The difference between “the voice of the child” and child participation in mediation
NZ family law is catching up with several other overseas jurisdictions in its enactment of provisions for child inclusive dispute resolution in FDR mediation. Despite the Family Justice review of 2019, Korowai Ture ā-Whānau, in which I participated in the Expert Reference Group, as a family mediator, and engaged in robust discussions about the potential of FDR. Several significant features still require clarification. Specifically, these features involve issues concerning the role and place of the child in conciliation processes, and the training of child inclusive practitioners. Engaging children in this way not only recognises a child’s rights and agency but also responds, as you point out in your article, to the contextual needs of the child and family for skilled help through separation and the parenting dispute.
I consider the term ’ child inclusion specialist’ to be far more accurate than ‘Voice of the Child’ (VoC). Having spent many years promoting “voice of the child” in my research and publications, I have found it tends to be misrepresented too often for safe practice. Child inclusive practice is a targeted, short-term dispute resolution process with a therapeutic outcome for the rearranged family. The work involves skilful incorporation in feedback to parents, of children’s perspectives, or “affect”, as a means of helping parents to refocus on their children. Defusing hostility and conflict facilitates the reaching of negotiated outcomes as soon as possible.
This practice is not necessarily the same as professed “views”. In other words, the child needs a “voice”, an inclusion, not a choice and the ‘voice of the child’ is all too easily confused with a determinative perspective. Obviously, this is different in situations of abuse.
I agree with John Green,FDR Centre, that it is disappointing if the opportunity for a VoC specialist is under utilised in mediation. This fact is not helped by the fact that there is still no clarity via the 2021 Amendment Act which states, quite obliquely, that the duty of FDR providers is to “ensure that the children who are the subject of the dispute are given any reasonable opportunities to participate in the decisions affecting them, that the FDR provider considers appropriate”.
Of course parental understanding of the impact of their separation will make it more likely that better decisions are made that best meet the needs and interests of the child. It can be more complex than that, however. One has to consider the ongoing complexity of the situation for the child. The opportunity for alienation has grown over the decades that the child’s voice has become highly profiled. If the understanding of the child’s voice is perceived as a child’s wishes, then one or both parents (and families) will inevitably put huge intentional or unintended pressure -undue influence - on the child in the middle to say the right things. Advanced relational work is a skill that helps high-conflict parents to transform their struggles into a position of cooperation. So many of us, as professionals, hoped that FDR mediation might fit this bill – but the training for child specialists was inadequate and non – specific, to say the least. Children suffer and are damaged every single day – delay and inadequate training in the specific area of family dynamics compound this unacceptable state of affairs. We all worry about whanau and tamariki. The sooner we can agree on an evidence-based way forward for child inclusion, the better the health of our families and communities.
The many competent lawyers for children in the family court are focused on fruitful interdisciplinary collaboration. They are not family specialists. So I beg to differ from the idea that “lawyer for the child” and “voice of child” roles are interchangeable, as some assert. The situation deserves further scrutiny. Being asked to comment on what they wanting in the pre-court setting of FDR is often excruciatingly stressful for the child.
Thus, FDR, at its best is not therapy, per se, but is a dispute resolution with a therapeutic outcome. It is a balance of rights-based justice with an ethical mandate to protect the family in transition. Working systemically with the family embraces a process that prioritises the mental health of children impacted by the dispute. This is vastly more than hearing children’s views. Presented sensitively, and without an adversarial subtext, the majority of parents will typically agree to have their child included. The wellbeing of that child is one of the few issues that parents in dispute can agree on. Parental agreement to involve their child is the first and significant step in conciliation and lowered hostility. So far, so good. Child inclusive practice blends knowledge of developmental psychology, attachment theory, and family systems, with skills drawn from counselling and mediation.
Rather than “hearing the voice of the child”, a child specialist will focus on the family system web of attachment, and via an informed reading of the child’s “affect”, (different methodology for different age groups) and will feedback to the parents in a way which heightens the awareness of the parents to the impact of their dispute on their child. The child interview covers the child’s feelings about the current living and visiting arrangements and their hopes for the future, without placing them in a position where they have to say or decide what they want. It is a highly skilled interview that needs to be well-paced for each age and situation (McIntosh, J. 2007). The work focuses on the developmental and attachment needs of the child whose family is attempting navigation of a major psychological transition.
A child is a rightful beneficiary of early parental conciliation. We all know that a lingering lack of dispute resolution between parents is in danger of hardening into an inflexible and bitter dispute. Children want to be consulted and informed - rarely do they wish to take on the burden of choice, and still less, coercion from one or both parents.
Safe and strategic models of child inclusion exist - the models need to be innovative and flexible and to constellate around strategies based on research findings of the dynamics of the rearranged family. The ingredients are: enhancing a child’s agency by increasing his or her knowledge about the situation, keeping the parental focus on the child’s needs, and supporting healthy communication between the child and both parents. Perhaps more than any other factor is the overwhelming benefit of children perceiving the co-parental alignment.
Whilst I agree about the opportunity that FDR has offered, I argue we need to take the best of our respective roles into an interdisciplinary collaboration informed by research outcomes. To date, feedback to researchers by consumers and practitioners, on the efficacy and benefits of FDR and reforms of 2014, amplify many of the areas needing further consideration (Taylor, N; Gollop, M; Liebergreen, N 2021)
“Education and early intervention will help parents and children minimise the damage and suffering caused by parental separation”(Marcus, P. 2021, Retired Family Court Judge, Israel)
The whole is greater than the sum of its parts - this is as it is for families, and also for the interdisciplinary connections in family law - the latter would be enhanced by training and further conscious collaboration. That way, a truly beneficial opportunity could be established in the out-of-court process.
To maximise this opportunity is to work with it from a comprehensive perspective of family system dynamics, child attachment and healthy development.
It is good to make everything as simple as possible – but no simpler, as Einstein is reputed to have said. ‘Voice of the child’ oversimplifies ‘child inclusion’. We need to be acutely clear about the reasons and ways of intervening in FDR mediation – it is far more than giving children “reasonable opportunities to participate in decisions affecting them, that the FDR mediator considers appropriate”.