Relational family autonomy in CIM

Instead, given the imperative of serving children’s wellbeing during the difficult period of parental separation, we suggest that mediation of child arrangements could and should become a process which recognizes children’s desire for information and gives them appropriate agency regarding decisions which affect their lives and futures, respecting their rights ahead of any incorporation of the UNCRC into domestic law. This can be achieved by adapting and reframing the parental autonomy discourse within the family mediation process to balance it against children’s article 12 rights. We suggest it is reconceptualized to embed a notion of ‘relational family autonomy’, which would extend a role in collective decision-making in mediation beyond alignment of parental views to directly include their children’s views in that decision, where appropriate. This would reflect and acknowledge the relationship and tension between the rights of parents and children, as articulated in articles 12 and 5 UNCRC. Article 5 in fact requires parents to provide guidance to enable their children to exercise their rights in line with their evolving capacities. Similar to the ‘Gillick’ principle, it envisages that as children mature and grow in knowledge, the parents’ direction and guidance will transform ‘into reminders and advice and later to an exchange on an equal footing’ (UNCRC General Comment No. 12, 2009: para 84). Thus, the weighting of children’s views should reflect that approach which would be explained by the CIM mediator facilitating the parental agreement. Based on our findings, we suggest an enhanced approach to CIM could be a useful trailblazer to test how incorporating UNCRC articles 5 and 12 might be done successfully. Child arrangement decisions would be based on whole family consultation, where children wish to be informed and participate, unless unsafe, shifting practice norms. Although child consultation is undertaken separately from the parents, such decisions would no longer be seen as the preserve of parental discussion alone. While mechanisms for understanding how this would be achieved in an age-appropriate way, acknowledging children’s evolving capacities and their development from ‘becomings’ to ‘beings’ (Freeman, 2010; Tobin, 2013) are discussed later, CIM would become the normative model for mediation providing it was safe for those involved. For children capable of forming their own views, this would repurpose CIM as a vehicle through which children’s article 12 rights were fulfilled and remove the situation where children’s views are too often constructed as adult narratives to serve adult interests (Smithson et al, 2015). This approach would also mirror the meaning of ‘relational autonomy’ in the healthcare context where the concept describes ‘interpersonal decisional making … [where] most seriously ill patients do not utilize solely their own care preferences, but also factor in the care preferences of their loved ones in clinical decision-making’ (Fuller et al, 2022: 1, drawing on Zhang and Siminoff, 2003; see also Walter and Ross, 2014).

Reconceptualizing the purpose of child-inclusive mediation

Our findings point to a lack of consensus between mediators on the purpose of CIM and a discrepancy between the views of the relationship professionals, mediators, parents and young people concerning the purpose. If, as suggested, a relational family autonomy principle was accepted, it would reconceptualize the purpose of CIM through what would, in effect, be a children’s rights framework, resolving the confusion.

The Family Mediation Council (FMC) should take the lead in redefining the purpose of CIM. It has, as yet, no Code of Practice for CIM, and clearly articulating to parents (and children) the purpose of CIM will build confidence in the process (Brown and Campbell, 2013: 196). Based on our findings that CIM, where practised well, largely coincides with Lundy’s call for children to have ‘space’, ‘voice, ‘audience’ and ‘influence’ (Lundy, 2007: 933), we now go on to explore what this could mean if appropriate changes were made to re-envision mediation practice in child arrangement disputes to follow the CIM model as the default, adapting this to the requirements of the UNCRC. Appendix III reproduces a checklist for child participation developed to help organizations working with and for children and young people to ensure article 12 compliance. The checklist has been adopted by the Republic of Ireland’s Department of Children and Youth Affairs to ensure that ‘children have the space to express their views; their voice is enabled; they have an audience for their views; and their views will have influence’ (Department of Children and Youth Affairs, 2015: 22). We would suggest that this could be a useful framework for the FMC against which to judge article 12 compliance of its reimagined CIM offer.

Let us now turn to the legal and practical elements of realizing a children’s rights framework in England and Wales.

Incorporation of the UNCRC

The most obvious legal change to achieve a children’s rights framework would be the incorporation of the provisions of the UNCRC into domestic law. The government stressed its commitment to promote and implement the UNCRC across the UK in its response to the Family Justice Review in 2012 (MoJ and DfE, 2012b: 10). Yet over a decade on, this commitment remains rhetoric rather than reality. In 2021, the UN Committee asked the UK to explain the measures it has taken to ‘[b]ring its domestic legislation into line with the Convention and ensure that the principles and provisions of the Convention … are directly applicable and justiciable under domestic law, particularly in England’ (UN Committee on the Rights of the Child, 2021). As we have seen in Chapter One, its dissatisfaction with progress was expressed again in 2023, and steps to facilitate children’s rights to express views and access meaningful participation called for (UNCRC Committee, 2023: paras 23(a) and (b)). These calls are also made against a backdrop of the Westminster government’s recent Supreme Court victory, which successfully challenged Scotland’s attempts to do just that, albeit on constitutional grounds.¹ To date, Wales alone in the UK has succeeded in incorporating provisions of the UNCRC into its domestic law (Rights of Children and Young Persons (Wales Measure 2011)), although not in a way which can be enforced by the courts, as recommended by the UNCRC (Doyle et al, 2017). The Scottish government remains committed to implementing an amended version of the Scotland (Rights of the Child (Incorporation)) (Scotland) Bill 2021, which would incorporate the UNCRC. However, this is likely to remain a much longer-term goal in England.

As signalled earlier, we support the incorporation of the UNCRC into UK domestic law in all UK nations, including the provisions of article 12 as the key legislative goal. Once embedded in our law, it would ensure that children’s rights are taken seriously and change the culture in and beyond legal discourse. As Lundy et al (2013: 463) observed, ‘[i]ncorporating the UNCRC into domestic law provides a platform from which other legal and non-legal measures develop. Positive consequences of how children’s rights are perceived and implemented in practice, that would be difficult to achieve through other means, flow from incorporation’.

This is borne out by UNICEF’s study of implementation in 12 countries (Lundy et al, 2012), which confirmed that in countries which had incorporated (Belgium, Norway and Spain) children were better understood as rights holders, which in turn created a culture of respect for children’s rights and returned positive benefits beyond the legislative procedure itself. In Ireland, constitutional reform to include a children’s rights provision was achieved in 2015. Although adoption of the provisions of the UNCRC itself has been piecemeal, this approach has been found to have been gradually transformative in building a culture that respects, protects and fulfils children’s human rights (Forde and Kilkelly, 2021).

We therefore propose that pending incorporation of the UNCRC into UK law or other wholesale reform, alternative ways should be found to lead a transformation in practice so that children’s existing international law rights are recognized and implemented appropriately when parents separate in line with UNCRC expectations.

Alternative routes to realizing UNCRC rights on parental separation

Given that children already have UNCRC rights, including their rights under article 12, as a matter of international law, finding ways to help realize them in the mediation context should be possible. Family mediation does have a CIM pathway and its own FMC Standards Framework. Although we have demonstrated both the benefits experienced by young people and identified the barriers to uptake of CIM, we have also indicated where CIM as a practice does and does not achieve compliance with article 12 UNCRC. If the FMC could itself, or working with others, start the drive to take action to address the barriers and improve compliance, this would be an important step in the right direction. While, as discussed later, there are measures which we suggest the FMC and mediation community could take on their own initiative, including underpinning mediation with a relational family autonomy approach to agreeing child arrangements and embedding Lundy’s model within CIM, we take the view that some domestic legislative changes would add weight to the call for transition towards both a re-envisioned CIM process and a change of approach to child arrangements within wider family dispute resolution practices. Let us first consider what this might entail.

Statutory change

We propose that relatively small domestic legislative changes could be adopted to aid the focus on children’s rights under article 12. This could change the approach both in and out of court to resolving child arrangement disputes. No mandatory provision governs children’s participation in domestic private child law proceedings. Where the parents agree, there is no statutory obligation to consult the children at all since the welfare checklist in section 1(3) of the Children Act (CA) 1989, which requires the court to consider the ascertainable wishes and feelings of the child in light of their age and understanding, applies only to contested section 8 proceedings (Freeman and Lowe, 2021: 173). Aldridge (2017) argues that while Part 2 of article 12 gives young people the right to participate in administrative processes (such as mediation), the opportunity to be heard must be offered ‘in a manner consistent with the procedural rules of national law’, which makes it difficult for young people to exercise their right when they have no legal standing or agency. Meaningful participation for young people in decision-making in England and Wales is unlikely to be achieved until the procedural rules in this jurisdiction, backed by statutory requirements, provide mechanisms to ensure that young people’s article 12 rights will be upheld and enforced where needed.

To achieve this, we suggest some relatively simple changes to primary legislation. Had section 12(2)(a)(iii) of the Family Law Act 1996 been implemented, practitioners would have had a duty to inform clients of the importance of considering the child’s welfare, wishes and feelings, alongside the other welfare criteria listed. However, in the new landscape of private ordering, which encourages parental agreement, practitioners of any sort do not necessarily have a role in child arrangement disputes. Yet if parental autonomy is to be replaced with the principle of relational family autonomy in mediation, we suggest a duty similar to that envisaged under the 1996 Act be placed on mediators at the Mediation and Information Assessment Meeting (MIAM). This would go hand in hand with stricter enforcement by courts of the expectations of attendance at the MIAM for assessment of the parents’ suitability to mediate before taking child arrangement issues to court (s 10(1) Children and Families Act 2014; Family Procedure Rules (FPR) Practice Direction 3A; FPR Practice Direction 12B). This would likely expand the number of parents attending MIAMs and, therefore, being informed about their children’s article 12 rights and the opportunity of consulting the child through CIM, with the potential benefits for children.

A further duty could be placed on separating parents to discuss the proposed child arrangements with their children and seek their views. This could perhaps be included in the CA 1989 as part of their parental responsibility (s 3) or separately included elsewhere. Parental responsibility is defined (s 3(1)) as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. An explicit clarification that this includes a parental duty to consult and a responsibility to take seriously children’s views on matters affecting their lives in an age-appropriate way, including on child arrangements following parental separation, would fulfil this aim. This would do no more than give a statutory basis to the obligations under articles 5 and 12 UNCRC while underlining the break with parental autonomy and ensuring that children are informed about the situation. This should in no way place children in a position of having to choose which parent’s view they support but rather ensure that there is a discussion which informs children about the opportunity and rights they have to be informed and to express their own views independently. In Scotland, Children (Scotland) Act 1995, section 6, already obliges a person reaching any major decision which involves fulfilling a parental responsibility to

have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of the child’s age and maturity, and to those of any other person who has parental responsibilities or parental rights in relation to the child (and wishes to express those views).

As we have seen, young people are usually already aware of the difficulties that their parents are experiencing, and their preference, based on this study, is that they would welcome the opportunity to be included in the conversation about their future in an age-appropriate way. This will ensure they feel respected and give them a beneficial outlet, which we have seen is important to their wellbeing.

Another possible statutory change we would propose is extending the welfare principle in section 1(1) CA 1989. This makes the child’s welfare the court’s paramount consideration in court proceedings determining any question concerning the child’s upbringing. In our view, this principle should also extend to mediation (and, in principle, to arrangements negotiated by parents by other means) so that any agreement reached is checked against the child’s wishes and feelings and their wider welfare as set out in the welfare checklist (section 1(3) CA 1989). As we have seen, the child’s welfare is not necessarily the paramount consideration in mediation, where parental agreement is the driving force within the process and mediators are facilitators to, rather than architects of, that agreement. While promoting the child’s welfare is part of the professional code of practice (FMC, 2018: para 5.7.1), as noted in Chapter One, this is not an enforceable duty. Given the shift to resolving child arrangement disputes in mediation rather than court wherever possible, it seems crucial to safeguard children’s welfare within this process to the same extent as in court proceedings. Indeed, given that UNCRC article 3 makes the child’s welfare the ‘primary’ (not ‘paramount’) consideration in this context, such a change might be considered a valuable clarification after incorporating the Convention into UK domestic law.

Child-inclusive mediation awareness and education about children’s rights-changing expectations

This research shows that parents and young people have low awareness of CIM before engaging in mediation. Awareness that children have article 12 rights was virtually non-existent among parents and children in our study and was not always appreciated by mediators. We therefore recommend that alongside relationship education in schools, there should be a public awareness campaign to raise the profile of CIM and increase awareness of children’s right to be informed and consulted when parents separate. This should highlight the availability and benefits of CIM, as well as the expectation that children should be involved, to the extent which is appropriate given their age and level of understanding, in making child arrangements when parents agree these directly or use non-court processes (PD12B: 4.4). This will help to embed the cultural shift away from a paternalistic and parental autonomy approach towards acceptance that children have views and rights to have them considered in this context.

As we have seen in Chapter Three, relationship education is considered by young people to be a good place for all children to learn about relationships. Citizenship education is also a forum for young people to understand their rights, including under the UNCRC. The authors, working with the National Youth Advocacy Service (NYAS) and the National Association of Child Contact Centres (NACCC), have, as a follow-on from this research, designed lesson plans and videos for both primary and secondary school-aged children aimed at introducing young people to their article 12 rights under the UNCRC. These materials have been quality assured by the PSHE Association and the Association for Citizenship Teaching, where possible, and explain and signpost ways to get information and access support, including about CIM, should parents separate (Family Solutions Children’s Group, 2023: 18). Education is one major avenue to increasing rights awareness among children and in line with the views of our young people participants in this study, this is being made available to all children in appropriate lessons, not just those whose parents are separating.

A universal child-inclusive mediation offer to children and parents

The message from the young people we spoke to in interviews and focus groups was that there should be a universal offer to the children of parents in mediation of an optional meeting with the mediator. This accords with the recommendation of the recent, JUSTICE (2022). This may cause some consternation within the mediation community. While accepting that ‘the starting point in child-inclusive mediation is that their direct involvement should be routinely and actively considered at an early stage’, Allport (2020: 196) questions how the suggestion of meeting children without parental consent might sit with parents whom she refers to as mediators’ ‘primary client group’. She rightly raises concerns about how children could be invited without parental consent and the risk that parents might refuse to return to mediation. However, suppose an offer of CIM became the norm, a cornerstone of mediating child arrangements just as much as voluntary participation and confidentiality are at present, and it is framed that way to the parents. In that case, the evidence from this research is that some of these concerns are likely to melt away. As a minimum, it would provide an opportunity for children to have an outlet to express their views to an independent third party, which they see as helpful and important to their wellbeing. Young people’s article 12 rights are not qualified rights. Only a universal offer to young people providing them with a meaningful forum to express their views, whichever non-court process their parents choose, would meet our international obligations.

Murch (2018) suggests that there may be a case to argue that young people should be invited to the MIAM. We take the view that the MIAM performs an important screening function for suitability for mediation, and needs to be performed before a child is invited into the process. However, we suggest that as part of the screening process, the mediator should be required to consider whether the case is suitable for CIM and if there are no contra-indications, but the parents are reluctant, or think the child might be reluctant, there should be an invitation to the child to a pre-meeting for them to find out about CIM. Where CIM is deemed unsuitable, the mediator and parents should consider how the child is to be given the opportunity to express their views or have their information and support needs met, for example, through a referral to counselling, other online or local support services, or pastoral support within schools as appropriate for the child. The relational family autonomy approach we propose will ensure that the needs of the children will be central and considered explicitly from the outset. It is for the child to then decide which support, if any, they would like to take up. The evidence from this research points to young people appreciating the offer of support, even if it is not taken up, as it reinforces that their needs are central to decision-making.

Child-friendly information

A child rights-based approach to arrangements on parental separation must start with the availability and accessibility of child-friendly information for young people (Stalford et al, 2017: 208). This, as Stalford et al (2017) further explain, should give children what they want to know – practical and procedural information about what will happen; foundational rights-based information about their rights and status; confirmation of their agency; and space and opportunity within the process which will enable them to use the information given and to assert their rights.

In child arrangement cases following the MIAM, assuming that parents are not screened out as being unsuitable for CIM, the mediator should, in our view, be able to contact the child directly to invite them to a consultation meeting per their right to express a view, should they wish to. At the same time, child-friendly, age-appropriate information about CIM would be provided. The Family Mediators Association has, for example, produced A Young Person’s Guide to Mediation in conjunction with young people, and a link to such a guide should be made easily available to the child by text, e-mail or post, as is their preferred method of communication. Sources of support such as ChildLine or NYAS could also be provided. Links to the videos available for this purpose, such as those used with the lesson plans (Family Solutions Children’s Group, 2023: 18), would also be useful to some parents and children. Once the child consultation meeting and mediation are concluded, we suggest feedback on how the child’s views have been listened to (or why they have not) should be given to the child sensitively to ensure that the checklist for ‘influence’ outlined in Appendix III is met. Managing children’s expectations of the process will be crucial, and signposting to further help at this stage would also be important.

Development of the process should, we suggest, be co-created with children in local areas and representative groups such as the Family Justice Young People’s Board. This would fully align with Stalford et al’s view that ‘participation both depends upon and facilitates children’s understanding of the information they receive and the processes they are going through and, in turn, enables them to have a meaningful stake in any decisions involved’ (Stalford et al, 2017: 212).

Enhancing mediator training and skills: reframing the offer

A crucial element of an expanded CIM service is enhanced mediation training to embed the skills and children’s rights mindset undoubtedly needed within the new culture and practice we call for. Some progress has already been made, but our study identifies specific aspects that need to be improved to successfully transition to a CIM default model of mediating child arrangements disputes, in addition to proposed changes to the Code of Practice discussed separately in what follows.

The obligatory mediation training for all mediators, alongside that required for CIM practitioners, provides the opportunity to radiate the message to all mediators that children are rights-bearers whose need for age-appropriate information and agency must be respected. The use of the MIAM to consider the benefits for children’s wellbeing in exercising their article 12 rights and to encourage parents in appropriate cases to guide and help children understand and exercise those rights in the way foreseen in article 5 UNCRC would be an important focus of enhanced CIM training.

Our findings suggest that how the mediator frames the offer of CIM to the parents (and the children) is critical to uptake rates. Douglas et al (2000: 59) report that when the practitioner suggests they talk to their child, the parent generally follows this advice. Our evidence concurs with this finding. Framing the offer positively to the parents, alluding to the benefits for children’s wellbeing and the fact that children have the right to be heard in matters that affect their lives, will help stress the positive aspects of CIM for many children. How any individual child responds will vary, but framing the offer as an opportunity for their child to receive information and uphold their right to participate in decision-making in a separate child consultation meeting with the mediator is likely to be received positively by parents. When constructed as a child’s right, it immediately becomes more difficult for either parent to be the one to deny their child the opportunity. A skilled mediator explaining the benefits to children will help allay understandable protective and often well-intentioned paternalism so that the child themself is given agency. Crucially, therefore, mediator training needs to embed this approach.

Enhancing mediator training and skills: understanding the additional benefits

Our research evidence suggests that some parents and practitioners have a limited view of hearing from children, consulting the child to break an impasse. In contrast, young people spoke of benefits far beyond progressing the case. While acknowledging that a duality of purpose may exist, making the importance of being heard to a child’s wellbeing the primary purpose is likely to assist the mediator in overcoming any ‘kneejerk’ parental reluctance. Mediator training should embed the relational family autonomy approach as a norm and ensure that mediators have the requisite skills to engage positively with parents and children about the value of CIM, rather than seeing it as a last resort. Training should enhance understanding of not only children’s article 12 rights, but also the benefits of giving children a voice in and of its own right, based on research, an approach which seems critical to ensuring that CIM is truly child-centred. This, in turn, will help mediators to help parents reach the right decision for the child’s welfare, after seriously considering their wishes, and reduce the cases where these elements are unjustifiably ignored to ensure parental agreement is reached. That is not to place the mediator in the same position as a judge, but would change the dynamic of the tripartite CIM conversation, so that the power is less skewed, and children are not just objects of the dispute. Throughout the book, we have used Lundy’s characterization of the elements needed to realize children’s article 12 rights as a lens to understand how well or otherwise CIM embodies the requirements of giving children ‘space’, ‘voice’, audience’ and ‘influence’ (Lundy, 2007: 933) and we think would be a useful tool in mediator training. The Lundy Pathway Model in Appendix II could be used first to understand the elements needed within a children’s rights framework for CIM. Lundy’s Voice Model Checklist for Participation in Appendix III would then give a practical way of training mediators to check that these elements had been implemented successfully in their CIM sessions.

As the culture towards a children’s rights framework within family justice system shifts, we would hope that professional training of lawyers and judges would also incorporate such a checklist into their own practice in child arrangement cases to ensure children’s perspectives are embedded meaningfully.

Costs and legal aid

Addressing the structural barriers to CIM, such as costs, is imperative. We endorse calls by the Family Solutions Group (2020: para 91), the JUSTICE Report (2022: para 3.72) and the Voice of the Child Advisory Group Report (2015: Recommendation 33) for the government to take steps to put the funding of CIM onto a proper footing. Just as (before the introduction of the £500 voucher scheme) the first mediation session was funded regardless of means to encourage participation in mediation, we recommend that at least one session of CIM for each child of the family is funded by the Legal Services Commission, where the child has expressed a desire to meet with the mediator. Echoing the findings of McIntosh et al (2008), our research illustrates mental health and wellbeing benefits to young people who speak to the mediator with whom their parents are meeting. This alone should justify the expense. The research also shows that CIM can assist parents in reaching an agreement in mediation, thereby avoiding the financial and emotional cost to the parents (and their children) of court proceedings and the cost of proceedings to the public purse. This may go some way to relieving the significant backlogs in the family court, where private law cases took an average of 45 weeks to reach a final order in 2022 (Ministry of Justice, 2023). Once the inclusion of child consultation within the mediation process is normalized, data collection over cases nationally could form part of the FMC’s survey practice and its effects could also be monitored within legal aid mediation starts and court statistics.

Reframing the approach to hearing from and listening to young people in a way that acknowledges their evolving capacities and participatory rights (Tobin, 2015), as we have suggested, could, therefore, also help to overcome the structural barrier of costs. Given that our international obligations to hear from children should be addressed meaningfully, the question becomes how, not whether, this is funded at public expense, particularly when wellbeing and conflict reduction benefits are factored into any cost–benefit analysis.

While our research has focused on CIM, young people’s right to be heard extends to whichever non-court process their parents engage in to try to resolve matters. The government must implement funding mechanisms to ensure that children’s voices are heard in other non-court processes such as solicitor negotiations, collaborative law or arbitration. The government has placed an expectation on parents (and the professionals supporting them) that they will ensure that children are involved in the decision-making when parents separate (PD12B: 4.4). It is fitting that for those parents who are eligible, funding mechanisms should be in place to meet the cost of involving children in the non-court process used. We endorse the recommendation of the JUSTICE Report that consideration is given to how child consultation can be financially incentivized in privately paying non-court processes (JUSTICE, 2022: para 3.77).

Code of Practice: embracing the child-inclusive mediation challenge

If young people’s substantive participatory rights are to be upheld resolutely and consistently, this will require a fundamental change in culture in the mediation community. Under the heading of ‘welfare of children’, the FMC’s Code of Practice dedicates only five short sub-sections to hearing from children. As noted, the FMC has a separate Code of Practice for online mediation but not for CIM. We would invite the FMC to urgently review the position and devise a Code of Practice for CIM. We would suggest that the Code adopts the wording of CA 1989, section 1(1) so that the child’s welfare becomes the ‘paramount consideration’ in mediation as it is in court proceedings. The current requirement that the mediator should ‘have particular regard’ to the child’s welfare and ‘encourage the parents’ to focus on the child’s needs as well as their own falls short of an article 12 compliant process.

To give young people both the ‘space’ and the ‘voice’ required of an article 12 compliant process (Lundy, 2007: 933), where there is a sibling group, the Code of Practice should contain a requirement that CIM must include an individual element with each child to allow the child to discuss matters that they may not feel comfortable discussing in front of their siblings. The comments mentioned later regarding the existing code should, we recommend, be included in any standalone Code of Practice for CIM.

Code of Practice: age of the child

The FMC’s Code of Practice requires 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: para 6.6.1). We agree with the JUSTICE Report that an arbitrary presumptive age threshold for hearing from children risks the converse presumption that children under the threshold do not need access to their participatory rights (JUSTICE, 2022: para 3.65). Arbitrary age thresholds also ignore the evolutionary capacity of children recognized by article 5 and risk tokenistic approaches to participation (McCall-Smith, 2021). We recommend that the Code of Practice be amended to remove the reference to any presumptive age. This would help to bring about the culture change we believe is required to ensure that mediation practices comply with our international obligations. The UN Committee on the Rights of the Child has emphasized that ‘age alone cannot determine the significance of a child’s views’, but instead, the child’s capacity to form a view must be ‘assessed on a case-by-case examination’ (UNCRC General Comment No. 12, 2009: para 29). Removal of the age restriction in the Code of Practice would ensure that mediators specifically consider hearing from all children where appropriate. Children’s right to give their views under article 12 is unqualified. All children enjoy the right; it is the weight placed upon those views which is qualified and must be considered in light of a child’s age and maturity.

Perhaps to avoid being too prescriptive, the FMC’s Code of Practice (2018) is silent on how the offer to have their voice heard should be made to young people and does not include any requirement that the mediator records how or whether an offer is made. We would endorse the call of the Family Solutions Group that mediators should be required to record annual statistics on the number of children invited to a consultation; the number of CIMs carried out each year; and where the mediator proposed CIM but it did not go ahead, whether the mother, father and/or child declined (Family Solutions Group, 2020: para 95). Additionally, as the Family Solutions Group Report recommends, a reason should be recorded should the mediator decide that CIM is inappropriate. This would help the mediator to address their mind to how the child, in this case, might be facilitated to participate. This, combined with removing the age restriction mentioned earlier, would require mediators to think creatively about how to include the children’s views in an age-appropriate manner rather than potentially dismissing participation based on age alone.

Family Mediation Council Standards Framework: feedback to young people

Feedback to parents of their children’s views is an integral part of an effective CIM process, yet feedback to the child on how their views were considered and the weight that was placed upon them is largely overlooked. Currently, within judicial processes, efforts to render the justice process more ‘child friendly’ have tended to focus on procedures and processes for children pre-decision (Stalford and Hollingsworth, 2020: 1031). The position is similar in mediation. The FMC Standards Framework (2014: 6.4j) requires mediators to ‘offer and arrange ongoing support and further meetings with the child or young person as appropriate’. However, it does not require feedback to the child on the decisions made or the extent to which their feedback shaped the decisions. Yet, General Comment No. 12 (2009: para 45) provides, ‘[s]ince the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered’. While the parents may be the ultimate ‘decision makers’ in mediation, in addition to anything that each parent may convey to the child, there should be at least some short oral feedback from the mediator to the child outlining the outcome and how their views were considered. To ensure compliance, we suggest that there should be a requirement that mediators keep a record of when and how this was done. Monitoring how the child’s participation influenced the outcome safeguards against tokenistic participation, making it uncomfortable for the adults involved to hear but then ignore the child’s views (Lundy, 2007: 939).