One: Introduction

Authors: and

This chapter sets out the aims for the book as a whole and its structure. It explains it will explore the law, theory and practice of family dispute resolution from a children’s rights perspective, with a particular focus on the value of child-inclusive mediation (CIM). It sets out how it draws on new empirical research where, for the first time, children who had experienced CIM were interviewed alongside their parents, mediators, other relationship professionals and wider groups of young people. It indicates that the book will examine this process through the lens of the requirements of the United Nations Convention on the Rights of the Child and suggests that a shift away from parental autonomy-driven mediation to a process underpinned by a relational family mediation approach, which includes children’s views directly, might begin to fulfil children’s international law rights, as examined in the subsequent chapters.

Background and aims

This book explores the law, theory and practice of family dispute resolution from a children’s rights perspective. It has a particular focus on family mediation and its capacity to hear and listen to children’s voices about child arrangements when parents separate. It is set in the context of a family justice system in England and Wales undergoing radical, neoliberal policy-driven reform, which strongly encourages mediation over court processes. However, until now, there has been much rhetoric but little evidence on what these reforms mean for children’s experiences of parental separation. To help address this gap, our analysis here will draw on new empirical research from a Wellcome Trust Centre-funded project where, for the first time, children who had experienced child-inclusive mediation (CIM) and so were consulted separately by the mediator as part of their parents’ family mediation process, were key research participants.

The policy rhetoric around family mediation in England and Wales has always proclaimed it as a process which is ‘better for children’. Indeed, the government response to the Family Justice Review (Norgrove, 2011), which had first advocated the incorporation of family mediation as part of the family justice system, was subtitled A System with Children and Families at its Heart (Ministry of Justice (MoJ) and Department for Education (DfE), 2012a). Some children and young people were consulted as part of the Family Justice Review process, and a report aimed at children and young people, summarizing the recommendations, was also published (MoJ and DfE, 2012b). However, significantly, while the Family Justice Review had called for CIM to be available to ‘all families seeking to mediate, provided that it is appropriate and safe’ and encouraged a ‘consistent, evidence-based development’ of CIM (Norgrove, 2011: para 4.106), the government’s response merely set out its intentions regarding a ‘child-centred approach’ to family justice. It failed to address how the voice of the child would get heard or, indeed, how a child’s best interests would be safeguarded when matters were agreed between parents out of court about their future:

We agree with the Family Justice Review’s view that a child’s needs must always come first. We have to make it easier to make quicker decisions about a child’s future care, and we have to make it easier for parents to settle their disagreements without going to court. Put simply, we want to make sure that the Family Justice System works best for children. This means changing things so that children’s voices are heard at court, and they feel involved in decisions that affect them. Courts should ask children what they want and explain to them what is happening and why. (MoJ and DfE, 2012b: 3)

While this approach contained explicit and robust encouragement to parents to settle child arrangements without going to court, there was no indication that the child’s views on arrangements agreed in mediation were needed, in contrast to the situation if the matter went to court. Indeed, while supporting the Family Justice Review’s view that mediation regarding children disputes must be ‘child-centred’, the government chose to substantially increase the public funding available for family mediation to provide parents with ‘wider information and support’. The government concluded that ‘for many couples, this level of support will be enough to help them agree on future arrangements for their children’ (MoJ and DfE, 2012a: 21). There was no acknowledgement that young people might need or deserve information and support of their own, or that they should have a voice when future arrangements for them were being discussed and agreed.

Moreover, the response goes on to make an important assumption that continued parental involvement is likely to be the best course and that help is available to parents to achieve this, stating: ‘When parents split up it is usually best for both parents to stay involved in caring for their children. We want to make sure that parents get help to agree how they can both give their children what is best for them – now and in the future’ (MoJ and DfE, 2012b: 4).1 The omission to consider the importance of a voice for children in post-separation arrangements affecting them stands out. Policy assumptions were made about what was best for children in general, but failed to consider how children might feel about any agreement reached. This shows that as a matter of policy, children are still regarded as legal objects rather than legal subjects, despite deep criticism of this approach made as long ago as 1988 in the Cleveland Report, which went on to call for children to be treated as ‘people’ not as ‘objects of concern’ (Butler-Sloss, 1988). This is even more concerning in the context of the UK having ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1991, which gives explicitly to children capable of forming their own opinions the right to freely express a view on matters affecting their lives as appropriate to their age and understanding (article 12 UNCRC). Few things, we would suggest, directly affect a child’s life more than a transition to new post-separation living arrangements following parental relationship breakdown. Children’s article 12 rights have, at least in theory, been preserved within the court context (Family Procedure Rules, Practice Direction 12B (PD12B: 4.4)). Here, the child’s welfare is the court’s paramount consideration (Children Act 1989 (CA 1989) s 1) with their wishes and feelings listed explicitly as a factor to consider (s 1(3)). However, in family mediation, while there is an expectation that children should be involved in the decision-making (PD12B: 4.4), there was and is no legal requirement to include children’s views within the process, leaving their views and best interests in the hands of often conflicting parental narratives.

The principal idea for this book is, therefore, to add a critical dimension to the recent debates about family justice in general (Maclean and Eekelaar, 2016; Barlow, 2017; Hunter, 2017; Kaganas, 2017; Mant, 2022) and CIM in particular, by exploring some of these issues from the perspective of children themselves. While relationship breakdown has always been treated as a private and exclusively adult matter (Murch, 2018: 47), we question whether extending this thinking into making post-separation arrangements for children is the right approach, especially given the requirements of UNCRC article 12.

The impact of the neoliberal reforms

The significance of this lack of consideration of children’s views in the out-of-court space grew when family mediation became the default process for resolving private family law disputes for those requiring legal aid. For this group, mediation was the only formal help available to parents after legally aided advice and representation were removed for most in April 2013. This policy was a central plank in efforts to ‘encourage’ take-up of family mediation and was delivered through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The Family Justice Review had not recommended the reform and envisaged legal advice remaining available. The Act withdrew legal aid for legal advice and representation in nearly all private family law disputes, including child arrangements, save in cases where objective proof of domestic violence was shown (Schedule 1, para 12(1) LASPO). It seemed to be primarily driven by cost-saving imperatives where one mediator for both parties was less expensive to the legal aid budget than access to a solicitor for each. It also hoped that offering mediation at an early stage would reduce the conflict between parents, encourage agreement and lead to fewer cases reaching the courts. In fact, the opposite was achieved with legally aided Mediation and Information Assessment Meetings down 60 per cent in 2020–1 compared with 2011–12; legally aided mediation starts halving over the same period, while private law children cases issued at court increased. These reached an all-time high in 2019 and have remained high since (JUSTICE, 2022: paras 2.10–2.12). However, ‘empowering’ separating couples to reach their own decisions, aided only by a mediator where needed, also fitted well with the concept of ‘neoliberalism’, a political philosophy embraced by the government of the day, which promoted an ethos of individualism and personal responsibility (Brown, 2006: 694; Stewart, 2007: 28; Barlow et al, 2017b: 2).

The practical outcome was that after the LASPO legal aid changes, most parents had to agree arrangements between themselves or through mediation, unless they were prepared to represent themselves in court or could afford to pay for legal advice and representation. It was a move which trumpeted the virtues of individualism and autonomy and denigrated the ‘unnecessary’ role of lawyers, financed by the state, in family disputes (Kaganas, 2017). Crucially, this approach left most children without any formal route to voice their views when arrangements were being made affecting them after parental separation, but out of court.

As we have argued elsewhere (Barlow et al, 2017b), the concepts of ‘autonomy’, ‘responsibility’ and ‘neoliberalism’ have driven current family justice reform and continue to influence policy and practice development around non-court family dispute resolution processes. They have each shaped current family mediation policy and practice but, to date, have led to parental concerns and financial constraints overshadowing any formal role for children being developed within non-court processes. Let us now reflect on how these conceptual drivers, which underpin family justice policy, assist or inhibit children’s voices.

Theoretical framing and key concepts: neoliberal ‘autonomy’ and ‘responsibility’

‘Autonomy’ is a cornerstone of neoliberal thinking, which, echoing the principles of the market, requires people to assume responsibility for ‘navigating the social realm using rational choice’ (Brown, 2006: 694). It is this forced ‘responsibilization’ (Reece, 2003), requiring a joint assumption of responsibility within the family mediation process but explained as (individual) autonomy, which is potentially problematic for all family dispute resolution and may act to exclude child consultation. Family mediation is premised upon the importance of private ordering, where the autonomy of the separating parties to voluntarily reach an agreement acceptable to them both about the arrangements for their children is key. As Roberts and Moscati (2020: 1) note, mediation’s ‘core values embody an ethic of respect – in particular, for the parties’ own decision-making authority’. This can be seen in the emphasis within the Code of Practice on the process aiming to assist participants to ‘reach decisions they consider appropriate to their own particular circumstances’ (Family Mediation Council (FMC), 2018: 2.1). Indeed, Roberts (2014: 3) argues that it is this locating of decision-making authority with the parties and respect for party autonomy that distinguishes family mediation from other types of dispute resolution or professional interventions. Yet, there is often a clear tension between the autonomy of the parents involved. Each parent is likely to wish ideally for different outcomes to the other, or there would be no need for mediation. However, at present, within this area of family justice, autonomy is an adult-only concept, where most mediation is child-focused rather than child-inclusive (Barlow et al, 2017b). Thus, although the wishes and feelings of their child or children may pull in a different direction to one or both parents, there is no formal requirement to ascertain or consider these where parents agree.

Neoliberal ‘autonomy’ has already been exposed by Fineman (2004; 2013) and others (for example, Wallbank and Herring, 2014) as a myth, particularly in assumptions about capacity for both family and family law decision-making when factors other than one’s individual free will based on rational thinking pull in different directions and affect ‘choices’. In the family context, autonomy is, at best, ‘relational’ and is always subject to power dynamics, which can undermine ‘rational’ choice. The vulnerability of all the parties during the trauma of relationship breakdown, particularly in high-conflict disputes relating to children, is not an area where rational thinking and choices can safely prevail. The pursuit of agreements stressing party ‘autonomy’ and pushing ‘responsibilization’ is, therefore, potentially a high-risk strategy in family mediations involving high-conflict cases, where mediators must facilitate rather than advise. It is high risk not only because the chances of success are lower and power dynamics may be skewed, but also because there is the danger that separating-parent autonomy will be exercised to reach an agreement which is at odds not only with the wishes of the children themselves, but also with what family law would expect in terms of serving the best interests of children (Eekelaar and Maclean, 2013). As Diduck (2014: 618) has noted, decisions made by individuals in family disputes operate within a public and social context with public and social consequences. The removal by Children and Families Act 2014 (‘the 2014 Act’) section 17 of the previous requirement in the divorce context (Matrimonial Causes Act 1973, s 41) for courts to certify that the arrangements for children were satisfactory further illustrates the endorsement of parental autonomy and a wilful ignoring of what this might mean for children. Murch (2018: 156) points to the ‘social paradox’ of repealing the section 41 requirement to scrutinize arrangements for children, coupled with the failure to give children a voice within the Mediation and Information Assessment Meetings procedure introduced by the 2014 Act, at a time of growing and compelling national and international research highlighting the emotional fallout for children when parents separate.

Within the book, we will reflect on how well the emphasis on parental autonomy within child arrangement disputes is serving children, as well as consider the experiences of young people who participated in CIM and the outcomes of participation. Our analysis considers the mental health and wellbeing benefits to children when parents are brave enough to begin to cede that authority to their children so that they may participate meaningfully in the decision-making, in line with their evolving capacities, following parental separation. Taken together with our discussion of the requirements of article 12 UNCRC, we will call for a recasting of how the concept of ‘autonomy’ is constructed and understood within mediation of child arrangement disputes.

While Fineman (2013: 13) has noted the universality of vulnerability as part of the human condition and argues that legal responses should acknowledge this rather than assume autonomy is the appropriate driver, it is clear that children are the most vulnerable within family disputes. Indeed, their vulnerability may be magnified by their lack of agency. Private ordering is an attractive concept to many, but revisioning what autonomy or relational autonomy means in this context to give children themselves appropriate agency is an area we will explore further. In particular, we suggest that a concept of ‘relational family autonomy’ rather than just ‘parental autonomy’ should underpin family mediation practice and wider parental agreements about children on separation. Child arrangements are about children’s lives post-separation and should involve the views and voices of all family members where appropriate, in order that a well-rounded discussion truly focused on children’s best interests is achieved. Recognizing that children could and should have age-appropriate agency to participate in post-separation child arrangement planning at the point of parental separation and going forward, would help parents acknowledge that purely bilateral separated parent decision-making is not sufficiently relational, as it ignores the wishes, feelings and growing agency of their children. Understanding the importance of this as well as the international recognition of the right children have to play a role, would be a step towards achieving a shift to recognizing children as subjects or development actors, helping to frame their own best interests, rather than just objects of concern or passive beneficiaries whose interests are served in an adult-constructed decision-making process based on parental not family autonomy. In suggesting this, our analysis draws on notions within the UNCRC itself, which in articles 5 and 12 recognizes both the need for parents to guide children appropriately towards achieving full autonomy and agency, alongside a child’s right to express views and have them taken seriously in matters affecting their lives. A relational approach to children’s rights acknowledges that when children make choices (or choices are made for them) that take account of the interests of the wider family, this does not necessarily render the choice or decision non-autonomous, provided the family context is positive for the child and not oppressive. It further recognizes that children may need adult support to make decisions, but this does not render the decision non-autonomous (Hollingsworth and Stalford, 2017: 74–5). Embedding a ‘relational family approach’ into mediation practice, as we suggest, would keep the focus on finding workable solutions that meet the needs (and wishes) of the children primarily, as well as the wider family. As our earlier research has shown, invoking (parental) rights (Barlow et al, 2017b: 177) or, indeed, ‘best interests’ as a mask for parental rights (Smithson et al, 2015: 1) can set parents in opposition to each other, exacerbating conflict and making the mediation process less likely to succeed. A relational approach ‘provides a rich resource for those seeking a more child-appropriate understanding of rights’ (Hollingsworth and Stalford, 2017: 74). Above individual rights and freedoms, a relational approach seeks to promote values which support and uphold relationships (Herring, 2017: 262). It is an apposite approach since it aligns closely with a central aim of mediation – to facilitate separating parents to bring their relationship to an end in a way that ‘promotes as good a relationship between [them] and their children as possible’ (FMC, 2018: para 2.3b).

We therefore suggest here that within mediation of post-separation child arrangements, that autonomy, that is, the freedom to reach an agreement or joint decision, should be understood not purely as ‘relational parental autonomy’ where the parents are seen as the only active stakeholders in the process of reaching agreement, but as ‘relational family autonomy’, where the relationality within the process is actively extended to directly include and take seriously the children’s perspectives.

Fineman (2013; 2019) calls for a responsive state that can reorient its policies to address needs arising from our universal vulnerability where appropriate. Given the inherent fallacies within the current neoliberal approach to parental autonomy, we feel it is vital to reflect on the family justice processes from children’s perspectives, particularly given the UK’s international obligations to consult children, and consider whether and how this may provide the impetus for reform.

Article 12 UNCRC: family justice for children

To consider the evidence on how well family law and the family justice system are combining to safeguard children and facilitate their voices in non-court processes within the reformed family justice landscape, we will use the UNCRC generally, and article 12 in particular, as a lens.

The UNCRC was drafted in 1989, the same year the CA 1989 was passed in England and Wales. The UK ratified it in 1991, just after the 1989 Act came into force, and it is now the most widely ratified human rights treaty, with 196 signatories. It extends to everyone under 18 and aims not only to protect children worldwide but also to give them rights. This was a radical departure from the traditional view, where childhood was conceived merely as a journey towards adulthood, ‘a process in which the boundary of becoming and being is crossed’ (Lee, 2001: 8). As a result, children were categorized as dependent and passive, under the control of adults until the cliff edge moment when they reached the age of majority. Chronological age, Lee argues, can be a convenient ‘mask of invisibility’ which effectively conceals the shortcomings of some adults. He continues, ‘[t]he more one is in a position to make decisions for children, to speak on their behalf, the more one is able to silence their voices’ (Lee, 2001: 10). In the context of family mediation, where adult parental narratives most often provide the only route to hearing children’s voices, this is a pertinent observation.

Much has been written about the tension in the UNCRC between the need to protect children and the desire to give them rights appropriate to their age and maturity. Within academic literature, this is sometimes characterized as the ‘rights v welfare’ debate (Herring, 1999; Freeman, 2010). The juxtaposition of articles 3 and 12 of the UNCRC illustrates how children are at first wholly vulnerable and in need of protection but develop into young people with views who merit more agency.

Article 3(1) focuses on promoting and protecting their welfare or best interests: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ The wording of article 12, though, makes clear that children should have a say in the direction of their lives: ‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’ Freeman (2010) explains that he does not see this as a tension or dichotomy. Rather, the UNCRC reflects a paradigm shift in how children are viewed, recognizing the complexity of their evolving status. Article 3 acknowledges children as ‘becomings’ by upholding their best interests. However, article 12 also recognizes them as ‘beings’ by giving them a voice.

Within the court context in England and Wales, the CA 1989 places the child’s welfare as the paramount consideration in any court proceedings related to their upbringing (s 1(1)). In private law, this would encompass applications for child arrangements orders under section 8, which decide with whom a child should live and with whom they should have contact. Some acknowledgement of children’s agency is contained in the section 1(3) welfare checklist, which places children’s wishes and feelings at the top of a list of criteria the court must consider, without giving this factor any priority over other considerations. With leave of the court, a child can bring or be joined as a party to section 8 proceedings, providing the court is satisfied that they have ‘sufficient understanding’ to make the application (s 10(8)). These provisions are a part of the statutory enactment of the Gillick principle, according to which a child’s agency increases (and parental rights/responsibility diminish) as they mature so that their capacity to make decisions should be increasingly respected, but may be context-specific, rather than universally achieved (Gillick v W Norfolk and Wisbech Area Health Authority [1986] AC 112).

However, there is a gap between the theory and practice even in the court space, with the 1989 Act not extending to non-court processes. Here, promoting the child’s welfare in mediation or solicitor negotiation becomes a matter of professional conduct and is not enforceable in law as such (Family Law Protocol, 2010: para 1.5.1; see also FMC, 2018: para 5.7.1). Whether children are consulted in mediation was originally not even a matter which had to be raised with parents by the mediator at the initial Mediation and Information Assessment Meeting. However, following the Final Report of the Voice of the Child Dispute Resolution Advisory Group (MoJ, 2015), the FMC, which sets standards for mediation nationally, amended its ‘Standards Framework’ in 2018 to require all mediators to attend CIM awareness or update training and explain CIM to prospective clients. However, it can only proceed if both parents consent and the mediator is suitably qualified to conduct CIM. For children capable of forming their own views, even though article 12(2) adds the caveat that a child may be heard ‘either directly, or through a representative or an appropriate body in a manner consistent with the procedural rules of national law’, this parental gatekeeping approach hardly seems in line with the text of article 12(1).

Children’s rights and ‘evolving capacities’: space, voice, audience and influence

How compatible is this parental gatekeeping approach with the requirements of the UNCRC, given the provisions of article 12? The answer may differ for children of different ages and maturity, and the Convention recognizes that parents have responsibilities, rights and duties regarding their children. Article 5 refers to children’s ‘evolving capacities’ and recognizes a balance needs to be struck: ‘State Parties shall respect the responsibilities, rights and duties of parents … to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.’

The relationship between articles 5 and 12 is recognized as having ‘special relevance’ (UNCRC General Comment No. 12, 2009: para 69). Children’s participation may stimulate the development of the child’s evolving capacities (UNCRC General Comment No. 12, 2009: para 79). Equally, as the child’s capacity evolves, the parent’s responsibilities transform from ‘direction and guidance into reminders and advice and later to an exchange on an equal footing’ (UNCRC General Comment No. 12, 2009: para 84). This chimes with the nuanced approach developed in domestic law through the Gillick principle. As Lansdown (2005: 3) argues, the concept of ‘evolving capacities’ embodies the balance in the Convention between ‘recognising children as active agents in their own lives, entitled to be listened to, respected and granted increasing autonomy in the exercise of rights, while also being entitled to protection in accordance with their relative immaturity and youth’. Yet, even considering article 5 and the article 12(2) caveat noted earlier, the parental veto to child consultation within the current family mediation process approach still seems to challenge the requirements of article 12(1).

To explore whether adopting the UNCRC into domestic law might assist children in the non-court family dispute resolution context, we will also draw on Tobin’s (2015) critique of Fineman’s ‘vulnerability theory’. Echoing Freeman (2010), this argues that the UNCRC is predicated on rights, in which children’s vulnerability is recognized but is balanced against their evolving capacities and participatory rights so that they are not only seen but heard and listened to. We will use this to assess whether CIM could provide a stepping stone towards achieving a similar balance in the out-of-court space, but this will require the state to respond actively.

As we have suggested elsewhere (Barlow et al, 2024), given the gap between the theory and practice of hearing children’s voices even where matters do reach court, and the lack of facilitation of direct consultation with children out of court, it seems likely that in England, where the UNCRC has not been incorporated into domestic law, there may well be non-compliance with the requirements of the Convention and particularly article 12, which does explicitly extend to mediation (UNCRC General Comment No. 12, 2009: para 32). Indeed, this view is endorsed by concern recently expressed by the UN Committee on the Rights of the Child itself as part of its monitoring process about a lack of respect for children’s views. In its concluding observations of the sixth and seventh periodic reports of the UK, it notes that children’s views are not systematically considered in decisions affecting them and underscores the importance of the availability of age-appropriate information to facilitate child participation (UNCRC Committee, 2023: para 23). It goes on to recommend that the UK government should take action to ‘[e]nsure the right of all children … to express their views and to have them taken into account in all decisions affecting them, including in courts and relevant judicial proceedings and regarding domestic violence, custody … education, justice, migration and asylum’ (UNCRC Committee, 2023: para 23(a)). It further called upon the government to ‘[s]trengthen measures to promote the meaningful participation of children in family, community and school settings and in policymaking at the local and national levels’ (UNCRC Committee, 2023: para 23(b), emphasis added).

Incorporation of the UNCRC may provide a good way forward for realizing children’s rights in the family law context. However, there needs to be more clarity around precisely what incorporation of article 12 into domestic law might mean and how it might operate in a way that respects the concept of children’s evolving capacities, which is fundamental to understanding children’s rights (Varadan, 2019).

To further inform the debate, Lundy (2007: 930) has argued that article 12 is ‘one of the most widely cited yet commonly misunderstood of all of the provisions of the UNCRC’. She contends that common abbreviations, including ‘the voice of the child’, ‘the right to be heard’, ‘the right to participate’ and/or ‘the right to be consulted’, though useful shorthand, dilute the impact of article 12 and imperfectly reflect its contents. Instead, she advocates a four-stage test to ensure compliance with article 12. There must be ‘space’ (children must be given the opportunity to express a view); ‘voice’ (children must be facilitated to express their views); ‘audience’ (the child’s view must be listened to); and ‘influence’ (the child’s view must be acted upon, as appropriate) (Lundy, 2007: 933). We will consider the psychological benefits to young people of having ‘space’, ‘voice’, ‘audience’ and ‘influence’ from the perspectives of relationship professionals and the young people themselves in Chapter Two. We reflect on how the first three stages were accommodated in young people’s experiences of CIM in Chapter Four, reflecting simultaneously on how their evolving capacities must be acknowledged and accommodated in article 12 compliant services. In Chapter Five, we explore the issue of whether the child’s views influenced outcomes.

Clearly, the age and understanding of the child is important as to whether they are seen only as vulnerable and in need of protection, or a ‘being’ with rights, capable of some agency in the decision-making at hand. Freeman (2010: 16) argues that rights are critical because ‘they recognize the respect the bearers are owed. To accord rights is to respect dignity’. Furthermore, ‘those who have them can exercise agency’ and, in turn, agents can participate and make decisions (Freeman, 2010: 17). Freeman’s view at the time of writing was that it was necessary to fight for the recognition of children’s rights despite Westminster being ‘at best equivocal’ about children’s rights (Freeman, 2010: 27). He noted that the Equality Act 2010 does not include children and the Children’s Rights Bill, which would have incorporated the UNCRC into English law, was moved in the House of Lords on 19 November 2009 but made no further progress. Yet, given that the reporting mechanisms under the Convention have not succeeded in prompting action, he concludes that the case for incorporating the UNCRC is ‘convincing’ (Freeman, 2010: 27). How far the legal and political landscapes have moved to make this more realizable remains to be seen. However, our research has revealed young people’s strong desire for their views on parental separation to be taken more seriously.

Young people and child-inclusive mediation: research, methods and practice

As explained more fully in Appendix I, the Healthy Relationship Transitions (HeaRT) study was part of a wider two-year interdisciplinary project, funded by the Wellcome Centre for the Cultures and Environments of Health, Transforming Relationships and Relationship Transitions with and for the Next Generation. Overall, this aimed to understand the potential role of relationship education in facilitating young people’s agency and access to support about relationships, including parental separation. It also examined the experiences of children and their parents who had participated in CIM, alongside the views of relationship professionals (mostly counsellors) working with separated families and family mediators regarding its value and drawbacks.

The idea for HeaRT came from research findings in our earlier national study of non-court processes, which identified a concerning lack of both CIM uptake and UK research into children’s views on how they would view the opportunity to participate (Ewing et al, 2015; Barlow et al, 2017b: 210). While the earlier study, Mapping Paths to Family Justice (Mapping), was not designed to seek out children’s views, it did establish that there were high numbers of family mediators nationally accredited to conduct child consultation as part of the mediation process but low take-up of it. The reasons given by practitioners and parents for not pursuing CIM were a combination of a lack of confidence on the part of the mediators about their capacity to do this well, and parental refusal to allow children to participate, wanting to protect their children from the dispute as much as possible (Barlow et al, 2017b).

As noted, since this study, the FMC has amended its Standards Framework in 2018 to include more CIM awareness and update training. CIM has also been suggested as a process that could significantly improve outcomes for children whose parents are separating (Family Solutions Group, 2020; JUSTICE, 2022). The HeaRT study itself therefore set out to explore how CIM practice had developed since the Mapping research and what the views of wider relationship experts as well as family mediators were on the calls for expansion of CIM, alongside the views and experiences of parents and in particular, young people themselves, about which there was little or no evidence.

Our research design, rationale and methods are set out fully in Appendix I. It is important to note that the names of all participants have been anonymized. Any names referred to in this book are pseudonyms, with adults ascribed surnames to distinguish them from young people.

In summary here, a qualitative and engaged approach to this empirical study was adopted. This involved interactive panel sessions with a range of young people at the beginning and then the end of the study to co-create its aims and findings; a reflexive workshop with 11 CIM mediators and three family justice professionals to understand the CIM process and models of good and bad practice; ten semi-structured telephone interviews with wider relationship professionals to gain their insight into the benefits and drawbacks of CIM; 20 qualitative semi-structured interviews with a sample of CIM qualified family mediators; four focus groups with a total of 18 diverse Family Justice Young People’s Board members aged 11–19 who had experienced parental separation to gather their views on the risks and benefits of CIM as well as young people’s information and support needs. An interview was also conducted with a young adult family law campaigner using the same focus group schedule as used for the focus groups on information and support needs. We used semi-structured interviews with our participants who had directly experienced CIM, comprising 20 young people (nine girls and 11 boys, aged 9–19) and 12 parents (five fathers and seven mothers).

Against the background of calls for wider inclusion of children’s voices in family mediation and concerns about the UK’s UNCRC compliance, we will consider the implications of the findings from the HeaRT study (Barlow et al, 2022) for a children’s rights agenda.

What child-inclusive mediation offers

Given that family mediation remains the central means through which family disputes involving children are encouraged to be resolved and given the current crisis within the family courts, which are overburdened (Law Society, 2023), might finding a truly child-centred way of including children’s views help reset family justice on a new and improved path? Murch (2018: 255) calls for a radical reimagining of the family justice system. He argues that it should retain its constitutional independence but become more hybrid; part of the community’s preventive mental health services. Its aim should be to promote children’s emotional resilience and wellbeing within the context of helping parents recover from the emotional turbulence associated with relationship breakdown. This book will explore the role that CIM, re-envisioned through a children’s rights lens, might play in promoting children’s emotional resilience and wellbeing when parents separate.

While mediation did not traditionally include child consultation, this practice has gained ground as a useful mediation tool over time. Research has already revealed some advantages of consulting children when parents separate. They tend to be more satisfied with the arrangements (Butler et al, 2002: 96; Parkinson and Cashmore, 2008: 75). Arrangements also tend to be longer lasting, with father–child relationships benefiting. In addition, it often results in a style of post-separation parenting which is more cooperative (Walker and Lake-Carroll, 2014: 40). In two studies, one in Australia (McIntosh et al, 2008) and one in England and Wales, interviewing adults whose parents had separated when they were children (Fortin et al, 2012), consulting young people on child arrangements had been found to have the potential to ameliorate the adverse effects of parental separation for children and their parents by reducing parental conflict. However, only limited legal aid funding was made available for the practice of CIM following the LASPO reforms. In addition, as Parkinson (2020) documents, there are different models of CIM, but all involve the mediator consulting the child separately from the parents. While CIM dates back to the 1980s in England and Wales, it was initially only practised by relatively few mediators, mostly from a therapeutic background (Parkinson, 2020). Despite the Council of Europe’s recommendation in 2003 that children should be heard in mediation (Council of Europe Recommendation, 2003: 4), it remained a ‘minority activity’ (Walker and Lake-Carroll, 2014: 41). While the 2016 version of the FMC’s Code of Practice required that ‘[a]ll children and young people aged 10 and above should be offered the opportunity to have their voices heard directly during the Mediation, if they wish’ (FMC, 2016: 5.7.2, emphasis added), it was not until 2018, following the recommendations of the FMC’s 2017 CIM Working Group introducing compulsory update training for CIM-trained mediators and awareness training for all other family mediators, that renewed focus on the practice enhanced the potential for greater uptake. Perhaps because of this renewed focus, FMC surveys revealed an increase in cases in which children aged ten and over were consulted – 26 per cent in 2019 (FMC, 2019), up from 14 per cent in the 2017 survey (FMC, 2017). However, the response rate to the 2019 survey was only 12 per cent of FMC members. Additionally, there is no requirement to keep records of the number of children seen, so there is no definitive picture of how many children get to exercise their right to be heard in mediation, should they so wish, but this is estimated to be around 3,200 children per annum (Family Solutions Group, 2020: 105). While this is likely to be far more than are given ‘space’ and a ‘voice’ in other out-of-court processes, such as solicitor negotiations and collaborative law, for which no data is available (JUSTICE, 2022: para 2.47), but which have no established means of eliciting children’s views, more can and should be done in mediation to blaze a trail towards greater child-inclusive practice.

What children think about CIM has not, until now, been explored. This book addresses that gap in the knowledge base, drawing on empirical findings from the HeaRT study, which aimed to understand CIM from all perspectives, including those of children, parents, mediators and relationship professionals. Chapter Two focuses on the views of the relationship professionals (and young people) on the psychological, wellbeing and agency benefits (and risks) of giving children a voice in the decision-making when parents separate, particularly in CIM. The barriers to uptake of CIM are examined in Chapter Three, while Chapter Four considers the experiences of the process from the point of view of the children and their parents. Chapter Five examines which families were able to resolve matters in CIM and whether the children and parents were satisfied with the outcomes.

Finally, in Chapter Six, we draw together our conclusions. We consider, based on our evidence, the changes needed to realize a mediation system which is fully compliant with article 12 UNCRC, and the role of a UK children’s rights framework to redress the current norm of children being heard by proxy through parental narratives, allowing parental autonomy to side-step the need to truly listen to children’s voices, as children transform from ‘becoming’ to ‘being’ over time.

Using our findings alongside other research, ultimately, in this book, we answer the question posed of whether the time has come for children to be considered ‘subjects’ rather than ‘objects’ of the family justice system in England and Wales.

1

See also MoJ and DfE (2012a: 18).

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