Anyone who has been through a separation where children were involved would be familiar with the role and functions of a child’s advocate. The question, however, is whether we are using child advocacy to its full potential or whether, perhaps, we are simply misusing these resources.
Is a child advocate simply like any other lawyer defending his or her client? A child’s advocate is appointed to represent the interests of any minor children of the parties. The term “represent”, in this case, does not mean the same thing as when the mother and the father engage the services of a lawyer.
Children’s advocates are not appointed only during a contentious separation but also during an amicable separation. Separation does not need to be contentious for the interests of the minor children to be represented. The court can appoint “a children’s advocate where in its opinion this is required in the interests of any minor children of the spouses...”
A child advocate is appointed to hear the views of the child especially when it comes to visitation rights and custody issues. During a separation, the father and mother will have their respective lawyers, because they are interested parties and have their own interests to protect. However, a child is an interested party too even though not represented by a lawyer. An interested party means a person who has an interest in the outcome of the case.
Separation or divorce is not merely the breakdown of a marital union. It is the breakdown of a family, and a child is part of that family and should be represented in court as an interested party in that case.
On the other hand, is it in the best interests of the child to be represented in court, as an interested party, by a lawyer all the time? A divorce, or a separation case, like any other case, is Party A vs Party B. Therefore the child would either have to take the side of the person who applied for divorce or separation or the side of the person answering to the suit.
Does it make sense for the child to take sides? The answer is certainly no – children are already harmed enough with the breakdown of their family; making them take sides will cause them even more harm. It is bad enough that children are sometimes “trained” by one of the parents to answer in a certain way. This is very wrong because children are harmed when they are unconsciously made to choose between the parents. In a marital breakdown the spouses remain the parents of the children.
Children’s interests should be safeguarded as well as possible because, although they don’t have a direct interest in the division of the community of acquests, they do have a direct interest in maintenance issues, custody and visitation rights. However, it is not necessary or ideal for them to be present all the time in a suit, even though they are directly affected by the outcome. In separation and divorce proceedings the court always advocates the best interests of the child, and that is what should be the ultimate aim in a separation or divorce case.
Should a child advocate be appointed to oversee the case to make sure the child’s interests are protected at all times, or is the court a better overseer of the children’s interests? The court holds that the children’s rights should be paramount and that is how it should be. But that does not mean that a child advocate should not be present at all times to see that the child’s interests are being represented especially when it comes to issues which are material for the child.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.