The judge can observe the child and assess the child's understanding of the situation without the intervention of a third party. To determine guardianship, custody, or access without seeing or hearing from the child is to fix the future pattern of her life without which may be the most useful evidence. In the article "Hearing the Voice of Children," the following statement is made by a British Columbia judge: Second, as Madame Justice McLachlin states, for a judge to ascertain the best interests of a child in a custody dispute, "it seems logical to find out what the child thinks." The child's statement of his or her views directly is important evidence to be weighed by the court. Children will know that their views are being stated as clearly as they can formulate them, in language they choose, without the danger of being mis-stated by a well-meaning adult.
It gives children the opportunity to convey their physical, emotional and social needs to a judge which ensures that the decision-making process is not focused exclusively on their parents' views and preferences. First, it ensures that the decision-making process is child-centered. Several reasons have been put forth for allowing a child to participate in custody and access proceedings. There is also growing realization that many of the concerns articulated above by members of the judiciary and other professionals can be addressed by introducing amendments to provincial and federal legislation and through other non-statutory mechanisms. In the past few years, the importance of including the child in divorce, custody and access proceedings has been recognized. The imposing atmosphere of the courtroom, repetition of details of an event to strangers in public, cross-examination, and physical separation from a parent or relative are some of the features of providing evidence that are feared will adversely affect children. Concerns have also been expressed regarding the adversarial process that characterizes legal proceedings in Canada. It is argued that the pressure to choose between parents, fear of hurting a loved adult on whom one is dependent, and the potential for vengeful retribution from a parent can be damaging to children. There is concern that children will be irrevocably harmed by such an experience. Members of the judiciary have been reluctant to allow children to testify as witnesses in custody and access disputes. THE VOICE OF THE CHILD IN DIVORCE, CUSTODY AND ACCESS PROCEEDINGS 3.0 HEARING THE VOICE OF THE CHILDģ.1 Arguments in Support of Allowing Children to Participate in Family Law Disputes
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