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Implications of child brain research 'profound' for family law

New research that provides further insight into how suggestibility and memory work in older children has raised concerns that certain fundamental family law paradigms may be mistaken, Toronto family lawyer Brian Ludmer writes in Lawyers Weekly.

As Ludmer, principal of LudmerLaw, explains, family law currently operates on certain unstated assumptions concerning children’s needs, parents’ ability and willingness to meet those needs and the proper role of children’s views, preferences and issues in terms of evidence.

“However, advances in neuroimaging, genetics and related fields have led to a significant evolution in our understanding of child mental development, the ‘plasticity’ of the human brain, the impact of stress and trauma, the suggestibility of children and the significant changes in the physical structure of the maturing juvenile brain,” he writes.

Modern understanding of how memory works, says Ludmer, suggests challenges in interviewing children in the course of family law and child protection cases — specifically, an enhanced understanding of children’s suggestibility and a lack of consistency in recall memory.

“These developments have raised concerns that fundamental family law paradigms may be mistaken, and that legislation and jurisprudence need to be updated to reflect current science,” he writes.

Starting from age 10 or so, explains Ludmer, children experience massive changes in the physical structure of the brain, which are not substantially complete until their mid-20s.

“Unfortunately, the last brain structure to mature is the frontal lobes, which perform the crucial ‘executive functions’ of the brain. These include regulating emotions, impulse control, spirituality, self-awareness and higher level cognitive processes such as judgment, problem solving, planning and abstract thinking,” he writes.

Some of the implications of this that need to be considered relate to the weight to be put on the views and preferences of teenagers in custody disputes, the cognitive ability of children to handle having to make choices between their parents, and the ability of children to independently instruct counsel.

“As a result of their developing brains, pre-teens and teenagers often exhibit poor emotional regulation and impaired critical thinking skills, which make them particularly prone to the impacts of parental disputes and parental manipulation. They often respond to interviews in family law cases emotionally (right brain processes) instead of cognitively (left brain processes).

“Neural pruning leaves a child exposed to the impact of parental lobbying/programming, since the new brain structures, and associated memories of recent interactions, may be laid down in an environment that is not conducive to maintaining historical bonded relationships with both parents. This creates neural ‘ruts in the road’ that influence a child’s perception of the other parent,” explains Ludmer.

Memory also does not work in the way the family law system assumes it does, Ludmer writes.

“Every time a previous experience is recalled, that ‘memory’ is reshaped by the current experience and, when resaved into long-term memory, it is altered by the current experience. In this way the brain acts as an ever-evolving predictor of future expectations about others and of the environment.”

As a result, prior favourable experiences with a parent can be altered or entirely lost if the child is living in an environment that invalidates the other parent.

“Those child interviewers not familiar with how memory works or the impact of the neurological changes can form mistaken impressions of the child’s actual experience,” writes Ludmer.

Ultimately, he explains, these developments have “profound implications for family law that need to be studied, debated and implemented, if we are to insulate children from the impact of divorce.” 

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