The Silent Child: A Quantitative Analysis of Children’s Evidence in Canadian Custody and Access Cases

Canadian Family Law Quarterly, Vol. 29, No. 1, March 2010

25 Pages Posted: 13 Nov 2009 Last revised: 11 May 2010

See all articles by Noel Semple

Noel Semple

University of Windsor Faculty of Law

Date Written: November 12, 2009

Abstract

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear "children's evidence," which comes either directly from the child, or from a neutral professional with child-related expertise. To determine the prevalence of children's evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children's evidence. Among the various varieties of children's evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

Keywords: Dispute Resolution, Children's Law, Empirical Methodology

Suggested Citation

Semple, Noel, The Silent Child: A Quantitative Analysis of Children’s Evidence in Canadian Custody and Access Cases (November 12, 2009). Canadian Family Law Quarterly, Vol. 29, No. 1, March 2010. Available at SSRN: https://ssrn.com/abstract=1504901

Noel Semple (Contact Author)

University of Windsor Faculty of Law ( email )

401 Sunset Ave.
Windsor, Ontario N9B 3P4
Canada

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