Contents

• Series Editor’s Preface viii

• Table of Legislation ix

• List of Abbreviations x

• About the Authors xi

• Acknowledgements xii

• Foreword by Gillian Douglas xiv

1. oneIntroduction 1

   • Background and aims 1

   • The impact of the neoliberal reforms 4

   • Theoretical framing and key concepts: neoliberal ‘autonomy’ and ‘responsibility’ 6

   • Article 12 UNCRC: family justice for children 10

   • Children’s rights and ‘evolving capacities’: space, voice, audience and influence 13

   • Young people and child-inclusive mediation: research, methods and practice 16

   • What child-inclusive mediation offers 18

2. twoChildren’s Right to Be Heard? Points of View from Relationship Professionals and Children 22

   • Introduction 22

   • Hearing from young people: the views of the relationship professionals 23

   • The views of the young people 27

   • The risks of child-inclusive mediation 32

   • The benefits of child-inclusive mediation 35

   • Whole family support on separation 39

   • Conclusion 40

3. threeEntering Child-Inclusive Mediation: Barriers to Uptake 44

   • Introduction 44

   • The purpose of child-inclusive mediation 44

   • Barriers to access to information and support 51

   • Barriers to greater uptake of child-inclusive mediation 54

   • Lawyers and mediators as gatekeepers 57

   • Conclusion 69

4. fourExperiences of Child-Inclusive Mediation 72

   • Introduction 72

   • The process of child-inclusive mediation 73

   • The risks of child-inclusive mediation 81

   • Satisfaction with the process 85

   • What children liked about the process of child-inclusive mediation: ‘audience’ 85

   • What children did not like about the process of child-inclusive mediation 94

   • What parents liked about the process of child-inclusive mediation 95

   • What parents did not like about the process of child-inclusive mediation 99

   • Conclusion 101

5. fiveOutcomes of Child-Inclusive Mediation 103

   • Introduction 103

   • Resolving matters in child-inclusive mediation 104

   • Reaching agreement: ‘influence’ 105

   • Did settlements last? 111

   • What children liked about the outcome of child-inclusive mediation: ‘influence’ 112

   • What children did not like about the outcome of child-inclusive mediation 115

   • What parents liked about the outcome of child-inclusive mediation 116

   • What parents did not like about the outcome of child-inclusive mediation 121

   • Parental dissatisfaction with outcomes 124

   • Conclusion 125

6. sixConclusions 127

   • Introduction 127

   • Conceptual changes: parental autonomy versus children’s rights 129

   • Legal and procedural changes: towards a children’s rights framework 133

   • Practical changes: towards a children’s rights framework 139

   • Addressing structural barriers 145

   • Next steps 150

• Appendix I: The Healthy Relationship Transitions (HeaRT) Research Study: Project Design and Methods 152

• Appendix II: Lundy’s Conceptual Model of the United Nations Convention on the Rights of the Child, Article 12 Inclusion 158

• Appendix III: Lundy’s Voice Model Checklist for Participation 160

• References 162

• Index 173

Series Editor’s Preface

The Law, Society, Policy series publishes high-quality, socio-legal research monographs and edited collections with the potential for policy impact.

Cutting across the traditional divides of legal scholarship, Law, Society, Policy offers an interdisciplinary, policy-engaged approach to socio-legal research which explores law in its social and political contexts with a particular focus on the place of law in everyday life.

The series seeks to take an explicitly society-first view of socio-legal studies, with a focus on the ways that law shapes social life, and the constitutive nature of law and society. International in scope, engaging with domestic, international and global legal and regulatory frameworks, texts in the Law, Society, Policy series engage with the full range of socio-legal topics and themes.

Table of Legislation

List of Abbreviations

About the Authors

• Anne Barlow is Professor of Family Law and Policy at the University of Exeter Law School. She is a socio-legal researcher and has led a number of empirical research projects, including Mapping Paths to Family Justice and the recent Healthy Relationship Transitions (HeaRT) study on which this book draws. She has served as the Academic Member of the Family Justice Council (2011–15) and as a member of the government’s Task Force on Family Mediation (2014). Her co-authored book, Mapping Paths to Family Justice: Resolving Family Disputes in Neo-Liberal Times (Palgrave, 2017) (with Rosemary Hunter, Janet Smithson and Jan Ewing) also won the Hart-SLSA book prize 2018.

• Jan Ewing is Assistant Professor of Family Law at the University of Cambridge. From 2011 to 2023 she was a research fellow at the University of Exeter working with Anne Barlow on a number of projects including Mapping and then Creating Paths to Family Justice, an evaluation of the Department for Work and Pensions-funded Mediation in Mind project and more recently the Healthy Relationship Transitions project. She is a member of the Family Solutions Group, a multidisciplinary group of professionals set up by Sir Stephen Cobb in 2020 to consider what can be done to improve the experiences of children and families before an application is made to the family court.

Acknowledgements

We would like to express our enormous gratitude to all those who have helped make this book possible. First of all, our HeaRT study research participants – children, parents and professionals – who gave us their time and insights. This has enabled us to develop our understanding of the issues through exploring your different viewpoints and journeys involving child-inclusive mediation. You were, of course, all crucial to the success of the project, and we thank you again. The young people who took part in our focus groups and youth panels, as well as those who shared their experiences of mediation with us in interviews, were inspirational. They were also instrumental in reshaping our engaged methods during the COVID-19 lockdowns and co-creating our initial findings. The Family Justice Young People’s Board, supported by Cafcass, were critical in helping us recruit young people nationally who had experienced parental separation and in supporting them in attending our group events. We are similarly greatly indebted to all the youth groups and schools in the South West of England, which agreed to invite their members to participate and to their dedicated leaders and staff who supported their attendance. We learned so much from you all and enjoyed the vibrancy of our discussions and debates, particularly in the final mixed youth panel. We also extend our huge thanks to the parents and children who had experienced child-inclusive mediation for being prepared to share your thoughts with us at what for many of you was a difficult time.

Next, we would like to sincerely thank all the relationship experts and family mediators who gave their time freely and provided crucial expertise which was fundamental to the study. We would not have got very far without your contributions. We are also thankful to the Family Mediation Council, its member organizations and members for their assistance in helping us to recruit our sample of parents and young people, without which the study would not have been possible.

Last but not least, we thank our funders, the Wellcome Trust-funded Wellcome Centre for Cultures and Environments of Health at the University of Exeter, and in particular, the Centre’s administrative staff alongside our Medical School colleagues there, Simon Benham-Clarke and Tamsin Newlove-Delgado. Not only did they support, discuss and challenge our ideas, but also co-convened the online youth panels and supported different aspects of the study throughout.

Finally, we would like to make clear that all opinions expressed in this book are those of the authors, unless otherwise indicated. In addition, any errors and omissions are our own.