Giving children a right to be heard and taken seriously when parents separate could help couples reach sustainable child arrangements and relieve significant backlogs in the family court, avoiding unnecessary financial and emotional costs, a new study says.
Mediation, court and legal processes should provide a forum for young people's views on post-separation arrangements being considered for them to be aired independently and factored in wherever appropriate. Giving them more agency about decisions which affect their lives and futures will help families make more effective decisions, improve children's wellbeing during this difficult time and may help avoid expensive court cases.
Private family law cases took an average of 45 weeks to reach a final order in 2022.
The study, by Anne Barlow and Jan Ewing, from the University of Exeter, recommends that unless considered unsafe to do so, child arrangement decisions should be based on whole family consultation. When mediation is used to agree such arrangements and where the children wish to participate by expressing their own views during a separate session with a mediator, this should be facilitated as the default model. Decisions should no longer be seen as the preserve of parental discussion alone.
The government must also implement funding mechanisms to ensure children's voices are heard in other non-court processes such as solicitor negotiations, collaborative law or arbitration.
Moving towards a family justice system that fully respects children's voices when parents separate in line with their rights under article 12 of the United Nations Convention on the Rights of the Child (UNCRC) would benefit their mental health and wellbeing. Incorporation of the UNCRC into UK domestic law should be the goal in the longer term.
Professor Barlow said: "There is potential to reduce conflict and help families reach appropriate arrangements by doing more to include children's voices and taking their views seriously. This requires a shift away from parental autonomy in mediation and wider family dispute resolution towards one that recognizes children as people and not just passive objects.
If developed appropriately, this would enhance the process for families. Enhancing children's rights can be an asset rather than a threat within the wider family justice system."
Dr Ewing said: "Family mediation, although child-focused, is based around parental autonomy. This can mean arrangements can become the parents' lowest common denominator for agreement, which may or may not coincide with the child's wishes or, indeed, their best interests, an issue which the young people in this study felt was a grave injustice. Children's views in the decision-making process within mediation should become the default. This does not mean their views will or should always prevail, but rather that they are gathered directly from the children and taken seriously as part of the dispute resolution considerations, balancing them against other important considerations about how to further their best interests."
The study says the Family Mediation Council (FMC) should take the lead in redefining the purpose of mediation.
Small domestic legislative changes could be adopted to aid the focus on children's rights and a further duty could be placed on separating parents to discuss the proposed child arrangements with their children and seek their views.
The welfare principle in section 1(1) Children's Act 1989 could be expanded. This makes the child's welfare the paramount consideration in court proceedings determining any question concerning the child's upbringing but is a principle which could be formally extended to apply to out-of-court processes as well.
The study recommends a public awareness campaign to raise the profile of child-inclusive mediation and increase awareness of children's right to be informed and consulted when parents separate.
