Should Judges Interview Children?

In some jurisdictions, judges deciding child custody cases make it a point to interview the children involved. The thinking behind the practice is that children should have a forum to make their views and preferences known, especially in matters that are going to affect them profoundly. A recent article in Lawyer’s Weekly discusses a speech made by Alf Mamo, a London, Ontario family lawyer, in which he urged judges to interview children aged twelve and older in the course of deciding custody and access.

I am not convinced that judges should interview children as a matter of routine. I was very struck by the experience of Judge Harvey Brownstone, recounted in his book Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. When he first came to the bench, Judge Brownstone interviewed children regularly to find out their views on which parent they would like to live with, and so on He stopped because in every case, the child told him something like, “I want my parents to get back together and I want things to go back to the way they were.” (By the way, I’d highly recommend Tug of War to anyone with children going through a divorce, or to anyone interesting in learning more about family law in Canada.)

The case against judges interviewing young children seems pretty clear. As anyone who has had dealings with young children can confirm, talking to them and finding out what they want is not always straightforward. It can take a lot of skill and patience to find out a child’s true wishes, and this is even when the child herself knows what she wants! Talking to children about sensitive matters is tricky, and few judges have been trained to do it. In addition, children are likely to find meeting the formally dressed judge in his or her chambers to be stressful and even scary. The child probably understands that this individual has a great deal of power over her family’s future, and may feel significant pressure to say the “right” thing. And no matter what the outcome, the child may feel guilty when one of her parents is disappointed.

The case against judges interviewing older children is less straight-forward, but I think that similar considerations apply. A recent study by the Australian Institute of Family Studies is interesting here. Researchers interviewed children aged 12 to 18 whose parents had separated after the 2006 reforms in family law. They found that while about two thirds of the teenagers wanted a say in who they lived with, fully one third did not. They simply did not want to be put in the position of choosing between their parents.

There should be a way for those children who desire it, young and old, to have a voice in decisions that will affect them. But there are more effective ways than having a judge interview them. A specially trained social worker or psychologist might be involved. Some mediators will interview children as part of working out a parenting plan. Let’s not forget the practical considerations. Judges’ time is extremely expensive, and everyone agrees that the family court system is over-loaded as it is. The same article discussing Mamo’s speech quotes Justice Jennifer Mackinnon who says that judges often have less than eight minutes “per side” of a case to read and prepare for a motion, and 15 minutes “per side” to prepare for a settlement conference. With such constraints on their time, does it really make sense to give judges yet another task?