Procedural Rule Changes: A Presumption of Young People’s Participation in Decisions Affecting Them
b. A Dedicated, Integrated, Less Adversarial Family Justice Process
c. An Array of Options to Support the Meaningful Participation of Young People
d. An Advocacy Role for the BC Representative for Children and Youth
This Report will serve as a foundation for continued work in Phase II of the Project on the “Hear the Child” interview practice being piloted in Kelowna and future development of education modules for stakeholders such as lawyers and social workers in BC family court processes. It is hoped that this Report will also assist decision-makers in taking proactive steps to improve supports to young people whose families are breaking down, and encourage young people’s meaningful participation in BC family court decisions that affect them.
See Family Relations Act s. 24(1)(b) and Child, Family and Community Support Act s.4(1)f)