Law Times

Page 10 June 20, 2016 • Law Times www.lawtimesnews.com Katelynn's Principle enters the legal lexicon BY JUDY VAN RHIJN For Law Times T he inquest into the death of seven-year-old Katelynn Sampson at the hands of her care- givers has issued recommenda- tions that will place the child at the forefront of all service-relat- ed decision-making. The principle of placing a child's interests at the centre of any investigation, known as Katelynn's Principle, is unlikely to cause controversy, and the call to consult children on their care raises issues with which family lawyers are only too familiar. Sampson was beaten to death by her two guardians in 2008. She was found in a Parkdale apartment with 70 wounds to her body. The pair was jailed for second-degree murder, and an inquest was called to look at cir- cumstances into the death. According to jury recom- mendations from an inquest into Sampson's death, "the child must be at the centre, where they are the subject of or receiving services through the child wel- fare, justice or educational sys- tems." They also say: "a child is an individual with rights: who must always be seen, whose voice must be heard, who must be listened to and respected." An- other recommendation states: "according to their age or matu- rity, each child should be given the opportunity to participate directly or through a support person or representative before any decisions affecting them are made." "In today's society, we listen to our children more than any other generation," says Toronto family lawyer Murray Maltz. "To not listen on this impor- tant topic is unfathomable. We have to get away from 'Children should be seen and not heard.'" Having said that, Maltz ad- mits to the difficulties involved in obtaining a child's views ap- propriately. "That is constantly the prob- lem. It must be done, but how do you do it?" he asks. Cathryn Paul also welcomes the findings, but she is under no illusions as to the difficulties in applying them. Paul is a lawyer, mediator, and arbitrator, as well as an agent for the Office of the Chil- dren's Lawyer, which had a strong voice throughout the inquest and is working on the rewording of some of the legislation as a result of the recommendations. "I certainly do think it's im- portant to have children's voices heard. The question is, how are they brought forward? It's really hard, there's no doubt," she says. "When kids are in high-conf lict cases, it's very delicate as to what information is shared with chil- dren. Can you find a way to bring their views forward and not to put them in further harm? "Every professional serving children needs to look at the in- quest and this principle and rec- ommendations," adds Paul. The principle specifically ex- tends its reach to non-parental custody applications in family law, but Paul and Maltz think it should extend even further. "Why limit it to child pro- tection? Why limit it to a non-parental application?" asks Maltz. "Why should it not be broadened beyond that? Children are harmed by fights. It's not pro- tection to not hear them. When you have two warring parents, you do not have a child who is saved by not expressing himself." "The inquest was certainly focused on the child protection area, but the lessons extend to family separation," agrees Paul. "Lots of cases are fairly amicable and parents can agree on what's appropriate. When they are fair- ly far apart, those are the cases where children's views can help." Paul also welcomes the direc- tive that children should be the focus, not the parents. "Parents come in focused on their rights to see the child. What about the child's right to have a pretty normal life — to go to a friend's house for a sleepover without worrying that it's in Mum's time or Dad's time. ," she says.Maltz raises the practical problem of judicial reluctance to hear children's views. "Judges are always scared to interview children alone for some reason. . .In my mind, it's always ineffectual to deal with two warring par- ents without the intervention of a third party like the OCL to get at the truth," he says. "A judge does nothing more than act like Solomon. Not to bring the child's voice into the mix is frankly inappropriate." Maltz is adamant that there needs to be a method to get a child's views in a neutral fashion. "Do you just let lawyers be involved, use therapists, or so- cial workers to facilitate in some way? If we do anything, we should train judges to ferret out the truth when speaking to children. That would be the sagest thing the courts could do," he says. LT FOCUS In today's society, we listen to our children more than any other generation. Murray Maltz Cathryn Paul says 'every professional serv- ing children' should examine the inquest into the death of Katelynn Sampson, and its findings. Fe 2 Please refer to the Federation of Law Societies of Canada website www. sc.ca then click on the link to the National Family Law Program at the bottom of the home page for further information on registration, accommodation and tourism. All program material will be provided to registrants in digital format, and online. The material can be accessed on your mobile device during and after the program, and is available online for a period of two (2) years after the closing date of the program. The Convention Centre is located within walking distance of restaurants and shops. Federation of Law Societies of Canada Reminder! Please join us for the upcoming 2016 National Family Law Program in beautiful St. John's Newfoundland and Labrador July 11-14 2016 Location: New St. John's Convention Centre July 10 Conference Of ce opens and late afternoon reception Convenient On line conference registration! Registration fees include entrance to the conference, all program materials and light refreshments. Call to the Bar prior to 2011 registration fee is $850 plus 13% HST Call to the Bar after 2011 registration is $650 plus 13% HST (HST increases to 15% July 1) FederationOfLaw_LT_June20_16.indd 1 2016-06-15 9:34 AM

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