Voice and Support: Programs for Children Experiencing Parental Separation and Divorce

EXECUTIVE SUMMARY

The attention of Canadian policy makers is increasingly drawn to the needs and wishes of children during the separation and divorce of their parents. The Special Joint Committee on Child Custody and Access has recommended that children have the opportunity to "be heard when parenting decisions affecting them are being made." In addition, the continuing high numbers of Canadian children experiencing parental separation and divorce have increased interest in programs to help them adjust to the separation process and the resulting changes in their lives, and to help them voice their needs and wishes in these situations.

This report discusses "adjustment" and "voice" programs separately, and shows how they are linked. It examines three main questions:

Children's Adjustment to Separation and Divorce

The period during family breakdown has been shown to be the most acutely stressful for parents and children. Summaries of recent research conclude, however, that the duration of children's acute stress is short. After their initial distress and difficulties, most children who experience parental separation and divorce will develop into adults without identifiable psychological or social scars or other adverse consequences. The research typically compares children's adjustment with respect to such measures as anti-social behaviour, school achievement, and anxiety, depression and self-esteem. Long-term adjustment is measured largely by social and economic outcomes, including educational achievement, work force attachment and divorce rates. Since most studies are cross-sectional, short-term effects tend to be conflated with long-term effects. Few longitudinal studies exist, and these typically have small samples. Maladjustment is often measured in clinical terms. Longitudinal qualitative research on a small sample identified lingering lesser effects on children into adulthood.

Despite the positive prognosis for most children, researchers agree that separation and divorce increase the risk of poor long-term adjustment for children. Parental and circumstantial factors such as high parental conflict, family abuse and violence, economic hardship and the parents' failure to adjust or to support the child, put children most at risk of poor adjustment. And the children's responses or characteristics do not significantly affect their prospects.

However, one prominent researcher has identified six "tasks" of adjustment following separation that all children must accomplish in order to adapt successfully. Research shows that parents, struggling to adjust themselves, often cannot help, and may hinder, their children from achieving these tasks during the period of separation. Many of the programs developed over the last decade or so to help children adjust are designed to help them through these six tasks.

Programs to Help Children Adjust to Separation and Divorce

Court-connected and community-based programs for children are often linked with information, support or mediation programs for parents. These programs tend to be short-term (four to ten sessions) and age-based. There are five main types.

There is strong support for these programs among service providers, parents and many experts, despite the modest evidence of their direct effects on children. Some experts argue that it may be more effective to focus on the children's responses to separation and divorce, given the difficulty of influencing parents' attitudes and behaviours. Moreover, even small changes in the child's responses may facilitate and encourage the parents' adjustment.

There are several of these programs across Canada, mostly in major cities and the larger provinces. Providers report a need for more of all five types of programs. They generally endorse involving parents in some way in the children's programs, although not necessarily through complementary or linked parent programs.

Including Children's Voices in Custody and Access Proceedings

Commentators propose rights-based and interests-based reasons for including children's voices in custody and access proceedings. The rights-based reason, articulated by the 1989 United Nations Convention on the Rights of the Child, is that children are entitled to have a say in decisions that affect their lives. Interests-based reasons assert that allowing children to have a voice serves their best interests, both by its benefits to the children themselves and by its effect on custody and access decisions.

Although several jurisdictions explicitly require judges to weigh children's own wishes in custody and access judgements, most custody and access decisions are made outside the courtroom by parents, who presumably understand their children's best interests and will act according to them. However, many commentators and researchers doubt that parents or the courts always know the children's best interests. Parents may be out of touch because of their own adjustment struggles, and judges tend to assume that parents' and children's interests coincide and may have difficulty identifying the children's best interests separately.

The scant existing research on children's desire to be included suggests that they want to be kept informed about the process, and want their needs and interests heard. Adolescents, in particular, are much more likely to want to be present when major decisions affecting them are made, and to want to express explicit preferences about these decisions. Some research suggests that including children's voices enhances their sense of control over their fate, and thus their resilience.

Canadian federal and provincial legislation permits children to participate in custody and access proceedings, but does not specifically provide for it except in Quebec, where children must be given an opportunity to be heard if their age and power of discernment allow it. This report examines whether, and how, children's voices could be included at several points in custody and access proceedings.

Mediation and Counselling

Commentators and researchers are divided over whether, and how, children should be included in their parents' mediation and counselling concerning custody and access disputes. Proponents argue that including children gives them a sense of control over their fate, a place to express and deal with feelings they may not be expressing to their parents, and lets them know what is happening. In addition, they often argue that children have a right to be heard. Opponents say that including children makes them feel responsible for making the decisions, and exposes them to parental anger, retribution, manipulation and greater inter-parental conflict.

More commentators endorse children's inclusion when it is indirect, for example, when children meet separately with the mediator, or meet with their parents in a group of children and parents, or when counsellors meet with parents at the conclusion of a program to help children's adjustment. A few commentators argue that the benefits of putting children directly into mediation at its most difficult moments (e.g. when breaking an impasse) outweigh the psychological costs to them. Many commentators caution that in whatever way younger children are involved, their wishes should always be balanced against other considerations, because their wishes may not be authentic.

Interviews with provincial court officials indicate that court-based practitioners rarely include children in mediation, especially younger children, and that many believe doing so harms them. The literature suggests most mediators are reluctant to include children and some think it puts them in a conflict of interest. Some preliminary evidence suggests that including children indirectly in mediation may not generally harm them and may serve their interests.

Custody Assessments

Children's needs and interests are inserted into custody and access proceedings most consistently through family or custody assessments. Courts (and sometimes parents) typically use the assessments, prepared outside the courtroom, to make decisions without the necessity of having the child present.

There is no agreement about whether custody assessments are an effective vehicle for hearing children's voices. Proponents say assessments allow the children's voice to be heard without exposing them to harm from parents or from courtroom participation. Opponents argue that assessments, usually conducted by a social worker, and less often by a psychologist or psychiatrist, leave too much room for experts' biases, experiences, training and values in shaping the conclusions. Opponents also caution against placing too much weight on younger children's wishes because they may not be authentic. Finally, they argue that repeated expert interviewing may traumatize children in those protracted disputes in which assessments tend to be commissioned.

Interviews with provincial court officials indicate that a small proportion of Canadian families with disputes before the courts receive assessments. Assessments usually take the traditional form, i.e. children are interviewed with one or both parents if age permits, or observed with parents in the home if they are very young. However, use of focussed assessments appears to be growing. Focussed assessments limit assessment to one or two specific issues, rather than broader issues of, for example, residence and access. They were pioneered in Ontario with high-conflict families, and usually include interviews with the child alone, parent/child interviews, and interviews with parents and child. They appear to be useful in revising specific aspects of custody and access agreements made when the children were younger and have outgrown. They give older children, especially, a more direct way to express their wishes. British Columbia also uses short reports to solicit older children's wishes in disputes in which a full assessment is not justified.

Integrated Assessment and Legal Representation

Some jurisdictions have developed programs that integrate family assessment with separate legal representation for children in high-conflict families entrenched in litigation. Examples include social work and teams of lawyers in Ontario's Office of the Children's Lawyer and the model of separate children's representatives endorsed by the Family Court of Australia. Integration of the two functions may allow children's voices in assessments to influence legal negotiations prior to final hearing, with the result that more agreements are reached without a final hearing, and the agreements that are reached better reflect and serve the children's best interests.

Children's Coordinators

Some jurisdictions are showing increased interest in developing specific mechanisms to ensure that children's voices are heard safely (indirectly) and consistently in custody and access hearings. One possibility is the appointment of "child's interest coordinators" to oversee and manage complex cases. The effectiveness of such specific mechanisms has not been tested.