The "best interest of the child" is an important principle in family law supported by case law and legislation. The essential principle focuses on the right of a child and obligations upon the parents. The best interest of a child must be determined on a case-by-case basis considering the child's needs.
Section 16(10) of the Divorce Act, sets out the principle that a child should have as much contact with each parent as is consistent with their best interest. The court is required to consider the willingness of each parent to facilitate contact between the child and the other parent. The provision reflects a common belief that the needs and interests of a child following separation and divorce are best met when the child maintains significant contact with both parents.
Case law supports the view that a child who can express views has the right to participate. Child participation is essential to making good decisions that affect children and it is linked to the child's best interest.
The case of B.J.G. v. D.L.G 2010 involved a hearing to consider an application varying child support and custody relating to a 12-year-old child. The court raised the question of the child's participation in the process during the hearing. Both lawyers said that they thought it would be inappropriate to involve the child as doing so would place him in the middle of the dispute.
Ms. R. and Mr. G. were divorced in 2000 and at this time they consented to an order that Ms. R would have sole custody of the child with a primary residency with Ms. R, and they would share joint guardianship.
In 2009, the child asked his mother if they could change the schedule so that he would spend alternating weeks with each parent, and she agreed. Because Mr. G applied, to vary an existing custody order and an agreement that was made by consent and at the child's request, the Court had an obligation to consider the child's legal rights to be heard. He is 12 years old and can form his own views. When considering his rights to be heard, the questions are whether he has views, and if he does, whether he wishes to express them.
The case involves an analysis of the voice of the child and it was held that children have a legal right to be heard in all cases affecting them. Decisions should not be made without ensuring that these rights have been considered.
The case emphasizes that children who can form their own views have the legal right to express them given their age and maturity.
Children have legal rights to be heard during all parts of the judicial process, including case conferences, settlement conferences, and court hearings or trials. An inquiry should be made in each case to determine whether the child can form his or her own views, and if so, whether the child wishes to participate. If the child does wish to participate then there must be a determination of the method by which the child will participate.
Separate legal representation for children is an effective way of making sure that the participation of children is meaningful.
In this case, it was concluded that the 12-year-old child could form his own views, had a view about the custody claim but did not wish to express his view to the Court.