Our friends across the Irish Sea have only recently been able to divorce. They come to this with fresh eyes and have allowed their processes to be informed with reference to the child. Just imagine if the same was true of our jurisdiction? Would we do things the way we do if we were to start from scratch?
I am in my 50s and was (mostly) brought up to believe that children had little agency and ‘should be seen and not heard’. So, it has taken me a while to warm up to the idea of children being involved in any way at all in their parents’ divorce or separation.
I have experienced a volte-face. Now I talk to all my clients going through mediation (and the collaborative process) to consider using Child Inclusive Mediation (CIM). A child over the age of 10 (where they and the parents consent) talks and more importantly is listened to by a specially trained mediator. The mediator then reports back to the parents and the mediator. It’s usually incredibly powerful. The children are not asked their views about where they should live - it’s more about how they are right now and how they feel about the present situation and the future.
The voice of the child in legislation
The United Nations Convention on the Rights of the Child...'was agreed by governments (including ours) around the world in 1989. It says what they must do so that children grow as healthy as possible, can learn at school, receive protection, have their views listened to and are treated fairly. All the rights in the Convention apply to every child, no matter who they are or where they come from.’ (Pocket Book of Children’s Rights, UNICEF). Article 12 – ‘Every child has the right to have a say in all matters affecting them, and to have their views taken seriously’.
Practice Direction 12 B 4.3 and 4.4 says:
‘The child or young person should feel that their needs, wishes and feelings have been considered in the arrangements which are made for them.
Children should be involved, to the extent which is appropriate given their age and level of understanding, in making the arrangements which affect them. This is just as relevant where:
(1) the parties are making arrangements between themselves (which may be recorded in a Parenting Plan),
as when:
(2) arrangements are made in the context of dispute resolution outside away from the court,
and/or
(3) the court is required to make a decision about the arrangements for the child.’
What young people say
When young people report back about the experience of the parents’ divorce or separation, they tell of feeling powerless and unheard; they didn’t know what was going on and weren’t consulted. They don’t expect to be the decision maker but they would like to have a voice. CIM or CCC is a way to give them that voice without also giving them the pressure of making the decision.
'Being different from my friends and being uncertain about my future were the worst parts of the experience. If what was happening had been property explained to me, in terms I understood, not spoken over my head, I think my life would have been much less stressful and I wouldn’t have felt like I was living in limbo while my parents divorced.' Anonymous child from ‘In Our Shoes’, written by The Family Justice Young People’s Board 2022
Children are (almost) never consulted
The problem is that most children never get to see a CIM. Possibly the only time they will be consulted is if proceedings are issued and CAFCASS is ordered to prepare a report which may include the child’s ‘wishes and feelings’.
This seems to me to be too little and too late.
Confidential Child Conversations (CCC)
I’m part of a working group (instigated by Helan Adam, Helen Pittard and Beverly Sayers) thinking about how we can involve the children, earlier and confidentially. We are being informed by the Lundy Model, which was developed by academic Laura Lundy, professor of international children's rights at the School of Education at the Queen's University of Belfast. Her model, detailed in a 2007 publication in the British Educational Journal, provides a way of conceptualising a child's right to participation, as laid down in Article 12 of the UN Convention on the Rights of the Child. It is intended to focus decision-makers on the distinct, albeit interrelated, elements of the provision.
The idea is that any solicitor involved will know more about the child from the child’s perspective. Although they can’t ‘use’ anything learned in a contested space it will service to keep the children in the lawyer's mind – at the child’s level. The child doesn’t have to be ‘Gillick’ competent to give their parents and the lawyers involved a glimpse of how they are. Their views would be given the appropriate weight according to their age and understanding.
We know that children will benefit from being involved. It’s just a question of encouraging legal practitioners to see the benefits, and to move to a position where they openly encourage their clients to engage in the CCC process.
In the first instance child inclusive mediators would provide the confidential child conversations but we can envisage others being specially trained for this role.
Confidential Child Conversations – how might they work in practice?
How these conversations will work in practice has yet to be agreed and after adoption will likely alter with experience. But here are some early thoughts of the group:
1. Both solicitors raise it with their clients, the parents. Why? Children’s rights, best practice, research evidence…
2. The two solicitors agree on which child consultant (CC) to approach.
3. If both parents are keen to proceed and if the CC deems it suitable, the parents and the solicitors sign a combined ‘Confidential Child Conversation Consent Form’ including confidentiality (with exceptions) for the child and the process, to ensure the child’s feedback will never be used in evidence or in open correspondence.
4. The CC is likely to have a joint meeting with the solicitors to lay the ground rules.
5. The CC invites the child to meet them. The child has the confidentiality (including exceptions) explained to them. If the child says yes to the CC meeting, the meeting goes ahead online or in person.
6. The CC will provide verbal feedback to the parents; such feedback would happen quickly. The feedback options are:
a. both parents and solicitors in person at the same time;
b. both parents in person at the same time;
c. in separate sessions in person, each with a parent and solicitor
d. in separate sessions in person, each with a parent
e. or online with both parents and solicitors at the same time
f. or online with both parents at the same time;
g. or online in separate sessions, each with a parent and their solicitor;
h. or online in separate sessions, each with a parent
The actual process will be case specific but it is envisaged that a short feedback session to the parents and the lawyers, online and around 15 minutes, will suffice.
7. The matter continues, but with both parents and solicitors aware of the feedback the child has requested is shared. The feedback from the child will never be used in evidence or in open correspondence.
Looking at the Lundy model, we’ll have covered space, voice and audience but influence may be harder to bring about. I am hopeful that with a sea change of thinking it is just a matter of time.
Pilot area in Brighton
Once these ideas have been firmed up, we can go ‘live’. The concept does have senior judicial support. I hope that Brighton can become a pilot area (many of my local colleagues are keen to be involved).
Expense
What of the expense you ask? I don’t think it would be prohibitive. But also, can we afford to continue to ignore the child in our work. Surely, the cost to the children and of our society is too high to continue as we are.
Jo O’Sullivan is a non court practitioner at O’Sullivan Family Law and author of (Almost) Anything But Family Court
1 Reader's comment