Introduction

In the earlier Mapping study, we found mediation processes to be child-focused but rarely child-inclusive, with children’s interests and views represented indirectly only via their parents (Ewing et al, 2015; Barlow et al, 2017b). Just as children’s wishes and feelings tend ‘to be represented by proxy, adult-filtered accounts’ (Stalford and Hollingsworth, 2020: 1055) in court proceedings, our earlier study found that in the main, children’s wishes and feelings were brought into mediation via the parents. Since the young people we interviewed for the Healthy Relationship Transitions (HeaRT) project had expressed their views directly to the mediator, we were interested in how they had experienced the process. Did their active participation in decision-making have the mental health and wellbeing benefits the relationship professionals identified? Could child-inclusive mediation (CIM) be a ‘powerful tool’ in enabling young people’s right to be heard as ‘equal partner[s] in a family’, as mediation practitioners such as Henry Sanderson argued? Was hearing from young people in the decision-making process associated with a high level of accommodation of parental separation, as others have found (Kay-Flowers, 2019: 147)? Murch (2018: 110) suggests that young people at a time of crisis such as parental separation need a ‘passage agent’ who acts as a supportive guide to children when families break down to help them traverse the strange and unfamiliar territory of family life post-parental separation. Could mediators be a source of support to young people, a valuable ‘passage agent’ to help them navigate the changes in their family lives?

This chapter sets out our findings, first concerning differences between mediators in how the CIM is conducted. It outlines the views of the young people in the focus groups and interviews on age restrictions on CIM. It then explores how satisfied young people (and parents) were with the process of CIM before considering satisfaction with outcomes in Chapter Five. We consider the practical arrangements for hearing from young people against the first two of Lundy’s (2007: 933) four-stage model of an article 12 compliant approach: ‘space’ (children must have the opportunity to express a view) and ‘voice’ (children must be facilitated to express their views) which taken together make up the first limb of article 12, the child’s right to express an opinion. In considering young people’s experiences and satisfaction with the process of CIM, we will discuss whether children felt listened to (the third limb, ‘audience’) and, if so, how this helped them. We discuss the fourth requirement, ‘influence’ (acting upon the child’s views, as appropriate), in Chapter Five. The third and fourth limbs deal with Part 2 of article 12, giving the child’s views due weight. In Chapter Two, we discussed relationship professionals and young people’s views on the principle of giving young people a voice in decision-making when parents separate. In this chapter, we discuss the feedback from young people who were given a voice.

The process of child-inclusive mediation

We first explore the differences in the process experienced by young people, including how the process was explained to them; whether they met the mediator online or offline; whether they met the same mediator as their parents; how what was to be fed back to the parents was agreed and how feedback was given (to the parents separately or jointly and in the presence of the children or not). Mediators often had strong views on the merits of the process they adopted, with most preferring a model in which they met with both the parents and the child. However, there were few differences in reported satisfaction rates of parents or children between processes in which the children met with the same mediator as their parents compared to when children saw a different mediator or child consultant.

The offer: ‘space’

Research shows that most of all, young people with experience of the family law system following parental separation want ‘space to speak and more effective listening to their views and experiences’ (Carson et al, 2018: ix). Arguably, to be fully article 12 compliant, the child should be involved from the outset in deciding whether CIM is appropriate (Dennison, 2010: 176). Lundy (2007: 933) argues that while elsewhere in the United Nations Convention of the Rights of the Child (UNCRC), State Parties are required to ‘take appropriate measures to ensure’ or ‘use their best efforts to ensure’, article 12 requires them to ‘assure’ to the child a means of having their voice heard. This indicates a duty to take proactive steps to encourage children to express their views (should they wish to do so). As General Comment No. 12 clarifies, ‘shall assure’ is a ‘legal term of special strength, which leaves no leeway for State parties’ discretion’ (UNCRC General Comment No. 12, 2009: para 19). Article 12 requires mediators to provide mechanisms by which young people’s voices can be heard and taken seriously within mediation. Therefore, article 12 compliant services must first ensure children can express a view (‘space’) (Lundy, 2007: 933). However, in addition to systemic barriers, practitioners and parents proved formidable gatekeepers to children exercising their article 12 rights, as outlined in Chapter Three. There was no sense that mediators ensured that all children capable of forming a view were allowed to express their views as required by article 12 or even that all children over the age of ten were given this opportunity (FMC, 2018: 6.6.1). Indeed, even for those children that had taken part in CIM, there was no consistent system for inviting them.

The Family Mediation Council (FMC)’s Standards Framework (2014), which includes updates concerning CIM made in 2018, sets out what must take place before the child is invited to attend (FMC, 2014: 6.4e) and states that young people may respond to an invitation directly or via a parent or carer (FMC, 2014: 6.4h). However, it is silent on who should invite the child – the mediator or the parent? Data is available concerning the invitation mode on 17 of the 20 mediators. All confirmed that they contacted the child by letter, e-mail or telephone to invite them to mediation. A further two mentioned that they wrote to the children following the child’s meeting with the mediator. While memories were sometimes sketchy, the 20 young people we interviewed said that the initial invitation to CIM had come from someone other than the mediator. One was asked whether they wished to attend by the Family Court Adviser (as the parents were already within proceedings), one by their resident grandparent and the rest by one or both parents (11 by their mother, three by their father and four by both parents). Two young people recalled receiving an e-mail or letter from the mediator (both following an explanation from their respective mothers). Only one child recalled receiving a leaflet explaining the process, with another indicating that they were given written information at the meeting. In the parent sample, we interviewed the parent(s) of the child(ren) interviewed in all but one case. The parents confirmed the child’s account of events, with all but one parent indicating that they (rather than the mediator) had told the child about CIM, three indicating that the mediator followed this up with a letter. In Mapping, there was evidence that one partner would be more likely to reject or be suspicious of mediation when the invitation came from the ex-partner rather than the mediator directly (Barlow et al, 2017b: 91). A mediator in the present study, Kirsty Oliver, felt that “a letter dropping on your mat” from a mediator unannounced could be “scary” for a child, so perhaps a parent pre-empting this through a discussion with the child may be appropriate. However, to avoid the impression of an alliance with one parent or the parent inadvertently miscommunicating the nature of the process to the child, any parental explanation should always be followed up by a letter from the mediator.

Age

Article 12 extends the right to express a view to all children ‘capable of forming’ a views on matters affecting them. Lundy et al (2019: 402) argue that assessing a child’s capacity to form a view and how that view is expressed must not be determined through an adult-centric prism. Children need only to be capable of forming a view. They are not required to demonstrate the competency of an adult. General Comment No. 12 discourages State Parties from placing an age on competency. Instead, they should ‘presume that a child has the capacity to form their own views and recognise that they have the right to express them’ (UNCRC General Comment No. 12, 2009: para 20, emphasis added). It goes on to acknowledge that even very young children can demonstrate understanding, choices and preferences through play, body language, facial expressions, drawing and painting. Once elicited, the weight to be put on the child’s views will be assessed considering the child’s age and understanding.

Like their counterparts from the focus groups (see Chapter Two), the young people who had experienced CIM advocated for flexibility over the age at which young people should be allowed to be heard. Younger interviewees could envisage children younger than them benefiting from the process. While a teenage interviewee had some concerns that very young children might find it difficult to grasp the situation or to talk to a stranger, one interviewee who said they were “6 or 7” when they met the mediator thought that the opportunity to meet a third party could help children to open up about issues that they were not comfortable discussing with their parents. They thought that children aged “5 or 6” should have the opportunity to benefit from CIM. Reflecting the views of others, Greg thought that provided the CIM was conducted well, and the child was not pressured to decide, children as young as his sibling (who was under nine when they spoke to the mediator) can benefit from CIM because the process brings clarity, helps the child to gauge what is going on and gives them a helpful outlet in which to talk about their parents’ relationship. Carrie thought a universal offer was needed to ensure fairness and equality of treatment nationwide.

The setting: face-to-face and remote mediation

Twelve of the 20 young people had seen the mediator face-to-face, usually at the mediator’s office but sometimes at school. While a few relationship professionals had questioned whether school was an appropriate setting for CIM meetings, the young people who had met the mediator in school had no issues. Alfie told us that it “did definitely help a lot going to [my] school … [as] it was an area that I would spend six hours a day navigating through … and I just knew [it]. … So, it just felt a lot more comfortable.”

Six young people had met the mediator remotely via Microsoft Teams/Zoom or equivalent, and one by telephone. This included one who had spoken to the mediator via Zoom and the telephone, who preferred Zoom since it was easier to read emotions and pick up on “cues” when you could see someone’s face. As interviews took place between February 2020 and March 2021, those who had met the mediator remotely only did so of necessity due to the COVID-19 pandemic. However, for each, it had been a positive experience. Jake said it had lessened any sense of anticipation in the run-up to the meeting. Carrie thought she would have been more nervous about meeting someone face-to-face than remotely. Jonny liked that he could see his younger siblings more directly on a Zoom call than in an office environment and could “see how they felt”.

Several young people who had face-to-face mediation spoke about the ambience and facilities of the room. Young people valued the mediator’s efforts to put them at their ease. Several mentioned the quality of the biscuits, and these small gestures should not be underestimated. Toys for younger children, whiteboards, drawing materials and books were all welcomed, as were homely touches. Daisy liked that there was “a bookcase with lots of books in and like just little things you would find around like your house and stuff, so that actually made me feel a bit more like at home”. The ambience helped young people be open with the mediator. Blake told us, “I liked going there because it was nice and calm, and you feel that you can just tell [the mediator] all about it, and they would understand.” Parents also appreciated the mediator’s care in creating a soothing ambience for their child. They disclosed how the mediator had carefully thought through the pre-meeting contact with the child, how they would greet the child, the room’s setup, and the availability of age-appropriate toys and drawing materials.

Careful thought must be given to the backdrop and circumstances when mediating online so that young people feel similarly at ease. Mediators must ensure that the child concerned is not hungry or thirsty and has a safe, confidential place to conduct the online CIM. Provided the meeting was carefully planned, there was nothing from our evidence to suggest that CIM could not work well online. While an online format was chosen out of necessity, some children indicated that this had facilitated their voices being heard more readily than a face-to-face session would have.

The format

When there was more than one sibling, practice varied regarding whether sibling groups were seen together or apart. The FMC Code of Practice (2018: para 7) requires that at least part of the Mediation and Information Assessment Meeting must include an individual element with each participant to allow the mediator to undertake domestic abuse screening. We suggest that best practice in CIM should be to offer each child a one-to-one with the mediator before any joint session with their siblings. Freddy could not recall being offered an individual meeting, but instead, “it was suggested we do it together, and we were absolutely fine with that, so we just went ahead with it”. His siblings confirmed that the discussion of whether to have a separate meeting took place with all siblings present and that they had agreed unanimously to a joint session. The issue with that approach, just as with joint Mediation and Information Assessment Meetings, is that a child may not feel able to request a separate meeting when the invitation is put to the sibling group together.

An individual element to CIM, when there is a sibling group, would allow a child to express a contrary view to their sibling(s) or discuss matters that they would feel uncomfortable raising in the presence of their sibling(s). This is particularly relevant where there are issues of coercive control. Alfie’s younger sibling disclosed being afraid of one parent. The mediation session was conducted partly together (which Alfie thought had helped his sibling to be more confident in the session) and partly separately. In the joint meeting, he and his sibling had been able to discuss things they “had in common that we both knew each other had suffered” and then their respective “big private stuff” in their one-to-one session, which he preferred “because there was some stuff that I did not want my [sibling] to hear that I thought might have upset [them] quite a lot”.

As noted elsewhere, several eldest siblings appeared to take on a protective responsibility towards their younger siblings (Kay-Flowers, 2019: 138). Younger siblings valued this support. Molly, who said she was six or seven years old when she met the mediator, told us, “I didn’t really know what was going on and [sibling] was a bit older than me. So, it was quite nice to have [sibling] next to me.” Mediators must be flexible about the CIM format to make it as easy as possible for the child. Nevertheless, to uphold a child’s right to an opportunity to express a view (‘space’) and have the expression of their views facilitated appropriately (‘voice’) (Lundy, 2007: 933), an offer of a meeting separate from their siblings should be made to the child individually.

The meeting

Before considering young people’s satisfaction with the process of CIM, we reflect on how the CIM meeting, as explained to us by the young people, measured against the FMC Standards (FMC, 2014). Standard 6.4(j), for example, requires that ‘[m]ediators should offer and arrange ongoing support and further meetings with the child or young person as appropriate, as CIM is a process, rather than a one-off meeting’. Most children (17 of 20) disclosed having met the mediator only once. One sibling group had had ongoing telephone support. In another family, which involved one parent’s thorny mental health issues, the child saw the mediator three times. Otherwise, the young people saw the mediator only once. However, the mediator had reassured several that they could return if needed. One child, for example, disclosed that her sibling had been reassured that she could return if she were worried about the transition to secondary school. The young people recognized that others might feel reticent to express their feelings in a one-off meeting. They may need several meetings with the mediator to be comfortable enough to express their views.

Regarding the meeting, most mediators (14 of 20) tended to see the children themselves, sometimes out of necessity, as they were sole practitioners. Those whose practice was that the child saw a different mediator (or child consultant) to the parents did so either because of confidence issues or because they felt strongly that this was a better model. Stephanie Upton preferred this model because she thought “it’s much more powerful to have a different voice giving feedback … rather than somebody who is trying to hold two perspectives”. David Leighton thought it ensured that “the children’s views can be contained, and the mediator isn’t touched by stuff that isn’t helpful to feed into the mediation process”. However, primarily, the reason given by the mediators who preferred this model was because, as Briony Simpson told us, it avoided the risk of the mediator losing their impartiality, or at least the perception of loss of impartiality by one or both parents. Three-quarters of the parents (N=9) saw the same mediator as their child. They appeared to simply go along with whatever process was offered to them. No parent disclosed a preferred model save for Mark Bell, who said, “If they had seen a different mediator, I would have been scratching my head a bit because I would have said, ‘Well, that doesn’t make a lot of sense to me’ as you need the same person, [you] have to hear the same story.” The children may not have known whether they saw the same mediator as their parents, so we did not ask them this question.

The feedback session

In the focus groups, Aleah underscored the importance of the child and the mediator agreeing precisely what would be “fed forward” to the parents because “in some cases that’s the first time the young person has spoken to anyone about how they feel and … a lot of emotion comes out that you might not want both parents to hear”. As outlined later in ‘Satisfaction with the process’, the children, and most of the parents, were satisfied with how the child’s views had been fed back to the parents.

The risks of child-inclusive mediation

As discussed in Chapters Two and Three, the focus group participants, relationship professionals and mediators expressed three concerns about hearing directly from children: it might be daunting for the young person involved and may place them under too much pressure; parents might try to manipulate the young person, or they may not listen to the child’s expressed views. Here, we consider these three risks as discussed by the young people who have experienced CIM (also drawing on the parents’ opinions where relevant). We also consider the risks associated with parents hearing unpalatable messages from the mediator’s feedback following the meeting with the child. The young people and parents acknowledged the potential risks, although most stressed that this was not their experience. Broadly, the young people and parents believed that any risks identified could be mitigated partly by ensuring that only experienced, talented mediators undertook CIM.

Pressure

While this had not been their experience, the young people who had experienced CIM recognized the risk that a child, especially younger children, might feel pressured. Daisy said, “When I went, like I was nine or ten, so I didn’t feel any pressure of it [sic], I just felt like I could be myself to [the mediator], where if you are a bit younger, you might not feel like that.” As outlined earlier, Daisy’s mediator had worked hard to ensure that the layout and homely contents of the room had created an ambience that relaxed Daisy.

Harry felt that a young person whose parents are separating might feel under pressure, whether the parents attended mediation or not. Still, the mediator’s careful framing of feedback to the parents to reduce the risk of hurt feelings, and the child’s ability to determine what is fed back to each parent, can relieve the risk of the child feeling pressured. Carrie felt that the parents and the mediator carefully explaining the process to the child before the child meets the mediator would help reduce any pressure the child may feel. Participation must be optional so that those who might find the process pressurizing can decline an invitation to participate.

Six parents were concerned that a child might feel under pressure, particularly to “choose” between their parents. Again, the parents emphasized the mediator’s skill, with the mediator creating an ambience whereby the child did not feel pressured and carefully managing the expectations of both parents and children to avoid this risk.

Manipulation

Some young people interviewed thought there was a risk that a parent might manipulate a child or use the process strategically “as a tool” (Anna) to bolster their case, in which case the child’s answers may not reflect their genuinely held views.

Careful screening of the parents for suitability before mediation, the child having the choice to decline an invitation to CIM, and the skills and training of the mediator were all highlighted by the young people as essential to guard against such manipulation.

Reflecting international research (Parkinson and Cashmore, 2008: 82), several parents were equally concerned that the child might be manipulated by the other parent (or, in one case, the resident grandparent). Trevor Cox had been initially “dead against” CIM for this reason, but the skills of and careful preparation by the mediator persuaded him to engage in the process. One mother disclosed that the father had insisted on taking the children to the CIM session and had told them on the journey that children with the contact regime for which they had expressed a preference “were proven to be unhappier” than children with the routine favoured by the father. However carefully the mediator has screened and prepared the parents for CIM, manipulation of this nature remains a risk. As with the young people, parents highlighted the mediator’s skill and experience to guard against manipulation and identify if it had happened in a case.

Parents not listening

As with their peers and the adults, young people who had experienced CIM recognized the risk that parents may not heed the child’s expressed view. However, they tended to be pragmatic about this. Harry highlighted that this was “a risk with or without mediation because obviously an adult can just ignore [the child] and say that a child’s opinion doesn’t matter, but at least with mediation, there is another adult who understands the child and is able to sort of convey their message to the parents”. Jonny thought that even if the parents discounted the child’s views, there was a benefit in the parents at least knowing what those views are.

All but two siblings reported that their parents had listened to and taken account of the child’s views when fed back to parents, although the young people recognized the risk that other parents may not do so. Ellie’s mediator had given her the option of getting back in touch if the parents were not sticking to the agreement so that the mediator could speak to the parents. Ellie credited this with ensuring that her parents complied with the arrangement. For some parents, this ‘open-door’ policy may suffice. However, it puts the onus on the child to be proactive in requesting further CIM either via a parent or by contacting the mediator directly. It may lead to disappointment if the parents choose not to re-engage at that stage. The child’s interests may better be protected by an agreement with the parents and the child for the mediator to check back with the child at an agreed future date that the arrangement still works satisfactorily. This would prevent young people from being locked into an arrangement made in CIM that no longer works for them or may have become unsafe (Family Solutions Group, 2020: 96).

Two mothers (as discussed in Chapter Five) were happy with the process of CIM but not the outcome because, as they had expected, their ex-partners had not listened to and acted upon the children’s views. While not their personal experience, several others raised parents not listening to their child’s views as a potential risk.

Unpalatable feedback

A further risk raised by a minority of parents and some young people was that parents might hear messages from their children via the mediator that would be hard for them to take. The young people spoke of repercussions within the family from the parent(s) hurt by the message. Both young people and parents thought that the mediator reframing the message could take some of the sting from difficult feedback.

Ultimately, young people and parents underscored the need for highly skilled mediators to conduct CIM to manage identified risks. As discussed later, the young people and parents were highly satisfied with the mediator’s skills, and the process.

Satisfaction with the process

Overwhelmingly, young people and their parents were satisfied with the process of CIM; even the minority of parents and young people who were dissatisfied with the outcome (see Chapter Five). Some parents were less satisfied with the mediation process than with the child-inclusive element.

What children liked about the process of child-inclusive mediation: ‘audience’

Reflecting the views of some of the practitioners and parents on the purpose of CIM as primarily a means to progress to a decision, some young people were pragmatic and liked that CIM “got things sorted” (Alex). However, most young people spoke of mental health and wellbeing benefits that went far beyond making progress. As the relationship professionals had indicated, the young people who had experienced CIM reported that it informs, reassures and respects the child. In short, they felt listened to (‘audience’, Lundy, 2007: 933), and this had led, in many cases, to improved relationships between the young people and their parents, as discussed further in Chapter Five. In addition, those who had experienced CIM appreciated its future focus, and the ability to filter messages through the mediator and have the mediator reframe the message so that the parents were more likely to listen (‘audience’) and act upon what they have heard (‘influence’).

In Lundy’s model, the third requirement is a ‘right of audience’, which Lundy defines as ‘a guaranteed opportunity to communicate views to an identifiable individual or body with the responsibility to listen’ (Lundy, 2007: 937, emphasis added). The evidence from the focus groups with young people and practitioners (see Chapter Three) is that this opportunity is far from guaranteed. Yet, the evidence from the young people who had been afforded such an opportunity was that when they felt that an experienced professional had listened to them and relayed their wishes to their parents sensitively, this had been therapeutic.

Informing the child

Research has shown that when parents separate, young people want to be informed about what is happening and that parents withholding information to protect their children from additional worry or upset, compounds their children’s confusion and uncertainty about the future (Butler et al, 2002: 92). Staying informed is comforting for young people, providing assurance about the path ahead at a time of uncertainty and upheaval in their lives (Carson et al, 2018: 42). Informing children is therefore not a ‘one-off’ event. Children need ongoing information as family circumstances change (Murch, 2018: 58). In Lundy’s model (Lundy, 2007: 933), a child’s right to space and a voice is inextricably linked to their article 13 right to information, article 5 right to guidance from adults and article 19 right to protection from harm. The consensus from the young people who had experienced CIM was that they welcomed and found helpful the mediator’s explanations about the CIM process (and the legal process of separation more generally) given before and during the CIM meeting. Several young people described their mediator as ‘approachable’.

In interview, George, whose parents did not mediate until some years after the separation, reflected that it would have helped him had it come earlier in the process as it would have given him a better understanding of what was happening. In contrast, Chloe, who was only six or seven when she met the mediator not long after her parents separated, indicated that she liked seeing her “friendly” mediator to talk about “things that … I was worried about or didn’t know about. It just made me feel a bit more aware of what was going on”. She felt that CIM could similarly help other children if they were worried about something but did not want to tell their parents, knowing that the mediator “will keep it a secret if they want it a secret, or not a secret if they don’t want it a secret”. She thought this might be particularly beneficial to only children or eldest siblings (like her) who did not have an older sibling with whom to discuss their concerns. Feeling better informed helped to ease young people’s anxieties.

CIM also helped young people better understand their parents’ and siblings’ preferred contact regime. Jonny felt that the information they had received had “benefited” him and his younger siblings in clarifying a previously unclear situation, which “was nice to have some sort of base to then go off”. He concluded that CIM gives young people confidence and a better understanding of what will happen. Alfie also thought that it had helped him and his younger sibling to “get a whole gauge of what’s going on and how everything is working on paper, so it wasn’t just like we had overheard arguments about stuff, and it was more like we actually knew like what the plan was”. He thought CIM would help other young people in his situation to bring “clarity to the kids”. The young people confirmed what the relationship professionals believed to be the case; giving young people an outlet to be better informed about the process (and helping them process their grief) can hugely benefit their psychological wellbeing and recovery.

Reassuring the child

Children whose views are sought report feeling reassured (Bell et al, 2013: 139; Kay-Flowers, 2019). Our findings chime with this finding. Many of the young people interviewed, as Anna explained, “felt really reassured” after meeting the mediator. The mediator helped Anna reframe her parents’ separation so that “rather than it being something really kind of big in my life and scary that felt insolvable, I feel like [the mediator] offered hope that kind of things would get better”. The mediator’s experience proved reassuring for the young people. Greg, who said he was “100 per cent satisfied” with the mediation process, told us that the mediator made him and his sibling “feel very comfortable, and it felt like [the mediator] had lots of experience, so she kind of knew what I was going through”. Daisy appreciated speaking to an independent, empathetic person who understood her position: “Sometimes when you talk to other people … it’s quite hard to talk to them because they haven’t been through the things that you have been through, whereas I felt like [the mediator] knew the position I was in with it all.”

Acknowledging that the separation was difficult for their parents and that it can be hard to talk to them at this time, young people prized having an independent ally who was “there for them”. As Ellie put it, “It gives [children] a chance to say what they want [and] … gives them kind of a sense that somebody is there for them.”

Several young people spoke about the physical release of tension they experienced, having communicated with the mediator; Alfie, Alex and Andrew all spoke of stress lifted from their chests. Alex, who said that he had “enjoyed every single bit” of the process, said that it had “taken so much off my chest, and it really has helped me, mentally and physically”. Ellie felt that allowing her to be included and have a say in the decision-making had made her “feel better about the whole thing”. Carrie disclosed, “Once I said all of that [to the mediator], it feels like it’s all off my shoulders and I don’t have to worry about it anymore.” Therefore, her advice to young people considering mediation was to accept the offer because “[it gets] all of that out of your mind then you don’t worry about it anymore”. Similarly, Daisy had found it therapeutic to offload to the mediator: “I liked it because I could tell her what I felt about the whole thing and wouldn’t have to think about [it].” Several mediators confirmed feedback from parents that their child had also spoken of the weight lifted from their shoulders following the session with the mediator.

CIM helped Christina, as the mediator normalized and validated some of her feelings while giving her the confidence to state her wishes clearly and appreciate that (given her age and maturity) she had a right to be heard in the decision-making. Carrie said that it would have felt “weird” to speak to her friends about her parents’ separation and that she appreciated the chance to talk to someone “older” about how she felt, which made “the situation a lot less scary and more happy and joyful than just like waiting and not talking to anyone and then just becoming more upset and upset about it”.

Reflecting the female bias in the mediation profession, 13 of the 20 young people interviewed had seen a female mediator. Girls who had seen a female mediator were more likely to stress the emotional support they had received from the mediator. Some boys, like Alex, were more pragmatic, appreciating the progress made in CIM. However, the boys undoubtedly found the process reassuring. George felt it had been a helpful forum to “let [his] emotions out”. Richard (who had seen a male mediator) reflected that he had been trying to block out his emotions and avoid engaging with his parents’ attempts to discuss the separation with him, but CIM “forces you to think about it and make new opinions and talk to a professional about the situation”. He described mediation as a “spark” to help you think about options. Blake appreciated the mediator’s understanding and reassurance that things would get better. The tendency for boys to stress the benefits of weight lifted from their chest (mentioned earlier) may reflect a tendency among boys to internalize how they are feeling. Speaking to the mediator might engender more discomfort in boys than girls, even though boys appreciated that it had helped them.

These findings add to a growing body of evidence that hearing from children when parents separate can lessen children’s anxieties (see Barlow and Ewing, 2020: 37).

Respecting the child

Neale and Flowerdew (2007: 27) have argued that when parents separate, the need for recognition, respect and participation are as crucial to children’s wellbeing as their need for care and protection. Recognition and acknowledgement that it is their lives that will be affected has been cited as the main reason why children wish to participate (Parkinson and Cashmore, 2008: 67). Failure to consider young people’s views can make them feel that their wishes do not matter to their parents (Kay-Flowers, 2019: 150). While unaware of their article 12 rights, many of the young people interviewed appreciated being given a voice and, more importantly, feeling heard. Freddy liked “the idea that my parents cared about my opinion”. Harry told us that CIM had helped make clear what he and his siblings wanted, and without CIM, “there’s a probability that there’ll be kids of people going through divorce with their voices … lost”. Harry thought that having a professional trained to speak to children and elicit their views allows them to be obtained without bias.

As Anna summed up, even if the outcome, ultimately, is not what they would have chosen, the process gives young people,

‘A voice and they are being respected, even if the proceedings didn’t go their way, they would know that somebody had heard them and, you know, there was a reason things had gone a certain way, and I also feel like it’s actually quite cathartic for children to be able to kind of explain what’s going on to someone and someone to listen to them.’

Protecting the child

The Harm Report (MoJ, 2020: 60) points out that, evidentially, listening more carefully to children can assist since it may give a better understanding of whether allegations of alienation have any merit. Only one child in interview disclosed feeling afraid of a parent but said that being able to tell a third party her true feelings had helped. As she put it:

‘If I’m being honest, I’m scared of my dad. I told [the mediator] that and she tried to sort it out and she did make me feel more comfortable. … I was scared that like if I said something to my dad … he would think it’s all my mum’s fault that I am saying all that, which it isn’t because I really do think that, and to say it to another person and know they won’t go back to him just really made me a lot more happier of [sic] the situation.’

The outcome for this child was that she was not having direct contact with her father at this time, per her wishes, as explained further in Chapter Five. One other child disclosed that his father had a “coercive personality”. Because of this, it had been easier to explain his feelings to the mediator rather than his parents directly.

Future focus

Mediation is a future-focused process (Roberts, 2014: 21). Carrie neatly summed up how this had helped her in the context of CIM:

‘So, when I said something about what happened, she didn’t really get her nose into a lot of it and say, “Oh, well, how did it start?” and all of it. She just said, “Oh, we can maybe do this”, and then afterwards, she was just really nice, and she made me feel a lot more comfortable about the situation.’

Filtering and reframing

Two allied benefits of hearing from children raised by young people who had experienced CIM but not the relationship professionals were filtering and reframing. That is the ability to filter, via a third party, messages that the young people realized might be hurtful for their parents to hear or challenging for the young person to say, coupled with the mediator’s skills in reframing those messages in such a way as to be more palatable to the parents. For several young people, the ability to filter messages to their parents via the mediator enabled them to be honest. As Jonny put it:

‘There is less sort of emotion or like wanting to appease people when it’s like a third party because it’s someone different who I don’t have a connection to. So, with Mum or Dad, I want to make them both like happy or whatever, so I change my own opinions, but this way, I knew if I wasn’t personally telling them, then I could actually say what I meant.’

The boys interviewed particularly appreciated the ability to filter a message via the mediator. Filtering his preferred contact regime via the mediator helped Nathan feel less like he favoured one parent. He was thankful that the mediator delivering the message to his parents saved him from doing so. Freddy thought that having a professional third party involved had helped all family members keep track of the various options, and the mediator had been able to “relay the information more clearly” than if Freddy had been directly discussing matters with his parents. As Richard reflected, filtering the message through the mediator meant that his parents had not judged the children. It was also helpful for him because “sometimes it’s a bit hard to say exactly what you think … and you sort of need someone to carry the message”.

Just as the ability to filter the message helped young people to be honest about how they felt, they thought that their parent hearing the views from a mediator was more powerful and more likely to be accepted as the child’s honest opinion than had the children said it directly. Alex thought his parents might not accept the veracity of his views if he spoke to them directly, but having heard it from the mediator, “they know that it is true”. Others thought that talking to the mediator brought clarity. Freddy thought the mediator could “relay the information more clearly” than if heard directly.

The mediator’s ability to reframe messages to take the sting from the child’s views was appreciated. Harry recognized that some of his feedback might be hurtful for his parents to hear, so he was grateful that the mediator “definitely putting it in more, you know, gentle ways would be a lot easier” for his parents. Nathan liked “being able to tell the mediator [who] would sort of tell [his parents] in sort of a more … well basically where I didn’t have to do it”. As the eldest sibling, Christina chose to relay how she felt about the contact arrangements to her father directly. Nevertheless, she appreciated the mediator’s expertise in helping her to put that message across in “a kinder way” so that her father would not feel that she was angry with him.

In cases involving coercive control or mental health difficulties, the ‘buffer’ of a third party was particularly appreciated. One teenage boy described his father as coercive, a young girl indicated she was frightened of hers, and a third young person disclosed that one of her parents had mental health problems, making it difficult to get her point across. Reflecting similar comments from other young people with complicated relationships with one parent, one young person concluded that filtering her message through the mediator had “definitely got the point across” to her parent with mental health issues better than she could by explaining how she felt directly. Stringent screening processes for suitability for non-court processes are a must. Domestic abuse and mental health issues may be contraindications if they impede parties’ ability to advocate for their interests (Barlow et al, 2017b). However, the evidence from the young people who disclosed such issues as features of their parents’ separation was that CIM had been helpful.

What children did not like about the process of child-inclusive mediation

There was very little that young people disclosed that they did not like about the process of CIM. One young person expressed concerns about the cost implications for families less affluent than his own. Even the minority of young people who were unhappy with the outcome or whose parents withdrew from the process were generally positive about their experiences of the process. One parent withdrew from the process due to mental health issues. Nevertheless, their child had found her time with the mediator to be “uplifting” and “a positive thing”. Claire, who (as discussed in Chapter Five) was unhappy with the outcome, was more ambivalent: “The lady was quite nice, she was quite normal, like not weird, and we got biscuits … I wasn’t bothered about the whole thing.” Jemima, who was also disgruntled at the outcome, thought that the process was “okay”. She reflected that even though it did not work for her parents, it could be a good process for other young people because it would help them to understand the situation better.

Communication

The one recurring disappointment many young people voiced was that CIM had little effect on their parents’ ability to communicate with each other. As outlined in Chapter Five, reaching an agreement in CIM, as most parents did, had stopped arguments about child arrangements. However, several young people did not think there had been a noticeable lasting improvement in their parents’ relationship. Anna said that her parents’ communication in the mediation process had improved but that the ongoing court proceedings had meant that this had not been sustained. Daisy thought that mediation had not helped her parents’ ongoing relationship, although it had helped them reach an agreement without arguing. Joel concluded that while the CIM had helped his parents get a child-led outcome, it had raised other “child management” issues that had led to ongoing disagreements between his parents. Claire reflected that getting both parents to agree to the children being heard had led to more arguments between them. Alfie thought any improvement in his parents’ relationship because of CIM was short-lived.

What parents liked about the process of child-inclusive mediation

Just as their reasons for choosing CIM tended to be both parent-focused and child-focused (see Chapter Three), what parents liked about the process of CIM fell into these two categories. Parents liked that it helped them make child-led progress and reassured them that their children were coping with the separation. Parents also appreciated many things about the process described by the young people, such as reassuring and respecting the child and, where necessary, protecting the child (and parent). For some, engaging in the process improved family relationships, which we discuss further in Chapter Five.

Reaching child-led agreements

We discuss which families resolved matters in CIM and satisfaction with outcomes in Chapter Five, highlighting that parents appreciated the child-led agreements reached. They were grateful that the process itself had ensured that the child’s voice was at the centre of the decision-making. Tanya Adams commented that engaging in CIM ensured she and her ex-partner had had a “very child-centred separation”, which she described as “liberating”. She explained, “When the children are at the centre … it makes it easier because they are the focus, and if they are the focus, and you both love them, it actually gives you the answers.”

Reassuring the parent

As well as reassuring the child, CIM reassured parents that the children were coping. Rose Enstone “particularly liked” that it gave “independent feedback” on how her children had coped with the separation. She disclosed that “to hear from an independent person how happy and relatively untainted by it all they are, that was really heart-warming and quite a relief”.

For Felicity Ingham, “it was a huge support … to feel that [her children] have got someone else who has got their back” and gave them an impartial space in which to speak. Bobby Gordon thought that it had been “reassuring [and] reaffirming” that matters would proceed “at the pace of the children” as he had hoped.

Reassuring the child

Brown and Campbell (2013: 195) found that parents whose children met with a mediator reported that their children felt reassured by the opportunity to express themselves to a neutral and informed professional. Similarly, the parents we spoke to, particularly the mothers, appreciated the mediator’s emotional support to their children and felt that it had had a therapeutic benefit. Felicity Ingham indicated that it was essential to recognize that the children and the adults might need “support from a third party”. Melinda Kingsley said that her eldest child found the acknowledgement in mediation that “it was okay to have feelings” had “made them feel so much better about everything”. Wendy Lund reflected that providing an independent outlet “has probably taken quite a load off” her child, who was naturally a worrier and found it hard to express feelings.

Respecting the child

Stalford et al (2017: 211) suggest that if young people are to develop their legal literacy and realize their rights in practice, they require ‘foundational rights-based information’, that is, they need to know their rights; that they have the right to be heard and that their views should be given due weight.

Several parents appreciated that CIM had helped their child understand their rights, which was important because they did not know their child’s rights. Tanya Adams felt that her children had felt “empowered” by the process and were “beginning to thrive” because they now understood that they “can drive their own lives through what has happened and that they are entitled to an opinion”.

Filtering and reframing

Chiming with the findings of McIntosh and Long (2006: 8), and the young people, parents disclosed a greater readiness to listen to views that did not support their argument when these views came from their children and were conveyed empathically by an independent specialist. Several parents recognized that children could feel obliged to tell parents what they each want to hear, so they appreciated the independent professional through whom to filter their children’s views, particularly if the child’s message was unpalatable for one or both parents. Phil Jackson thought engaging in the process had alleviated some differences between him and his former partner and allayed some of their fears. Since they both wanted what was best for their children, hearing from them via the mediator gave a “much more honest perspective on the situation … [because] it’s really pretty defining what a child would say”. Wendy Lund thought that her child had used mediation as a “crutch”, a means by which the child could discuss her issues with her mother (Wendy) without getting “emotionally drawn through it all”. More often, parents felt that it provided a valuable forum for the child to air grievances against the other parent, which the mediator could reframe and which the other parent was more likely to take heed of than if it had come directly from the child or the parent. Some, like Ellen Foxton, disclosed that while their parenting was inclusive of the child’s voice, the process had helped the other parent to hear from the child. Melinda Kingsley thought that “the mediator listened to the children and probably worked with [ex-husband] to … shape the situation into an acceptable level for everybody”.

McIntosh and Long (2006: 8) report that parents, particularly fathers, described the feedback session as ‘valued and transformative’, and the parents in the present study made similar comments. As Bobby Gordon put it, “When you hear someone else expressing your children’s wishes, it’s like, ‘Oh my God, why haven’t we been listening to that?’” He described the process as “a reality check” for parents, adding, “When [the child’s views are] said to you with someone else knowing what your children feel as well, it hits a nerve.”

Trevor Cox appreciated working with an experienced professional who was able “to initiate that discussion and present it in a very constructive manner”. Tanya Adams’ conclusions reflected the views of several parents:

‘The children have felt much safer and much happier because there is somebody else who is reframing [their views] and passing that message on and they felt comfortable enough to be able to say things about both of us actually to [the mediator] and then she would pass that message on.’

Some parents thought it helpful for children to hear messages from the mediator that the parent could not give them. Felicity Ingham said the father dictated the child arrangements to their teenage child. She wanted her child “to have someone that she could turn to who would give her a balanced view (that I couldn’t do) and tell her that it wasn’t right, because it’s all very well me saying it’s not right, but it needed to come from someone else”.

Protecting the child

The Harm Report (MoJ, 2020: 75) outlines the deleterious impact of children’s voices going unheard or muted in private law proceedings involving alleged domestic abuse. For parents who alleged that the other parent could be controlling or domineering, hearing from the child in CIM had afforded some protection for their children and, in the process, themselves. Doug Henderson hoped engaging in the process would provide “that extra layer of reinforcement that the children’s safety needs to come first in terms of their relationship with their mum, and their views kind of concreted that”. He felt that “pulling back the curtain” on the children’s views in CIM had helped his children to articulate that they wanted to be safe, which enabled him to feel that he did not “need to carry the whole burden of their protection”. Ellen Foxton said her children were scared to voice their opinions to their domineering father. CIM, she disclosed, “gave [the children] a voice, and I think also gave me and the [children] a bit of bravery, just like we wanted”.

What parents did not like about the process of child-inclusive mediation

Overall, parents were satisfied with the process of CIM, even if dissatisfied with the outcome. Melinda Kingsley indicated she would give the process a “ten out of ten”, although she was dissatisfied with the outcome. Similarly, though dissatisfied with the outcome, Mary Dobson felt that the process had been satisfactory. However, she was concerned that, as with her children, if a child’s expressed views are not considered, it can be “more detrimental than not having a say”. Some parents were disappointed that the process had not led to better communication between the parents, as discussed further in Chapter Five. The most frequently cited gripe was the cost of the process.

Power dynamics

Some parents were less satisfied with the mediation sessions than with the CIM element. Ellen Foxton, for example, was disappointed that while she had explained to the mediator how domineering her ex-husband could be, she had felt unable to get her view across adequately in the joint session. She had “hoped that [the mediator] could be a bit of a backup for me, but actually it was not really any different to just talking to someone normally”. Admitting to listening in at the door of her children’s remote CIM, she was disappointed that when the mediator fed back to the parents, he had “toned down” what the children had said negatively about their father and positively about her. She attributed this to the mediator understanding the “dynamic” between the parents but still felt short-changed by the feedback.

Costs

Despite strong support for the process of CIM, five parents raised that it is expensive. They felt that young people might benefit from a longer, more therapeutic intervention but that this might be prohibitively expensive. Some also expressed reservations about returning to CIM because of the cost implications.

Conclusion

From our analysis, there seems to be some way to go before Lundy’s (2007) vision of article 12 compliant services for children are uniformly available. In Chapter Three, we showed that on the mediators’ accounts, the FMC’s requirement to ensure children aged over ten can express their views (FMC, 2018: 6.6.1) was not consistently applied. The young people we spoke to had had the opportunity to express a view (‘space’) and had been facilitated to express their views (‘voice’). However, given the barriers to uptake identified in Chapter Three, and since the evidence presented in this chapter points to there being no consistent system for inviting them, there is a risk that others might not have been given these opportunities. In Chapter Six, we make recommendations to address these issues.

In Lundy’s model, ‘audience’ requires that young people be assured the opportunity to express their views to an identifiable individual or body tasked with listening to those views (Lundy, 2007: 937). Overall, the evidence from this study is that this is still not the norm, let alone universal. The evidence outlined in this chapter points to mental health and wellbeing benefits for young people whose active participation in decision-making is facilitated (‘voice’) and their views listened to (‘audience’). Young people feel informed, reassured and respected. Some felt better protected. They could express themselves more effectively (and their messages were more palatable) than if they had tried to communicate their wishes and feelings directly to their parents. It would suggest that CIM, when offered routinely to all children and young people capable of forming an opinion as anticipated by article 12 and facilitated by an empathetic, highly-skilled mediator, can be a “powerful tool” in enabling young people’s right to be heard as “equal partner[s] in a family” as a mediator, Henry Sanderson, put it.

Reconceptualizing mediation to emphasize the relational element of autonomy within the family context would make it less likely that parents will feel pitted against each other in the mediation room, with the needs and voices of their children drowned out in the process. A relational approach acknowledges that, particularly within families, we are profoundly interconnected. It seeks solutions based on honouring relational responsibilities rather than a clash of individual rights and interests (Herring, 2017: 262). In CIM, a relational approach will help to counter the dominance of parents’ autonomy of the traditional child-focused method, enabling young people to be heard as “equal partner[s] in a family”. Our evidence shows that when parents take seriously their responsibility to listen to their children’s wishes, and when young people’s voices are facilitated in the process, the experience can be empowering, with benefits going far beyond simply helping their parents reach agreements. As discussed in the next chapter, their participation was also pivotal to the agreements reached.