When parents separate or divorce, decisions
have to be made that will have significant impacts on their children. Finding
ways to include children's participation in those decisions is often referred
to as promoting "the voice of the child".
Promoting children's participation in
decision-making in the context of family law is a relatively recent
development. Historically, children were not included in decision-making based
on the belief that they lacked the capacity to participate in family law
matters and were in need of protection. A more recent viewpoint is that
not listening to children may cause more harm than good.
The continuing high numbers of children
experiencing parental separation and divorce have generated an interest in
helping children voice their needs and wishes. Increasingly, children are
understood as being rights-bearing individuals. Children's participation in the
separation and/or divorce process has also been enshrined since Canada ratified
the United Nations Convention of the
Rights of the Child in 1991. Yet certain tensions remain with respect to
allowing children to participate in separation and divorce-related matters.
These tensions are created by attempts to balance the vulnerability of children
and their need for protection given their age and development level, on the one
hand, with their rights as individuals on the other. There is also debate about how the goal of including children
ought to be achieved—in what circumstances and in what ways children should be
included.
As part of a broader discussion designed to
address the participation of children in the separation and/or divorce process,
the purpose of this review is to focus on a relatively new and controversial
aspect of the family justice system, namely child-inclusive
separation, divorce and custody mediation and other child-inclusive separation,
divorce and custody alternative dispute resolution approaches.
Specifically, the focus is on exploring initiatives that help give children a
voice in the decisions made about post-separation family arrangements, as
opposed to therapeutic or educational programs
that help children adjust socially, emotionally or psychologically to the
separation process and/or subsequent family arrangements.
The paper is organized into five main
sections.
Section One of this review situates the historical and philosophical
debate on why children have not been included in this discussion to date and
explores the legal framework that underlies children's participation. In this
section, the theoretical framework that guides the review is presented through
the lens of empowerment and/or enhancement theory, which is premised on an
understanding that children and youths have strengths and expertise that should
be acknowledged and capitalized on to their benefit.
Section Two provides an overview of the
literature regarding the different views on children's participation during
parental separation, divorce, child custody mediation and other alternative
dispute resolution processes. Specifically, this section focuses on the legal
and social science literature that addresses those who say children should be included and why as well as those who say children should not be included and why. Of those who say children should be
included, some cite a number of rights-based and interest-based reasons for
doing so. Others cite the social science and research literature which
demonstrates that children's participation during times of parental separation
correlates positively with their ability to adapt to a new reconfigured family
and with their ability to regain mastery and control over their lives during a
confusing and difficult time. Research in Australia and New Zealand
specifically supports these views and further demonstrates that children fare
better when they are included in the decision-making process during times of
parental separation and/or divorce.
There are also those who say that children should not be
included, and provide equally compelling arguments about excluding children
from the decision-making process. For example, children may experience divided
loyalties, suffer from anxiety and confusion as they may feel overburdened by
offering their opinions. In addition, once a child is asked to express his/her
views, s/he may believe that his/her views will be recognized and then become
disappointed when it is discovered that those views were not listened to.
Section Two concludes with some useful tips on when to
include and exclude children in the mediation process are explored. For
example, if children are included, they should be consulted if they request an
interview and if they have expressed a consistent preference for a particular
time-sharing arrangement that differs from their parents' preferences. However,
children should not be included if parents can agree on what is in their
child's best interest or when children might be put in the middle between two
parents.
Section Three provides an overview of the different ways children's voices are being heard, a
description and definition of existing services and programs, as well as a
summary of the benefits and limitations of the various approaches used in
Canada, the United States, and internationally. Across the globe, different
methodologies are employed, for example, child reports, mediation,
child-inclusive mediation, child legal representation, child custody and access
assessments, the use of a child specialist in collaborative family practice,
and other alternative dispute resolution processes. The more investigative
approaches (i.e., child custody and access assessments, child legal
representation and judicial interviews) provide for less participation and the
child's voice is filtered through the adult lens of what is in the child's best
interest. Child custody mediation and the use of a child specialist in collaborative
family practice provide for more participation by children except that the
decision whether to include them, and when, is made by the adults first.
Child-inclusive
mediation, on the other hand, provides for more autonomy and direct input into
the decision-making process. What becomes evident from the discussion of the
various services available around the globe is the variability and lack of
consistency and level of financial support in the provision of services
directed specifically at children.
Section Four provides an overview of the ongoing issues,
challenges and lessons learned about children's participation in separation,
divorce and custody mediation and alternative dispute resolution processes.
This section further explores the existing services outlined in Section Three
through an analysis of interviews conducted with selected key informants who
practice in the field, conduct research, and advise policy discussion on
children's participation post-separation and/or divorce. Section Four further
highlights the variability that exists in terms of how services are provided
for children's participation around the globe, as well as the limited research
support and policy analysis that accompanies such services.
Some of the challenges and lessons learned from the key
informant interviews about children's participation include the need to
address:
(1) the age/gender of the child;
(2) the cognitive ability and emotional development of the child;
(3) children's safety;
(4) limits of confidentiality and consent;
(5) the training and
education of different professionals in interviewing children;
(6) culture, language and other barriers that may impede children's
participation; and
(7) ongoing research and evaluation of any approach
that is to be undertaken with and on behalf of children.
Section Five provides an overview of the future
directions and unanswered questions that flow from child-inclusive mediation
and other alternative dispute resolution processes. Children's participation
continues to remain controversial as it is emotionally laden. The social
science literature provides equally compelling arguments both pro and con
regarding this debate. While there are many excellent programs and services
around the globe, many unanswered questions remain. For example, what do we
really know about the efficacy and effectiveness of child legal representation,
child custody and access assessments, voice of the child reports,
child-inclusive mediation, or any other alternative dispute resolution process?
Should children's views be ascertained at all given the potential adverse
effects on children in families with different levels of conflict, or where
domestic violence or child maltreatment (i.e., physical, emotional, sexual, and
verbal abuse) may be of concern? And, of the services currently being provided,
how do we ascertain whose needs are really being met—those of adults, the
courts, or the child?
If children's participation is to be
explored more fully in the future, then a number of important issues from a
theoretical, practice, research and policy point of view must also be
considered.
These include:
(1) the need to
provide a clear theoretical and conceptual framework that links the best
practice approaches to child-inclusive mediation and other alternative dispute
resolution processes;
(2) the need for a coordinated research agenda that
targets both the risk and resiliency of children during separation and/or
divorce, incorporates children's participation throughout the research process,
and strengthens parent-child relationships post separation; and,
(3) the
need for an ongoing discussion and dialogue between and amongst practitioners,
researchers, children and their parents, as well as policy-makers if children's
participation is to be meaningful at all.
