Voice of the Child

Voice of the Child pertains to the view of the child or children as expressed to a professional involved in deciding the child’s custody.

There is a misconception that the child can decide with whom they wish to live. Children do not make this decision. Instead, a decision based on the child’s best interests is made by the parents or the courts.

Sometimes young children are reluctant to live with one parent rather than the other and need to be persuaded and, in the most painful cases, forced. When this happens with older children, persuasion can be very difficult and forcing the decision on them can be even harder.

Canada, along with 193 other countries, is a signatory to the United Nation’s Convention on the Rights Of The Child, which came into effect on September 2, 1990. The Convention provides:

  1. States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

There are various ways that a child’s voice can be heard: through an assessment, by the child having his or her own lawyer, or by the child speaking to the Judge or arbitrator.

The law and social science in this area continue to develop with no clear consensus on the best way to hear the child’s views. What is clear is that while the child’s views are to be heard and are one of many factors to be considered, the child does not make the final decision.