Last week, I walked into the courthouse and I saw a kid in handcuffs with two sheriffs standing near him. I was surprised for two reasons.
One, it is not common to see anyone walking through a courthouse hallway in handcuffs. Courthouses are designed with hallways/entrances/cells/offices that the public never sees, so as to allow incarcerated people to be transferred in privacy and some dignity to cells and the courtroom.
Two, children and youth are not often found in the courthouse unaccompanied by parents. Usually it’s the parents involved in some sort of court case dragging their children to court because they don’t have a babysitter or other child-care for the day.
Youth court day is the exception; youth court day is the day of the month when young offenders turn up to manage their criminal case. The courthouse fills up with children and young adults, (hopefully) with adults in tow.
There is something unnerving about it to me as a lawyer. It is unnerving because other than in the youth criminal justice system, the court does not engage with minors as legal actors on a regular basis. Children are protected from having the responsibilities that come from being an adult; for example, children are not, on their own, able to sign contracts or start lawsuits.
Nonetheless, children or minors (under the age of 19) have interests that need protecting and rights that are violated. Family law is the area of law where children most enter the picture, yet are not directly involved. In family law, everything is always “about the children”. No case involving children ever gets two steps out of the gate without someone throwing down the challenge: “But have you considered the best interests of the children?!” This is the case if its two parents warring over time with children or a child protection case.
Somehow, however, everyone has a different opinion on what the best interests of a particular child are and how they will be fulfilled. Even when you only consider the factors set out by the law, determining the best interests of the child is not a precise science.
And what about the children? Do they get a say? A recent case in B.C. Supreme Court, Rashtian v. Baraghoush, makes it clear that it is inappropriate to involve children in family law disputes by trying to enter affidavits of children as evidence of whom the child would prefer to live with.
There are other ways to have the views of the child heard, such as through expert reports or through an interview with the judge. Not all judges are willing to conduct interviews of children in their private chambers. These judges may require that if the child’s views are to be part of the evidence, then a report must be prepared by a person qualified to interview children. The problem with these reports is that they are expensive and take some time to prepare. It’s also important to remember the child’s views are not the be-all-and-end-all to the matter of what is in the best interests of the child. They are only one factor to be considered among many.
Tackling the issue of “best interests of the child” in child protection cases is even more difficult—especially if you are a parent. In child protection, it’s often not a matter of which parent should the child reside with and have time with, but whether the child is better off with the family or the state. The stakes are raised and parents enter the ring with an institutional bully that is unrelenting and has the upper hand in terms of credibility in the eyes of the law.
Families involved in child protection cases tend to be lower income families, families where one member of the family has an addiction issue, or families where there is a history of family violence. Mothers that are fighting a removal, which occurred because she was being abused by a partner, will face an uphill battle. They will often be confronted with negative attitudes and stereotypes about their ability to parent because of the difficult situation they found themselves in.
Rather than being in an empowered position to demonstrate to the court that they are good parents and have the ability to protect their children, they are often beaten down long before they get to court. This can hardly be in the best interests of the children, but there is little impetus on the part of the courts or the state to change it. Being lower income parents means that there is not much ability on their part to fight back.
Sadly, it’s the children who are in the care of the Ministry of Children and Family Development that are frequently the ones attending court on youth court day, demonstrating that there is something severely wrong with our system.