The Dilemma of Older Children
By Brian Ludmer
IN A RECENT SERIES OF ARTICLES, to be continued in a forthcoming issue, I have been
exploring the damaging role of counsel for children caught in a loyalty bind, particularly in
an alienation case.
There is a trend in the jurisprudence to appoint counsel for children in their mid-to-later teenage years, in order to ensure that such children “feel heard” in compliance with Article 12 of the UN Declaration on the Rights of the Child. An extreme example of where this process is almost inevitable is with older teenagers/young adults who, by virtue of a mental health issue (such as cognitive impairments and extreme autism) remain a dependent child under the applicable jurisdiction’s legislation, even upon reaching the age of majority.
What is frequently not adequately addressed by the legal systems, however, is that the mere advancing age of a child does not enhance either the accuracy, reliability or independence of the child’s stated views and preferences. Indeed, if an alienation dynamic had developed many years earlier, counsel for the child would really be speaking with the alienating parent through the child. Moreover, when considering the neuroscience of parental alienation, children become more susceptible around the ages of 11 to 12 years. Counsel may therefore be speaking with a child who is developmentally much younger than their chronological age. In both instances, counsel is not obtaining any independent mature views of the child.
The current emphasis in many jurisdictions about giving due “respect” to the “voice of the child” is in fact misplaced. As I have previously written, appointing counsel for a child is the most intrusive and least developmentally sensitive method of obtaining children’s views and preferences. This is because it is a “zealous advocacy” role, as opposed to a role advancing the child’s best interests. In a recent Ontario case in which I was counsel for the alienated parent, involving an almost 17-year-old child, the Court ratified counsel “inviting themselves to the party” to ensure that these trends of older child representation are respected. This occurred despite the self-appointment of counsel to act for a child in advance of Court approval, and with counsel interacting with, and taking Affidavits from, the child in question before being appointed by the Court two separate times (a motion in September 2019 and a subsequent Trial in January2020). There is an element of judicial strategy here, for the purpose of ensuring that the related Court Orders are binding on the child and to receive the child’s commitment to respect them.
Court Orders for parenting time apply until the age of majority. Complicating factors in many cases occur if
alienating parents have “primed” the child for many years to form an impression that at a certain stated age,
such as 12 years, they can “decide” the parenting schedule themselves, including cutting off contact with one
of their parents.
This is universally viewed as an abusive tactic and contemptuous of the then prevailing Court Orders. However,
the mythology of a child being able to decide at a stated age is rampant in parental discourse, schools, the helping professions and elsewhere. The false notion that children can decide their own parenting plan – rather than
children simply being heard, “a voice but not a choice” – afflicts many alienation cases. A complicating factor, which we have had to struggle with in a current case I am dealing with, is how to manage the concept of “withdrawal from parental control” or its colloquial phrase “emancipation.” Most jurisdictions, similar to Section 65 of the Ontario Children’s Law Reform Act, allow children the unilateral right to “withdraw from parental control” at the age of 16. However, unless the child was subjected to abuse and needs to create an independent life to avoid that abuse, “withdrawal from parental control” creates additional problems for the child. This is not a decision to be taken lightly, because the child would thereafter be on their own financially and unable to look to their parents for the basic necessities (food/shelter/clothing) as well as post-secondary education costs.
There is some jurisprudence regarding what a legitimate, good faith and non-tactical “withdrawal from parental control” looks like and this will no doubt be enhanced when additional jurisprudence fleshes out this area. Alienating parents seeking to misuse the emancipation provisions of applicable jurisprudence spend years creating for the child a fallacy that, at age 16, they can choose which parent they live with, while maintaining their status as a dependent child with all its benefits. This imagery, groomed over many years, is very difficult to shake and contributes to the over-empowerment of children. This over-empowerment is then reinforced by counsel who espouse the same political views.
This was neither the purpose, nor is it the accepted meaning, of the emancipation provisions of the various
family law legislation. This was clarified in the previously mentioned Ontario case that I was successful on.
Court Orders apply until the age of majority.
However, there is a group of lawyers who represent children who hold firm to the political view that they can
and should intervene, even without and/or prior to Court approval, in any situation where an almost 16-year-old
desires to assert an absolute veto over where they live. It is hoped that additional guidance will be forthcoming
which will clarify how counsel get appointed for older children and the appropriate role of such counsel. Further understanding is needed regarding the interplay between custody and access Orders (which survive to age 18) and the wishes and preferences of older children when independence is questionable.
Given the enduring mythology of there being some age, short of the age of majority, where children can decide their fate, instead of objective adults advancing their best interests, I leave our readers with a quote from the movie Inception about the power of the mythology of children making their own decisions: “Listen, there is something you should know about me… About inception. What is the most resilient parasite? Bacteria? A virus? An intestinal worm? –…. An idea! An idea is like a virus, resilient, mhighly contagious. Even the smallest seed of an idea can grow. It can grow to define or destroy you.Once an idea has taken hold of the brain, it’s almost impossible to eradicate. An idea that is fully formed – fully understood – that sticks; right in there somewhere.” This is the challenge facing counsel and others involved in a case with an older child who has been groomed by an alienator for many years.