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


As described, children's participation in child-inclusive mediation and other ADR processes varies widely across and within Canada, the United States, as well as internationally. This parallels the discussion with the participants in this review who also raised many different forms and models of how children may participate in decision-making as well as when to include children.

One theme that has resonated across the globe is that the voice of the child is important and should be heard during times of parental separation and/or divorce. However, what is the best approach to have their voice heard (i.e., child legal representation, child custody assessments, brief interventions, voice of the child reports, judicial interviews, parenting coordination, or the use of child specialists) and when their voice is to be heard (i.e., before, during, or after mediation has been concluded) remains less clear. Another theme that has resonated across the globe is that, irrespective of the approach taken for child-inclusive decision-making, the focus must always be on protecting children from parental conflict and making sure that they are not exposed to any ill effects of loyalty binds, and/or feeling over-empowered in the process and responsible for the decision.

As has been raised, many of the court-related dispute mechanisms that have been outlined invite children's participation, but primarily in the context of helping the court in its decision-making as opposed to having children contribute to the decision-making in concert with their parents. While there are many excellent pilot projects that have been initiated across Canada and in New Zealand, it is still difficult to determine which methods are most effective in including children's participation in child-inclusive mediation or any other ADR process, and how. This is due to the limited nature of "pilot programs" and ongoing funding issues. Compounding this problem from a research perspective is that it is difficult to evaluate programs based on one-time, short-term grants with no comparative research designs that would provide more information of what works and what does not. In addition, larger numbers of participants and a long-term follow-up of any of the approaches discussed would provide more clarity on what does or does not work regarding children's participation. In the final analysis, with little ongoing research to guide policy-makers, it becomes difficult to know what resource impacts on the level of children's participation. Instead, what remains is a patchwork of services and programs that is not consistent for all children to be able to access. Ongoing research on the scale of that is being conducted in Australia would go a long way into realizing the potential benefits and/or limitations of children's participation.

The following section incorporates the lessons learned from the existing services that have been identified across Canada, the United States and internationally with the themes that the participants raise regarding child-inclusive mediation and other ADR processes. The lessons learned are grouped according to:

In addition, a sixth group incorporates the views from two leading academic scholars in the field of law and social welfare.

Child Legal Representation

The objective of child legal representation is to allow a child to have his/her voice heard during times of parental dispute. Different approaches to child legal representation are taken across the globe and in Canada. As previously discussed the literature and case law have referred to three different models of legal representation. They are:

At the Office of the Children's Lawyer in Ontario, children are provided with an independent voice to represent them, particularly in high conflict cases (i.e., repeated court appearances, allegations of domestic violence, alcohol/drug abuse, and concerns about parenting abilities) to represent them.[56] The Children's Lawyer states that many of the children the Office is involved with are already experiencing difficulties as a result of their parents' separation and are more than aware of the issues going on in their family. Therefore, having a lawyer represent them provides an opportunity to have their voice heard, if they so choose. She adds, however, that this does not mean that children are given the final decision, but rather, they are provided with an opportunity to share views that may very well differ from those of their parents. Many of these children find that talking to their own lawyer can be a relief (Birnbaum, 2008).

The Children's Lawyer states that in order for children's voices to be heard more consistently, education and training are required in interviewing children. Additionally, a national clearing house should be established so that all professionals (mental health and legal) can learn from one another about what works, what does not work, and why.[57] However, the above suggestions require further research and exploration.

While the Children's Lawyer's Office in Ontario provides for a lawyer and a clinical investigator to assist, the focus remains on litigation. That is, the role of the clinical investigator is focused on gathering information and providing that information to the child's lawyer so that the child's lawyer can present the findings to the court on behalf of the child(ren).

Another team approach of having a lawyer and mental health professional working together has been piloted in Calgary, Alberta. This pilot project, Speaking For Themselves[58], has been underway for the last three years. It is similar, but has a different approach to the Ontario lawyer/clinician model and focuses on counseling for the child(ren) in addition to legal representation for the child(ren). The Executive Director believes that having a therapeutic component for the child along with a legal one provides one of the more unique approaches in Canada that allows for children to have a voice in their parents' dispute. The project now has a waiting list of participants.

Brief Interventions

Brief interventions run the spectrum between a brief interview with a parent and child and a focused intervention that helps parents understand their child's needs. As previously discussed, Practice Note 7 in Alberta Court of Queen's Bench allows children's views to be presented before the court by a skilled mental health professional. Typically, children who are at least 12 years of age or older can be approached about their views and wishes which will be made known to the court without the clinician offering an opinion. However, a concern is that younger children may get caught in their parents' conflict and may not be able to disengage. [59] This concern was also expressed by many mediators as well.

In Edmonton, private practitioners provide services regarding Practice Note 7 as well as other child-inclusive approaches that bring the child's views and wishes into the separation/divorce process. One of the participants who provides Practice Note 7 services for the court states that he and his colleagues use three different models when dealing with separated and/or divorced families.[60] The first model is an evaluation of an opinion. This consists of meeting with each parent once for an hour to hear what the issues and concerns are and then meeting with children separately. Children are screened with a vocabulary test to evaluate their level of language development. A report can be written to the lawyers or the court and the parents are made aware that there is no confidentiality about what their child says in the sessions. However, the children are canvassed about what the views and wishes conveyed in the report to the court will be. The second model is premised on a parent-conflict approach or family restructuring, which focuses on bringing the needs and interests of the children back into focus post separation and/or divorce. One therapist works with the parents while another works with the child alone and then feeds the child's views back into the parent session. The third model is based on a therapeutic-facilitated access approach. In this approach, the estranged child and his/her parent are therapeutically assisted in being reunited. All of these models share many similarities to the Australian experience and focus on a therapeutic approach with children and families—the goal being strengthening parent-child relationships post-separation and/or divorce.[61]

The Deputy and Legal Director of the International Institute for Child Rights and Development (IICRD) in Victoria, British Columbia, believes that there needs to be a change on a national level whereby space for children is created more consistently to allow them to express their views about being involved in their parents dispute or not—and not dependent on the adults around them.

To assist mental health professionals and lawyers working in the Hear The Child Interviews[62], the IICRD has recently developed a draft curriculum, Hear the Child Curriculum: What Every Professional Needs To Know (2007) to facilitate more meaningful child participation. The curriculum is focused on understanding children's emotional and developmental needs, as well as how to interview children of different ages and stages of development. While she acknowledges that there are limitations to a one-hour interview with a child as it may not be sufficient and more follow-up with children needs to occur, she reports that the community has requested that the project continue.[63]

In another brief intervention approach in Hennepin County, Minneapolis, Minnesota, court-based services for parents are free. There are four services that disputing families receive. They are:

The two practitioners of the ENE approach report that the process is voluntary and focuses on providing evaluative information of the dispute to the parents and not the court.[64] The ENE is completely confidential and conducted by a team of two (male and female for gender balance). If the matter does not settle, the ENE team cannot be called to testify or provide information to a child custody and access assessor.

The initial ENE with the parents lasts for about 2 to 3 hours. Each parent presents the issues that are in dispute, the ENE evaluators may ask clarifying questions, and then the ENE team meets privately to consult. Following this there is one of two options that can occur. The ENE team may present their findings to the parents and their lawyers and explore settlement options or; if they require further information they may schedule another meeting in a month. In the interim, the team may meet with the parents separately, interview the children, collect personal and/or professional collateral reports. At the final meeting, a report is prepared that includes information about the settlement, partial settlement, or other information as agreed on. Recommendations can also be made for a comprehensive child custody and access assessment to be conducted or for a referral to a treatment center.

Pearson (2006) reports that, of the 349 ENE cases completed to date, 177 (51 per cent) reached full settlement, 43 cases (12 per cent) partial settlement, and 82 cases (23 per cent) were referred for a full assessment. However, the ENE approach provides for limited involvement of children.

Voice of the Child Reports

In British Columbia, there are the Views of the Child Report. In Manitoba, there is the Brief Consultation Service. In Saskatchewan, there is the Children's Voice Report. And, in Newfoundland and Labrador there is the Child-focused Report. All share similar features in that older children are interviewed briefly and a report is written to the court outlining the child's wishes and concerns. Parents are also interviewed for the purposes of providing context to the child's views.

In Saskatchewan, the general approach to providing for the Children's Voices Report is by way of a court order. The Report focuses on older children (age 12+) where a judge wishes to know what the child is saying and thinking. Parents are interviewed to obtain background information, the children are interviewed, observations of the parent-child relationship are conducted if deemed necessary, and personal and collateral information is collected. The social worker writes a report to the court based on the information gathered that may or may not include recommendations.[65] However in Regina, mediation services area also provided.[66] Mediators in a few selected cases (i.e., where there is high conflict, where the child is age 10 years of age and over, and where parents and child have agreed) have also interviewed the child separately to hear their views and wishes. Sufficient screening and preparation work takes place with each parent and child beforehand. This latter approach has been more recent and investigation into this approach unfolds on a case-by-case basis.

Child-inclusive Mediation

In British Columbia, family justice counselors who are involved in the child-inclusive mediation project report anecdotally that they feel more personally rewarded by the work because they see changes being made by both parents and children as the focus shifts to parent-child relationships as opposed to who is the better parent. The success of the project is also rooted in having someone listen to children and in turn, parents seem to be hearing what their children are saying.[67]

These themes have been echoed around the globe by Goldson (2006), McIntosh (2000), and Kelly (2002) who also report that listening to what children have to say can be a very powerful tool in helping parents understand their children's needs and interests. This, they argue, in turn, helps to resolve the parental dispute as parents are given a wakeup call about the impact on their children.

In the province of Quebec, similar to every province across Canada, Information Services are available for parents to help them understand the separation and divorce process and explore other ADR processes in an effort to assist in resolving disputes. The Director of the service advises that many of the mediators in their service have interviewed children as part of the mediation process, but only on a case-by case basis, and with the permission and consent of the parents and child.[68]

In Toronto, Ontario, children have been involved in child-mediation practice for decades. One approach that is conducted by a lawyer/psychologist is to meet with the child (aged four years and over), interview his/her teachers, and conduct parent-child observations, all with a view to understanding the family situation and to facilitate a parenting plan with the parents that meets the needs of the child(ren). However, the child is rarely brought into the mediation sessions with his or her parents.[69] This latter approach is similar to the Practice Note 7 approach noted earlier, which is used in Alberta by the private practitioners.

Another participant described different approaches that he has practiced from being a child specialist in collaborative family practice to interviewing a child in mediation. In mediation, he interviews the child and then provides feedback from the child's interview to his/her parents and their lawyers. The child interview is used to facilitate a parenting plan. Another approach that he has practiced is a separate child interview that is used to facilitate a parenting plan with their parents, as well as acting as the child's advocate with the child and their parents together in family sessions. In any of these approaches, children's safety must be a priority. He believes that there are many positive benefits of involving children in the decision-making process provided that their parents are psychologically capable of using the information in a way that does not threaten or harm the children.[70] Many of the participants raised this important exclusion criterion when deciding if children's participation would be beneficial to them.

Another participant has defined child-inclusive mediation as a form of parent counseling in which the voice of the child is paramount.[71] He provides an educational approach to parents about the child's needs. The approach he has taken in child-inclusive mediation is premised on the fact that children do not usually divorce their parents and need and want a relationship with each parent post-separation and/or divorce. In this particular model, closed mediation, nothing is reported to a court regarding the discussions with the children; the objective is to provide an opinion to the parents and/or their lawyers about children's living arrangements. No report is written to the court either. The process begins with a meeting with the lawyers, obtaining background information from each parent, and meeting with children aged six and over. After several meetings and getting to know the family, the child may be brought into the parents' session or the child's views, wishes and feelings are fed back into the parent's session. The child's safety and consent are always paramount. He noted that this approach is superior to the traditional investigative approaches used by the court (i.e., child custody assessments or child legal representation) because children and parents are more in control of the process and are all heard. He added, however, that more education and training of professionals is necessary in order to facilitate a real discussion of how the voice of the child can be included in separation and/or divorce processes.

Another participant from Toronto, who provides mediation and acts as a child specialist in collaborative family practice meets with the parents first to obtain an understanding of the issues and then will meet with children aged six years and older to hear their views and provide the feedback to their parents.[72] Similar to other participants, she reports that a more beneficial resolution for children and parents is facilitated when children are able to share how they feel about the dispute with their parents. She believes that if more parents were brought into the mediation process earlier in the dispute, the positions of each parent would not be as entrenched and children's voices would ultimately have more impact. This latter theme resonates across the globe, both in the social science literature and with the participants interviewed.

Yet another experienced psychologist/researcher states that the key to successful child-inclusive approaches requires a focus on re-establishing or consolidating a secure base between children and their parents rather than a focus solely on the issues in dispute (custody and/or access).[73] She asserts that separation and/or divorce are not only a legal problem but also consist of an ethical mandate to assist children and parents in establishing better and richer relationships. Therefore, the child-inclusive approach is designed specifically to target the known risks and mitigating factors that have been well established in the research about the well-being of children pre- and post-separation. In addition, she adds, that with respect to screening of cases, there needs to be a differentiation between the more entrenched conflict-ridden families, those that present serious mental health concerns and those where domestic violence issues are prevalent. This exclusion criteria has also been raised by other participants.

She also believes that the most important method for screening is a focus on therapeutic leverage as opposed to screening out children and families. In other words, the focus must be on how the child's voice can be heard and used to assist parents in reestablishing healthy positive parent-child relationships. Presently, a four-year follow up of the families and children who participated in the interventions is being conducted. There continues to be 100 per cent retention rates since the one year follow-up with the research participants.

A number of participants stated that for a child-inclusive approach to be successfully implemented, proper education and supervision of the child-inclusive intervention must occur. In addition, the risk factors involved in the process for children must be clearly outlined for the parents, the level of conflict needs to be identified, and the capacity of parents as well as the severity and recurring number of issues must be addressed. It is imperative that the process be seamless for children from beginning to end so as not to add further stress to the dispute.

Yet another experienced psychologist/researcher stated that while there is a strong belief that promoting children's participation in the separation and/or divorce process is important, not all children need or want to be interviewed.[74] In her work, she applies a selection criteria for meeting with children, if they or their parents wish. These are:

Similar to the approach taken by many mediators, she, too, meets with the parents to get background information on the issues and their lives before she meets with the child(ren). She believes that from a child development perspective, it is appropriate to meet with children aged nine years and older, but that if an eight-year-old demonstrates sufficient cognitive capacity, then she will meet with that child. She uses a structured interview process when interviewing children. This consists of:

She has also used two different models in her work with children and families. In the first model, as the parents' mediator, she also interviews the child(ren). This approach has several advantages as well as disadvantages. One advantage of being the mediator for the parents while also listening to the child is that it provides for continuity of the child's voice which can also be integrated into a parenting plan. The continuity of the child's voice is similar to the theme raised by Goldson (2006). However, one disadvantage can be that the parent becomes suspicious and distrustful if the child's feedback does not coincide with his/her views.

The second model provides for an external mental health professional to interview the child and then attend the mediation session to provide feedback to the parents. This model allows for the appearance of mediator objectivity with the parents, but at the same time the external interviewer does not have a rapport or relationship established with the parents as the mediator does (Kelly, 2000).

Finally, Kelly (2004) asserts that in order for any service to be helpful, a multi-pronged approach is required in the area of children's participation. That is, services must start with mandatory parent-education programs and move to interventions that incorporate the voice of the child by highly trained and skilled professionals. Moreover, guidelines need to be established that examine criteria for including/excluding children, provide for their safety, and encourage research and evaluation that assesses the benefits and limitations of each intervention. These latter guidelines resonate with what many of the participants across the globe shared in their interviews.

An independent contractor and mediator in New Zealand who also conducts child-inclusive mediation research with the families and children, reported that having the same mediator for the child and their parents is important.[75] Her research demonstrated that children do not wish to talk to strangers about their personal family matters. Similar to other participants across the globe, she believes that children need to be involved in a democratic process that encourages their voice to be heard in the separation process. She, too, believes that the child's voice is a powerful tool which can be used to encourage parents to settle their dispute as they hear from their own child how s/he is experiencing the process. Cases that would be excluded from child-inclusive mediation would include families in high conflict, families where domestic violence is an issue, or where there are mental health problems that could compromise the child emotionally.

She believes that in order for children to be heard, this requires legislative change on a national level, appropriate training for professionals, and research to better understand what works and what does not work for children. This is, yet again a theme that resonates amongst all the participants.

A private practice mediator with a specialty in special education needs for children in California practises child-inclusive mediation that focuses on interviewing children solely for the purpose of hearing their views and feeding them back to their parents in mediation.[76] She does not write reports for the court, but only shares the information that the child has consented to. She has interviewed children as young as five years of age. Her interviews are not therapeutic in nature, but rather, she uses the information obtained from the child to facilitate the parents in arriving at a parenting plan that works for their child. Her focus is on empowering children to the extent that their voices are being heard without having them feel that they are the decision-makers. Similar to the other participants interviewed, she believes that children need to be empowered so that they can choose whether they wish to become involved or not in post-separation decision-making.

Another experienced psychologist/mediator who has published extensively on child-inclusive mediation and has practised child-inclusive mediation for over twenty years believes that children's participation is only as good as the skill and abilities of the interviewer.[77] That is, the interviewer must first be comfortable with children in addition to having knowledge and understanding of children's language and development. Before the inclusion of children is considered, one needs to think about when children should be brought into the mediation process (i.e., before, during, and/or after), as each entry point presents different degrees of how much input children ultimately have. Similar to the other participants, he, too, prefers to always meet with the parents first to obtain background information about the dispute and then see whether and at what point in time children need to be included or not. Similar to other mediators, his criteria for including children depends on:

Like others, he views safety as always paramount and believes that interviews with children must have a purpose and be used strategically. He will always see the child individually before any joint parent-child meetings and let the child know about the limits of confidentiality.

With respect to screening cases, he would exclude involving children in high conflict families as parents cannot use the information constructively or may use the information against their child. He also screens for children with special needs or in cases where talking about feelings may not be part of the child's culture. He usually interviews older children (aged 12 years and over) as it is his belief that younger children could not provide the same developmental perspective as an older child could.

Moreover, he asserts that each family and each child is unique. Therefore, developing policies on one approach versus another can be difficult and limiting in the end. His other concern about policy development is that it could lead to too much structure and not enough "art"—which is the essence of what interviewing children is all about.

A participant from Pennsylvania similarly stated that he has included children before, during, and after mediation for many years.[78] He, too, stressed the importance of understanding child development and being comfortable with interviewing children. His screening of children is based mostly on their development and maturity level in determining if they are to be involved or not. Like his colleagues in California, he believes that only older children (aged 12 years and over) should be involved in the process, from a developmental perspective. Discussing limits of confidentiality is always part of the process when working with children as well as working out with the child what feedback can and cannot be given to the parents. He believes that one of the keys to successful participation for children lies in the training and education of professionals as well as research and evaluation of what works and what does not work.

Another experienced social work/researcher participant in Ontario, Canada believes that involving children in the separation process is critical as they have a unique perspective that is not necessarily the same as that of their parents.[79] Many of the activities that are carried out at the family service association where the participant works involve a therapeutic component to re-establishing strong parent-child relationships. The mediation process can involve up to three different therapists working with the child and the parents. Children participate at all ages. For example, even children as young as four years of age can be observed and interviewed by a skilled therapist and provide important information to parents about their child's emotional and behavioural development. Children who are nine years of age and older sign consent forms for their involvement. The purpose of every interview with a child must be made clear, along with the limits of confidentiality. This has been a theme that has resonated with many of the participants.

Like many of the other participants, she advises that the following are all important considerations: ensuring that professionals are trained; ensuring that there is an understanding of issues pertaining to culture and diversity; addressing children's learning challenges and conducting ongoing research and evaluation into the different methods of how children can participate. She also believes that having access to children's lawyers, so that they have a voice in the process, is equally important.

Collaborative Family Practice

Two collaborative family lawyers in Ontario[80] and another in Quebec[81], each with many years of family law experience, state that they support the use of a child specialist, where appropriate, so that the voice of the child is brought into the collaborative process. They report that while mental health clinicians have been part of the collaborative family law practice in Ontario for some time, Quebec has only recently begun to explore this approach.

The views expressed by all three with regards to screening of cases includes:

They, too, believed that in addition to the training and qualifications of the child specialist, all instances for including children's participation needs to be carefully assessed on a case by case basis. All agree that not every case requires the child's input or is appropriate. A similar theme is raised by Kelly (2004) and Saposnek (2004) as well as other participants.

Academic Scholars

Nicholas Bala is a law professor at Queens University, Kingston, Ontario. He views advocating for children's voices along a spectrum of services that matches the intervention with the level of service required.[82] Bala argues that children's views must be ascertained by their age and stage of child development and that those views should be expressed, where appropriate. Bala believes that no matter what approach is used to have children's views and or wishes expressed, it must first be evaluated for its cost-effectiveness as financial resources tend to be limited. Furthermore, the method of intervention used (i.e., child-inclusive mediation, parenting coordination, custody and access assessments, child legal representation, etc.) must also be based on an understanding of the different levels of conflict in separated and/or divorced families, which requires ongoing evaluation and research.

Liz Trinder is a researcher, academic and publishes widely on children's issues in separation and/or divorce in England. She has also written extensively on court-based dispute resolution approaches in England (Trinder, 1997; Trinder and Kellett, 2007).[83] She advises that parents are steered to mediation before any litigation attempts are made. However, the focus remains on settlement rates as the main outcome as opposed to any focus on parent-child relationships.

She reports that children's participation varies when they are involved with CAFCASS (Children and Family Court Advisory and Support Services) officers. She believes the ADR agenda remains driven by adults in England and that children continue to have little voice at all in the end. Trinder believes that mediation informed by a strong emotionally-informed content similar to the approach taken in Australia is needed. Moreover, she believes that developing comprehensive services for families in the community is what is required and that court-based interventions should be the last resort.

4.1 Summary of Lessons Learned By Participants

It is clear that children's voices are an important component in the separation and/or divorce process as evidenced by the services and programs across the globe and voiced by the practitioners, researchers, lawyers, and policy advisors/experts. Irrespective of whether they are heard through child-inclusive mediation, independent child legal representation, judicial interviews, child specialists, parenting coordinators or voice of the child reports, children's voices are important and need to be heard and listened to by their parents, mental health and legal professionals and ultimately, the judges who decide these cases. However, many have also stressed that not every child needs or wants to have a voice and that, too, should be considered. While the debate continues in the social science literature regarding whether or not children's voices should be heard in the process, the research literature to date provides a resounding clarion call—children and their parents have better relationships and there is less parental conflict between the parents when children are part of the process (Goldson, 2006; McIntosh, 2007).

Moreover, having a child represented by a lawyer, irrespective of the role of the lawyer for the child, provides an independent mechanism for them to be heard, and more importantly, begins to address some of the requirements of the Convention.[84] Having said that, the Convention is only one piece of a broader policy discussion that needs to occur regarding children's voices and how they can be truly heard. For example, there needs to be a discussion on policies and programs that guarantee all children and adolescents full enjoyment and exercise of these rights under the Convention. Moreover, adults need to learn to collaborate with children to help them articulate and exercise their rights (Lansdown, 2001).

While the approaches vary regarding how and when to include children's participation, the following qualifications need to be considered: