CONSENT FOR COUNSELLING CHILDREN

DURING MARITAL BREAKDOWNS

by George K. Bryce, BCACC legal counsel
and Martha A. Sandor, family law lawyer, Vancouver/Maple Ridge
Published in Vol 13(3) of Insights (Winter 2002)

The questions

The BCACC office has received a number of inquiries from counsellors asking what they should do in obtaining consent before providing counselling services to children during and after marital breakdowns. Can the counsellor rely on the consent of one parent? Or does the counsellor have to obtain consent from both parents? Can the child him/herself consent to counselling without parental consent?

A good starting point is to conceptualize custody and guardianship as a bundle of rights and obligations that parents share prior to marital breakdown. After marital breakdown, the bundle of rights and obligations may be divided in a variety of different ways. For example, some rights may be shared jointly and others taken away from one parent and given exclusively to the other. Also, it is important to appreciate that the single most important consideration in determining how the bundle of rights and obligations will be divided is the best interest of the child. Understandably, during marriage breakdown, the parties may not agree on how to divide the bundle of rights or obligations or how to ensure the best interests of the child are protected and promoted. The legal process can be the source of much anger and frustration and the parties’ perception of the best interests of the child may be obscured by heightened emotions. The counsellor needs to keep these factors in mind when dealing with issues of consent.

Before considering specific questions pertaining to consent, it is useful to define certain terms used in family law:

• Guardianship: This has been defined as encompassing all of the rights, duties and responsibilities of a parent, including the physical care and control over a child and a child’s property and person.
• Custody: There are two competing definitions of custody. The narrow definition of custody means the physical care and control over a child. The broad definition (which is more commonly used) includes almost all of the rights incidental to guardianship and the physical care and control over a child.

According to the provincial Family Relations Act, if the parties no longer live together and there is no court order or agreement in place, then depending on the circumstances, guardianship may be joint or held by one party. Depending on whether the provincial Family Relations Act or the federal Divorce Act is used, a court order for sole custody may mean that the sole custodial parent is also the sole guardian of the child.

• Joint Guardianship and Custody: If the parties have this kind of agreement or court order, then the bundle of rights and obligations remain shared as between the parents.

Before ordering joint custody and guardianship, the courts generally require that parents be able to parent cooperatively. Such an order or agreement does not necessarily mean that a child will live with each parent on a 50/50 basis. It is helpful to understand custody and guardianship as defining the legal relationship between parent and child. The amount of time a child will spend with each parent will depend on a variety of factors and it is not uncommon for a child to spend more time at one residence even in cases of joint custody and guardianship. Although it is rare, a child may even reside primarily with a non-custodial parent.

• Joint Guardianship and Sole Custody: This kind of agreement or court order divides the bundle of rights and obligations between the parties and usually defines what joint guardianship means. The key feature of this kind of agreement or order is that, in general, the parents are required to consult with each other about important matters pertaining to the child, but in the event of a dispute, the custodial parent will have the final say.

Samples of two frequently used joint guardianship orders are set out in Table One and Table Two.

• Primary Residence: This usually, but not necessarily, means the residence at which the child spends the most time.

• Access: It is generally understood as the period of time that the non-custodial parent spends with the child. It is a right of visitation and more.

Under the federal Divorce Act, unless a court orders otherwise, a parent who is granted access, "has the right to make inquiries, and to be given information, as to the health, education and welfare of the child." Like guardianship and custody, access inquiries are child-centred in that it is the child’s best interest that governs.

• Supervised Access: As above, but in the presence and under the supervision of the other parent (rare) or a third party who is appointed by the court or approved by the custodial parent or by agreement of the parties.
• Interim Court Orders(Custody, Guardianship, Access): Once court proceedings have commenced, the court may make an interim order putting in place a temporary arrangement with respect to custody, guardianship or access until the case is resolved after a trial. By definition, these orders are not intended to be (but can become) permanent and can change at the end of a trial.
• Section 15 Report: This is a report prepared pursuant to section 15 of the provincial Family Relations Act. The report is prepared by a family counsellor, social worker, or other person approved by the court, such as a clinical counsellor or a psychologist. The report can be confined to specific issues such as moving the child to another jurisdiction or it may encompass much broader issues of custody and access. The purpose of the report is to assist the court in resolving a variety of issues in family law cases.
• Separation: Separation occurs when spouses stop living together and begin to live separate lives. They may in certain circumstances remain in the same residence (for economic reasons, or until the residence is sold, etc.)
• Divorce: The termination of a legal marriage by a court order. In Canada, divorce can only be obtained from a superior court (with a federally appointed judge). The Divorce Act sets out the legal requirements for a divorce order to be granted.

When a marriage breaks down, and there are children involved, it can be useful if the parents and children obtain counselling to help them through this often traumatic event and prepare for life after divorce. While many parents try not to use their children as pawns in the separation/divorce process, it can be difficult to prevent the emotional spillover of that process from effecting the children. Regardless of the problems the parents see in their relationship, for the children that relationship is usually the only experience of family they have had, and they often experience some form of loss as a result of their parents’ separation and divorce.

Counselling provided to the children of divorcing parents by knowledgeable, experienced and compassionate counsellors before, during and after separation or divorce can help the children adjust to the new reality for their family. Counselling can help the children deal with their feelings of guilt, shame or frustration, which may result from their parents’ separation, even if not intended. Counselling can help the children develop new perspectives and coping skills for the future.

The issue of obtaining valid consent does not apply if a court has ordered some form of counselling assessment or supervision. This article will consider the specific questions that may arise when a parent brings a child to a counsellor for therapeutic counselling services other than as directed by the courts.

The phrase: "consent is a process, not a form" should be a mantra for all health professionals. This is particularly true when a counsellor is obtaining consent to provide counselling to children during marriage breakdowns. It is unlikely that any single consent form will apply to the different needs that children and their parents will have for counselling. While a signed form can be evidence that consent was given, it is more important for the counsellor discuss what is involved in family counselling with the child and parents. The counsellor should clarify who is the client that will receive the counselling services (regardless of who is paying) and who can consent to those services being provided to the child.

As part of the process of obtaining informed consent, the counsellor should also discuss what type of information the child may provide during counselling can be disclosed, to whom and in what circumstances. Conversely, there should also be a discussion as to what information the child may provide that would be confidential between the child and the counsellor, and why.

Sometimes a court may order marriage or family counselling. In those cases, the directive given by the court should explain what disclosure is required.

In an earlier article in this series, G. Bryce explained that, under either the Infants Act or the common law, a child is permitted to give legally binding consent to a clinical counsellor without the need for the counsellor to seek the consent of that child's parent(s) or guardian(s). But, before obtaining or relying on that consent, the counsellor must determine that:

• the child understands and appreciates the nature of the treatment or counselling service being proposed, and any reasonably foreseeable risks thereof. This necessarily involves the counsellor ascertaining that the child has sufficient intelligence to have such an understanding;
• the child has the capacity or the ability to give or express his or her consent;
• the consent is being given voluntarily and not by undue pressure or fraud;
• the proposed counselling service is in the child's best interest.

If these criteria have been met, the counsellor must provide the child with information that a reasonable person would require to understand the services to be provided and make a decision. This would include disclosing information about the nature and purpose of the counselling session, and any risks and benefits that a reasonable person would want to know about. Alternatives to counselling should also be discussed. Finally, the child should be given an opportunity to have any questions about the counselling services answered.

Therefore, it is possible for a child to consent independently to being provided with counselling services during a marriage breakdown. But it will be a rare situation when a child, even a "mature minor" (see the earlier article for details) comes to a counsellor seeking assistance without a parent also being involved. Therefore, as a practical matter, we should consider the parent’s role in consenting to counselling services being provided to children.

The law recognizes that a parent can have several different relationships with a child that are relevant to consent to counselling. A separation of these legal relationships sometimes becomes necessary when the courts are adjudicating the breakdown of a marriage where children are involved.

For the purposes of consenting to counselling for children, the parent who has custody and guardianship of the child has the legal authority to give consent. If only one parent has been granted custody and guardianship, then only that parent can consent.

But if the court has awarded joint guardianship and custody, then either or both of the parents can consent. So, if one parent is bringing a child to the counsellor for counselling services, the counsellor should ascertain what stage the family is in the separation/divorce process.

While the law allows a counsellor to seek the consent of only one parent in a joint guardianship and custody situation, as a practical matter it is best to try to obtain consent from both parents. However, sometimes it is not possible or practicable to obtain dual consent. For example, one parent may be adamantly opposed to the child receiving counselling, while the other feels it is essential for the child’s wellbeing. While the counsellor can rely on the consent of one parent in these situations, every effort should be made to try to obtain the consent of the other parent. Dual consent means there should be less collateral undermining of the benefits of counselling for the child.

Finally, a joint guardian may not be able to consent where the other parent has sole custody and the terms of joint guardianship do not include the right to consent to non-emergency treatment or the right to consent over the objection of the sole custodian.

If a parent comes to a counsellor seeking counselling for a child, whether or not that parent or others will be involved in the counselling sessions, there are some basic questions the counsellor should answer before proceeding.

• Is the counselling being sought in response to a marriage breakdown?
• What is the current stage in the separation/divorce process? And at what date in the future is it anticipated that there will be a final agreement or divorce order from the court?
• Has there been some agreement or court order that specifies in writing which parent (or both) has custody of the child? And which parent (or both) has guardianship? Has joint guardianship been defined (as in the sample orders)?
• Has a Section 15 Report been prepared? Is the parent prepared to make it available to you? Is there an order directing that you review it?

It would be helpful if the counsellor was to see if not also make a copy of any agreement or order that exists. Depending on the circumstances, however, the counsellor may have to rely on the statements of a parent as to the current legal situation and the content of any agreement or order. If the parent cannot provide a copy of an agreement or order for the counsellor to review, that fact and the information the parent provided should be recorded in the clinical notes.

• Will the counselling involve just the child? Or are others, in particular one or both parents, also going to be involved?
• What information the child may provide during counselling can be disclosed? And to whom is that information to be provided? And when?
• Does the other parent have knowledge of and agree with the proposed counselling?

Depending on where the parent(s) are in any legal proceedings and any resulting agreement or court orders, some of the above questions may need to be revisited during the subsequent counselling sessions.

If an older child is being seen, that child may be able to give consent to the counselling services without the need for any parental consent. In such cases, the legal status of the parents’ relationship to that child would not be a determining factor. The counsellor should follow the guidance for obtaining the consent of a mature child as outlined in the earlier article, as noted above.

Although efforts are being made to make the legal system more sensitive to issues pertaining to family breakdown, at its heart, the system remains adversarial. Once legal proceedings have been commenced, parties tend to become entrenched in their positions. The language of family law further complicates the situation. For example, it is not helpful that custody disputes are referred to as "custody fights" or "wars". When considering consent for counselling during marital breakdown, it is important for the counsellor to exercise caution and to be mindful of the powerful dynamics at play.

This column is intended to help clinical counsellors gain a better understanding of legal issues that are relevant to their practice. It is not meant to be a substitute for independent legal advice. If you have a particular concern about an issue that you are facing in your practice, you should seek specific advice from your lawyer. The BCACC cannot provide individual counsellors with legal advice and assumes no responsibility for the content of this column.

If you have a practice question that you feel raises a legal issue that should be of concern to all counsellors, please mail that question and any background information in confidence to: The Counsellor’s Counsel c/o the Victoria office.