Speaking for Themselves: A Pilot Program Balancing Children's Rights and Best Interests in High-Conflict Families

• Author: Dale Hensley and Jean Dunbar
• Pages: 225-244



 

Speaking for emselves: A Pilot Program

Balancing Children’s Rights and Best Interests

in High-Conict Families

 ,    

Children exposed to their parents’ custody a nd access/parenting disputes,

particu larly in a context of domestic violence, experience sig nicant trauma,

including high stress, depression, social i solation, acting out, school failu re,

suicidal tendencies, aggressive behaviour, s elf-harm, and sometime s death

at the hand of a parent. Decisions about these child ren’s residency, custody

and access/parenting, or visitation are frequently made in the context of

the fam ily law system and therefore involve law yers, the cour ts, and judges.

Oen, such deci sions are made with ins ucient information about, a nd few

resources support ing the children. e y are made in the context of a contest

between parents and with ins ucient focus on the circumstances of the chil-

dren. Judges are faced with “ he said/she said” situations . Oen, the resulting

 is cha pter uses the te rms custody and access/parenting, or simply cu stody and access .

e term pare nting is the l anguage of A lberta’s Famil y Law Act, SA  , c. F-.. Cus-

tody and ac cess is used i n Canada’s divorce l egislatio n and caselaw.

 We have directl y observed th ese consequenc es in Alber ta. Addit ional evide nce is found

in the fol lowing: Vic toria Brea m & Ann Bucha nan, “Dist ress among Ch ildren W hose

Separate d or Divorced Pare nts Cannot Ag ree Arra ngements for em” ( )  Brit J

Social Work  ; Clare Dal ton, Susan Ca rbon, & Nancy Ole sen, “High Con ict Divorc e,

Violence, a nd Abuse: Impl ications for Cu stody and Vis itation Deci sions” (Fall  )

Juvenil e and Fam Ct J ; P.G. Jae, C .V. Crooks, & S .E. Poisson, “C ommon Misconc ep-

tions in A ddressing D omestic Violen ce in Child Cu stody Dispute s” (Fall ) Juven ile

and Fam Ct J ; J. B. Kelly & R. E. Emery, “Ch ildren’s Adjust ment Followi ng Divorce:

Risk a nd Resili ence Perspect ives” ()  Fam Rel ations .

  ,      

decisions are not benecial to children . One young person told our evalu-

ators, “I felt like my parents weren’t listen ing to me. ey were too caught up

in their ba le.”

Professionals working wit h these case s experience challenges and frus-

trations. Counsellors are at a loss to provide adequ ate support , gu idance,

informat ion, and ad vocacy to solve the children’s problems a nd to end the

harm a nd pain caused by the conict. L awyers working with these ch ildren

do not have su cient resources, reliable information, or appropriate skil ls

to provide them with a dequate legal and social suppor t. Typically, chi ldren’s

best interests are lost in t he rhetoric of parents’ statements and positions and

consequently rec eive insucient a ention within the legal system . Limited

knowledge about the depth of harm cau sed to children by their parents’ con-

icts, the pa rticular nat ure of the conicts and ch ildren’s real circumstances

all compou nd the barriers to addressing ch ildren’s needs and best interests.

In addition i n Alberta, where t his program was conduc ted, the child protec-

tion syst em tends to ignore t he needs of these children as such disputes a re

commonly c haracterized as custody and access con icts and t herefore per-

ceived by these ocia ls not to be their responsibilit y.

Solutions to t hese conict s are neither obv ious nor straight forward, a nd

tension arise s in many jurisd ictions as to the best approach . Should services

for ch ildren ta ke a best interests approach, reecting an adult’s opinion of

conditions that w ill promote a chi ld’s development, we ll-being, and safet y

but not nec essarily incorporating con sultation wit h the ch ild or the child’s

perspective? Or shou ld an advocacy approach prevail , whereby a child’s per-

spectives, opinions, interests, a nd right to be heard are respected a nd pro-

moted, but that may not reect t he child ’s best interests and , some a rgue,

could harm t he child? Can both objectives be se rved?

is ch apter describes the Speaking for emse lves Program, which inte-

grated bests interests and rig hts-based approaches by combining therapeutic

counsell ing and leg al representation for ch ildren caught in their parents’

high-con ict dispute s. Duri ng development and implementation, t he part-

ners who provided services th rough the program learned more about the im-

pact of such conict s on chi ldren, identied processes and procedu res that

worked well or poorly, and discovered eective means for the two profes -

sions to work together.