The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review

ENDNOTES

  • [1] For a complete listing of the Articles on the Convention on the Rights of the Child, the website can be accessed online.

  • [2] Ibid

  • [3] Parliament of Canada, For the Sake of the Children: Report of the Special Joint Committee on Child Custody and Access (December, 1998), available online.

  • [4] All of the participants were chosen because of their years of experience in practice, research, and policy matters relating to separation and/or divorce, which helped to provide a rich and comprehensive understanding of the strengths and limitations of incorporating the views of the child.

  • [5] See Appendix A. Adherence to the standardized questions was the goal, in order to provide consistency in the approach and analysis of themes among each different participant. However, many participants provided other important practice and research insights that added depth and clarity to the interview.

  • [6] Child protection legislation is not an area that falls within the purview of the federal government. Each province has its own child welfare legislation to integrate the different forms of including the voice of the child into child protection proceedings (e.g., child legal representation, child protection mediation). However, Constitutional responsibility for family law matters in Canada is divided between federal and provincial/territorial governments. Therefore, the focus of this review was to examine custody and access matters as they relate to federal law.

  • [7] The author acknowledges that there are many more experts around the globe who carry out this work on behalf of children. However, due to time constraints and, in consultation with the Department of Justice Canada, the individuals selected were based on their years of practice, research and policy expertise in the field.

  • [8] Neale, B. (2002). Dialogues with children: Children, divorce and citizenship. Childhood, p. 469.

  • [9] Supra note 2.

  • [10] The reader is also encouraged to review Richard Chisholm's paper, Children's participation in family court litigation (PDF Version (128 KB), PDF help), presented at the International Society of Family Law, World Conference, Brisbane, Australia, July, 9-13, 2000 regarding the debate for and against children's participation in family law.

  • [11] For a thorough discussion of this major research initiative and the results, the reader is also encouraged to review the government of Australia website that provides the series of research articles and information on child-inclusive interventions that have been written by these researchers.

  • [12] For a more complete discussion of the research findings, the reader is also encouraged to review the government of New Zealand website.

  • [13] The reader is also encouraged to review, Lansdown, G. (2001). Promoting children's participation in democratic decision-making. (PDF Version (555 KB), PDF help) UNICEF Innocenti Insight. This paper provides context to the meaning of and implications of Article 12 of the Convention.

  • [14] In Scotland and in England the term conciliation has often been used (Garwood, 1990).

  • [15] Conversation with Dr. Barbara Jo Fidler, psychologist in private practice who practises and teaches parenting coordination to mental health and legal professionals. For a discussion of the guidelines on parenting coordination, the reader can access these through, The Association of Family and Conciliation Courts (AFCC).

  • [16] Supra, note 6.

  • [17] Dr. Joan Kelly is a psychologist, mediator, and researcher in California who is internationally recognized in the field of separation and divorce.

  • [18] See Bala, N. (2004). Assessments for postseparation parenting disputes in Canada. Family Court Review, 42(3), 485-510 for a listing of the legislative provisions across Canada.

  • [19] Supra, Note 2.

  • [20] For a discussion of the social and adult construction that is attached to the significance of the age of the child, see Mantle et al. (2006).

  • [21] See O' Connor (2004) for an inventory on programs for children experiencing separation and/or divorce in Canada, the United States and internationally. Also see the Department of Justice website that outlines different services available to families across provinces. While many of the services do not specifically identify the level of children's participation, they do identify ADR processes that encompass children's involvement to one degree or another (i.e., information services, counseling, mediation services, supervised access services).

  • [22] Family Relations Act, R.S.B.C. 1996, c.128.

  • [23] The reader is encouraged to view the Ministry of the Attorney General, British Columbia website that provides an excellent review of the consultations that have occurred in the province about family law matters.

  • [24] Views of The Child Reports focus on interviewing children to hear what their views and thoughts are regarding their parents' dispute. Information is also collected from their parents to provide context to the children's views.

  • [25] Supra, Note 22.

  • [26] For purposes of this review, only the results of the themes related to children's participation is being presented. For a complete discussion of the entire research initiative and results, the reader is encouraged to access the Report online through the SPARC BC website.

  • [27] The author is most grateful to SPARC BC for providing this information. However, it is important to note that the themes presented are based only on preliminary findings obtained in a telephone interview with Crystal Reeves, Legal Researcher, SPARC BC, one of the facilitator's of the focus groups. At the time of writing this review, SPARC BC had not completed all the focus groups and the analysis of the information obtained. The reader is encouraged to view the SPARC BC website for the Final Report of the focus groups with youths.

  • [28] R.S.B.C. 1996, c. 128, s.2.

  • [29] Supra, Note 1.

  • [30] The child's statements were quoted exactly from what the child reported.

  • [31] The reader is encouraged to visit the IICRD's website for a complete description of the Hear the Child interviews.

  • [32] IICRD is in the process of obtaining further funding to continue with the child interviews and has also developed a curriculum for professionals doing this work.

  • [33] For a complete review of Practice Note 7 (PDF Version (82 KB), PDF help).

  • [34] In Ontario, the Children's Law Reform Act explicitly sets out that judges must consider, "the views and preferences of the child when such views and preferences can be reasonably ascertained" s.24(2). The OCL has complete discretion as to whether to become involved in a custody and access dispute or not and what type of service (lawyer/clinical investigator/or both) they will provide.

  • [35] A clinical investigator (mental health professional) assists the child's lawyer in obtaining information about the child and family to facilitate the court's decision-making. There is no specific legislation that provides for this type of intervention by a clinical investigator. The assist is used only at the Office of the Children's Lawyer. The court is the final arbiter in all child custody and access proceedings.

  • [36] R.S.Q, c. C-25, art. 208 and 394.1.

  • [37] S.N.B. 1980, c. FO2.2, as amended by S.N.B. 1996, c.13, s.6(4).

  • [38] See the Yukon government website for the role and responsibilities of the Public Guardian and Trustee.

  • [39] See the government of Nunavut website information about the amicus curiae (PDF Version (138 KB), PDF help).

  • [40] An internet search did not yield any further clarity about specific mediation services available that include children's participation in government based public services. As well, an email discussion with Joan Kelly (psychologist and researcher in California) and Peter Salem (Executive Director, Association of Family and Conciliation Courts) did not yield any further programs and/or services in the non-private sector that could be easily identified. However, there are many excellent research reports and articles written about public mediation services in California to name a few.

  • [41] For example, Kids Turn in San Francisco; Kids First in Orange County; Support Groups for Children and Young Adults, in Maryland; and Children in the Middle (PDF Version (138 KB), PDF help) programs in Ohio to name a few. Also see O'Connor (2004).

  • [42] The Texas Family Code, 153.008 can be accessed online.

  • [43] The term child custody and access assessments are used in Canada, while the term, child custody evaluations or forensic evaluations are used in the United States. The terms are being used interchangeably and involve the same methodology.

  • [44] This instrument has been developed and supported with the assistance of many senior researchers and academics, the AFCC, many other consultants, as well as the Judicial Branch's Court Support Services Division management and staff of Connecticut. The instrument is published in the article by Salem, Kulak and Deutsch (2007).

  • [45] The Standards (PDF Version (386 KB), PDF help) can be accessed online. The reader is also encouraged to review the following website that outlines the most recent conference proceedings on the recommendations of the role of child legal representation, competencies for practice, and the attorney-child relationship for lawyers representing children in the United States.

  • [46] More information on this program can be accessed online.

  • [47] The child-inclusive approach involves assisting parents in understanding their children's needs. A child specialist meets with the child and begins a therapeutic dialogue with their parents and the mediator about the child's needs.

  • [48] Family Law Act, s.68LA (2)(5)(7) & (8).

  • [49] More information can be accessed online. An evaluation of this service can also be accessed online.

  • [50] For a more complete description of this program (PDF Version (95 KB), PDF help) and the initiatives being led by the New Zealand government, the reader is encouraged to access the website online.

  • [51] The role and responsibilities of the child's lawyer in New Zealand can be accessed online.

  • [52] The F-9 Form is available online (PDF Version (316 KB), PDF help) through the Ministry of Attorney General, British Columbia website.

  • [53] Ibid

  • [54] For further information on these approaches, the reader can access the website online.

  • [55] See Neale (2002), Trinder (1997) and Trinder and Kellett (2007) for an excellent discussion on children's participation in family law in England.

  • [56] Interviews with Clare Burns, Children's Lawyer of Ontario and Linda Feldman, Counsel at Office of the Children's Lawyer, Toronto, Ontario.

  • [57] Interview with Clare Burns.

  • [58] Interview with Dale Hensley, Executive Director of Children's Legal and Educational Resource Center (CLERC).

  • [59] Interview with the Honourable Justice Marguerite Trussler, Alberta who facilitated bringing Practice Note 7 to fruition.

  • [60] Interview with Dr. Steven Carter, psychologist in private practice, Edmonton, Alberta.

  • [61] Also see, Carter, Haave & Vandersteen (2006) for a more thorough discussion of these approaches.

  • [62] This approach was previously discussed where the child's verbatim statements were written and shared with their parents and the judge.

  • [63] Interview with Suzanne Williams, Deputy and Legal Director of the International Institute for Child Rights and Development (IICRD).

  • [64] Interviews with Maryellen Baumann, social worker and James Goetz, lawyer and social worker who practise this team model.

  • [65] Interview with Melissa Wallace, Manager of Programs and Operations in the Ministry of Justice and Attorney General, Saskatchewan.

  • [66] Interview with Alan Jenson, Program Manager, Social Work Unit and Parent Education Program, Regina.

  • [67] Interviews with Irene Robertson, Provincial Director of Family Justice Services Division, Carole McKnight, former acting liaison consultant to the project), Janet Lennox, former senior policy analyst, Ministry of Attorney General, and Dan VanderSluis, Acting Regional Manager, Ministry of Attorney General.

  • [68] Interview with Lorraine Fillion, Director of Family Mediation Services, Superior Court, Montreal, Quebec.

  • [69] Interview with Dr. Barbara Landau, lawyer/psychologist practising in Toronto, Ontario.

  • [70] Interview with Dr. Harvey Steinberg, psychologist in private practise in Toronto, Ontario.

  • [71] Interview with Dermot Hurley, Associate Professor of Social Work, King's University College at the University of Western Ontario, who also has a private practise in London, Ontario.

  • [72] Interview with Sheila Brown, social worker and accredited mediator in private practise in Toronto, Ontario.

  • [73] Interview with Dr. Jennifer McIntosh, psychologist/researcher and Director of Family Transitions, Australia.

  • [74] Dr. Joan Kelly, psychologist/mediator/researcher in California. Dr. Kelly had been involved in the training of the professionals in both the Hear the Child Interviews, in Kelowna, British Columbia and the training of the professionals in the child-inclusive mediation pilot project in British Columbia. She also acts as a consultant for the child-inclusive mediation pilot project in Australia.

  • [75] Interview with Jill Goldson, social worker and principle researcher for the (2006) study, Hello, I'm a voice, let me talk: Child-inclusive mediation in family separation.

  • [76] Interview with Nina Meierding, educator and clinician in private practice with a specialty in special needs for children, California.

  • [77] Interview with Dr. Donald Saposnek, psychologist/mediator/researcher in California.

  • [78] Interview with Dr. Arnie Sheinvold, psychologist and child specialist, Pennsylvania.

  • [79] Interview with Rhonda Freeman, Executive Director, Families in Transition, New Directions, Toronto, Ontario.

  • [80] Interview with Nathalie Boutet, Collaborative Lawyer and Sharon Cohen, Collaborative Lawyer in Toronto, Ontario.

  • [81] Interview with Louise Woodfine, Collaborative Lawyer in Montreal, Quebec.

  • [82] Interview with Nicholas Bala, Professor of Law, Queen's University, Kingston, Ontario.

  • [83] Interview with Dr. Liz Trinder, Institute for Policy and Practice, Newcastle University, England.

  • [84] Supra, Note 2.

  • [85] See Camacho, (2006) for a discussion on how children can be included in the research process. Also see Fombad (2005) on how to protect children in research; Wyness (2006) on methods, ethics, and politics of involving children in research; and Christensen and James (2000) for a review of ethical guidelines for children. This latter review can be accessed online on the New Zealand website.

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