There is no legal prohibition, rather only a strong judge made tradition that children do not give evidence at trials, motions or even case conferences. This trend has strongly existed for the last twenty years, however, when I first began practicing in the stone age, it was not that rare. A judge would bring the child(ren) into their private office for a little chat, to get a better sense of the issues directly relating to the children such as custody, access and summer plans.
However, this has been poo pooed by the court for many years. There are very good reasons for doing so. If a child is forced to take a side, there may be unfair repercussions to that child at the hands of the parent they may have spoken badly about. It forces a child to make a choice when the vast majority of children of separated parties do not want to get in the middle and what they want are their parents to make the decision and for everyone to be happy.
Another strong reason for not having direct interviews by judges of children, is that there already is a formalistic process for the children’s evidence to be put forward. There is a large underfunded government agency under the umbrella of the Attorney Generals Office, known as the Office of the Children’s Lawyer. It is funded by the tax payer and upon the Order of the court and the approval of the Office of the Children’s Lawyer, it can appoint a lawyer and/or social worker to interview the children and put forward their views before the court. The Office of the Children’s Lawyer is only able to operate because of lawyers and social workers who sacrifice their normally much higher hourly rates to work in this field, generally because they feel strongly about advocating for children and are willing to accept far less than the normal hourly rate to perform this important function. The problem with the Office of the Children’s Lawyer is that that very lack of funding causes systemic delays. From the date that the court orders the Office of the Children’s Lawyer to become involved, until a report is actually available, can translate into a process of six to nine months. The Office of the Children’s Lawyer can say no.
An investigation and report by the Office of the Children’s Lawyer almost always end in a disclosure meeting. That is a process whereby all of the parties, their lawyers and the lawyer and social worker from the Office of the Children’s Lawyer meet, and their report is provided. A disclosure meeting often can take two to three hours.
Contrasting all of that in some rare circumstances, one could envision a process whereby a judge would merely meet with the children in his or her office, ask their views and preferences on an issue and be able to render an opinion. This makes sense if the issue is straight forward but can suffer from many pitfalls, including a snap decision by a judge after meeting with the child for only a few minutes.
There is a small murmur of a trend whereby judicial interviews with children has resurfaced, however, it is still very much so the exception rather than the rule.Frequently, the clients at Dale Streiman Law LLB, especially in alleged parental alienation cases, complain bitterly of the inability of their children to speak to the judge.It is not a simple process or question, and requires an experienced hand to guide what is in the best interests of an individual client.