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Hearing the voice of the child

We have written before about the moves within the judicial system to give children the opportunity to have their voices heard within family proceedings. This is something we feel very strongly about given that the whole family is affected by separation, not just the adults.

This month has seen the publication of the final report from the Voice of the Child Advisory Group, along with the government’s response to that report. We thought we would bring you the highlights from the document, as it may well have a considerable impact on mediation practice once its recommendations have been accepted and filtered through into the day-to-day work of professional mediators.

The Voice of the Child Advisory Group was established in November 2014 by Simon Hughes MP (the Minister for Justice) to ensure that steps were taken to promote a child inclusive practice within out-of-court dispute resolution processes, and that the opinions and voices of young people are heard in any private family law proceedings that impact upon them. The group considered how young people could be involved in a range of dispute resolution processes but focused primarily on mediation in order to develop a blueprint for child involvement that could then be adapted for use in other forms of alternative dispute resolution.

You can access all 95 pages of the report here.

The report endorses the principle of “child inclusive practice” and recommends the adoption of a non-legal presumption that all children over the age of 10 should be offered the opportunity to have their opinions listened to during the dispute resolution process. 10 years old is the stated age because this is considered to be the approximate age at which children are considered to have sufficient maturity and understanding of the process and its implications to give weight to their opinions (this is known in the legal profession as “Gillick competency” after the legal case that established the principle back in the 1980s, and whether a child has it depends on that individual child’s characteristics). In practice this would mean specially trained mediators speaking directly with the children, separately from their parents, to gauge their feelings about their parents’ separation and the issues surrounding it. Subject to issues of confidentiality, the feelings of the child or children involved would become part of the discussions within mediation between the adults.

It’s important to mention that it’s already possible to consult with children as part of the family mediation process, and there are a growing number of mediators who are trained and qualified to do so. There have always been some concerns about how to do this safely and to avoid any sense of pressure being placed on children, and it is fair to say that the profession has not universally been in favour of child consultation and that some parents resist it. Mediators must be keen to ensure that wherever children are consulted, at whatever age, they are free from any burden of decision-making: that is very much the responsibility of the adults. This is why it’s helpful to have some leadership and a proper report that goes into all the aspects of the issue with some recommendations of how to take this forward.

The recommendations include the establishment of pilot programs to test and evaluate different methods of child inclusion within mediation. In future, mediators should have arrangements in place so that they can offer child inclusive mediation either themselves or through a suitably qualified colleague. Training, accreditation and professional standards should be introduced for those mediators who will offer child inclusive mediation.

Discussions with children should be confidential but mediators should discuss with the children the issues surrounding confidentiality and how much information about their views and opinions should be shared with their parents. It’s interesting that whilst the report mentions “Gillick competency” in relation to issues of confidentiality, and that a competent child’s wishes with regards to confidentiality should be followed, it does not follow that a child who is not “Gillick competent” should not have their views and opinions listened to and considered.

Where the child is Gillick competent they can talk to a mediator regardless of parental consent, but consent would be required for mediator to meet with a child not considered to be Gillick competent.

There are recommendations about the provision of high quality and accessible information for children experiencing parental separation. The Group also recommends that funding be made available to support child inclusive mediation for those families who would be entitled to publicly funded mediation in any event.

In the Government’s published response to the final report Simon Hughes gives enthusiastic support, yet makes it clear that he cannot commit to any reforms recommended by the report because of the forthcoming general election. The report has the backing of Resolution, Relate, and other organisations working with families. Given the uncertainty of the future political landscape, it is probably more likely that our ‘top judge’, the proactive President of the Family Division, will run with some of the recommendations and perhaps steer some of pilot projects through.

We welcome the report and we will wait to see how the recommendations are implemented. Mediation is an excellent way of resolving disputes arising from separation, and initiatives that assist children through the often traumatic process of separation are positive. Children often feel powerless, guilty, responsible or angry about what is happening to their family, so giving them a voice and a means through which their opinions can be aired in a neutral and non-judgemental setting is a hugely positive step. Parents also benefit when the children’s views are aired, as sometimes it assists with refocusing discussions on to what is most important.

It’s likely to be a slow process, but we very much hope that this will be the first step on the path to bringing children’s needs centre stage within the out-of-court dispute resolution arena.

As always, if there is anything of a family law nature you would like to discuss with us, please get in touch on 01223 443333.

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