Views of the Child

Views of the Child was originally published on The Lawyers Weekly by Rachel Birnbaum and Nicholas Bala

Interview reports offer less intrusive way of protecting children’s rights

By Rachel Birnbaum and Nicholas Bala, September 25 2015 issue

Recognition is growing of the need to hear from children whose parents are separating, to ensure that the most appropriate plans are made and to protect their rights. There are several ways of engaging children in the family justice process, such as appointment of counsel for the child or having a mental health professional provide an assessment to the court, including information obtained from interviewing the child. Judicial interviewing of children is becoming more common, though there is growing interest in having Views of the Child reports prepared by lawyers or mental health professionals. These reports are based on one or more interviews with a child, but unlike an assessment they do not purport to provide opinions or recommendations, and only report on what the child said.

While providing less information than an assessment and affording children less opportunity to influence an outcome than if they are represented by counsel, the reports are much less expensive and can be prepared within a short time period. There are also situations where it is in a child’s interest to have this less intrusive approach, for example if there are issues of alienation: see R.Q. v M.B.W. [2014] N.J. No. 374.

The reports began in British Columbia more than a decade ago, and although not widely used in Canada they have been adopted in a number of provinces. They are used primarily in court proceedings, but are also used in mediation.

We surveyed 65 professionals who prepare these reports: 16 lawyers and 49 mental health professionals. Most of the lawyers only prepare non-evaluative reports, with no commentary about whether the child’s statements reflect true preferences or are consistent with the interests of the child. The majority of mental health professionals prepare both evaluative and non-evaluative reports about interviews with children.

They are usually prepared by court order or parties’ agreement, and paid for by the parties to the family law dispute, though in some provinces governments pay for or subsidize their preparation. The costs vary from $250 to $1,500. Though reports are prepared for children as young as three, more than half of survey respondents indicated that their experience was limited to children 13 years of age or older, with lawyers less likely than mental health professionals to interview younger kids.

Mental health professionals commonly contact collateral sources like teachers and therapists, as part of their process in preparing Views of the Child reports, while lawyers almost never contact collateral sources. Most respondents meet each child more than once.

The lawyers report that they usually raise the issue of confidentiality with the child, who sometimes or often request that some statements be withheld from the court or their parents. Mental health professionals are less likely to raise the issue of confidentiality with a child. All lawyer respondents indicated that they respect children’s requests that statements be withheld, but a significant portion of mental health professionals stated that they might disclose information in their reports even if the child requested that it not be disclosed.

Most respondents indicated that they have never been asked to testify about their written reports. Respondents generally believe that these reports are influential, as reflected in the comment that “[judges are] very receptive to the reports and consider them to be a real value in making decisions.” Mental health professionals indicated that their reports can also help parents to better understand the perspectives and needs of their children: “the report can assist parents in being child focused.”

Policies need to be developed to establish a more consistent approach to the reports. Both parents should get the same clear instructions prior to the commencement of the process; they should be warned not to pressure or coach their child before the meeting, or to “debrief” the child afterward, and should be instructed on how to prepare their children for the meeting and explain why it is taking place. There is also a need for confidentiality policies as practices vary widely, particularly between lawyers and mental health professionals. We believe it is preferable to offer the child the choice about what will be included in the final report. Protecting the confidentiality of the children’s statements to interviewers is likely to encourage frank dialogue and allow children to participate in the crafting of language on sensitive issues. Further, disclosure of information contrary to a child’s expressed wishes may harm a child’s relationship with a parent.

These reports can be a useful, expeditious and cost-effective way of engaging children in justice processes, allowing their perspectives to be shared with parents and dispute resolution professionals, including lawyers, judges, and mediators. However, there must also be awareness of the intrinsic limitations. Views of the Child reports may not reveal the true views of children who are subject to parental pressure or manipulation, or whose views may be changing, and in some cases may actually mislead.

Views of the Child reports have a place in the continuum of services provided to children and families and can be an effective means of ensuring their voices are heard in family law disputes. However, there is very limited research about their use and impact, and further discussions need to take place with judges, professionals, government and youth, so that children’s participation can be truly meaningful to them, to their parents and to the courts.

Rachel Birnbaum is a professor at King’s University College, Western University. Nicholas Bala is a professor of law at Queen’s University. The authors thank John-Paul Boyd, director, Canadian Research Institute for Law and the Family, for his collaboration on this project.