Child Inclusive Mediation: Research on Views of the Child Reports in Ontario
by Rachel Birnbaum and Nick Bala
There is a growing awareness of the importance of offering children an opportunity to participate in family dispute resolution processes, including mediation. There are several different ways to involve children in mediation, including having the child meet with the mediator, who may then share the child’s views with the parents, or, having the child share his or her own views directly in a meeting with the parents. Another option is to have the child meet with a clinician for several sessions and then have the professional prepare a report that summarizes the child’s perspectives and preferences to share with the parents and mediator. This article reports on an on-going study of the use of Views of the Child Reports in Ontario. While there is no single “best way” to include the child in mediation, we conclude that Views of the Child Reports can be a useful tool. These Reports can provide parents with more reliable information than their own conversations with their children, and they can facilitate settlement. While they provide less information than a full custody evaluation, they are much less expensive and time-consuming to prepare.
The Child’s Rights Context
The United Nations Convention on the Rights of the Child Article 12 provides that children with sufficient maturity must have the “opportunity to be heard” when courts or tribunals are making decisions that affect them. Although the United States has not legally ratified the Convention (the only country in the world not to do so), courts and policy-makers in the USA cite the Convention, and courts in a number of states have adopted rules to allow for children’s participation in the judicial process, including allowing for judicial interviews with children, or for representation of children.
In England and Wales, the government has a policy that children are to be involved in family mediation, presumptively from 10 years of age, or at a younger age, if they have sufficient maturity (Walker & Sherwood, 2016). This is a rights-based policy, and the child’s participation is to occur regardless of whether the parents consent. Various programs are being piloted to assess how to involve children in mediation in those jurisdictions.
The Value of Child-Inclusive Mediation
Beyond consideration of the rights of children “to have say,” research from Australia suggests that involvement of children in mediation has long-term positive effects on the relationship between children and non-primary care-giving parents (McIntosh et al, 2008). There is also international research to support the broader proposition that when children feel that they have been involved in making plans for their care, they have better long-term outcomes (Birnbaum & Saini, 2012)
The reality is that most parents going through mediation are not aware of their children’s true feelings and views. Understandably, many children tend to tell each parent what they believe that parent would like to hear. When parents learn about their children’s true perspectives, they often are respectful of them, and may be more likely to settle their disputes. Most children are very sensitive to their parents’ situation and do not want to “choose” between their parents, but, rather, they often express a desire to have a “peaceful resolution,” and want to share perspectives on specific aspects of their lives, such as extra-curricular activities, and the effect of parenting arrangements on the child’s relationships with friends.
Views of the Child Reports
The use of Views of the Child Reports (also called “Voice of the Child” or, “Hear the Child Reports”) to obtain the child’s perspectives and preferences in parenting disputes is a relatively recent development in Canada (Birnbaum, Bala & Boyd, 2013). These Reports provide information about children’s perspectives on their lives and the matters at issue in the parenting dispute, based on one or more interviews with a legal or mental health professional. These Reports can be evaluative and include the interviewer’s opinion on the strength and consistency of the child’s views, but, more commonly, they are non-evaluative, providing no evaluation or commentary on the child’s remarks. They provide less information than would be found in a full custody assessment, and offer less opportunity for children to directly influence outcomes than if they were represented by counsel. While these Reports clearly provide children with an opportunity to participate in the justice process, from the child’s perspective, the nature of the participation provided may not be as empowering as meeting directly with the judge or mediator.
Views of the Child Reports provide only a summary of the child’s statements (often including quotations), without offering a conclusion or opinion from the interviewer about the reliability or significance of the statements made, and without providing a recommendation as to the appropriate resolution of the dispute. Reports that are evaluative in nature are prepared only by mental health professionals and will also include the interviewer’s opinion of the reliability or significance of the child’s statements, but are not full assessments of the parties, the children, or the circumstances.
While Views of the Child Reports are increasingly being used in Canada and other countries as a means for directly obtaining the child’s perspective, there is little research about their utility and impact or the benefits and limitations of the approach, and even less research about what factors need to be considered in establishing good practices and protocols to appropriately advance children’s views.
The Ontario Research Project
As part of a larger collaborative practice and research initiative, the authors are undertaking research on a pilot project funded by the Law Foundation of Ontario on the use of Views of the Child Reports. The model of Views of the Child Reports that has been used in this project consists of Reports prepared by mental health professionals (mainly social workers) who also provide assessments and mediation services. The Reports are non-evaluative and are generally prepared after two interviews with the child, with the child given the opportunity to decide about the contents of the report (i.e., confidentiality is provided).
This pilot project began May 1, 2016 and ends on April 30, 2017. As of the end of January 2017, there have been 71 Reports prepared in eleven different Ontario court jurisdictions from both levels of trials courts in major metropolitan centres, in smaller urban court sites, and in two northern court sites.
At the pilot program sites, in cases involving disputes over parenting, court staff provided each party and his or her lawyer, if represented, with an Information Sheet about the pilot program. Judges and lawyers were provided with information about the project, and judges and court staff also received additional administrative information. Any party, lawyer, or judge could suggest the preparation of a Views of the Child Report in a child custody and access dispute before the court, whether at the case-conference, motion or trial stage. The Reports in the pilot program were prepared without charge to the parties (with funding from the Law Foundation). However, a Report was only prepared if both parents consented and the judge endorsed the request.
The inclusion criteria were that the child had to be 7 years of age or older, and the family had to understand and speak English. Additionally, there were exclusion criteria for any disputes that included criminal charges against either parent, and for those cases in which the child might have to testify in criminal court, those in which bail conditions prohibited contact, and those in which a child custody and access evaluation had recently been completed.
With each case referred for a Report, each litigant was required to complete a one-page intake summary, describing his or her perspective on the issues in dispute. The judge could also provide comments in the court endorsement form requesting the information that the court was seeking from the child.
The social workers who prepared the Reports had to have at least 5 years’ experience interviewing children for custody evaluations, and they were all required to attend a half-day training session about the process, expectations, and administrative matters regarding the pilot program.
Generally, each party brought the child to the social worker’s office for a separate interview of approximately one hour in length, while some of the interviews were held at the children’s homes. The social worker preparing the report gave each child the opportunity to review the proposed contents of the report before the final report was written and released to the parents and to the judge. Additionally, the social worker requested that each parent and each child provide voluntary consent to a telephone follow-up interview for the research project, though it was made clear that having a Report prepared was not conditional on participation in the research project.
The primary issues in dispute in these cases were access and parenting arrangements, with each litigant claiming to know what the children wanted. It is important to appreciate that without a Views of the Child Report, many of these children would have had little or no direct input into the decision-making process. Significantly, in close to half the cases where a Report was prepared (42%), the case settled without a court hearing.
Perspectives of Professionals, Parents, and Children
As of the end of January, 2017, there have been research interviews with 25 children (16 girls, 9 boys), 29 litigants (12 mothers, 2 maternal grandmothers, and 15 fathers), 22 lawyers of parents, 21 social workers, and 23 judges, each sharing their views and experiences of these Reports.
The lawyers and judges appreciated the quick turnaround of these Reports. While the lawyers expressed differing opinions about whether there should be 3 instead of 2 interviews, or whether collaterals should also be interviewed, they all saw the utility to these Reports. The comments were generally very positive, and recognized the value of the Reports in putting forward the children’s views, and in settlement. These professionals, however, also recognized that these Reports are not suitable for all cases, and there were concerns that governments or litigants might use them in cases where full evaluations are needed. The social workers who participated in this study also were positive about the process and utility of these Reports. One might have expected that these experienced clinicians would have had concerns about the lack of information from collateral sources, since, before the pilot project began, some Ontario clinicians made comments at education conferences questioning the value of Reports prepared with only two interviews, without collateral information or discussions with parents and their lawyers.
The parents who were interviewed were also generally positive. Some of them had been litigating for years and appreciated the value of the Reports for settlement. A number commented that it was helpful for them, as they had not previously had a clear understanding of their children’s perspectives. Perhaps most significantly, all of the children who were interviewed in the research study expressed positive feelings about the Reports, though some expressed skepticism about the ultimate weight that their views would have.
Tentative Conclusions
While the information in this paper contributes to the very limited empirical knowledge about Views of the Child Reports, this is only a preliminary research report on a pilot project. We are also aware that some individuals with negative experiences with the Reports may have declined to participate in the research study. Further, all the cases in this pilot project were ones in which both the parents agreed to the preparation of a Report, and a judge was willing to make a referral.
It is apparent, however, that, for suitable cases, Views of the Child Reports can be a useful, expeditious and cost-efficient way of engaging children in the justice process and allowing their perspectives to be shared with their parents and professionals.
Notably, close to half the cases in which a Report was prepared resulted in a settlement based on the Report, and two were referred to a child welfare agency because there were indications of parental maltreatment during their interviews. There were also two cases in which the social workers expressed concern about the child’s situation and suggested a referral for a more thorough child custody and access assessment.
While the focus of this study is on cases where there is litigation, these Reports clearly have potential value for mediation. The results of the research are being shared with family mediators in Ontario, including through webinar presentations to the Family Law Section of the Alternative Dispute Resolution Institute of Ontario (ADRIO).
There also needs to be caution, as Views of the Child Reports may not reveal the true views and preferences of children who are subject to parental pressure or manipulation, or whose views may be changing. Although all the children involved in this research project were articulate and thoughtful in sharing their views and preferences, some children have emotional and cognitive limitations that may negatively impact their ability to express themselves. This can be a concern, given that these Reports are based on just two interviews with the child, and there is no effort to collect background information about the families, or to contact collateral sources to provide more context. Moreover, caution also needs to be considered in cases where there is concern about domestic violence that may affect the children or parents. Finally, it was also clear that not all children want to be heard or need to be heard, and their wishes must also be respected.
Further research needs to identify the balancing of potential harm and benefit to children who are invited to speak to professionals about their views and preferences, especially in the context of mediation.
There also needs to be discussion among mediators about some of the ethical and professional responsibility issues involved in child-inclusive mediation. For example, if the mediator meets the child without the parents present, can the child be given any assurance of confidentiality? How will mediators handle situations where there are issues related to domestic violence, children with special needs, etc.? These questions raise further practice, research, and policy implications, given that not all mediators are accredited, or see children in post-separation disputes.
References
Birnbaum, R, Bala, N. & Boyd, J.” (2016). “The Canadian Experience with Views of the Child Reports: A Valuable Addition to the Toolbox? International Journal of Law, Policy and the Family, 30, 158-178.
Birnbaum, R. & Saini, R. (2012). A scoping review of qualitative studies on the voice of the child in child custody disputes. Childhood, 20(2), 260-282.
McIntosh, J., Wells, Y., Smyth, B., & Long, C. (2008). “Child-focused And Child-inclusive Divorce Mediation: Comparative Outcomes from a Prospective Study of Post-Separation Adjustment” Family Court Review, 46(1), 105-124.
United Kingdom (2015) Final Report of the Voice of the Child Dispute Resolution Advisory Group.
Walker, J., & Sherwood, L. (2016), “It’s My Life Too: Radical Innovations in Child-Inclusive Mediation” (53rd AFCC Annual Conference, Seattle, June 1-4, 2016).
__________
Rachel Birnbaum is Associate Professor, Cross appointed in Childhood & Social Institutions & Social Work, King’s University College, Western, London, Ontario.
Nick Bala is Professor of Law, Queen’s University, Kingston, Ontario.