The law fails to recognize the upsetting of the balance of rights in allowing an individual to terminate his or her marriage, thereby causing an adverse change to the circumstances of another, perhaps weaker individual. A child’s rights are the worst affected.
Children need to participate in actions concerning their future. They must have standing as an absolute right; it cannot be conditional on being verbally articulate or on age. The form of participation should be full automatic legal representation and party status. The form of participation whereby a child’s views, in an age-appropriate and sensitive way, are solicited and made known to decision makers might be acceptable only if indeed the child’s views, and not the professional opinion of a psychologist, are made known to the court.
Legal representation is a child’s right under the United Nations Convention on the Rights of the Child. Lawyers have a responsibility to determine whether any client, adult or child, is competent to instruct counsel, but when it comes to taking instructions from a child, most lawyers do not bother to assess a client’s capability since they do not want to take cases where they receive instructions from a child.
If children are not given the opportunity to participate, if they feel that important decisions about their future are made without consulting them or considering their wishes, then children will not easily accept the decisions made about them. This could have dire consequences for a child’s ability to adapt to custodial arrangements, with long-term mental health or other negative implications for that child.
For a child to be subjected to a court decision as to where he or she should live, made without any attempt to consult with him or her, sends an inadvertent but potent patronizing message of judicial disrespect; a message about “justice” that the child may later dangerously seek to return in self-destructive behaviour.
It is not about forcibly putting a child in the position of having to choose between his or her parents; it is about the child being treated with respect, especially one who is determined to live with a parent of his or her own choice based on the child’s existing relationship with each parent as it has developed during the course of the child’s lifetime.
The language of the law connotes the ownership of children. This perpetuates the notion that children are chattel, is antithetical to what is implied in the UN Convention, and is disrespectful to children.
Two child witnesses had this to say to the Senate of Canada during hearings which culminated in the 1998 publication For The Sake Of The Children:
“They think you are nine years old and you don’t know anything. But it’s your life.”
“They’re deciding your life and your future but they don’t even know you.”