Child-inclusive mediation: Giving children a voice

Chris Lloyd-Smith explains how child-inclusive mediation offers a child-focused solution to separating parents, who wish to avoid the uncertainty, acrimony and cost of the family court.

As a family mediator, I am often asked to mediate on difficult situations such as when separating couples cannot agree on how their children will spend their time after the family home is sold or one parent moves out. This can be a difficult and frightening time for parents, with the thought of ‘losing’ their child or children potentially clouding their judgement. This can often result in parents putting forward proposals that work for them, but potentially not for their children and it makes finding a compromise far more difficult to achieve.

The law is clear in this area with section 1(1) of the Children Act 1989 clearly stating that ‘the child’s welfare’, is the court’s paramount consideration. As such, reaching a solution which works for the children is the aim when mediating cases involving child arrangements.

But what if the parents cannot agree on what is best for their children? As mediators, we are aware that when couples are discussing how to parent their children there is one (or more!) voice missing in the mediation room – the voice of the children themselves. Obviously parenting decisions directly affect the children, and it is perhaps strange that children seldom directly input into how those decisions are made.

Within court proceedings, a judge can order the Children and Family Court Advisory and Support Service (CAFCASS) or sometimes social services to prepare a report where the ‘wishes and feelings’ of children are sought. As part of that process, children are spoken to by a CAFCASS officer or social worker. That report thereafter forms part of the court’s considerations when making decisions about where children live and how they spend time with their parents. But what if you are not in court or want to avoid the costs, acrimony and uncertainty of court, how can they independently find out what children think and want?

Within mediation, specially trained mediators can, with parents’ agreement, speak directly to their children. This gives children an opportunity to speak to the mediator, set out their wishes and concerns, and for those views to be fed back to parents verbally in mediation to help inform their future discussions and decisions. It also allows children to express any feelings or concerns that they might have to the mediator as well as their own suggestions on how to improve things in the future. The mediator does not however ask children to make choices, as that responsibility remains with their parents. Furthermore, the views expressed by the children remain confidential and cannot be disclosed to the court.

Importantly, the conversations between the mediator and the child are confidential with the mediator only sharing with the parents those things that the child is comfortable in him or her doing. What can be shared is usually agreed at the end of the meeting. To re-assure children, mediators ask parents to promise to avoid coaching or telling their children what to say to the mediators, that they won’t ask their children to tell them what was said to the mediator during the meeting, and that they won’t criticise or be angry at what is subsequently reported by the mediator.

Child-inclusive mediation works best with children aged eight or over (but mediators can sometimes see children younger than this) and can take place with individual children or with all the siblings together in the same room. Meetings usually take place in person without the parents being present, meaning that children feel safe that their views will be confidential. Speaking to children in mediation gives children the sense that their views have been listened to, wishes respected and thereafter taken into consideration by their parents.

When the information is fed back to parents it gives them a fresh perspective and allows an opportunity for them to ‘reset’ from previously entrenched positions. Doing so gives parents an opportunity to think constructively and a further chance to reach a mediated conclusion and provides reassurance that the conclusion reached is in their children’s best interests and is workable given the children have played a part in the agreement reached.

Child-inclusive mediation is an ever more important option for separating parents. Sadly, the Family Court continues to suffer from underfunding and increasing delays. In some courts, CAFCASS reports can now take up to six months to complete, leaving parents in limbo with children’s needs often changing in the interim. Child-inclusive mediation can be arranged much quicker with the mediation process usually taking no more than two to three months in total. Importantly, mediation takes away the risk of litigation with conclusions being reached together rather than imposed by a court.

The Government is committed to mediation as a way for parents to resolve disputes following separation. As part of that commitment, the Government have recently announced a voucher scheme whereby each mediating couple is entitled to £500 of free mediation, irrespective of their financial situation when discussing issues concerning children within mediation. This scheme has been extended on a number of occasions and as such, it seems the Government continue to see the merit in mediated solutions for separating parents.

For more information

Both Chris Lloyd-Smith and Maria Ramon are qualified to speak directly to children in mediation. If you would like more information about child-inclusive, or mediation generally please call Anthony Collins Solicitors on 0121 200 3242 or email chris.lloyd-smith@anthonycollins.com