The Canadian Bar Association
Family

Katelynn Sampson inquest shows child should be front and centre

The tragic death of Katelynn Sampson presents a powerful reminder that children should be at the front and centre of all decision-making – by educators, health-care providers and the judicial system, says Oakville family lawyer Cathryn Paul.

A coroner's jury probing the 2008 death of the seven-year-old Toronto girl recommended that children should have a say on decisions relating to their own care.

Paul, who practises under Cathryn L. Paul, Lawyer, Mediator, Arbitrator and sometimes works for the Office of the Children’s Lawyer, says “Katelynn’s Principle,” as defined by the jury, provides a strong statement supporting the voice of the child.

While the principle is already embodied in the UN Convention on the Rights of the Child, I think people in the justice system can sometimes forget about why it should be a focus,” Paul tells AdvocateDaily.com.

According to the verdict, Katelynn’s Principle includes the following:

  • “Actions must be taken to ensure the child who is capable of forming his or her own views is able to express those views freely and safely about matters affecting them.
  • “A child’s view must be given due weight in accordance with the age and maturity of the child.
  • “A child should be at the forefront of all service-related decision-making.
  • “According to their age or maturity, each child should be given the opportunity to participate directly or through a support person or representative before any decisions affecting them are made.
  • “According to their age or maturity, each child should be engaged through an honest and respectful dialogue about how/why decisions were or will be made.
  • “Everyone who provides services to children or services that affect children are child advocates. Advocacy may potentially be a child’s lifeline. It must occur from the point of first contact and on a continual/continuous basis thereafter.”

Parents involved in the legal system or mediation are often hesitant to get their children involved or having their voices heard, Paul says.

“They don’t want to put their child through anything. They don’t want them to have to meet with a therapist or a mediator because they’re worried the child will feel stressed."

But Katelynn’s Principle is a strong reminder that everybody who provides services that affect children should be required to take into account the children’s views, Paul says.

“That’s something that can be done in various ways. But simply ignoring where the child is coming from isn’t really an option.”

Katelynn died from complications of blunt force trauma, including septic shock, after months of beatings, CBC reports. Her legal guardian, Donna Irving and Irving's boyfriend, Warren Johnson, pleaded guilty to second-degree murder and were sentenced to life in prison with no chance of parole for 15 years.

Throughout the inquest, jurors heard from a number of service providers, including her second grade teacher, who said she regrets not calling authorities when she saw bruises.

As part of its recommendations, the jury said the Child and Family Services Act should be amended to refer specifically to the rights of the child as set out by the UN convention, Paul says. The jury also said children should be educated in the school system about their rights.

The idea of bringing children into the dynamics of a separation or divorce presents a challenging dynamic, she says.

“The parents make the decision but you want them to make the decision taking into account the child’s views,” she says.

“Figuring out what those views are can sometimes be difficult because the parents have very different ideas as to what the child’s views are.”

In mediation, Paul will often hire an expert such as a social worker to determine the child’s views and report back to the parents. The information could be used to help determine custody and access decisions.

In family law, the Office of the Children’s Lawyer also plays a huge role in bringing the views of the child to court, says Paul.

Litigants in a family law case can ask for lawyers or investigators from the office to be involved in a case, and decisions are made based on available resources.

But whether the office is involved or not, the judge still has a mandate to take the child’s view into account, Paul says.

“There has been a great amount of debate in the last few years about whether judges should be interviewing children directly,” she says. “Some people feel very strongly that judges should interview kids and some feels that they shouldn’t.”

Paul believes there’s room for judges to speak with children directly, but says specialized training should be involved in a process that is ultimately child-friendly.

“The best option is for the child to have a lawyer. It’s just not always feasible,” she says. “Often, people just don’t have the money. And our being bound by the UN Convention and looking beyond that at what’s morally right isn’t really dependent on finances. So how do you reconcile that?”

In the end, all child welfare, justice and education services must find a way to make that voice heard, she says. Because otherwise, children like Katelynn will be failed.

“It’s an absolutely awful case, and I’m sure there’s more out there, just hiding beneath the surface and that’s just so scary. She is an example of the most vulnerable in our society.”

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