Views, Perspectives and Experiences of Children in Family Cases

Abstract

There has been a dramatic increase over the past few decades in understandings of child development and a growing recognition of the importance of the rights of children, which has resulted in fundamental changes in the treatment of children in Canada’s justice system. Major legislative reforms have made the criminal justice system more sensitive to the capacities and needs of child witnesses. Unlike in the criminal area, there has not been substantial legislative reform regarding the evidence from children in family cases, though consistent with Article 12 of the Convention on the Rights of the Child there is increased recognition of the importance of this type of evidence. There is significant variation across Canada in how children’s evidence is received in these proceedings. The methods for receiving the evidence of children in family proceedings, including through hearsay from parents, reports from mental health professionals, judicial interviews with children, testimony in court, views of the child reports, and lawyers for children. There are different approaches depending on whether the matters at issue are factual (did abuse occur) or concern the wishes of children, as well as between family and child protection cases. A central argument of this paper is that there is not a single “best way” to receive this evidence, but that counsel and judges should take into account a range of factors and always ensure that, in some way, the evidence of children is considered by the court and given appropriate weight.