Children’s voices are hardly heard in court. Parenting cases determine arrangements for the child whose views are an additional consideration for the court.
Children may be the subject of family law cases but they rarely ever participate in court proceedings. However, children’s views are one of the considerations taken into account by the court in parenting cases. The problem is that the court does not deal with children directly unless there are certain circumstances present during which the court may make exceptions. It is recognized that judges or magistrates are not experts in talking to children and having relevant discussions with them.
There are primary considerations and then there are additional considerations. The views of the child are among the additional considerations. The child’s views will be secondary to the benefits of the child having a meaningful positive relationship with his parents and the need to protect the child from harm. The child’s personal opinion and beliefs might be disregarded to give priority to the primary considerations.
So how does the court hear the children’s views?
Children have always been protected from the adverse effects of court litigation. Their involvement is kept to a minimum if it is not possible to completely leave them out of the proceedings. Thus, courts have followed the procedure of appointing family law experts who will be speaking directly to the children in family law cases.
Children’s views will be heard by the court through reports from expert witnesses and counsellors. Oftentimes, to protect the interests of children the court will appoint an independent children’s lawyer.
The court may sometimes speak to the child when the latter exhibits maturity and a certain level of understanding of which the court is satisfied. In this case, the child can be trusted to speak the truth since he is already able to discern and understand the court proceedings. The child will be asked questions pertaining to arrangements for his care.
Children are protected from court proceedings because it is believed that they will be unduly traumatized. The general public stance seems to be that children should not be made to choose sides. They should not be called upon to testify for or against their parents. To many, this is an emotional burden that would be too much to bear by a child.
On the other hand, children’s direct participation in the proceedings is believed to be also beneficial. Mature children can help the court decide the best arrangements for them. Children who are already of age and are mature enough can be depended upon to speak about crucial matters that concern them.
The benefits of children’s involvement have to be weighed and balanced with the disadvantages. Ultimately, the child’s best interest must prevail.