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

EXECUTIVE SUMMARY

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.
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