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“Letter to a Young Person” – Children’s Voices in Family Law

Parents who are facing conflict related to parenting often ask their lawyers the following tough question:

 

“What about what the kids want?”

 

The children’s opinion may just be one factor in any determination of parenting time or custody that is made by a Judge or Arbitrator. It is weighed alongside other factors to determine the courts only consideration when deciding parenting issues: what is the best interest of the child.

 

In 2017, the Honourable Mr. Justice Peter Jackson of the England and Wales Family Court addressed the issue of including the child’s opinion when determining parenting. Some of the details of the case were redacted to protect the identity of the parties but, in general, Justice Jackson was asked to decide a case where the Father wished to take his 14 year old son to an “identified Scandinavian country”. The boy’s Mother and Step-Father, with whom he resided primarily, wanted him to stay in England. The boy said he wanted to go to Scandinavia.

 

Ultimately, Justice Jackson determined that the boy should stay in England. He then took the unusual step of publishing the reasons for his decision in the form of a letter to the boy that outlines, in basic terms that the Judge hopes a 14 year old can understand, why the voices of children are not determinative.

 

At the opening of his letter he explains the considerations for his reasons stating:

 

“When a case like this comes before the court, the judge has to apply the law as found in the Children Act 1989, and particularly in Section 1. You may have looked at this already, but if you Google it, you will see that when making my decision, your welfare is my paramount consideration – more important than anything else. If you look at s.1(3), there is also a list of factors I have to consider, to make sure that everything is taken into account.”

 

Justice Jackson then goes on to discuss a list of 11 matters he had considered that led him to decide as he did. They included the boy’s views, the high level of conflict between the parties, the boy’s age, the evidence of his parents and the affect that such a profound change in residence might have on the boy.

 

Specifically, the Judge alludes to possible influence from the Father:

 

“I have seen the self-centred way that he behaves, even in the courtroom, and how he makes sure everybody knows how little respect he has for anybody who disagrees with him…what I saw was you doing your duty by your dad while trying not to be too unfair to your mum. But you still felt you had to boost your dad wherever you could. That’s how subtle and not-so-subtle pressure works. So I respect your views, but I don’t take them at face value because I think they are significantly formed by your loyalty to your father.”

 

The Judge concludes his letter stating, in part, “I hope that you will come to see why I have made these decisions”.

 

This case is based on English Law, which is different than our law in Canada, and the approach by Justice Jackson is unconventional. However, it is reminder to all lawyers and parties to a conflict that a child’s voice is just one factor among many considered when determining what is in a child’s best interest.

 

I would encourage you to review Justice Jackson’s reasons which can be found here: http://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html

 

If you have questions about what considerations may apply to your case please feel free to contact us.

Moe Hannah LLP

Client safety is important to Moe Hannah and so is client service. The health of our staff and clients is our top priority.  If clients and counsel prefer to work remotely during this difficult time, options exist for us to provide this service. Moe Hannah is able to do “virtual” non face-to-face meeting through internet conferencing.  We can do virtual consultations, mediation, or mediation/arbitration.
 
We can make it easy!
 
We will email a link for the conference to each person. The only requirement is internet access and a device suitable for the conference, ideally a camera and microphone.  Some people just use their cell phones. 
 
If you have any questions, please call or email us to talk about how we can make this work. 
 
We can still meet at Moe Hannah LLP for those people that would prefer to personally attend.  Everyone entering our office will be screened in accordance with the latest Alberta Health Guidelines. 
 
Our lawyers and assistants are set up to work remotely and we will continue mediation, mediation/arbitration and client meetings using Teams Video Conferencing, as well as our regular telephone conferencing.
 
Consider Alternative Dispute Resolution
 
The Courts have announced that they are limiting access to urgent family law mattes. In light of this, parties may want to consider the mediation/arbitration process.  Please get in touch with your lawyer and/or assistant if you have any questions regarding your matter.
 
We look forward to working with you and helping you move forward during this difficult time. 
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