Three: Entering Child-Inclusive Mediation: Barriers to Uptake

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This chapter explores how, despite the UK’s international obligations to afford young people mechanisms through which to express their views when parents separate, the lack of automatic rights for young people to be heard in mediation curtails their ability to exercise their article 12 rights and agency, creating an effective barrier to greater child-inclusive mediation (CIM) uptake. It explains how there is general unawareness that children have such rights and there are four further critical impediments to greater uptake: a lack of consensus on the purpose(s) of CIM; systemic barriers such as costs and lack of awareness of accessible information about the CIM process for parents and/or children; lack of practitioner confidence, in both the process and ability to deliver CIM well; and the gatekeeping roles of both mediators and then the parents, considering these impediments in turn.

Introduction

Chapter One outlines the strong policy steer encouraging parents to resolve family law disputes out of court, ideally by mediation. Despite the UK’s international obligations to afford young people mechanisms through which to express their views when parents separate, the lack of automatic rights for young people to be heard in mediation curtails their ability to exercise their article 12 rights and agency, creating an effective barrier to greater child-inclusive mediation (CIM) uptake. In addition to a general unawareness that children have such rights, we found four further critical impediments to greater uptake: a lack of consensus within the mediation profession and between the professionals and the public on the purpose(s) of CIM; systemic barriers such as costs and lack of awareness of accessible information about the CIM process for parents and children; practitioner confidence, in both the process and ability to deliver it well, and the critical gatekeeping roles of first the mediator and then the parents, which could prove impenetrable. This chapter will consider each of these impediments in turn.

The purpose of child-inclusive mediation

As outlined in Chapter Two, young people staunchly supported upholding children’s right to be heard. We were therefore interested in the perspectives of the 20 mediators and 12 parents on the purpose of CIM in this regard, and whether these align with the views of the 39 young people whom we interviewed (N=20) or who were focus group participants (N=19).

Mediators

It is reasonable to expect that a process’s purpose should be conceptualized, articulated and understood clearly by those trained and practising it. All the mediators interviewed had undertaken mandatory training to practise CIM. Three-quarters (15) had attended the compulsory update day. A further three were booked to attend, and two were undecided, acknowledging that non-attendance would cause their accreditation to lapse. However, our findings point to a lack of consensus between mediators on the purpose of CIM.

In 2012, when interviewed for the Mapping project, mediators unanimously agreed that the process should be child-focused (Barlow et al, 2017b: 181). However, not everyone thought it needed to be child-inclusive. Peter Young was not CIM trained but would bring a child consultant into the mediation process where needed. In 2012, he stated that young people’s views are best incorporated through the parents: “The parents know their children best. They may have different views, but I think that parents are the best people to know their children.” This ‘parents know best’ attitude had all but disappeared in the present sample. Only Norma Jones believed that consulting children indirectly via their parents was still “probably the best” way of eliciting children’s views. She believed it is of “primary importance for the parents themselves to create a sort of atmosphere or environment for themselves to be consulting their children”. In those circumstances, if parents were “working well together and collaborating”, she thought it was usually unnecessary to involve the children directly. However, this was the minority view.

Save for Melanie Illingworth, who expressed unease at CIM “becoming the default position”, the mediators we spoke to had made what Henry Sanderson described as the “intellectual shift” to “an understanding that the child’s right to be heard needs to be at the centre of this process”. There was less consensus, however, on why this should be so.

Progress

For some, progress towards a workable agreement was the primary purpose. For example, Jemma Green thought the child’s involvement helps the mediator to pursue their own aims with the parents, enabling parents to agree to more workable child arrangements. Ann Potts, who had conducted two CIM processes, echoed this sentiment. She said we should not “drag children into grown-up conversations”, but it was needed, “especially if the parents get stuck”. Melanie Illingworth had strong reservations about involving children in mediation routinely because it may place pressure on the child. Nevertheless, she agreed that when a teenager has expressed a view to one parent, if repeating it to a neutral third party would solve the matter, “then fine”.

Welfare

Some mediators detected a shift in emphasis regarding the perceived purpose of CIM in the mediation community over time. Marjorie Jenkins indicated that the “old” direct consultation model primarily assisted parents in deciding. In contrast, CIM was chiefly aimed at allowing young people to speak to somebody independently, whether they wanted their views to be fed back to their parents or not.

Reflecting findings from other research (Brown and Campbell, 2013: 195), for most mediators, progress was secondary to giving young people a voice and focusing on their welfare. Yvonne Newbury epitomized the majority view when she indicated that “the principal objective” of CIM is to give “children a chance to talk to somebody about how they are doing”.

Dual purpose?

For many mediators, engaging in CIM has a ‘dual purpose’. Reflecting similar comments from others, David Leighton thought its purpose lay in “upgrading the quality of decisions and parents’ capacity to reach a conclusion” while giving young people a safe forum to offload. Henry Sanderson thought that eliciting children’s views can help to “inform the parental decision-making”, particularly when parents had become “stuck”. However, he felt its broader purpose had “more to do with the child having been listened to properly”. Acknowledging the centrality of the child’s wellbeing, many mediators recognized that there were often ancillary benefits such as greater cooperation or reduced conflict, which, as Laura Gurney put it, is “a secondary extremely useful thing”. Indeed, the two often worked in tandem. Sam Burns concluded that though he is working for the child’s welfare, this is “hugely dependent on parents finding a way to get on board with a more collaborative, cooperative approach rather than a sort of competitive one that the court tends to encourage”.

Children’s rights

Only two of 20 mediators linked hearing from children explicitly to children’s article 12 rights. One, Briony Simpson, had a background in advocacy for young people. She saw upholding young people’s article 12 rights as “pivotal” and said this ran through the very core of all that she did in her practice. Unsurprisingly, she saw significantly more children in her practice than the other mediators interviewed. Conceptualizing children’s participation through a rights lens in this way is likely to result in greater uptake of the process.

Parents

One of the most common challenges to children’s meaningful participation in decision-making when parents separate is the tension between protection and participation rights. Parents who decline to involve their children in decision-making do so often because of a misguided perception that they are protecting their children (Barlow et al, 2017b; Barlow and Ewing, 2020: 38). However, far from protecting them, failure to hear from children may be disempowering or even harmful (Bell, 2016: 242). This may be particularly so in high-conflict cases since hearing from the children here can provide reassurance and support (Voice of the Child Advisory Group, 2015). Children tend to know more about the difficulties in their parents’ relationship than parents give them credit for, and exclusion from involvement in decision-making causes them distress (Lansdown, 2011: 84; see also Kay-Flowers, 2019). While shielding young people from knowledge of the separation until the eleventh hour may spring from an understandable desire to protect children, it leads to poorer adjustment to the separation. However, this can be ameliorated when parents consider their child’s views in decision-making (Kay-Flowers, 2019: 150). For parents who engaged in CIM, we were interested in what they perceived to be its purpose. Insights into why they chose to engage might inform attempts to address reticence in other parents, where appropriate. As with the mediators, there was a lack of consensus among the parents on CIM’s purpose. Many thought it served several purposes simultaneously. In Australian research (Bell et al, 2012), parents disclosed multiple reasons for choosing CIM. Some were child-focused (the therapeutic benefit for the children in talking to someone, understanding their feelings, and giving them a voice in resolving the dispute). Others were primarily parent-focused (to gain assurance that what the child said to them reflected what they would say to an independent person and to help the other parent hear what the child wanted). There were overlaps with these child-focused and parent-focused reasons in the parents’ responses in the present study.

Progress

Like the mediators, a minority of parents viewed CIM’s primary purpose as making progress. Parents often reported involving the children when the parents had reached an impasse. Mary Dobson, for example, disclosed being “very against” seeking her children’s opinions in the adult dispute initially but conceded the need to do so because she and the father were “going around in circles”. Some parents were pragmatic. They knew that court proceedings were a real prospect if a decision was not reached, which they were keen to avoid.

Principle

None of the parents raised children’s United Nations Convention of the Rights of the Child (UNCRC) rights, but for more than half, involving the children was a matter of principle, “the right thing to do” (Mark Bell), “morally the right thing to do” (Doug Henderson). Coming from this perspective, CIM was not a hard sell. Framing the offer to all parents of children of suitable age in terms of children’s UNCRC rights, so that the decision becomes about why it would not be appropriate to allow this child to exercise their rights, may lead to greater uptake by parents who take a less principled stand on the matter than these parents.

Therapeutic benefits

Some parents sought CIM because its child-centred approach chimed with their own beliefs. Tanya Adams typified this view. CIM “ticked all of her boxes” because she wanted someone to deal with her children’s emotions and for her children to feel empowered and that their opinions mattered. Half of the parents fell into this category, two-thirds of whom were mothers. If engaging mothers who value CIM’s child-centred approach proves easier than engaging fathers, careful work may be needed to understand and address fathers’ reticence, as outlined in the section on ‘The imperative’.

Verification

Lastly, two-thirds of parents hoped the mediator would be an independent voice to confirm the veracity of the child’s views. Many parents wanted the assurance that what their child said to them mirrored what they would say to an independent person. Alternatively, they hoped the process would help the other parent hear, assimilate and act upon the child’s preferences. Much like parents who choose court because they think the judge will endorse their stance, these parents saw the mediator as an independent person in whom the child could confide to confirm to Parent A that what Parent B had been saying were the child’s honest and independently reached views.

Ellen Foxton, for example, said that her ex-partner “would never have listened” to her, so “pretty much the only reason” for going to mediation was to allow the children to “put their point across … so the mediator could hear it from the children and pass it on to [ex-partner]”. The mediator, Sam Burns, recognized this tendency in parents. He cautioned that, in such instances, the way that the offer of mediation is framed and explained to the parents is critical because many parents seek CIM “because they anticipate that the children are going to confirm to you, this independent person, that they are right”.

Many parents hoped involving the children would help the other parent agree to the interviewee’s preferred contact regime. Several mediators confirmed that parents often sought CIM for this end, and expectations must be managed accordingly. This thinking by parents underscores the need for meticulous screening for suitability for CIM. There should be time with each parent individually to explore their motivation, particularly how they might respond if their child’s views on contact do not align with their own.

Young people

As the mediators and parents hoped, the child’s involvement had helped many families progress matters to agreement. However, the benefits to young people’s wellbeing went far beyond this (as discussed in Chapters Four and Five). Regarding CIM’s purpose, reflecting consistent messages from research in this jurisdiction (Neale, 2002; Walker and Lake-Carroll, 2014; Symonds et al, 2022) and abroad (Lansdown, 2001; Carson et al, 2018), young people viewed giving them a voice in the decision-making and respecting their views as imperative. Save for two focus group participants, none of the young people spoke of UNCRC rights or displayed an awareness of those rights. However, as discussed in Chapter Two, on principle and without exception, they felt that children should have the right to be involved, and that providing a mechanism by which children could exercise this right is CIM’s foundational purpose.

The young people highlighted secondary purposes, including providing an outlet to help them understand the process better and adjust to the separation, a mechanism for getting painful messages across to their parents and assisting the mediator in grasping the child’s true feelings.

Barriers to access to information and support

Before discussing the barriers to greater uptake of CIM, it is worth noting that, consistent with the findings of other research (Barlow et al, 2017a; Symonds et al, 2022; Family Solutions Children’s Group, 2023), our young people participants had encountered significant barriers to accessing the information and support they needed more generally when parents separated. A minority disclosed poor experiences when trying to elicit support from professionals to whom they ought to have been able to turn at crisis points, such as teachers, GPs and the police, indicating a need for better training for professionals on the impact of parental separation on children. Several focus group participants said that internet searches had been unhelpful. From Google searches, Louise discovered that as a child of divorced parents, she was more likely to get diabetes, drop out of education or go to prison, but nothing that had helped her. Others disclosed stumbling across the information and support they needed. As Aleah explained, “Because there is no set-up in place for young people, it’s down to luck.” Farah said that it was “pure luck” that she had found the National Youth Advocacy Service (NYAS) when she had been given access to a school computer. She reflected that, but for her work on the Family Justice Young People’s Board, had she been going through it again, “I still wouldn’t know where to start, I wouldn’t know who I could talk to, can I talk to ChildLine? Do I qualify as such to talk to them? Is the situation severe enough, or [can I speak to] NYAS again?”

The focus group participants whose parents litigated bemoaned the lack of continuity of professionals in the case. In separate cases, two young women spoke of “cultural disadvantages” and unconscious biases and assumptions about the “family dynamics” of their Asian families. Each said the professionals involved failed to take their genuinely held preference to live with their respective fathers seriously. Craig disclosed challenges associated with accessing appropriate information and support in rural areas.

The focus group participants had two primary solutions to the lack of accessible information and support. The first was access to a universal, well-publicized website that would become the ‘go-to’ source of information and support for young people on parental separation. As Aleah said, “there is no direction. I think that’s the problem, and I think having one place where everyone can start is a really good idea”.

The second was more information and support for young people in schools. This might be through improved school counselling, pastoral support or peer support for general reassurance. As Ruby put it, having someone who could say, “This happened to me too, that would help a lot … just to make [you] feel like [you are] less alone and that [you are] not the only person that these sorts of things happen to.” However, schools should only be informed of parental separation with the young person’s authority as school may be the only place, as Farah said, where children “can still feel some sense of normality”. They felt this was particularly important given the stigma that still attaches to divorce in some communities. Existing support provision in schools was felt to be “a lottery”, and some, like Louise, felt badly let down by the lack of compassion and understanding they had experienced from most of their teachers. Louise felt that teachers needed better awareness of the mental health impact of parental separation on young people.

The focus group participants and young people we interviewed staunchly supported universal relationship education lessons on parental separation. Arming young people with information on processes and rights would make the process less intimidating for those whose parents subsequently separate. It would allow peers to support one another. Despite its prevalence, there was considerable frustration that parental separation is not covered adequately in schools. Ruby felt that schools have a valuable role in normalizing the prevalence of parental separation and young people’s rights to be heard in decision-making. She saw the lack of teaching in this area as a “fundamental problem”. Aleah was frustrated that personal, social, health and economic education (PSHE) lessons cover “uncommon” experiences such as teen pregnancy, which would affect only a few students, but not parental separation even though it is “so, so common”. In a different focus group, Becky expressed a similar sentiment: “We study about not taking drugs, and healthy eating and relationships … but even though divorce and separation is [sic] so common, we never learn about it at school … so, it’s seen as something different from the norm.”

The Department for Education guidance requires teachers to be ‘aware of common “adverse childhood experiences” (such as family breakdown …) and when and how these may be affecting any of their pupils’ (DfE, 2019: para 102). In fulfilling this requirement, the message from the focus group participants was that schools should not shy away from teaching about parental separation since, as mentioned in Chapter Three, children are more resilient than adults think and may benefit from learning about it.

Barriers to greater uptake of child-inclusive mediation

Article 12 places a positive and unqualified duty upon State Parties to afford children an appropriate and safe space to express their views on matters concerning them. It is the weight placed upon those views that must be considered per a child’s age and maturity. In upholding our international obligations towards children, there is a positive duty ‘to invite and encourage their input rather than simply acting as a recipient of views if children happen to provide them’ (Lundy, 2007: 934). However, our research revealed significant barriers to ensuring that children are invited and encouraged to participate in CIM systematically, in line with our international obligations.

In the following sections, we outline some barriers to greater uptake of CIM and suggest how those might be overcome. The young people we spoke to were capable, resilient ‘beings’ (not simply ‘becomings’) (Diduck and Kaganas, 2012: 504). Nevertheless, mediators felt that in addition to a general lack of awareness of CIM and systemic barriers such as costs, parental reluctance to involve children in what they viewed as adult decision-making went to the heart of parental concerns about facilitating young people’s meaningful participation. However, our evidence indicates that practitioners are the first gatekeepers to children engaging in CIM, with practitioners’ lack of confidence, either in the process or in their ability as child-inclusive mediators, a significant hurdle. Having interviewed some of the mediators previously (Barlow et al, 2017b), the confidence of many had increased over time, leading to changes in how mediators framed the offer. Those who consciously framed the offer as a right for children found that parents were more likely to accept.

Awareness

Lack of awareness of CIM is a significant obstacle to greater uptake. Among adults, this lack of awareness starts even with the professionals working with separating families. The mediator, Melanie Illingworth, noted that many lawyers are unaware that CIM is available to clients and their children.

Awareness of CIM was low among the parents and young people interviewed. Only four of the 12 parents and one of the 20 children had heard of it before the parents engaged in mediation, the child through school. Two further children had heard of mediation and assumed that children would be involved. In 2018, the Family Mediation Council (FMC) amended its national ‘Standards Framework’ to require mediators to explain CIM to prospective clients. This should ensure that parents are routinely informed once they have approached a mediator. However, work is needed to enhance CIM awareness in the general population, including non-legal professionals (for example, teachers and GPs) who are on the front line with separating families. Training to professionals such as teachers on the availability of mediation, including CIM, is much needed and appreciated. As a teacher who had received training said, “Very often [when parents separate], it’s just been, ‘Oh, I’m sorry to hear that’ … We have never really been able to say, ‘Have you considered mediation? … Here’s a leaflet that might be of some use to you.’ We have not had that tool in our toolkit” (Barlow and Ewing, 2020: 15). Gatekeepers within the wider community, as well as parents and children, need greater awareness of CIM. Dedicated PSHE lessons on children’s rights when parents separate, as strongly advocated for by the young people we spoke to, would help to address the lack of awareness of CIM among young people.1 The dedicated ‘go to’ website for which the focus group participants called could also help raise awareness. The website should include a space for parents, children and professionals who work on the frontline of parental separation, such as teachers or GPs (Family Solutions Group, 2020: 49).

Costs

We spoke to parents who had engaged in the process and had overcome any reservations about costs, but several saw costs as a disincentive, as discussed further in Chapter Four. Even some young people were concerned that the ability to speak to the mediator they had enjoyed might be unavailable to children of less affluent parents.

Despite Henry Sanderson noting that most mediators have made the “intellectual shift” needed to embrace hearing from children, he concluded that “the impediments in terms of funding are so great that it is difficult to see how they can actually then put that into practice”. This echoed Marjorie Jenkins’ concerns. She felt that the CIM update day had enthused (or re-enthused) mediators to undertake CIM. However, mediators received a “double message” on the update day that they should be seeing children, while acknowledging that no (public) money is available to pay for this. This, she recognized, was a significant obstacle to greater uptake. Some mediators committed to CIM had begun offering it free of charge. Others had done so, mindful of needing at least three CIM cases over three years to keep their accreditation (FMC, 2014: 6.3(b)). This would not be sustainable long term. Removing the ‘stumbling block’ of funding will be key to achieving greater uptake, and we make recommendations to this end in Chapter Six.

Lawyers and mediators as gatekeepers

The traditional route into mediation pre-Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was through solicitor referral and could still be a key route for privately funded cases. As outlined in Chapter One, the LASPO changes, which removed public funding from most family cases, caused a haemorrhaging of mediation starts in the immediate aftermath of LASPO, with starts never having fully recovered.

Several lawyer and non-lawyer mediators viewed lawyers’ attitudes as an obstacle to greater uptake of mediation, including CIM. Jennifer Eccles felt that lawyers are “massively incentivized to litigate”. Briony Simpson thought there was a cohort of lawyers who, for monetary reasons, believed that court or solicitor negotiations were always preferable to mediation. Melanie Illingworth noted that many lawyers are unaware of CIM as a process available to clients and their children.

Practitioner confidence

Practitioners’ lack of confidence in the process or their ability to conduct CIM was a potent obstacle to greater uptake of CIM. As recognized elsewhere, professional anxiety about burdening young people with the adult conflict from which the system should shield them, when coupled with cost restraints, can result in failure to uphold children’s right to participate (JUSTICE, 2022: para 3.58).

The FMC introduced compulsory update training for all CIM-trained mediators in 2018. Several mediators reported that this had boosted mediators’ confidence and, as a result, uptake. When interviewed for the Mapping project in 2012, Maria Ingram indicated that CIM was “something we often flag up” in the first meeting with the client, yet it was rarely pursued. In Maria’s case, lack of practice led to a lack of confidence in her ability and the process. She said that because of legal aid cost restraints, she did little CIM work for years, “and I guess as the years went by … I [lacked] confidence, and it didn’t really feel like the thing that you really had to do”. While some experienced CIM mediators felt they had not learned much during the update day, less experienced CIM mediators, like Maria, reported that it had had a “significant impact” on their confidence in the process and ability to conduct it well. Maria became aware of the pressing need to involve children and the willingness of parents to accept an offer when framed positively. By 2020, she saw children monthly. She attributed the increase to a conscious change in how she presented CIM to the parent. She told us, “I thought people didn’t want to do it, but … if you present it in a certain way, and you present it as the thing that you do as part of the mediation process, if you normalize it, then actually clients do want to do it.” Maria’s experience resonated with the views of more experienced child-inclusive mediators. Marjorie Jenkins pointed to anecdotal evidence that some mediators had found the initial training for CIM insufficient and consequently conducted few mediations, which meant what little confidence they had, ebbed. Marjorie felt that attendance at the update day had “re-energized” many mediators and, while some are sceptical, “others are more prepared to go out and just make it part of their conversation about what they do”.

Jemma Green saw mediators’ lack of familiarity with the process as a significant barrier. Reflecting this observation, Audrey Rogerson attributed the substantial increase in the proportion of cases in which she met the child since 2012 to “familiarity with the idea … I think it does really help to be able to say that it is an expectation … as something that we would routinely offer unless there’s a reason not to”. Audrey explained that, following some additional intensive training, she and her colleagues decided to reframe the offer of CIM to clients, leading to a substantial increase in uptake. Rather than asking, “Would you be willing for us to talk to your child?” they chose to “turn it around and say, ‘We see children as a matter of course, are you happy for us to offer this opportunity to your child?’” When parents are reluctant, they follow this up with, “That’s absolutely fine, but would you be willing to check?” While an invitation direct to the child would be better still, this reframing of the offer was critical to greater uptake. Normalizing the offer like this respects the child’s right to ‘space’ and ‘voice’.

Confident mediators are likely to frame the offer of CIM so that it is more likely to be accepted. How the offer of mediation is framed to a prospective client in the initial telephone call to a mediation service can dictate how likely the client is to accept the offer (Sikveland and Stokoe, 2016). Similarly, how the offer of CIM is explained to a parent and how the mediator “frames the task of meeting the children” (Sam Burns) is critical. Patricia Todd, who estimated that she had seen more than 75 young people in CIM, tells parents, “One of the benefits of mediation, as opposed to the court, is that your child can have a voice, you know, they can come to talk to the mediator, and that’s a really good opportunity.” Framing it as a positive opportunity for young people increased parents’ willingness to try the process in Patricia’s view. Practitioners confident in the process and their ability reported a shift in parents’ attitudes and willingness to undertake the process. Sam Burns, who tells clients that it is “normative for me to meet … children aged ten and over”, said that the increase in uptake of CIM in his practice “could be [because of] the way I put it across, that I own it more”. His practice had shifted in recent years. Rather than viewing CIM as a “possible add-on” to the process, his mindset is now, “Well, why wouldn’t you want me to see your children? … It’s more of a sort of an opt-out [option]. … That’s the change in my approach, and that’s how I sell it if you like.” Since parents may see the benefits of involving children generally but be reluctant concerning their children, normalizing the offer of CIM so that it is explained as a routine part of the process may address parents’ hesitancy (Brown and Campbell, 2013: 195).

Audrey Rogerson explained that confidence builds as mediators experience the process and witness the positive outcomes for children, including that children welcome it and do not find it a burden. She said, “It’s the belief of the mediator, because it doesn’t matter how good the ‘script’ is, you have got to believe [in] it … to be authentic with the parents … and that comes [with] experience.”

What then of the mediators who conducted few mediations? Why was this the case? Six of the 20 mediators interviewed had consulted with a child in five or fewer cases since training.2 All six had been interviewed as part of the Mapping project.

For the six mediators who had conducted few child-inclusive cases, reasons for not engaging in CIM more regularly were evenly split between lack of confidence in their ability to conduct the process and in the process itself; the latter either because of concerns about the possible risks to the child or ambivalence about the process.

Experienced CIM mediators who are Professional Practice Consultants noted a reticence among their less experienced consultees to see children. Yvonne Newbury attributed this to consultees’ lack of confidence and fear that they might make things worse. We found evidence to support this among those who had conducted few child consultations. David Leighton, for example, had trained in CIM but had not seen any children directly, preferring to refer children-only cases to a more experienced (male) colleague who was “better at it” than he felt he was. He thought it was one thing to “have a go” at mediating financial cases if that was “within your skillset”, but to “have a go” at speaking to children was not appropriate, for him at least.

Maria Ingram felt that practitioner confidence is a particular issue for male mediators as this can be “outside their comfort zone”. She was sympathetic to what her male colleagues said about “the additional complexities because of their gender”. David Leighton acknowledged the difficulty of, in his view, a “crusty old git” like him doing this work. However, he referred cases to his male colleague who regularly saw children, recognizing aptitude and experience, rather than gender, should be the deciding criteria.

While the FMC Code of Practice mandates 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, 2018: 6.6.1),3 the practitioners proved effective gatekeepers. Kirsty Oliver had conducted very few CIM cases. She said that she tended to tell parents about CIM where appropriate, and it was on these occasions parents had accepted the offer, yet she had seen very few children. Similarly, Melanie Illingworth had seen very few children since qualifying five years before the interview. She saw no need for greater uptake of CIM, viewing it as “an optional bolt-on”. Briony Simpson was frustrated at the update day with the number of CIM-trained mediators whose view was still, “I just don’t know when you do it”. She felt there was a strong need for Professional Practice Consultants to challenge this thinking among their consultees. She argued that a lack of confidence among CIM-trained mediators made them reluctant to offer it to parents, and the consequent lack of experience meant they had not had the opportunity to witness the positive impact it can have on children.

Sam Burns felt that while historically it had been normative for experienced mediators to qualify to consult children, the enhanced CIM training may function as a disincentive for ambivalent mediators because of the cost, effort and expectation of professional competence. Briony Simpson welcomed that reaccreditation requirements would “weed out” mediators who had trained to conduct the process but whose mindsets had remained litigious rather than child-focused and inclusive. The reaccreditation requirements may lead some mediators to let their accreditation lapse. Both Caroline Underwood and David Leighton indicated that since their practice was primarily financial cases, consulting with children would take them out of their “comfort zone”. Caroline reflected that the interview had shown her that she was “not qualified to do” CIM. She said she probably would not attend the update day and would let her accreditation lapse. David’s view was, “If I am trying to do the best by the client, why would I do it incompetently when there’s someone who can do it with much more experience than me?” It seemed likely that, along with five other mediators interviewed, his accreditation would lapse by default given the lack of CIM work he undertook.

Parents as gatekeepers

Parental gatekeeping has been identified as a strong barrier to greater uptake of child-inclusive practice, with parents seeing the merits of the process for children generally but not for their children (Brown and Campbell, 2013: 195). While, as outlined earlier, the reticence of some mediators proved an initial hurdle, all but one practitioner cited the reluctance of at least one parent as a barrier to greater uptake. A desire to shield the children from what they viewed as an adult dispute drove parental reluctance to engage in CIM. Paternalistic mindsets; failure to see the need to consult children; fear of what the child might say; the need for both parents’ consent; the emotional readiness of the parents to engage in the process; and (as mentioned earlier) costs were also effective barriers. One practitioner, Melanie Illingworth, said that as making progress was central to why many parents choose CIM, if this could not be assured, many chose not to authorize the mediator to invite the children.

Protection

Many mediators concurred with Bella Morris’ view that “The biggest barrier is [that] the parents are the gatekeepers. … There are a lot of parents who believe they are protecting their children by not involving them [or] giving them any information.” As Kirsty Oliver put it, the desire to “protect their children from the kind of adult world” was the most frequently cited reason the practitioners gave for parental reticence to involve their children. She empathized with parents who viewed bringing their child to a lawyer’s office as “scary”. This underscores the careful thought that needs to go into both the offer to the parent and child, and the ambience of the setting for CIM, as discussed further in Chapter Four. Kirsty was the only mediator to highlight that the child, as well as the parents, might be reticent. Others stressed that once the parents saw the merit in involving the child, the child would usually accept the invitation.

Several mediators noted that while parents might couch their resistance in terms of a desire to protect the child from the adult dispute, often, these parents seemed to have quite paternalistic parenting approaches.

Many parents disclosed that they had indeed been reluctant to involve the child initially, as explained by Rose Enstone, who said that she had been “a bit nervous” and “slightly tentative” as she did not want to “drag [the children] into what was a painful family episode”. Given what she perceived as their father’s forceful character, Rose was concerned about whether the children would feel comfortable speaking up. She saw the gender of the mediator (a man) as a positive benefit in her circumstances. She overcame her reluctance to involve the children because she saw the mediator as “a kindred spirit” who had “couched it as a nice way; that the children could for once be allowed to actually express their emotions surrounding the … breakdown and have a say”. As discussed in the earlier section on ‘Practitioner confidence’, the mediator couching the offer positively assuaged the concerns of Rose and other parents.

Paternalism

Mediators highlighted parents’ mindsets as a critical determinant of their suitability for CIM. If parents have rigid ideas about the arrangements and lack the “psychological capacity to be able to make the process a positive one for their children” (Jennifer Eccles), they may be unsuitable or at least children’s expectations would need to be carefully managed. The mediators indicated that parents with inflexible mindsets often are not open to involving their children. As Kirsty Oliver said, “Some parents … maybe don’t want to think of giving their children any self-determination.” Parental reluctance stemming from paternalistic attitudes proved some of the thorniest cases for mediators. Most felt that the case should be deemed unsuitable for CIM if the parents cannot prioritize their child’s needs and are not “psychologically in a position to take heed of what a child is saying” (Norma Jones). Others felt that the children of such parents could benefit from having an outlet to express their feelings, even if the mediator needs to manage the child’s expectations around outcomes.

Only two of the 20 children interviewed had been unhappy with the outcome of mediation because they felt that their father had ignored their views. It is impossible to predict accurately how a parent might respond to an unpalatable message from their child. However, for parents with very fixed ideas, who seem incapable of moderating their stance, whatever the child may say, CIM may not be appropriate unless there are other likely benefits for the child. As outlined in Chapter Four, there may be benefits from the child’s perspective that would make it worthwhile proceeding, so we would not endorse a blanket ban on CIM, even in these circumstances.

The imperative

Yvonne Newbury felt that many parents underestimated the effect of the separation on their children, so they failed to see the value of including them. She saw a need to change parents’ perception of CIM’s purpose, so they would begin to value their children having an independent voice in the process, regardless of whether this affects the outcome. She felt the parental reluctance could be overcome by a gentle general introduction to the concept individually in the Mediation and Information Assessment Meeting so that the parent “can start to think about it”, with the assurance that the matter would be revisited in the first joint meeting. It also required the mediator to frame the offer positively: “The more confident you are … about the benefits of … speaking to children … that does help to shift the parents’ reluctance.” Practitioners’ confidence in the process builds parents’ confidence in it.

Clear information and explanations of the process for parents, reinforced periodically, can also help to overcome parental reluctance. Jemma Green explained that parental reluctance “can be addressed by the way we speak about the process … if we are very clear at various points that it’s not about the child making decisions”.

In the earlier Mapping project, most parents were also extremely cautious about involving their children. Ernest, one of the two (of 56) parents who had experienced CIM, resolved the issue of which school his daughter should attend through CIM. Nevertheless, he concluded that “there’s better ways of focusing on the child than actually bringing them to mediation. I think it puts them in a very difficult position” (Barlow et al, 2017b: 135). A decade later, increased practitioner confidence in the process (and their ability to conduct it effectively) seemed to affect parents’ willingness to engage positively. One parent, Trevor Cox, told us he was initially “dead against the idea” of CIM but had overcome his reluctance after several conversations with the mediator, who had framed the offer positively and outlined the benefits of the process, allaying his concerns. Having engaged in the process, Trevor concluded that “without a doubt … you have to involve children”.

Fear

As one of the relationship professionals, Jacob Beardsley, pointed out (see Chapter Two), mediators need to acknowledge how disconcerting it can be for a parent to give their child a voice in the process, thereby risking the child criticizing their parenting or choosing against them. Echoing this view, several mediators indicated that parental fear that the child might criticize or reject them is a formidable obstacle. As Angela Brown said, parental reluctance stems from “an unspoken fear that maybe a child would make a judgment or criticize or choose”.

Jemma Green highlighted the meticulous preparatory work needed with fearful parents, noting that without this, some parents will be unable to “fully hear the feedback”. Engaging with parents at their own pace to acknowledge and alleviate parents’ understandable fears and gently explain the benefits to children of having their voices heard could, in the view of several mediators, help to alleviate parental concerns.

One parent’s reluctance

Since it is a voluntary process, one parent’s refusal to attend is an undoubted barrier to greater uptake of mediation (Barlow et al, 2017b: 90). This continues to be an obstacle, including to CIM. Echoing similar sentiments from other mediators, Yvonne Newbury concluded that “one parent’s reluctance is the biggest obstacle to it”.

The Voice of the Child Report recommended that Gillick competent children should be able to have their voice heard by a suitably qualified practitioner if they so wish, without the need for parental consent, and that the consent of one parent only should suffice where the child is deemed not to be Gillick competent (Voice of the Child Advisory Group, 2015: Recommendations 19 and 20). The JUSTICE Report calls for a ‘system-wide presumption that all children should be offered the opportunity to participate in processes which concern them, both in and out of court, in an age-appropriate way’ (JUSTICE, 2022: 4). However, it points to the difficulty of gaining access to a child in the absence of parental consent and, since mediation is a voluntary process, the likelihood that one parent will withdraw from the process if their consent is bypassed. The Report therefore calls for better education and information for parents rather than any form of mandation (JUSTICE, 2022: 3.75–3.77).

The FMC has resisted calls for reform to the process of engaging the child. Children participate voluntarily with the informed consent and support of both parents (or those holding parental responsibility) (FMC, 2014: 40; FMC, 2018: 6.62). As a result, one parent’s reluctance will stymie the process. As Sam Burns said, “given that one is in a voluntary domain … I don’t think you can [impose CIM] … the bottom line is you have got to have an agreement of both parties, don’t you?”

Emotional readiness

Several mediators pointed to a lack of emotional readiness to engage in CIM as the root cause of many parents’ reluctance. Just as parents need to be emotionally ready to mediate (Barlow et al, 2017a; 2017b), they must be emotionally ready to engage in CIM. As Kirsty Oliver told us, if parents come to mediation when “at the ‘blame game’ [stage]” when they are still “emotionally quite vulnerable”, the thought of involving the children “is just … a step too far”.

As found elsewhere (Barlow et al, 2017b), Kirsty thought that parental anger abates with time, and they may then be more willing for their child’s voice to be heard. Angela Brown said that parents’ capacity can diminish immediately after separation. Preoccupied with their own needs, parents find it challenging to comprehend what their children might be experiencing at this crisis point. This temporary state must be distinguished from parents who lack capacity altogether. In the former instance, as Barlow et al (2017b) recommend, Angela thought putting temporary arrangements in place might be necessary. Marjorie Jenkins felt that parental capacity to hear and take on board the child’s views may “evolve” as the parent begins to trust the process. Jemma Green underscored the importance of waiting until the parents are emotionally capable of taking on board the child’s feedback before engaging in CIM. As Patricia Todd summed up, CIM is most likely to achieve positive outcomes where parents are egalitarian, the separation has not been too wounding, life has moved on, and the parents are focused on the child’s happiness.

Kirsty Oliver suggested that making CIM an opt-out rather than an opt-in process might concentrate the minds of parents who would otherwise be reluctant to allow their children to have a voice, resulting in greater uptake.

Other reasons cited by practitioners for parental reluctance to involve their children included the perceived unsuitability of children on the autistic spectrum and, as previously discussed, cost.

Policy restraints

Lastly, many mediators recognized that embedding article 12 compliant processes requires wholesale support from the government and policy makers and appropriate funding. Henry Sanderson lamented the absence of children’s voices generally within private family law processes. Others felt that progress was unlikely until a government minister grasped the imperative of upholding children’s participation rights.

Echoing similar sentiments from many of the mediators, Audrey Rogerson made a plea to policy makers and those who hold the purse strings for better funding for CIM. Bella Morris doubted the political will to take responsibility towards these children seriously, as the government is preoccupied with other issues.

Henry Sanderson felt that there had been a failure on the part of the government to educate and (where appropriate) support parents in making decisions. He supported the rollout of a ‘Mediation in Mind’ model (Barlow and Ewing, 2020). He thought such a model, which had, embedded in a mediation process, “proper triage, proper information and guidance, proper counselling and proper education about the role of separating parents” was critical to “get to where we need to get to”.

Conclusion

There was a lack of consensus among practitioners and parents on the purpose of CIM. Many practitioners and parents viewed it as primarily a vehicle for progressing matters, especially when negotiations had reached a stalemate. Consulting young people to break a deadlock risks putting a child under pressure to decide and disappoint one parent. Therefore, careful screening is needed to judge how a disappointed parent will respond. Only consulting the child if an impasse is reached is a derogation of our international obligations. It fails to value children’s internationally recognized rights. It does not acknowledge the value of hearing from children and the myriad of benefits children derive from the process, which go far beyond resolving the presenting issue (as discussed in Chapter Four). The children of parents who do not reach an impasse would be denied the opportunity to enjoy those benefits.

Most mediators spoke of the twin goals of progressing and improving child welfare and outcomes. This duality of purpose is not inherently amiss. Making progress is a desirable end, particularly if the agreement reached has incorporated the child’s wishes and feelings and will further the child’s welfare. However, inviting children to participate for this reason alone does not meet our international obligations. It fails to uphold a child’s ‘decisional privacy’ rights (Dimopoulos, 2021). Only a rights-framed approach to hearing from children could hope to achieve this end. Progress must become an ancillary benefit, not the primary goal.

While practitioners cited parental reluctance as an effective barrier to greater uptake of CIM, the evidence pointed to the practitioners themselves as the first line of defence. A lack of confidence in their ability to conduct the process effectively and, to a lesser extent, the process itself stymies greater uptake. Attendance at the compulsory update day has gone some way to re-energizing practitioners and persuading them of the merits of the process. It is imperative that initial and ongoing training is framed around children’s rights to be heard and the benefits of doing so. Just as the extent to which judges can engage with understandings of children as rights bearers depends on their convictions (Dimopoulos, 2022: 69), so too do mediators need to be convinced that children’s participation is a rights issue. The ‘relational family autonomy’ approach that we advocate puts young people at the heart of decision-making, moving them from the side-lines to centre stage, as we have argued elsewhere (Ewing et al, 2015). Unless the mediation community coalesces around a common purpose for CIM, the increase in sorely needed uptake will be slow to materialize.

Parental reluctance to involve children appears to stem primarily from a misguided wish to protect children from what is viewed as an adult dispute. Presenting the offer to parents positively within a children’s rights framework should ensure that some of this reluctance falls away. Underscoring the relational and familial aspects of decision-making may help parents come to mediation with a problem-solving, child-inclusive focus, making it more likely that sustainable agreements acceptable to parents and their children will be reached. Since the evidence showed that parents who accepted the principle of child involvement readily were more likely to take it up, placing respect for children’s autonomous decision-making (in line with their emerging capacities) at the heart of the mediation process, as we propose, should increase uptake. Furthermore, it should ensure that the parents consider the child’s views meaningfully. Acknowledging children as rights-bearing subjects with interests distinct from those of their parents (Dimopoulos, 2021) would also help address some of these systemic barriers to greater inclusion of children within mediation and other forms of non-court processes. From this perspective, the question becomes how not whether children participate in the process and state funding should flow accordingly. In Chapter Six, we revisit the findings to explore how reconceptualizing the purpose of CIM through a children’s rights framework might address some of the identified barriers to greater uptake.

1

In response to this, in a recent collaboration between the authors and colleagues at NYAS and National Association of Child Contact Centres, PSHE Association quality mark assured teaching resources on children’s rights when parents separate for secondary schools (The Rights Idea?) and primary schools (Rosie’s Story) have been developed. Both have been adapted for use in the Curriculum for Wales, with the support of the Welsh Government.

2

A survey conducted for the Voice of the Child Report indicated that approximately one-third of mediators registered with the FMC had trained in CIM, but of those who responded to the survey, most (70 per cent) conducted less than 10 CIMs per year (Voice of the Child Advisory Group, 2015).

3

Identical wording appeared in the previous draft of the Code of Practice (FMC, 2016: 5.7.2).

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