This is Part 1 of a two-part piece focusing on how family lawyers and mediators can participate in and support the Youth Voices Initiative. It was originally published in September 2020 on Slaw.ca, Canada’s Online Legal Magazine and republished with permission.
It has been 10 years since Brené Brown published her book The Gifts of Imperfection. In Brené’s words:
This book was an invitation to join a wholehearted revolution. “A small, quiet, grassroots movement that starts with each of us saying, ‘My story matters because I matter.’ Revolution might sound a little dramatic, but in this world, choosing authenticity and worthiness is an absolute act of resistance.”
What does this have to do with the Youth Voices Initiative (of the BC Family Justice Innovation Lab)? The long-term goal of the Initiative is to improve the well-being and resilience of children and youth who are experiencing parental separation. We think of it as a “movement”, a powerful act of young people and their supporters to choose authenticity and worthiness as an act of resistance and change.
Voice is connected to worthiness. Each child’s experience and story matters. Why? Because each child matters and their views, hopes and dreams matter. This is particularly true when their families are changing and their lives are uprooted due to parental separation. The situation is even more critical when the kids witness, or are in the middle of, their parents’ anxiety and conflict. The Adverse Childhood Experiences (ACEs) research confirms that this uprooting and conflict is experienced by the child as trauma which can have long-term effects. These effects are being magnified by the COVID-19 pandemic.
The United Nations Convention on the Rights of the Child (“UNCRC”, article 3), the BC Family Law Act (s. 37), the Divorce Act (s. 16(8)) and the new federal Divorce Act (Bill C-78, s 16) confirm that actions or decisions affecting a child’s life must be taken in the “best interests of the child”. The BC Family Law Act incorporates, into the best interests test, “the child’s views, unless it would be inappropriate to consider them”. The UNCRC goes further to confirm that children have a right to participate. Participation includes a right to express their own views in all matters affecting them and that those views must be given due weight (UNCRC article 12). These requirements apply broadly and not just to formal (court) decision-making). See also UNCRC general comments 12 and 14.
Participation enhances children’s resilience to manage the stresses of life. Recognizing the voice of children and youth is a way to strengthen their capacity to manage the inevitable stress that comes with parental separation.
But from the stories we have heard, and from our own personal experiences, it seems that these aspirational goals are not always heeded in the context of parental separation. For many children, there is a big justice gap between aspiration and reality.
To get a taste of what this gap looks and feels like from a child’s perspective, take a moment to view the short videos being released through the @youth_voices_bc Instagram account.
“I spoke out in that case conference with a judge. And I told her I did want to be interviewed. I told her I did want to have my voice heard. I told her, I want to tell a bit of my story. And she said that wasn’t going to happen, and like, we don’t need it…” “..when I did have a voice it meant nothing.” (J, age 20)
Taking the child’s views into account is different from letting the child be the decision-maker. Because of the subtlety of this difference, well-meaning parents and system professionals may try to protect the child from being involved in decision-making by not seeking or considering their views at all. Yet, the children ARE involved as their lives are affected in enormous ways. Even very young children know big changes are happening and they can be confused, anxious and self-blaming.
“You have to gauge the child’s emotional intelligence. I have heard incredible 5-year olds be incredibly emotionally articulate and share about their feelings. They are able to. You can’t just say you don’t know what is best for you because you haven’t lived X amount of years. If you are able to articulate what you have been through and what you want to say you need to be listened to.” (M, age 16)
The assumption that a child’s views can be ignored because “parents know best” is flawed for two reasons. First, children may not speak up unless they are asked. They know what they want and often have a good grasp of what they need. You ask children what they want to understand what they need.
Second, most children want a chance to express their views, so they are heard and respected.
Shielding a child from participating in decision-making and diminishing the relevance of the child’s views make the child feel invisible, not important, unworthy. This can add to the trauma the child is already experiencing and undermine the inherent resilience of children to manage stress.
So what can family lawyers and mediators do?
Many family lawyers and mediators already recognize the need to seek and respect the voice of the child in a legal action. But if child well-being is seen as a central goal of the family justice system, then child participation/voice needs to be encouraged and facilitated at all stages of the separation process, beyond having a right to be heard by a judge.
The Youth Voices initiative is taking this broader view of the family justice system and looking at innovative ways to encourage child and youth voice and participation throughout the transition of parental separation. It is an ongoing human-centred “experiment” of continuous learning that is ready to try things out, learn from mistakes, get feedback and come up with new and better ideas to try out again. The initiative is now prototyping a concept that emerged from a lengthy human-centred design process which includes collecting and publishing stories of children and youth and distilling important themes. We have already gained some clues about helpful ways to encourage the voices of children whose parents are separating, but we need much more.
In Part 2, I will share some of the themes that have emerged so far from this initiative and invite your support and participation.
“..the YV initiative will bridge the gap between youth, between lawyers and the justice system in general and help youth feel heard, help parents to find ways to accommodate kids, to open up dialogue between everyone so everyone is on an even playing field and no one is feeling excluded. Everyone is included.” (S, age 18)
Note: I am grateful to the advice and suggestions about this article from my colleagues Jane Morley Q.C. and Nancy Cameron Q.C.
 https://www.albertafamilywellness.org/resources/video/how-brains-are-built-core-story-of-brain-development; https://www.cdc.gov/violenceprevention/acestudy/fastfact.html . A brief summary of the “brain story” is: 1. Stress is not necessarily bad but if it gets to toxic levels it has immediate physical effects on the brain and long-term impact of reduced life chances and well-being. 2. Children need resilience to manage stress and it is built over time with support of family members). 3. Trauma causes stress; it can also undermine the development of resilience to stress. 5. Participation and voice strengthen resilience by giving children the sense of themselves (worthiness) that they need to manage the trauma (stress) they are experiencing.