Justice Minister Simon Hughes ruffled a few feathers last summer in a speech
when pledged to give children over the age of 10 the right to be heard in courts when family disputes are being settled. In doing so he also vowed to make the voice of the child a central part of the family mediation process.
For some practicing mediators, especially those new to a profession in which they are undertaking training, this seemed a promise too far. It’s challenging enough to mediate the differing interests of a couple to make settlements on property, finance and children. Bring children themselves in to the process and the dynamics become way too complex, their argument seemed to be.
But as the founders of child inclusive mediation, and as the nationwide organisation that has pioneered and evolved the practice, NFM warmly welcomed the commitment.
It’s something we’ve been working at for over 30 years since NFM’s formation, so naturally we are pleased that the Government has now given this undertaking. These measures will help give the child the right to shape his or her own future when the family breaks down.
As the Minister said, too often the child’s views are overlooked at present, or the law is interpreted to mean others can make assumptions about the child’s view, ultimately meaning the child feels that their own take on their world hasn’t been heard. The effect on children of this loss of influence can last many years, as they grow up living within arrangements that were foisted upon them.
Our experience shows that including the child in mediation can shift parents’ attention away from the bitterness and anger they understandably feel about each other. Instead their focus moves towards the interests of the child becoming paramount in all future plans. The impact of the child’s voice in the mediation and court room setting can literally be life-changing.
Of course in an ideal world parents would agree what is best for their children. But divorcing parents don’t live in an ideal world and if, by including children in mediation, we can bring them back to focus on their obligations and responsibilities then all the better for the children. At NFM’s national office we are receiving an increasing number of calls from social workers wishing to refer their clients where children have been placed on the child protection register purely as a result of being exposed to their parents’ conflict. A good first step by the social worker, but one which also highlights the continued need to raise awareness of our services more widely.
Let us be clear: there’s no single catch-all way to achieve the successful engagement of the child’s voice. In some cases it is simply not possible, or advisable, whether due to lack of parental consent or for other reasons. For example, where the child him or herself may not wish to participate.
Where it does
happen, often the mediator will see the child or children separately from the parents and report back at the next mediation session. This can be more fruitful than bringing a child into a room together with both post-separation parents who typically only share any sort of space at handover times.
So no set recipe exists for how to achieve a genuine hearing for the child’s voice. But most mediators, particularly those in the NFM network, strongly agree that the child should be included wherever possible. If this practice prevents more children tipping into the hazardous world of public law and court proceedings it has to be a good thing. Those who counsel against it are swimming against the tide.
When Simon Hughes visited NFM’s national office last autumn, it was clear from our discussion about child-inclusive mediation that he is truly passionate about this - determined to make it work.
His pledge spoke of the Government’s intention to make these changes 'as soon as is practical'. Quite aside from legislative measures themselves, there are accreditation standards and competencies, protocols and guidance to get in place and, as part of the ‘Voice of the Child’ group, NFM is playing its part in advancing these important plans.
We fervently hope any post-election changes in Ministerial portfolios won’t lead child-inclusive mediation down a dead-end.
Involving children in shaping their own future after a divorce or separation is no walk in the park. But few worthwhile things in life are.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.