The Power of Child-Inclusive Mediation

Giving Children a Voice:  The Power of Child-Inclusive Mediation in Family Decision-Making

Co-authored by Sarah-Jane Riddell and Kate Elliott

For too long, the focus in the conversations at the time of a separation has been on the adult-to-adult relationship, rather than the adult child relationship, which means that the voice of the child is often lost at a time when key decisions are made about matters that impact them.  Child-Inclusive Mediation can help change this, so let us share with you why this work is so important, and why in our view, it should become mainstream for all children at the time of a family breakdown.

“The term “voice of the child” refers to the real involvement of children in expressing their views, opinions, and experiences. It includes both verbal and non-verbal communication and goes beyond simply seeking their views to actively including them in decision-making processes” (NSPCC)

This article provides an overview of the importance of considering the views of all children when their families are going through major changes such as the separation and covers the following areas:

• The legal context in relation to listening to the voice of the child.
• Why it is important to listen to children’s views.
• The ways for a child to have the opportunity to express their views.
• The role of the Child-Inclusive Mediator.
• Messages a child may ask a Child-Inclusive Mediator to give to their parents.
• Some resources for parents and children.

Listening to children’s views – the legal context

• Article 12 of the 1989 UN Convention on the Rights of the Child confirms that every child:

“has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously”

• The Children Act 1989 states that the welfare of children is “paramount” when any decisions are to be made about them; and
• When decisions are made about children in any family law process whether by agreement between parents or by the Court (or an arbitrator) when parents cannot agree – the “Welfare Checklist” (section 1 of the Children Act 1989) is applied to ensure that decisions made are in the best interests of children.  The first item on this checklist is:

“The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”

Given the above, why are we not routinely encouraging families to give their children (10 and above but on occasions younger) the ability to express how they are feeling and to share their thoughts on matters that are important to them, and which will impact their current and future lives.  Often children are the silent party when their parents separate, and yet they are impacted in similar ways to their parents, in that they too will move through the change curve when adjusting to their parents’ separation.  It is therefore important for families to be aware that family breakdown is an Adverse Childhood Experience (ACE) and to be open to ways to support their children, both in the short, medium and longer term, to help minimise the impact on them.  Giving children a safe space to share their feelings, thoughts and ideas, in Child-Inclusive Mediation, is one way in which parents can practically support their children when they separate.

The Voice of the Child – why is it important?

Children of all ages will hopefully have many happy times during their childhood.  However, children also often must face many challenges as they go through their childhood and teenage years.

One of the most challenging and worrying times for many children is how to cope if their parents’ relationship breaks down.  Emotionally and practically, the changes required when parents decide to separate can be overwhelming and profound for all concerned, particularly for children.  A child may struggle to find a way to express their views to anyone or a space in which they can be listened to. This may happen for several reasons – some of the most common of these are:

• Children can have divided loyalties and worry that if they say anything about one parent, that parent will be upset or angry with them or the other parent.
• Children can be very protective of one or both parents regardless of how that parent may have behaved towards them.
• Children sometimes blame themselves for the breakdown of their parents’ relationship and hope that things will go back to normal given time and do not want to speak to anyone about their situation or acknowledge the reality of what is happening.
• It can be difficult for parents, who will have their own stresses and worries going through separation to provide the calm and receptive environment needed for children to be open about their feelings.
• Children can often share with parents what they think they want to hear rather than what is important to them as they are worried about each parent and how they are coping on separation.
• One or both parents may be reluctant for their child to speak to anyone outside the family including any professionals who may become involved. This may stem from a worry that their child may say something negative which will have an adverse impact on the future arrangements to be made, or it may be because a parent wishes to protect their child and speak for them.
• Where a child is asked to speak to a range of different professionals about their situation this can be overwhelming, and it is important to consider the best way for a child to be able to express their views and to minimise third party involvement.

If a child is not given the opportunity to express their views and feelings about their situation, they are likely to feel that they have no voice and that no one is listening to them which can in turn potentially lead to feelings of anxiety, depression and isolation in many cases and have a long-term impact on children.  It is important therefore to understand that children are not expected to take responsibility for making decisions about their future arrangements, as those will be made by adults – either by parents reaching an agreement maybe with the assistance of a mediator, therapeutic professional or lawyer, or if agreement cannot be reached, a decision can be made through court or child arbitration. By listening to the voice of the children involved, this can inform the decisions to be made and help everyone make arrangements that focus on the best interests of the children and which work for them.

Much research has been carried out in this area by the NSPCC and the Family Solutions Group and other charities and government organisations.  At the end of this article some resources are included in case you or your children may find it helpful to read or listen to any of these for further information and support.

How can a child’s voice be heard?

This will depend on the family situation and process used.

A child may speak to:

• One or both of their parents to say how they feel – if parents can be open to listening to their children and then reach mutually acceptable arrangements together, taking the children’s wishes and feelings into account then they are unlikely to need anyone else to be involved in their decisions and the solution found is likely to work for everyone.
• Speak to a grandparent or extended family member or friend (another child or adult family friend such as a godparent) – sometimes it is easier for children to speak to someone they feel comfortable with and trust who is not their parent.
• A school counsellor or teacher – schools have a duty to look after and safeguard the wellbeing of their pupils and some children find it easier to speak about their worries and feelings away from the home.
• A therapist or child psychologist (e.g. CAMHS – Child and Adolescent Mental Health Services) – a child may be referred for therapeutic support or assessment.
• GP/health professional – a child may confide in a doctor during an appointment although their parent would be with a younger child, or a doctor may have concerns about a child’s wellbeing.
• A trusted person such as a social worker or police officer – if the police or social services are contacted owing to a difficult family situation or abuse allegation arising.
• A Child’s Guardian – in public law children proceedings (where Social Services have started court proceedings – a child is represented by a specially trained lawyer and a Guardian is appointed who is experienced at working with children to represent the viewpoint of the child(ren) involved in the case. Older children may sometimes seek separate representation in the court process if they do not agree with a Guardian’s recommendations for them, but it is beyond the scope of this article to cover that topic.
• A CAFCASS officer – if Court proceedings are started by either parent regarding children, CAFCASS can be asked to ascertain the child’s wishes and feelings or with younger children to meet and observe their interaction with parents. This will be done in an age-appropriate way and children will not be making decisions as to the outcome.
• An Independent Social Worker (ISW) – sometimes asked (in court proceedings or jointly requested by parents) to supervise or assess arrangements for children over a period of time and to listen to the views and feelings of children as part of that assessment.
• A Parenting Co-ordinator – can be appointed by a court once a court order is made to support the family initially in ensuring the order is complied with.
• A Child-Inclusive Mediator (CIM) – the rest of this article focuses on the role of the CIM in enabling children to have a voice in decisions being made for them by parents usually in mediation, but this can also be used in other family law processes.

What is Child-Inclusive Mediation?

Child-Inclusive Mediation is a process where children (usually over the age of 10, although younger siblings can be included too if appropriate) can speak confidentially to a Mediator who is specially trained to speak to children.  The Child-Inclusive Mediator will have met with both parents first to ensure that they understand the process and for the CIM to learn more about their children.  Careful arrangements are then made with the parents for the CIM to meet with the child/children, and that meeting is confidential to the child.  This is the bit that can be difficult for parents. It is then for the child to decide what they want to share with the CIM, and in turn, what messages they want the CIM to share with their parents.  Any other information shared by the child with the CIM, will remain confidential and will not be shared with the parents (the only exception being a safeguarding concern).

The messages the child wants shared with their parents are then shared with them as soon as possible after the CIM has met with the child, and the CIM can then support the parents in making decisions about the future for their children.  It is important that parents and practitioners are aware, that the child’s views are important, but are not determinative of future arrangements.  Parents must still parent, and make the decisions, but the research shows that children benefit from being listened to, and what their parents then do with their views is of less importance to them, than being given the time and space to share their thoughts.

You can read more about how this process works in Hazel Manktelow’s article on Child Inclusive Mediation.

We have set out below some helpful key principles of CIM, to help give an overview of how  it works.

• All Child-Inclusive Mediation specialists are subject to enhanced DBS checks and have specialist training in working with children which must be kept up to date.
• A CIM provides children with a safe, neutral and confidential space to speak to and can take back any messages they wish to send to their parents about their wishes and feelings. In this way children can be more actively involved in discussions about their own future although they cannot make any final decisions.
• CIM is a voluntary process for the child/children and the parents, which means that those that engage in it, support it, and it can be an important stage in the identifying of workable arrangements for the children.
• Hearing the messages sent back via the CIM very often has a transformative impact on parents and enables them to see more clearly the decisions that need to be made and to make those jointly through mediation.
• Child-Inclusive Mediation can only take place if both parents consent to this and if the child(ren) involved agree to participate.
• Children may not wish the CIM to take any messages back to their parents and cannot be forced to see a CIM or to send any messages to their parents.
• Messages which children ask the CIM to take back to their parents must be expressed in the children’s own words and approved by them and not interpreted or elaborated upon by the CIM. It is important that children can maintain trust in the CIM that only the messages they have agreed will be given to their parents.
• The CIM may be the same mediator who is already working with the parents, or a separate mediator meets the children and will then join the parents mediation to bring back any messages the children wish to share to their parents.
• The CIM usually only meets the children once and will spend time with each child separately if there are more than one and then some time with them together – but will also be led by the children’s wishes. If the children wish to meet again with CIM, this is also possible.  Meetings will be informal and age appropriate.
• It is important for children to be reassured that their meeting with the CIM is confidential and that the mediator will only tell their parents the messages they have approved. The only time that the CIM would need to share information provided in their meeting with a child with anyone else would be if a safeguarding issue was apparent from their discussions. All mediators including CIMs have an overriding duty to safeguard children from harm at all times.

What messages do children often send back to their parents?

Here are some of the sort of messages a child may send back to their parents:

• I love Mum and Dad.
• I am worried where we will live.
• I wish Mum and Dad would stop arguing.
• I wish Dad/Mum and I had some time together on our own sometimes.
• I am worried about Mum/Dad when I am not with them.
• I want Mum/Dad to know that I will be ok when I am not with one of them.
• Mum/Dad says I can’t see Grandma/Grandpa anymore – I miss them.
• I want to know what will happen when Dad/Mum moves out – where will I live? Where will my toys be? How will I get to school? Who else will be living in each house with us?
• I am worried who will feed my pet when I am not there.
• Will I have to change schools?
• I don’t want to move away from my friends.
• Or they may share something practical and simple, but which is important to them, such as I don’t like missing playing with my team every other weekend, or perhaps I really don’t like the food at Mum/Dad’s house.

As can been seen, these are very practical questions that are often hard for children to ask their parents when they can see how stressed and preoccupied, they are by their own changed circumstances, but which can occupy their thoughts.  Upon hearing a child’s views and concerns, parents can better understand their children’s perspective, and this can be empowering and reassuring for children and a huge relief and open the gateway to family discussions on topics that matter to the children.   It can lead to more co-operative parenting if both parents become aware of their children’s views at the same time and the hope is that this would lead to a more child-focused and constructive outcome than may otherwise be the case if a child’s voice is not heard.

Summary

Separation and divorce are inevitably a challenging time for the whole family.  The impact on children of a family breakdown can, however, be lessened if parents are willing to give their children a chance to express their views either directly to their parents or, for example, by arranging Child-Inclusive Mediation.  Communication between all family members is vital at this sensitive time, and the voice of the child is as important (if not more so) than the adult needs.  A CIM can see children as part of the mediation process or during any family law process including the collaborative process if this would provide a way for children to be able to express their wishes and feelings in a confidential and safe setting to help parents make the best decisions they can for their children’s future.  If you are interested in finding out more about CIM, please feel free to contact one of our CIMs for an informal chat – they will be happy to talk you through how it works and the benefits it can bring.

Resources for Parents and Children

For parents and children going through separation or divorce, there are numerous books and resources that can provide valuable insight into the emotional impact of the process. The following is just a small selection of books/leaflets/links/videos which may be of help.

For Parents:

1. NSPCC video ‘what is the voice of the child’
2. ‘The Guide for Separated Parents – Putting Your Children First’ – by Karen & Nick Woodall.
3. The Family Youth Justice Children’s Board have prepared Top Tips for parents who are separated – highlighting the importance of listening to children
4. The Welfare Checklist – section 1 of the Children Act 1989
5. Family Solutions Group Report – ‘What About Me?’
6. There are further articles on our website relating to this topic including:
   • The ‘What About Me’ Family Solutions Group Report – Where are we now?
   • Voice of the Child in Dispute Resolution Processes
   • At what age can a child decide which parent to live with in England?
7. Resolution’s guide ‘Parenting through separation’

For Children:

This is just a very small sample as many books have been written for children on this topic.

1. ‘Split Survival Kit: 10 Steps for coping with your parents’ separation’ (2022) by Ruth Fitzgerald and Dr Angharad Rudkin – a practical guide for children 8-13 years to help when parents are separating
2. ‘The Invisible String’ by Patrice Karst – This illustrated book for younger children helps children cope with separation
3. ‘When Dinosaurs Divorce’ by Marc Brown – Aimed at children 5-9 years, this is a classic children’s book (by the writer of the ‘Arthur’ series) that encourages children to express their own feelings and worries.
4. The Suitcase Kid by Jacqueline Wilson – Aimed at children 8-12 years, a novel about the challenges for a child of spending time in two homes and all the practical issues that may arise from the changes that happen when parents separate.

Sarah-Jane Riddell is a Senior Associate Solicitor, Collaborative Lawyer & Mediator in our Brighton office and Kate Elliott heads up our Horsham Office and is a Group Director, Solicitor and Mediator.