listening to children's views: the findings and recommendations of recent research ·...

Listening to children’s viewsThe findings and recommendations of recentresearch

Ann O’Quigley

The Joseph Rowntree Foundation has supported this project as part of its programme ofresearch and innovative development projects, which it hopes will be of value to policymakers and practitioners. The facts presented and views expressed in this report are,however, those of the authors and not necessarily those of the Foundation.

© Joseph Rowntree Foundation 2000

All rights reserved.

Published for the Joseph Rowntree Foundation by YPS

ISBN 1 902633 70 9

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This report is in three sections.

• The first discusses the present situation regarding the representation of children’sviews in private law proceedings.

• The second looks at how these views could be better represented under newarrangements.

• The third looks at children’s views as expressed to researchers.

Please note that for the sake of brevity I have used the word ‘children’ rather than themore accurate phrase ‘children and young people’ to refer to minors of up to 18 years old.The word ‘children’ must therefore be understood to include young people. I havesometimes used the word ‘young people’ when the reference is specifically to olderchildren.

Contents

Summary v

SECTION I The present situation

1 What do we know about the way that children’s views are represented at present? 1Background 1Why is it important to listen to children in family proceedings? 1Listening to children involved in family proceedings at present 2Mediation – are children listened to in the mediation process? 5Does the Statement of Arrangements form safeguard children’s interests? 6Family Assistance Orders 6Solicitors and listening to children 7Violence 8Listening to children in public law proceedings 9Parents listening to children 10Children speak out about being listened to 10Summary 11

SECTION II More effective representation

2 What do we know about how children’s views might be better represented under new

arrangements? 16Enhancing the role of the court welfare officer 16Separate legal representation of children 17Altering the Statement of Arrangements procedure 18Unified service 19Mediation 19Information meetings and parenting plans 20Summary 20

SECTION III Children’s views

3 How would children like to be involved, who would they like to talk to directly, what

are successful ways of doing this? 23Children are not used to being listened to 23Why do adults have difficulties about listening to children? 23Children’s feelings about their experiences of talking to professionals 24Some suggestions from research about the support services children might want 24Respecting children’s agendas 25How children would like to be involved 27Successful ways of listening to children 28Summary 29

4 Summary of the seminar on 5 July 1999 33Children’s rights 33Children’s right to information 34Listening to children 34Supporting children and families 36The role of court welfare officers in listening to children 37The role of solicitors in listening to children 38The role of mediators in listening to children 39Representation of children 39Statement of Arrangements 40Parenting plans 40Broader cultural issues 40Summary of ideas for promoting change 41Addendum 42

Bibliography 44

Appendix: Research summaries 48

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This report was produced for a seminar formembers of the Lord Chancellor’s AdvisoryBoard on Family Law on 5 July 1999. Thepurpose of the report was to summarise thefindings of current research on the issues oflistening to children and considering their bestinterests. This was in the context of thedevelopment of court rules in relation to section11 of the Family Law Act (FLA).

The report summarised the findings ofresearch on:

1 the present situation regarding therepresentation of children’s views inprivate law proceedings

2 the more effective representation ofchildren’s views under newarrangements;

3 children’s views on how they would liketo be involved.

The present situation

Listening to children involved in family

proceedings

Court welfare service

Court welfare officers (CWOs) work mainlythrough parents and not so much with children.CWOs give various reasons for this includinglack of time and limited experience of workingwith children. According to researchers, some ofthe contact CWOs have with children is oflimited value because of the way in which theyare constrained by their constructions ofchildren and also by their awareness of thecurrent judicial ideology that it is in the child’sbest interests to maintain contact with bothparents. Both of these mean that CWOs often

Summary

lose sight of the individuality of the child.

Mediation

Most mediators work indirectly by encouragingparents to think about their children’s wishesand feelings rather than by talking directly withthe children. Researchers expressed concern thatmediators in their search for a resolution mayoverlook the fact that the two parties to themediation may not be equally powerful and thismay lead to oppressive practices where‘agreement’ has in effect been coerced. Suchpractices may further marginalise childreninvolved in the divorce process.

Does the Statement of Arrangements form

safeguard children’s interests?

There was general scepticism amongst bothjudges and solicitors as to whether theStatement of Arrangements procedure in anyway safeguards the interests of children.

Family Assistance Orders (FAOs)

These are the only means by which social workagencies might be required to help families andchildren involved in private law proceedings.However, CWOs and judges are not clear aboutthe purposes of FAOs. There are many FAOswhere CWOs do not do any work with thechildren even though they are named in theorders.

Solicitors

Solicitors are in a powerful position vis-à-vis

their clients. Most solicitors accept the currentideology that it is nearly always in the bestinterests of the child to maintain contact withboth parents and they may bring pressure tobear on clients who oppose such contact.Solicitors do not usually see the childthemselves. This is partly because they see

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Listening to children’s views

children as potential manipulators and asvictims of manipulation by parents.

Violence

Researchers expressed concern that the child’svoice is currently not being heard in private lawproceedings and some children are being forcedto maintain contact with violent, abusiveparents.

More effective representation

Possible ways of enhancing the role of the

CWO

CWOs should: play a more central role from theoutset; be able to call on expert witnesses; beable to adopt a more therapeutic, social workrole towards children; receive more training inworking with children.

Separate legal representation for children

This should be available in cases of entrenchedconflict, where there is a history of violence orwhere the child holds a different view from theCWO. However, separate legal representationmay be bad for continuing relationships withinthe family.

Altering the Statement of Arrangements form

This could be improved to take account of thecriticisms made by judges and solicitors. Itcould be used as a means of channellingfamilies who need more help towardsappropriate providers.

Unified service

A new unified welfare service should aim to fillin the gaps in present provision, notablychildren’s access to information and

counselling. Full consideration needs to begiven to the provision of any necessary furthertraining of practitioners.

Mediation

There were mixed views as to whether theincreasing importance of mediation could havepositive outcomes with regard to hearing thevoice of the child.

Children’s views

Children’s experiences of talking to

professionals

Children generally are reluctant to talk tooutsiders about family matters. Those who haveseen professionals found them to beinterventionist rather than supportive. They feltthat professionals tended to interrogate themrather than have open discussions with them.They found them to be judgemental andintrusive. Children were aware that discussionswere not confidential and this led to lack oftrust.

Support services children feel that they need

Children want: access to information in a non-stigmatising way (e.g. Internet); accessible,confidential consultation service for childrenexperiencing family breakdown; and separatelegal representation for children who need it.

Successful ways of listening to children

• If possible, children should be assured ofconfidentiality; if this is not possible thenthe limits to confidentiality should bemade clear at the outset.

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Summary

• Adults should be aware of developmentaland cultural factors but should beware ofmaking assumptions about the individualchild on the basis of these.

• Adults should adopt a non-intrusive styleof interviewing with the aim of learningfrom the child.

• The child needs adequate information inorder to express views.

• Questions should be simple and direct;indirect questions should be avoided asthese are experienced by children as‘trick’ questions.

• Adults should be open-minded and non-judgemental, and allow the child to raisetheir agendas and not simply respond tothe adult agenda.

• Adults should allow the child to tell thewhole of their story, without interruptingor rushing to interpretation.

• Younger children may prefer to speak ifthey have a friend with them.

• Good communication is more likely tooccur if adults see children’s abilities andcompetencies as being different fromrather than lesser than adults’.

• Some children may not want toparticipate in decision-making at all.

• The interviewer should be alert for anysign of distress in the child andacknowledge it.

Seminar on 5 July 1999

A summary of the discussion at the seminar on5 July 1999 is to be found in Chapter 4. Shortlybefore the seminar, the Lord Chancellorannounced that the enactment of Part II of theFLA would be postponed. This meant that therewas no longer an immediate concern withdeveloping court rules under section 11 of theFamily Law Act and therefore the discussionwas more broad-ranging touching on generalproblems to do with changing the widercultural setting as well as specific pointsregarding the court welfare service. Suggestionsthat were made for encouraging positive changeso that the voices of children are properlyattended to have been listed at the end ofChapter 4.

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1

Background

On the basis of recent trends, it is estimated that19 per cent of children born to married coupleswill experience parental divorce by the age often and 28 per cent will do so by the age of 16.The numbers of children affected by thebreakdown of the relationship of theirunmarried parents is not known (Rodgers andPryor, 1998, p. 4).

Millions of children experience thesemomentous changes which may have numerousconsequences for them, yet they may have littlesay in them and very often they will not even beinformed about them (Dasgupta and Richards,1997, p. 107; ChildLine, 1998; Lyon et al., 1998,p. 21; Butler et al., 1999).

There is general social concern because somechildren are adversely affected by divorce(Rodgers and Pryor, 1998).

Why is it important to listen to children in

family proceedings?

Various reasons are put forward by researchersfor listening to children who are involved inseparation and divorce. Different researchersgive more weight to some reasons than to othersand this affects their views on how we can bestlisten to children to ascertain their wishes andfeelings.

• Listening to children and ascertainingtheir wishes and feelings in situations ofseparation and divorce is a matter ofrespecting their rights. Taking their views

into account in reaching post-divorcearrangements is a matter of justice. Theserights are enshrined in Article 12 of theUN Convention on the Rights of the Child.Ascertaining the wishes and feelings ofthe child is also required under thewelfare checklist of the Children Act 1989.If children are to act as ‘participatorycitizens’ in a true democracy (as opposedto one where rights can be constrained bya factor such as age and the presumptionof lack of competence) they must belistened to. Only in this way can childrenbe ‘subjects’ who act in their own rightand not the ‘objects of concern’ whose‘best interests’ and ‘welfare’ areinterpreted on their behalf by adults(Roche, 1999).

• It is dangerous to assume that parentswill always act responsibly with regard totheir children (Murch, et al., 1998, p. 122).Yet, where parents are in agreement aboutarrangements post-divorce, then these willrarely be subject to judicial scrutiny andchildren’s views will not be ascertained.1

• Listening to children involved in thesesituations and taking their views intoaccount will lead to better decisionswhich will be more likely to be adhered toin the longer term.2

• If we listen to children we will see thatthe judicial tendency to focus on theindividual and the rights of theindividual may be inappropriate in

1 What do we know about the way that

children’s views are represented at

present?

2


family law. Children see the family as anetwork of relationships, based on anethic of caring for one another,irrespective of the form any particularfamily may take. For children it is thequality of the relationships that isimportant. It is therefore dangerous tostigmatise any form of the family orassume that any particular form is morevirtuous and therefore more desirablethan another. A flexible approach whichtakes account of the complexity of familyinterrelationships is needed (Katz, 1997a,p. 7; ChildLine, 1998, p. 58; Morrow,1998b; Neal, 1999, p. 16).

• If children’s voices had a place in thenegotiation of the post-divorce familythen highly conflictual situations whereparents resort repeatedly to the courtsand children are used as weapons in aninter-parental struggle would be lesslikely to happen (Lyon et al., 1998, p. 27).

• Even in families where children wouldusually be treated with respect and havetheir views listened to and taken intoaccount, this may not happen where theparents are themselves emotionally andperhaps physically distraught.3

• Whether or not they are spoken to andlistened to by adults, children will beaware that something is going on that isvery important for them. If adults do notcommunicate with children this does notprotect them but makes them morevulnerable (NSA, 1999a).4

• Children will develop their ownunderstandings of what has happened.

Very often they believe that they are insome way responsible for their parents’relationship failure (NSA, 1999b; Smith,1999b, p. 14).

• Being listened to is itself of therapeuticvalue and not being listened to orconsulted can lead to distress and feelingsof rejection (Richards, 1999; Dasgupta andRichards, 1997, p. 108; ChildLine, 1998,p. 60; Smith, 1999a, p. 12).

Listening to children involved in family

proceedings at present

The main ways by which the wishes andfeelings of children involved in the process ofdivorce are heard is indirectly through the courtwelfare officer (CWO) or through a mediator.

A CWO may be appointed by the courtwhere the parents cannot come to an agreementabout post-divorce arrangements.

Mediation is provided in court by CWOs. Itis also provided by the Family MediationAssociation and National Family Mediation.

In all those cases where the parents come toan agreement it is impossible to say whether thechildren who are involved have been allowed toexpress their wishes and feelings at all or evenwhether they have had any information fromtheir parents about what is happening to them.5

We do not know about the situation ofchildren involved in family breakdown wherethe parents are not married.

Court welfare officers

The probation service has been responsible forwelfare reporting since the 1950s. Currentlythere are around 700 family CWOs, including 70

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senior officers. CWOs are qualified socialworkers who have usually worked as probationofficers.

CWOs mainly work through parents ratherthan directly with children (Hunt and Lawson,1999, p. 26). Their focus is to encourage parentsto reach a resolution and this is generallyperceived as being the best way to help thechildren (Hunt and Lawson, 1999, p. 23). Theyhave limited contact with the children. CWOshave been criticised in the past for notascertaining the children’s wishes and feelings(James and James, 1999, pp. 196–7). The welfarechecklist of the Children Act and the NationalStandards for CWOs require the court to takethe ascertainable wishes and feelings of thechildren into account. Some CWOs feel that theyare more conscious of these requirements nowand therefore are more child-focused (Hunt andLawson, 1999, p. 30). However, some CWOs arestill reluctant to work directly with the child andthere is no requirement for them to do so; someof those who do see the child do so only becausethey feel pressurised by the court (Hunt andLawson, 1999, p. 38; James and James, 1999,p. 197; Sawyer, 1999b, p. 262).

Problems with the court welfare officer’s role

regarding children as perceived by CWOs

• Workload – many practitionersmentioned this as a problem inascertaining children’s wishes andfeelings.6

• Limited nature of the role – apart fromlack of time, practitioners mentioned thefact that they were not involved in a casefrom the outset; do not play a central rolein the court proceedings; they do not have

a budget to call in expert opinion andusually they have no contact with thefamily for any follow-up work once theproceedings are over (except in therelatively rare cases of the FamilyAssistance Order, but CWOs are veryreluctant to recommend these becausethere is no funding for them) (Hunt andLawson, 1999, pp. 31–3, 53–6).

• Lack of experience and training in dealingwith children (Hunt and Lawson, 1999,p. 38).

Problems with the court welfare officer’s role

regarding children as perceived by researchers

Sawyer’s research (Sawyer, 1999b)7

Sawyer found that CWOs were under pressureto bring about the settlement of disputes on apre-stated model (i.e. the ideal post-divorcefamily, which is seen as being one where bothparents maintained contact with the child andwere conscious of their responsibility to thechild). She felt that their consciousness ofparental rights prevented them from seeing thechild as a person in their own right with theirown individual needs and agenda. Theassumption of automatic parental responsibilityin contested cases reduced the pressure on theirworkload. Sometimes CWOs reachedconclusions that they admitted they felt uneasyabout and on questioning agreed that theirrecommendations were not in the best interestsof the child but that they would make thembecause they fitted in with current judicialideology. Where children expressed oppositionto contact with a non-resident parent theseviews were not given credence but wereattributed to pressure from the resident parent.

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The CWOs interviewed said that arecommendation of ‘no contact’ would requirethe bringing in of expert psychiatric evidence,about the child, whereas a recommendation for‘contact’ would not require the bringing in ofexpert witnesses. For these CWOs, the activeparticipation of the child was not on the agendaat all. In any discussions with children, theCWOs were clear that they were not offeringconfidentiality. However, this was not alwaysunderstood by the children who maysubsequently feel misled and betrayed by theprocess. CWOs justified their practices byreference to research that they were aware of,though they were unable to cite it, nor werethey aware of any criticisms of this research.Individual children’s views, and indeedindividual adult views, were unimportantbecause the prevailing judicial culture is sostrong that CWOs are unable to resist it and ineffect the child has no voice because adissenting voice will not be heard.8

Smart et al.’s research9

Smart et al. conclude that children may feeldisempowered by the legal process because ofthe lack of confidentiality in their dealings withthe CWO, the way in which their ‘evidence’ isused selectively, the way in which the CWOmay perceive the child as part of the family‘system’ and not as an individual in their ownright, and the way in which the child’s viewsmay be ascertained, sometimes indirectly,sometimes in the presence of parents. For somechildren the experience may not help at all, andmay even be negative.10

Butler et al.’s research (Butler et al., 1999)11

Some of the children in Butler et al.’s sample hadhad dealings with CWOs. One child expressed

dismay that her wishes and feelings asexpressed to the CWO had been largely ignoredin the report; another child reported that theCWO, in representing his views to the court,had so distorted them that in fact a view thatwas in some respects the opposite of his ownview was expressed to the court as being hisview. The researchers conclude that if we areto endeavour seriously to ascertain thewishes and feelings of children then theirviews should be heard accurately andwithout interpretation.

Hunt and Lawson’s research (Hunt and

Lawson, 1999)12

All the practitioners interviewed in this researchhad experience of working as CWOs andguardians ad litem (GALs) in public lawprocedures. The researchers conclude thatbecause of the limitations in the scope, depthand power of the CWO’s role it was difficult forpractitioners to achieve even ‘good enough’practice. The GAL can focus on the child; theCWO focuses more on the family (Hunt andLawson, 1999, pp. 30, 44, 102).

Trinder’s research (Trinder, 1997)

Trinder concludes that the way in which CWOsoperate with regard to children is largelydetermined by the way they conceptualisechildren and this affects how they go about theirwork and their relationships with the child, theparents and the court. Different models ofchildren are found amongst different teams ofCWOs.13 What they have in common is thatthese constructions cannot be responsive to theindividuality of children and, in working withunconscious models of children, CWOs havedeveloped practices that are for them based oncertainties about what children are like and in

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this process the individual voice of the child islikely to be lost:

Ascertaining wishes and feelings is only partlyabout having a right to a say, and very much moreabout enabling a welfare professional to make thebest possible assessment of the child’s need andwelfare. (Trinder, 1997, pp. 298–9)

Trinder concludes by recommending thatprofessionals should approach each case from aposition of uncertainty, respecting thecomplexities and ambiguities in the lives of thepeople they will deal with rather than workingwith unexamined assumptions about childrenwhich are based on adult constructions of whatchildren are like (Trinder, 1997, p. 302).

Mediation – are children listened to in the

mediation process?

The Family Law Act 1996 amended the LegalAid Act to empower the Legal Aid Board tosecure the provision of mediation in disputesrelating to family matters. The Board may makefranchise agreements with appropriatemediation services, which will be required tocomply with a code of practice laying downarrangements designed to ensure, inter alia:

… that the parties are encouraged to consider –(a) the welfare, wishes and feelings of each child;and (b) whether and to what extent each childshould be given the opportunity to express his orher wishes and feelings in the mediation. (Murchet al., 1998, p. 16)

Murch and his colleagues sought to providean up-to-date audit of family mediation, toascertain the practice of mediators regardingchildren and their opinions on the direct or

indirect involvement of children in mediation.They concluded that, although mediators arewell aware of the importance of children’swelfare, wishes and feelings, they seek toaddress these indirectly through encouragingparents to think about their children’s positionrather than directly by talking to the childrenthemselves. Those mediators who are preparedto involve children directly in mediation do soonly occasionally (Murch et al., 1998, p. 18 andExecutive Summary).

A few mediators allow children to come to aconcluding session after agreement has beenbroadly reached so that they can hear directlyfrom both parents the arrangements that havebeen reached for them. Some mediators are verykeen on this practice because they believe it hasgreat symbolic importance for the children andallows them to feel part of the decision-makingprocess without being forced to take sides ormake impossible choices (Dasgupta andRichards, 1997, p. 107).

Sometimes mediators see the child on theirown and then represent their interests in themediation sessions with the parents. However,this raises problems over the supposedlyneutral stance of mediators (Dasgupta andRichards, 1997, p. 107).

Doubts about the increasingly important roleof mediators were expressed by severalresearchers. They point out that manymediators in their search for a resolution mayoverlook the fact that the two parties to themediation may not be equally powerful in thesituation or equally able to express their feelings(Murch et al., 1998, pp. 119–20; Smith, 1999b,pp. 144–5). Unequal power relationships withinmarriage will be reproduced in the mediation ifnot acknowledged and understood by

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mediators. The striving for agreement bymediators in order to avoid court proceduresmay lead to oppressive practices:

There appears to be little control over themethods employed by court welfare officers tobring about ‘agreement’ and in many of the caseswe have looked at, ‘agreement’ has beencoerced. (Hester and Radford, 1996, p. 92)

Some researchers believe that the drivetowards mediation may further marginalisechildren in the divorce process rather thangiving them more of a voice.14

Does the Statement of Arrangements form

safeguard children’s interests?

Murch and colleagues carried out research tosee if the Statement of Arrangements formwhich the petitioner in a divorce is required toprovide for the district judge safeguards theinterests of children involved in uncontesteddivorces (Murch et al., 1998).

The researchers found that there is generalscepticism amongst district judges and solicitorsas to the value of the Statement ofArrangements process. District judges rarelytake action after scrutinising the written details,largely because they do not consider that thereis anything they can do about any problemsthey have detected. Most district judges andsolicitors felt that there should be someindependent check by the state on thearrangements made for the children but did notfeel that the present system was at all adequate toachieve this. One problem is that the only sourceof information about the children is the parents.

When asked how they identify cases whichmay call for some sort of intervention:

… the district judges were not able to provide anyclear idea of their concept of ‘children’s welfare’,with a strong impression emerging from theinterviews that the whole s.41 process dependsupon the district judges exercising some sort of‘sixth sense’ which enables them to identifycases which may call for some sort ofintervention but which defies definition. (Murch etal., 1998, p. 68)

The judges expressed this as follows: ‘itworks on a gut reaction’, ‘You just get thatfeeling’, ‘the totality of it all just gives you asense of unease’ (Murch et al., 1998, p. 68).

When asked how they would respond toarrangements between the parents that they sawas inappropriate (such as splitting siblings), 57per cent of the judges said they wouldintervene. However, that means that 43 per centfelt that they had no such responsibility towardsthe children (Murch et al. 1998, p. 144).

Family Assistance Orders

Since the Children Act 1989, the FamilyAssistance Order (FAO) is the only means bywhich social work agencies might be required tohelp families and children involved in privatelaw proceedings.

Adrian James and Louise Sturgeon-Adamshave carried out research into the workings ofFAOs (James and Sturgeon-Adams, 1999). Theyfound that there is a lack of clarity amongstCWOs and judges about the purposes of FAOs.Some CWOs see them as representing anopportunity to work with children which theywelcome, although they feel that not enoughFAOs are made. Other CWOs disagree; they donot feel that they have been adequately trainedto work with children and because of this there

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are a large number of FAOs where there appearsto be no contact made with the children despitetheir being named in the FAO. Where officers dowork with children there is a lack of clarity aboutthe purposes of this work and it is commonlyunderstood by officers that ‘working withchildren’ can be effectively done by workingthrough the parents. Again there is a danger thatthe voice of the child may be lost completely.15

Solicitors and listening to children

In their research on the Statement ofArrangements process, Murch and colleaguesinterviewed solicitors about their practices andconcerns regarding advising clients on thefilling in of the form and their views generallyregarding their role in relation to the children(Murch et al., 1998; see also the research of Piper(1997) on the practices of solicitors).

Solicitors, like mediators, may be in apowerful position to influence their clients whoare involved in private law proceedings.

Many solicitors feel able to persuade clientsto act in ways which fit in with the prevailingideology that it is almost always in the bestinterests of children to maintain contact withboth parents; in fact few of them questioned thisideology themselves. Solicitors may bringpressure to bear on a client by mentioning whatin their view would be the likely response of thecourt to the client’s view and in this waypersuade clients to change their instructions.Another powerful weapon which is used bysome solicitors is to threaten to write to theLegal Aid Board if the client is being ‘difficult’(Murch et al., 1998, p. 149).

The Legal Aid Transaction Criteria requirethat the child’s views regarding current or

proposed arrangements should be consideredwhere residence or contact is not agreed. Somesolicitors were not aware of this requirement toattend to the ‘voice’ of the child, and those whowere aware of it relied on parents tocommunicate the child’s views to them or onthe CWO to ascertain the child’s views (Murchet al., 1998, p. 144).

Most solicitors felt that they have someresponsibility towards the children but this didnot mean that they felt that they should see thechildren:

… children were seen as potential manipulatorsand victims of manipulation at the hands ofparents, whose stories were therefore not to begiven great credence. (Murch et al., 1998, p. 152)

Solicitors see their role as one of encouragingthe parents to consider the children (Murch et

al., 1998, p. 145). Where parents have reached anagreement, only 40 per cent of the solicitors feltthat they owed some responsibility to thechildren to assess the arrangements, nearly 60per cent felt that they did not (Murch et al., 1998,p. 147).

Most solicitors understood ascertaining thechild’s wishes to mean asking them who theywould like to live with and deciding aboutcontact. Only a minority saw ascertaining thechild’s wishes as being a way of giving the childthe opportunity to speak without being asked tomake any decision (Murch et al., 1998, p. 154).

Interestingly, when Murch et al. asked thejudges they interviewed what they would do ifa child wrote to the court asking to speak tothem, only 17 per cent said that they wouldconsider speaking to the child. The response ofone of the judges was considered by theresearchers to be typical:

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I would only agree to see the child in very, veryexceptional circumstances and only when I hadmade it clear to the child right from the outsetthat whatever the child said couldn’t be regardedas confidential and I would have to make it clearto the parents what the child had said. (Murch etal., 1998, p. 151)16

Violence

Several researchers expressed considerabledisquiet over their findings that at present thechild’s voice is not being heard in private lawproceedings and consequently some childrenare being forced to maintain contact withviolent, abusive parents against their wishes.17

The assumption seems to be gaining groundthat children who do not want contact with anon-resident parent have had their minds‘poisoned’ by the other parent (Neale andSmart, 1998, p. 13; Sawyer, 1999a, p. 112). Thissituation has been medicalised and rendered asscientific fact by its labelling as ‘parentalalienation syndrome’ and practitioners havebeen enjoined to be aware of it and to apply achecklist of factors which supposedly wouldindicate that it is present (Willbourne and Cull,1997; Maidment, 1998; Neale, 1999, p. 10).

Researchers at ChildLine are extremelyconcerned that solicitors are advising mothersnot to pursue any allegations of abuse nor toseek help or therapy for an abused child. This isbecause solicitors believe the court will assumethat children who are unwilling to see the non-resident parent have been ‘coached’ (or‘alienated’) by the resident parent.18

The researchers at ChildLine also point outthat they have never received a call from a childcomplaining of being coached or forced to allege

that abuse has occurred in the past or in anunsupervised contact meeting. This issignificant because it is quite clear that childrenare aware that they are sometimes manipulatedby their parents because of their hostility to eachother and they are very resentful when thishappens (ChildLine, 1998, p. 28; NSA, 1999a).

The researchers at ChildLine point out thatwhere the children have experienced violencethere may be serious damage to the child’s self-esteem and the child may feel helpless. Childrenin these situations may have very ambivalentfeelings towards their fathers and may welcomeseparation (Neale and Smart, 1998, p. 29).ChildLine points out that it is not valid to assumethat contact with both parents is always in thebest interests of the child and they also note thatstudies have shown a strong link betweendomestic violence and child abuse, includingsexual abuse (Hester and Radford, 1996;ChildLine, 1998, p. 27; Smith, 1999b, pp. 57, 59).

Other researchers conclude that family lawshould operate on the guiding principle thatevery child should have the right to contact butthat this should not be imposed on an unwillingchild in their supposed long-term interest(Smart and Neale, 1999b, pp. 189–90).

When considering these issues, it is worthremembering Trinder’s stricture thatprofessionals should approach each case from aposition of uncertainty, trying to be aware oftheir own perspective on children and thepractices that arise from this (Trinder, 1997,p. 302). As Masson and Oakley point out:

Recognising children’s rights checks adult power,particularly the power of professionals who canclaim to have special insight on welfare or needs.(Masson and Oakley, 1999a, p. 11)

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This point is reinforced by a reminder aboutwhere professional certainties can lead:

In the situation which developed in Cleveland,professionals were manifestly not listening towhat the children were saying but feltthemselves to be acting in the children’s bestinterest. (Davie et al., 1996, p. 4)

Listening to children in public law

proceedings

It is instructive to look briefly at the situationregarding listening to children in public lawwhich is considered to represent a model of bestpractice with important lessons for any futureunified welfare service (Lyon et al., 1998, p. 9).

Research on the representation of childrenby guardians ad litem (GALs) and solicitors inpublic law proceedings has been carried out byJudith Masson and Maureen Winn Oakley(1999a).

They found that GALs were skilled atestablishing rapport with the children andsensitive to their anxieties but this did notnecessarily mean that the wishes and feelings ofthe children were given due weight in theprocedures:

The practice of appointing a solicitor ‘for the child’does not guarantee that children’s issues will beeffectively advocated particularly where solicitorsare reliant on guardians or terminate theirrelationship with the child before the guardian adlitem has completed the report. Workingpractices of guardians, solicitors and the courtsoperate to protect and distance children from thelegal process. Although some children found thishelpful, others wanted to participate more.Children who felt excluded tended to disengage

from the process making it more difficult forguardians to establish their wishes and feelings.(Masson and Oakley, 1999a, p. 3)

They conclude:

Overall, children and young people felt that theydid not know enough about what was going on.To them the system appeared to exist for adults,not for them. (Masson and Oakley, 1999a, p. 156)

The researchers identify structuralconstraints rather than bad practice as beingbehind the inadequacies of the present system.However, they also note that the attitudes of theprofessionals towards children militate againstthe voice of the child being heard in theseproceedings (see also Timms, 1997, p. 41; Huntand Lawson, 1999, p. 115; Ruegger, 1999;Sawyer, 1999a).

Masson and Oakley note that changes incourt practice would also be necessary ifchildren who wished to were actually toparticipate (these points are obviously relevantto the representation of children in private lawproceedings too):

Representation of children and young people inthese proceedings is largely based on shieldingthem from the process rather than assisting themto participate. Consequently, their party statusdoes not help to make the proceedings real forthem. Greater opportunities to participate, wherethey wished to do so, might encourage somechildren to engage with the proceedings. It wouldalso necessitate changes in court practice, suchas clearer use of language, shorter hearings andmore attention to the needs of ordinary people,which would also benefit parents, relatives andcarers. (Masson and Oakley, 1999a, p. 144)

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Parents listening to children

The ideal post-divorce family in the view of theFamily Law Act is one where both parentsaccept life-long responsibility for their children.As shown above, CWOs, mediators andsolicitors rely on parents looking after theirchildren’s best interests and, where they are notdoing this, expect to be able to persuade theparents to put the children first. The parents areseen as the principal conduit by means of whichthe wishes and feelings of the children areconveyed to practitioners. This will be sufficientin many but not all cases.

The evidence of confidential calls fromchildren to ChildLine is that many parentscannot be relied on to listen to their children:

Through most of the calls, there was a picture ofchildren bewildered about what was happening,confused about what had been decided or eventheir absent parent’s whereabouts, lacking oreven being refused information, or, mostcommonly, feeling unable to talk with theirparents or ask them questions for fear ofupsetting them further. (ChildLine, 1998, p. 23;Smith, 1999b, p. 81)

What comes across here and from otherresearchers is that children are very sensitive totheir parents’ feelings and may hide their owndistress so as not to cause further difficulty fortheir parents:

It is clear how fatally easy it is for parents toassume that because the child is not talking andnot being openly upset, they are therefore notbadly affected by what has happened. Childrenoften need to be given permission to speak aswell as have opportunities made and to be giventime. (ChildLine, 1998, p. 23; Smith, 1999b, p. 34)

In their calls to ChildLine, children talkabout how they hate arguments over who theyshould live with, how they want to see more ofan absent parent, miss their siblings when thefamily is split up, some want to live with theother parent, some want a change in contactarrangements, but they find it very hard to gettheir parents to listen to them:

Children tell us how hard it is to get adults tolisten and how they don’t want to put them undermore pressure or upset them. If a child seemsupset or needing to talk, it is important to maketime to listen. (ChildLine, 1998, p. 45)

Children speak out about being listened

to19

The trouble was they never explained anything tous. They just treated us like babies and weweren’t. We needed to know what was going on,what was happening, how things would workout. … We needed help from outside but therejust didn’t seem to be the right person to turn to.No-one seemed to be there to help us, especiallyus, the children. Mum and Dad had the lawyersbut we had no one.

… no one listened to me and everythingafterwards was just such a mess.

I don’t want to live with my dad. He’s beating me,I want to live with my mum; there’s going to be acourt case; but no one’s listening to me.

I don’t like my dad very much; but I have to go tohis house twice a week. The court said so, so Ijust have to.

Dad wants me to stand up in court and say Iprefer living with him.

11


My parents are separating. I have to decide whoI’ve to live with. Sometimes I wish I didn’t livewith either of them. They shout all the time.

I would like to live with Dad but I don’t want tohurt Mum … she has mental problems.

I’m living with my Dad. Mum walked out but nowshe’s wanting custody. My sister wants to livewith Mum but I don’t want to … will I be able tostay with Dad?

When my Mum said he left, I felt like, ‘Why?’ Andfelt a bit sad. And then after about two months orsomething I was starting to like, feel normal.(Sam, aged 11)

[Regarding children’s understanding of the legalprocess:]

Interviewer: Do you understand anything thatgoes on?

No.

Interviewer: Have you ever heard them talk aboutthings like that?

No, cos if they do talk, they do send us out of theroom. Don’t get to listen. (Andrew, aged 14)

I know it is something to do with lawyers andeverything, but I haven’t really been told. I’ve hadto suss it out for myself. (Sion, aged 12)

Interviewer: Did you ever meet any of the legalpeople, solicitors or people like that?

I sat in the waiting room and saw the secretary.But then Mum just disappeared into a room. Youtry and peep through the door and they’re gone.You couldn’t go in there. (Emma, aged 12)

Interviewer: Would you have liked to have had itexplained?

Umm … In a way, yea. Because, you really feelsuspicious of what’s happening. And you want toknow, but you can’t go up to people, ‘Whathappened?’ ‘What did you sign? What did youdo? How did it happen?’ Because she’d say,‘Look, you’re too young.’ And you feel as if you’rea little child still. But you want to know. (Emma,aged 12)

I think the kids should know what is going on.Because I think it’s very unfair to keep them inthe dark. Because it’s their parents … So if theyhave somebody explain what’s going on, thenthey may find it better … cos I think it’s unfair tonot know. (Sarah, aged 14)

Um … it’s just that I needed to know. (Georgina,aged 9)

Summary

• Children are often left in the dark byparents about what is happening. Someare not spoken to about what ishappening much less listened to.

• CWOs, mediators and solicitors, insofaras they attempt to ascertain the wishesand feelings of children, usually do soindirectly, through their parents.

• The Statement of Arrangements form isnot adequate as a means of safeguardingthe interests of children involved inprivate law proceedings.

• FAOs apply to a relatively smallproportion of children. The professionalsinvolved in helping families who arenamed in FAOs do not usually dealdirectly with the children.

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• Children who dissent from the currentideology that it is in their best interests tomaintain contact with both parents mayfind their views ignored which may resultin them being forced into situations thatare potentially dangerous for them.

• Listening to children and taking on boardwhat they say seems to be very difficultfor adults to achieve, even in situations,such as in public law proceedings, wheretheir representation is considered to be anexample of best practice.

• Parents going through separation anddivorce may be unaware of theirchildren’s needs to be heard.

• Researchers who have attended to whatchildren have to say have all reached theconclusion that the present situation isextremely unsatisfactory with regard tolistening to the wishes and feelings ofchildren involved in private lawproceedings.

• We have no specific information on thesituation of children whose non-marriedparents have separated.

To sum up this section:

… what does not seem … satisfactory is that,whilst the Children Act 1989 and the Family LawAct 1996 appear to give greater priority to thewishes and feelings of the child, not just in courtsbut throughout related legal, administrative, andmediatory processes, our research would suggestthat the vast majority of children currentlyinvolved in a parental divorce do not have theirwishes ascertained by any professional and do

not know that anybody has the slightest interestin them. Perhaps we should admit that there arelimits to what professionals involved in the legalprocess of divorce can achieve in relation to thechild’s welfare and rights. We could then decidewhat most needs doing ‘properly’ and what is themost appropriate forum and body of knowledgeto achieve that end. (Piper, 1997, p. 800)20

Notes

1 ‘In the majority of cases, provided theparents agree, there will be no objectivescrutiny of proposed arrangements for thechildren, or any consultation with thechildren about their wishes and feelings inthe matter’ (Lyon et al., 1998, p. 14; seeactual cases described by authors on pp. 26–27 of very unhappy children whose parentswere in agreement on arrangements thatworked very badly for the children).

2 ‘… children may, like adults, havecontradictory wishes; and … any decisionon their ‘best interests’ must take thosewishes fully into account … Decisionmaking … should be a process ofnegotiation and partnership in which theyoung person, the parents and theprofessionals, may all take someresponsibility for the decision. Involvementof children is not only essential for their selfrespect and understanding but improves thequality of decisions taken. The child’swishes and feelings should form an integralpart of determining their best interests’(Preface by S. Spencer to Schofield andThoburn, 1996, p. vi; see also Lyon et al.,1998, pp. 208–9).

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3 ‘All these calls [to ChildLine from children]reveal the pain, turmoil and often betrayalthat parents themselves are going through;it is not surprising that many parents arepreoccupied with coping with their ownproblems. When people are in shock, griefor anger, they are much less able to thinkclearly or even notice what children arefeeling. Many parents will hold back fromtalking to the children, hoping to sparethem anxiety and pain; and it is not easy,anyway, to judge how much to say andwhat to reveal. Parents, too, need people toconfide in who are able to listen to theirfeelings and help them think through howbest to inform and respond to their children’(ChildLine, 1998, p. 23). See also Smith,1999b, p. 13.

4 The following quote from a child underlinesthe dangers of keeping children in the dark,perhaps from misguided notions ofprotecting them: Interviewer: ‘What do youthink happens when you go to court?’Child: ‘It seems like Deirdre, she was foundguilty. I don’t want my Mum to be, or myDad to be guilty. But one of them has to beguilty, but I don’t want none of them to beguilty … I felt scared, cos I thought we hadto go with him. And stand up in one ofthose boxes if we were older and said whowe wanted to live with and who we wantedto put down as guilty or something. NowI’d say I don’t want anyone to be guilty’(Butler et al., 1999).

5 We simply do not know about thesechildren. Estimates made by researchers ofthe numbers of children in this situationvary. There are around 160,000 childreninvolved in their parents’ divorce

proceedings every year (Lyon et al., 1998,p. 14). CWOs wrote 36,107 welfare reportsin 1997 in England and Wales. Assuming afigure of 1.7 children per report, this gives afigure of around 60,000 children as thesubjects of welfare reports (Bretherton et al.,1999). In 1997, there were 76,397 s.8 ordersunder the Children Act 1989 (regardingapplication for residence, contact, specificissues or prohibited steps); therefore in onlyaround 47 per cent of these cases werereports written by CWOs (James andRichards, 1999, p. 33).

6 In the words of two practitioners: ‘thepressures are just terrible. And it’s all aboutcutting corners … Every year we are told todo more and more reports. It’s an absolutenonsense; you can’t cope with doing moreand more reports to the same quality. Itbecomes very dangerous practice’ … ‘notgetting to do home visits because of timeconstraints, that’s crazy’ ((Hunt andLawson, 1999, pp. 49, 58).

7 Sawyer’s research looks at the question ofhow the position of the child in familyproceedings is addressed by theprofessionals involved. It includes semi-structured interviews with CWOs and alsoascertaining their responses to vignettes.These were taken from actual cases wherethere had been a dispute between theparents. See Appendix for more details ofthis research.

8 See also: Murch et al., (1998, p. 149) on the‘hard line’ solicitors take with clients whodo not want the other parent to have contactwith the child; Kaganas (1999, p. 102) on theincreasing preparedness of courts tothreaten a change in a child’s residence if

14


contact orders are resisted and to imprisonresidential parents who disobey orders.

9 See Appendix for more details of thisresearch.

10 ‘The court welfare officer and that, theydon’t really know the family. I don’t think ithelped talking to her … I didn’t see whyeverybody should ask all these questionsand when you do tell them certain things itdoesn’t go in the report … I only really toldthem what they wanted to hear …Somebody else to be involved is an idea,who isn’t going to go straight back and say‘well this and this’ to the [court] but just getthem sat down and sort of talk betweenthem, and if you do want them to pass it on,they would’ (a young person of 22 who was15 at the time of the court case) (Neale, 1999,p. 24).



13 Trinder labels the two different approachesto children, which incorporate differentconstructions of childhood, the ‘parent’schild’ and the ‘worker’s child’.

In the ‘parent’s child’ model children areseen as belonging to the ‘junior’ ranks of thefamily subsystem. Practice here centredround enhancing as far as possible theability of parents to make decisions onbehalf of their children. In this viewchildren are less rational than adults.Anything children say has to be interpretedin the light of the family context rather thanbeing seen as an authentic or independentposition. Children are seen as highly

vulnerable and as needing to be protectedfrom the burdens of decision-making.Information about the child is obtainedindirectly by asking parents rather thanasking the children directly or if the child isasked directly then the aim of the questionsis to find out about the child’s emotionalstate rather than to gain any idea of whatthe child’s view is. In this model it is up toparents to make decisions about the future,not the child and not the courts. The childdoes not have an interest independent of itsparents and, as a child, is seen as lackingcompetence and understanding.

In the ‘worker’s child’ model the child isalso seen as vulnerable and dependent buttheir interests are seen as being potentiallydifferent from their parents’. Children areseen as unreliable sources of information, asare their parents, and they are definedprimarily by needs rather than by rights.Practitioners who operate from thisperspective are more likely to see the childbecause they feel that the child may beisolated and need support, and also in orderto find out what the child’s perspective is.The child’s perspective may weigh moreheavily in making recommendations but notnecessarily; ultimately it is welfareprofessionals who are assumed to knowbest (Trinder, 1997, pp. 295–7).

14 ‘If, as intended, the Family Law Act 1996brings about a substantial shift away fromformal legal decision-making processes andtowards informal, out-of-court decision-making, even more cases will be settledwithout ever reaching court and thereforewithout receiving even the limited amount

15


of formal judicial and welfare scrutinywhich such cases currently receive. Such ashift, with all that it might imply about theprotection of rights in general and, inparticular, the interests of children and theirrights to be heard, raises a number of majorquestions which are not easily answered’(James and Richards, 1999, p. 33; see alsoLyon et al.’s (1998, p. 17) view that thepresent way in which mediation is carriedout ‘does not treat the child as the subject ofrights but rather as the object of assistance’).

15 ‘The prevailing view among welfare officersis that children should not be made to feelresponsible for their parents’ difficulties andthat the problems between the parentsshould not be placed upon the shoulders ofchildren. As we have shown within our casesample, work is undertaken with childrenbut there is general unease about this, as itcould lead to children feeling that they areresponsible for solving their parents’conflicts’ (James and Sturgeon-Adams, 1999,p. 34).

16 It may be that the near total rejection bythese judges of the possibility of theirspeaking directly to the child in conditionswhere their voices could be heard (i.e.confidentiality would need to be assured forthe child to speak out) stems from thejudges’ lack of training in speaking to andlistening to children and their ownawareness of this lack (Alan Cooklin,personal communication).

17 ‘Even more concerning is the evidence thatsome children who are caught up insituations of violence, neglect and childabuse are being dealt with through private

law proceedings rather than childprotection. In these situations negotiatedagreements between adults may beinadequate or extremely dangerous for thechildren involved’ (Lyon et al., 1998, p. 13;see also Hester and Radford, 1996,pp. 91–2).

18 ‘If parents separate or are separated andinvolved in court proceedings about contactor access, parents’ solicitors seem to assumethat an allegation of abuse is likely to beperceived by the court as malicious andthey commonly counsel the mother to holdback. When an allegation is made, parentsand children describe an interminable courtprocess and long periods of uncertainty,even with very young children. Lawyerscommonly advise against therapy for thechild or even against a parent talking to thechild – in case it weakens the case becausethe child could be seen as having beencoached. Can we imagine what we areasking of parents and children? To forbidcomfort to a troubled child is a deeplyunnatural demand to make – and this in theinterests of justice?’ (ChildLine, 1998, p. 28).

19 The first two quotes are from Lyon et al.,1998, pp. 5, 43; the next six quotes are fromChildLine, 1998, pp. 24–7; the remainingquotes are from Butler et al., 1999.

20 See also James and James, 1999, p. 202: ‘Insum, the focus of the Family Law Act onparental responsibility in divorcing anddivorced families relegates the social statusof children once more to simply that ofsubordinate family members whose voice isonly to be heard at the discretion of adults’.

16

Enhancing the role of the court welfare

officer

Many of the practitioners interviewed by Huntand Lawson in their research had suggestionson how to enhance the role of the CWO so thatthey could act in a more child-focused way andso that the child’s voice could be heard:

Several informants wanted court welfare officersto play a more central part in proceedings by, forinstance, ‘attending directions hearings’, ‘stayingin court to hear the evidence’, ‘giving evidencelast’, ‘being privy to out of court negotiations’,‘having a role in preventing delay’, or moregenerally ‘moving the role more towards theguardian role’. (Hunt and Lawson, 1999, p. 53)1

Several CWOs felt that they should be ableto call in expert opinion and have better accessto GPs, psychiatrists, etc. At present there is nobudget to pay for a report so at best the expert’sopinion can be gleaned on the basis of a phonecall but this evidence can easily be disputed incourt (Hunt and Lawson, 1999). The results ofRuegger’s research into the GAL service shouldbe noted here: practitioners should weigh thepossible negative consequences for the childagainst any positive consequences before callingfor expert evidence, the child should be fullyinformed of the purposes of the expertassessment and, if possible, the child’s consentshould be sought and the child should beinformed of the outcome of the assessment(Ruegger, 1999).

Some CWOs also felt that a lot of problems(e.g. regarding contact), which may involverepeat applications to court, could be sorted outwith less pain to all those affected, especially thechildren, if they were able to adopt a moretherapeutic, social work, role and were lessinvolved in information gathering and did notoperate within tight time constraints (Hunt andLawson, 1999, pp. 55, 58, 132). Many CWOs feltthat there is too much emphasis on investigatingwhen there should be more on helping andsupporting both parents and children (Hunt andLawson, 1999, p. 99). Murch et al. also questionthe emphasis on ‘scrutinising’ arrangementsmade by parents at a time when they needsupport not judgement (Murch et al., 1998,p. 211).

Some practitioners expressed the view thatthey felt that many CWOs needed more trainingon working with children if their work was tobecome more child-focused (Hunt and Lawson1999, p. 38).

There was general agreement amongst thepractitioners interviewed that the court welfareservice could not develop into an effective child-centred service while it was part of theprobation service (Hunt and Lawson, 1999,p. 12).

Other writers agree with the principle ofenhancing the role of CWOs and discusspractical details of how this could be achieved.They emphasise the need for training and forclear guidelines so that practitioners can beaware of the best practice.2

2 What do we know about how

children’s views might be better

represented under new arrangements?

17


Separate legal representation of children

In private law it is rare for a child to be a partyor to be separately represented. Section 64 of theFamily Law Act 1996 empowered the LordChancellor to provide for the separaterepresentation of children under Parts II and IVof the Act which deal with divorce, separation,family homes and domestic violence. Undersection 10 of the Children Act a child can seekleave of the high court to be granted leave tomake a section 8 application for a residence,contact, prohibited steps or specific issue order.In practice, leave has not been granted veryoften by the high court probably because of thepotential numbers involved and also because ofan ‘institutionalised reluctance to intervene inwhat are seen as private family matters’ (Lyon et

al., 1998, p. 10; Roche, 1999, p. 64).Almost all the practitioners interviewed by

Hunt and Lawson were in favour of makinglegal representation for children more widelyavailable in private law; only one intervieweeexpressed ambivalence and this was because ofvariation in the quality and approach ofsolicitors currently practising, it was not anobjection in principle (Hunt and Lawson, 1999,pp. 53, 62).

These practitioners felt that separate legalrepresentation of the child would focus theattention of the court on the child and wouldmake parents see the child as a person withrights and views of their own. Separaterepresentation was seen as being appropriate insituations of ‘deeply entrenched conflict’; where‘the child is a ping-pong ball between theparents and the child’s needs are lost’; where‘there is emotional abuse’; where the case is‘complex’ or ‘controversial’; where the child

holds a different view to the CWO or where theCWO is making a recommendation which goesagainst the norm, such as changing a child’sresidence or terminating contact altogether(Hunt and Lawson, 1999, p. 63). Somepractitioners envisaged a system whichoperated somewhat like the tandem working ofthe GAL and solicitor in public law but othersenvisaged the CWO and the solicitorfunctioning independently.

Many practitioners spoke of the need forflexibility, for the court to be able to make adecision on the merits of each case, rather thanfollowing ‘rules’. Practitioners wanted the CWOto have the power to apply for leave forseparate representation of the child, perhaps onthe basis of preliminary enquiries.

Hunt and Lawson conclude that the primaryrole of the CWO is to promote the interests ofthe child and that this should be made explicit.CWOs could begin a case by exploring thepotential for parental agreement and reportingto the court, but, where this is not sufficient,then the CWO should be able to commissionexpert reports and, where necessary, instruct asolicitor (Hunt and Lawson, 1999, p. 119). Thisrepresentation should be possible at all courtlevels and not just at the higher levels as atpresent (Hunt and Lawson, 1999, p. 132). Legalaid in such cases should be restricted toaccredited solicitors and barristers (accreditationshould be on a similar basis to that of the LawSociety’s Children’s Panel) (Hunt and Lawson,1999, p. 133).

Lyon et al. believe that it is imperative toimplement section 64 in order to safeguardchildren in situations where violent fathers areseeking contact under section 8 of the ChildrenAct (Lyon et al., 1998, p. 13). They feel that

18


separate representation of children on the publiclaw tandem model should be available forchildren in all cases involving implacablyhostile parents, where there is a history ofviolence, where contact is being refused to aparent who apparently represents no risk to thechild and where courts accept the need formedical or psychological reports on a child.

Lyon et al. note that in their research all thejudges were able to cite examples from theirown experience where separate representationwould have improved the situation of thechildren (Lyon et al., 1998, p. 202). This view wassupported by the welfare professionals (Lyon et

al., 1998, p. 103).Sawyer points out some of the pitfalls of

separate representation of children. Shedescribes it in itself as a ‘direct affront’ to thetraditional structure of the nuclear family andthat the admission of its desirability ‘entails aquestioning of the necessary virtue of parentalauthority’. It may have negative consequencesfor the child if it seems to them that they arebeing asked to express a view as to their futureand this is a view that is at odds with bothparents; this may merely exacerbate familyconflict and raise children’s expectations whenthere is little hope of these being fulfilled.Representation may be good for the child’sindividual self-esteem but bad for continuingrelationships within the family (Sawyer, 1999a,p. 111). She also notes:

One of the most obvious practical questions onwhich child representation founders is that ofdiscovery. A party’s case cannot be properlyformulated without the fullest information as tothe cases put by the other parties; parents mayfeel unhappy about having to reveal the history of

their marriage to their children, especially as theymay conceivably disagree as to what that historywas. (Sawyer, 1999a, p. 118, n. 16)

Altering the Statement of Arrangements

procedure

After concluding that the present Statement ofArrangements form does not safeguard theinterests of children, Murch et al. suggestpossible ways to improve the situation so thatchildren’s wishes and feelings are taken intoaccount and their welfare is made a priority:

• The ‘minimalist’ option would be toimprove the Statement of Arrangementsform in ways which take account of thecriticisms of it made by the judges andsolicitors in the research. In particularthey felt that it should not be possible togive simple yes/no or otherwise vagueanswers; some of the questionspresuppose a standard situation whichmay not exist; questions asking forinformation about matters the court cando nothing about should be removed andthere should be questions which giveinformation about domestic violence andother child protection matters.

• The authors of the report favour using theStatement of Arrangements approach as ameans of identifying and channellingfamilies who need help towardsappropriate providers by giving CWOs amore proactive role throughout thedivorce process.3

Other writers question whether altering theStatement of Arrangements form will allow the

19


child’s voice to be heard; solicitors will still berecording the parents’ views of the wishes andfeelings of the child (Piper, 1999, p. 87).

Unified service

As noted before, practitioners interviewed byHunt and Lawson unanimously expressed theview that the court welfare service would neverdevelop into an effective child-focused servicewhile it was part of the probation service (Huntand Lawson, 1999, pp. 12–13).

The researchers concluded that a newunified welfare service must aim to fill the gapsin present provision. Most importantly, childrenshould have access to information andcounselling, both during any proceedings andsubsequently. This could be provided in-house orcontracted out (Hunt and Lawson, 1999, p. 99).

Sawyer has serious doubts about theviability of a unified service. She sees the rolesof CWOs and GALs and the cultures withinwhich they operate as being radically different.CWOs are in effect controlled by theideologically driven concerns of the judiciarywithin which the welfare of children is narrowlyand inflexibly defined. GALS operate in a moreindependent way and feel able to question, evenin an adversarial way, where they perceive thatthe child’s welfare demands it.4

In Sawyer’s view, any administrativeamalgamation of the services needs toacknowledge their differences; otherwise shefeels that the new unified service could fallapart under the strain of these differences(Sawyer, 1999b, p. 5).

Other writers are more optimistic about thecreation of a unified service but point out thatthis needs to be approached cautiously and

gradually with full consideration being given toany necessary training (Timms, 1997, p. 42;ALC, 1998, p. 40).

There were widely differing views amongstthe practitioners interviewed by Hunt andLawson as to whether the roles and expectationsof CWOs and GALs were very different or moresimilar than different (Hunt and Lawson, 1999,p. 24). If the new unified service is to besuccessful, more research may be needed toshed light on the practices of CWOs and GALs;this will be particularly useful if the views of thechildren who have experienced these servicesare taken fully into account in any such research.

Mediation

The Family Law Act 1996 gives a central placeto mediation. Murch et al. (1998, pp. 202, 211)question whether this is either appropriate orpracticable. As noted already, children rarelyexpress their views directly in mediation;instead, mediators endeavour to ascertain thewishes and feelings of children indirectly byasking the parents. They also note that atpresent fewer than half of all mediators havereceived any training in working with children(Murch et al., 1998, p. 168). If there are to be anadequate number of mediators to deal with thenumber of divorces every year which involvechildren then many of these mediators will ofnecessity be relatively lacking in experience(Murch et al., 1998, p. 169). Murch et al. alsoexpress disquiet over the fact that the shortfallin mediators is likely to be largely filled by thetraining of lawyers and in terms of ‘background,training and culture’ lawyers are not gearedtowards working with children (Murch et al.,1998, p. 202).

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On the basis of the needs expressed in callsto them, ChildLine question the usual exclusionof children from direct involvement in theprocess of mediation and express the view thatinvolving children would help both them andtheir parents to reach sound decisions.5 Otherresearchers are also positive about thepossibility of involving children in mediationand detail cases where this has beensuccessfully done, sometimes many years afterthe actual divorce.6

Information meetings and parenting plans

Research findings on these are being reportedseparately.

Summary

• Most researchers support enhancing therole of CWOs.

• Researchers and practitioners agree thatin certain circumstances children needseparate representation.

• The Statement of Arrangementsprocedure could be given a moresignificant role.

• Most researchers support the unificationof current services but point out that thereare considerable difficulties to beovercome, particularly with regard to thelevels of training of practitioners, if this isto be done effectively.

• Some researchers express disquiet overthe more central role of mediation andquestion whether it can become child-

centred. The usual practice is to ascertainchildren’s wishes and feelings indirectly.Some mediators are trained in workingwith children; few are experienced inworking with children.

Notes

1 They quote the views of a practitioner abouthow such changes could improve theoutcome for the child: ‘I used to go to courtand listen to the evidence [when working asa GAL]. You can do a lot that way. And bygiving evidence last you could get what thechild wanted, what you wanted for thechild. As a guardian you give evidence last.That’s most powerful, you have the lastshout. If the court welfare officer was in thesame place things would be a lot different’(Hunt and Lawson, 1999, p. 54).

2 In an article in Family Law, the Associationof Lawyers for Children (ALC, 1998)express their agreement with the idea ofenhancing the role of the CWO by allowingmore time for ascertaining the wishes andfeelings of children. In contested cases, aCWO should always be involved (this pointis also made by James and Richards, 1999, p.34) and should consider whether the childneeds separate legal representation; anolder child should always be advised aboutthe possibility of separate representation.The court should reconsider separaterepresentation from time to time as the caseprogresses.

With regard to the CWO adopting a moreproactive stance to protect children whomay be at risk of violence from contact with

21


their father, Judge Hall suggests that whereit is applicable it would make sense for theCWO to interview staff in the women’srefuge where the child may have beenliving for some time. The child may wellhave spoken to staff there and opened up tothem in a way that they would not to aCWO who is a comparative stranger andwho works within time constraints. He alsostresses the importance for judges to takefull account of a child’s life experiences todate in coming to any conclusion aboutwhat is in the child’s best interests (Hall,1997, p. 815).

3 On filing a statement of marital breakdown,a brief Statement of Arrangements formcould be filled in. Here, details of allchildren in the family and any concerns ofthe parent regarding the welfare of thechildren could be noted (e.g. anybehavioural changes which may indicatethe risk of longer-term dysfunction). Theform could invite the parent to contact theCWO to discuss these concerns.Alternatively, on receipt of the form by thecourt, the CWO could contact both parents,where possible, and make them aware ofany advice and support services. Thereafter,the CWO continues to play a proactive roleduring the statutory period for reflectionincluding perhaps helping parents tocompile parenting plans. The final divorceorder should include a statement of theproposed arrangements for the childincluding information on the extent of theconsultation with the child and the child’sknowledge and understanding of theproposed arrangements. This would bescrutinised by the district judge with a focus

on being satisfied that the arrangementshave been reached jointly and that thechild’s wishes and feelings have been takeninto account (Murch et al., 1998, pp. 217–222and Executive Summary).

4 ‘… without a clear discussion of thedifference between welfare and rights torepresentation, and a clear acknowledgmentthat the right to representation, or even tothe expression of a view, entails the right todissent, which may appear so adversarial,then there can be not only no children’srights but also no method of presentingresistance to the authority of a court or tothe opinions of experts … [this] raisesserious questions not only about thetreatment of children within this society, butalso about the nature of the democraticsociety. This study shows that the judiciaryhave control of their court officers and areable to influence ideas of welfare in a waywhich is deeply political and deeply rootedin the traditions of a system which isfounded on parental rights. The judiciaryhave actively resisted movements towardsgiving children greater rights ofrepresentation, and have reinterpretedwelfare, and legislation, to justify it’(Sawyer, 1999b, p. 330).

5 ‘… [children] are perfectly able to enter intodiscussions about the future, so long as theyare not being asked to choose in anatmosphere of acute conflict where they feelcaught in the middle … These calls are avery persuasive argument in favour of amediation service which includes children… an outside person to help everybody talkthrough the issues could be of considerablehelp to children, as well as to parents, in

22


managing the feelings which threaten tooverwhelm them and reduce their capacityto make sound decisions’ (ChildLine, 1998,p. 25). The wide range of views amongmediators regarding the inclusion ofchildren in mediation is discussed in Smith(1999b, pp. 151–160).

6 An example of successful mediationinvolving children five years after a divorcegives some indication of how a greatlyexpanded, but more focused, service couldhelp families in the long term. There wereongoing problems regarding contact.Initially the mediator met the childrenalone. She provided feedback to the parentsabout this, as agreed with the children. Themajor problem for the children was the

parents’ continuing hostility towards oneanother. The parents agreed to newarrangements taking into account thewishes and feelings of the children. Themediator pointed out that not all divorceconflicts could be resolved by mediationand she would always exclude conflictswhere there was physical or emotionalabuse, alcohol or drug abuse and emotionalimbalance. She felt that a much happierresolution had been reached in the case shedescribed but noted that children should beinvolved only after a careful assessment bythe mediator of the relationships betweenthe parents and the children and only if shefelt confident in dealing with childrenherself (Gentry, 1997).

23

Children are not used to being listened to

… ours is a culture that does not particularly likechildren. The adage that ‘children should be seenand not heard’ has an authentically English ringabout it. (James and James, 1999, p. 204)

Children in our society are not accustomed tohaving their views taken into account in theireveryday lives at home and at school. We do notlive in a culture which supports participation bychildren. (Schofield and Thoburn, 1996, p. 62; seealso Morrow, 1999b, pp. 9, 14–15)

Why do adults have difficulties about

listening to children?

• Adults view children as essentially‘other’; they are seen as less importantand they are dependent and lesspowerful. Language is a tool usedcommunally on the basis of sharedunderstandings. Adults interpret whatchildren say. Welfare professionals do soon the basis of their understanding ofwhat is in a child’s best interest (Neale,1999, p. 30).

• Adults fear that they will upset childrenby talking about difficult experiencessuch as separation or divorce (Smith,1999a, p. 12).

• Adults protect themselves from their ownvulnerabilities by projecting them on to

children. In order to keep the anxietiescontained it is therefore vital not to listento children’s own constructions of theirneeds but instead act as if adults knowchildren’s best interests better than theydo (Day Sclater and Piper, 1999, p. 18).

• Many professionals are aware of theirlack of training and experience in talkingto and listening to children (Davie et al.,1996, pp. 6–7; Murch et al., 1998, p. 152;Hunt and Lawson, 1999, p. 38; Morrow,1999a, p. 298).

• Children are very aware of the distress oftheir parents and may themselves avoiddiscussing the problems (ChildLine, 1998,p. 23).

• Many adults (including welfareprofessionals, solicitors and judges)confuse ‘participation’ with decision-making. They are reluctant even to speakto or listen to children because they seethis as inappropriately asking the child todecide (Murch et al., 1998, p. 178).

• Children are seen as vulnerable and inneed of protection, including fromthemselves. However, to some extent it istheir lack of rights that creates thatvulnerability (Morrow and Richards,1998, p. 97).

3 How would children like to be involved,

who would they like to talk to directly,

what are successful ways of doing

this?

24


Children’s feelings about their experiences

of talking to professionals

• Children are generally reluctant to talk to‘outsiders’ about family issues as this isseen as both disloyal and as liable to leadto an escalation of problems.

• The professionals were seen as havingbeen interventionist rather thansupportive.

• The discussions that the children hadwith professionals felt like interrogations.

• Adults were judgemental and intrusive intheir approach.

• Discussions were not confidential(Trinder, 1997, p. 300; Neale and Smart,1998, p. 33; NSA, 1999b)

Professionals may be perceived as inflexible,intrusive, condescending, deceitful, secretive,untrustworthy, disrespectful, as re-enforcing in amyriad of ways their superiority to the child.(Neale and Smart, 1998, p. 33)

Some suggestions from research about the

support services children might want

These are some of the findings of Lyon et al.’s(1998) consultation with young peopleregarding a support service:2

• The young people expressed anger at thepresent lack of information and theirconsequent powerlessness. They wantedinformation to be available in a non-stigmatising and easily accessible way(e.g. in schools, via radio, TV, cinema andInternet). Many felt that this information

was needed ‘before they needed it’, sothat they could be proactive.3

• They found the present organisation ofservices unintelligible. They wantedaccess to an organisation to providesupport whose functions andresponsibilities were intelligible to youngpeople.

• They wanted a freely accessible,confidential consultation service availablefor all children experiencing separation ordivorce. They suggested high streetshopping centres and schools as possiblevenues. They also suggested that someteachers could be trained so that theyhave a knowledge of all support servicesfor children and could refer children tothem, if necessary.

• They wanted separate representation byspecially trained lawyers for childrenwho need it. Children may need someoneto stand up for them because of lack ofconfidence, being in a strange situation,and because of the difficulty of talking infront of parents.

The authors of the report point out theimportance of support services for youngpeople being accessible by them when they feelthat they need them – it should not be courtprocedures that ‘trip’ the child support serviceinto operation. Information for children mustalso be readily accessible by children. None ofthe young people involved in the consultationday had ever seen any of the Department ofHealth’s leaflets CAG 1–9 which giveinformation on the steps children involved indivorce can take to help themselves.

25

Children’s views

The authors note that the consultationservice could help to resolve difficulties andoperate as a preventive and sifting mechanismso that the majority of young people would nothave the need to become involved in courtproceedings themselves. This service couldprovide help and support, not just at the time ofthe parents’ relationship breakdown, butperhaps many years later when arrangementswhich had been agreed earlier and were causingdifficulties for the young person could beadjusted.

The authors stress the importance offlexibility: reading a leaflet may be enough forsome children to give them the impetus todiscuss their concerns with a parent or a trustedfriend and resolve them; for others a briefconsultation may be all that is necessary to puttheir minds at rest about a worry; others willneed much more help – perhaps someone toadvocate for them, perhaps separate legalrepresentation.

Many other researchers also point out theimportance of providing ongoing supportservices for children and families:4

There can be no way that things are ‘put right’once and for all. Once it is possible to see post-divorce parenting as a process rather than acontract, it becomes feasible to think in terms offlexible guidelines which emphasize the need forethical procedures rather than final adjudications.(Smart and Neale, 1999b, p. 197)

Respecting children’s agendas

1. What is important to children is thequality of the relationships within theirfamily, not any particular structure. For

children, ‘proper’ families arecharacterised by relations of trust, careand openness. It is the care provided byadults and the role that people play intheir lives that defines them as ‘family’for children and not their biologicalstatus. Research shows that an active,involved, caring father is significant in thedevelopment of children’s self-esteem,whether or not he lives with his children.Authoritarian, controlling fathers havenegative effects on children’s self-esteem(Katz, 1997b, pp. 22–4; Milligan andDowie, 1998, pp. 25, 45–6, 64; Morrow,1998b, p. 28; Neale et al., 1998, p. 22;Neale, 1999).

• Siblings are very important to children(Brannen and Heptinstall, 1998; Morrow,1998b; Smith, 1999b, p. 21).

• Many children, regardless of ethnicbackground, have a great deal of contactwith wider kin. This finding contradictsthe stereotypical view of the modernfamily. Social policy that equates the‘family’ with the ‘nuclear family’ mayignore the child’s agenda and theimportance for the child’s identity ofmaintaining these wider social contacts(Brannen et al., 1998; Morrow, 1998b).

• Friends may be very important for achild’s sense of identity and self-esteem.This tends to become increasingly true aschildren get older. Contact arrangementsmade when a child is very young may beinappropriate when the child is olderbecause they may interfere with theirsocial lives outside the family and this can

26


be very damaging for young people(Brannen et al., 1998; Lyon et al., 1998, pp.26–8; Morrow, 1998b; Smith, 1999b, p. 72).Children who had recently experiencedtheir parents’ divorce reported that theyhad turned to their friends for supportwhen they were upset (Butler et al., 1999).

• Children want to be listened to and giveninformation about what is going on(Butler et al., 1999). They value guidanceand advice from adults in a situation ofopen dialogue but they do not wantsimply to be told what to do (Morrow,1999b; Neale, 1999, p. 15; Smith, 1999b, p.71; Oakley and Masson, 2000). Manychildren feel that they are not listened toand that parents frequently act as proxiesto speak on their behalf (Butler et al., 1999;Morrow, 1999b, pp. 14–15). However, itmust always be borne in mind that somechildren will not wish to speak aboutupsetting matters to anyone (Lyon et al.,1998, p. 81).

• Many children want help, advice andsupport so that they feel able to speak forthemselves, whether in mediation or incourt. This process is sometimes called‘facilitation’.5

• Our society places a high value onindependence and because of this childrenare devalued. In their families, children areinvolved in many reciprocal relationshipswith family members, e.g. caring forrelatives, a sick parent, or looking aftersiblings. If we learned to value thisinterdependence, as children do, thenchildren’s contribution to society wouldbe more valued (Morrow, 1999b, p. 21).

• Young people resent being addressed orconsidered as children or teenagers andtreated as totally dependent and lackingin competence. If there were an assumedage of competence of 12 then adultswould have to take this on board indealing with young people (Oakley,personal communication).

• The majority of children have a well-developed moral sense. They are able totake others’ feelings and needs intoaccount, and negotiate solutions todilemmas on this basis. They have astrong sense of what it means to be fairand research shows that they areoverwhelmingly concerned that thingsshould be fair for their parents(ChildLine, 1998, p. 23; NSA, 1999a; Smartand Neale, 1999a, p. 4; Smith, 1999b,p. 34).

• A very high proportion of research intodivorce concentrates on ‘outcomes’ anddoes not give value to children’s presentexperience. Childhood has value in itsown right – it is not simply a preparationfor adulthood (Roberts, 1999, p. 11).Research which has focused on children’sexperiences of separation and divorceshows that for many these are simplyevents along with many others withwhich they come to terms in their ownway and they are not the catastrophictragedy that is sometimes portrayed(Brannen and Heptinstall, 1998, pp. 8–9;Neale and Smart, 1998, p. 9; Butler et al.,1999; NSA, 1999b).6 However, if adultsactively listen to children then theprocesses of adjustment may be made

27

Children’s views

significantly easier and the ongoing long-term difficulties which a minority ofchildren experience may be mitigated.

• Children often feel isolated in situationsof family conflict and want opportunitiesto talk to other children who have hadsimilar experiences (Butler et al., 1999).7

Most young people who have beenthrough changes in their families feel thathelp in the form of information, adviceand support mainly from their peerswould have helped them to adjust moreeasily (NSA, 1999a; Smith, 1999b,pp. 84–5).

• Children find ongoing conflict in thefamily very upsetting. They are aware ofsometimes being used by one parent tocheck up on the other or to pass onmessages, etc. They do not want eitherparent to express hostility to the other –they feel loyalty and attachment to bothparents and want these feelings to berespected no matter what the parents feelabout one another (ChildLine, 1998; NSA,1999a).

• Where children do not want contact witha parent this view needs to be taken veryseriously. Research shows that rigidadherence to contact arrangements can bevery distressing for children. Humanrelationships cannot be forced; childrenwho have been forced to maintain contactwith fathers have poor relationships withthem when they reach adulthood(Kaganas, 1999, p. 108; Smith, 1999b,pp. 65, 132).

• Some children feel that when it comes to

important matters like residence orcontact it is important to have the chanceto try out any new arrangements beforedeciding whether to accept or reject them(Smart, 1998, p. 18).

How children would like to be involved

• Many children are used to participating infamily life in decisions which affect them.Where there is this basic trust in a family,children take for granted their right toparticipate in the decision-makingprocess around the separation anddivorce of their parents (Brannen et al.,1998; Neale, 1999, p. 19).

• Although some children took their activeparticipation in family life for granted,they were aware of the difficulties ofactually taking the responsibility ofmaking decisions for themselves(Brannen et al., 1998; Morrow, 1998a;Butler et al., 1999, NSA, 1999a). In factsome children saw it as not merelydifficult but unfair for parents to ask themto make decisions about matters such asresidence and contact (Neale, 1999, p. 19).

• In many families, there are not basicrelations of trust between parents andchildren. In these families the child mayneed help to make a decisionautonomously of their family (ChildLine,1998; Butler et al., 1999; Neale, 1999, p. 20).

• Any support system must be accessible tochildren without reference to adults andthey need to be treated with confidentiality(Oakley and Masson, 2000).

28


Successful ways of listening to children

Many factors have been identified byresearchers as facilitating more successfulcommunication with children. Adults need to beaware of the difference in power between themand the child, and the impact this has oncommunication. This can be minimised bytaking the following factors into consideration(Hall, 1996, p. 64; Neale, 1999, p. 13).

• Many researchers note that confidentialityis crucial (Brannen and Heptinstall, 1998,p. 3; Butler et al., 1999; Oakley andMasson, 2000; Neale, 1999, p. 13; Roberts,1999; Roche, 1999, p. 64; Ruegger, 1999). Itis empowering and allows the child tospeak freely, assured of control of theresults of their confidences. Ifunconditional confidentiality cannot beguaranteed then this should be madeclear at the outset so that the child doesnot feel that confidences have beenbetrayed.

• It may be misleading to makeassumptions on the basis of the child’sage; this should be disregarded as far aspossible (Neale, 1999, p. 13). Morrownotes that children as young as eight ornine may have the capacity to stepoutside their own circumstances and tosee things from others’ viewpoints(Morrow, 1998b, p. 49). However, adultsshould be aware of developmental andcultural factors though they should notmake assumptions about the individualchild based on this knowledge (HomeOffice/Department of Health, 1992;Schofield and Thoburn, 1996, p. 42).

• The adult should adopt a non-intrusivestyle of interviewing, adopting the modeof ‘learner’ and ‘friend’ rather than‘protector’, ‘educator’ or ‘controller’(Neale, 1999, p. 14). Children’s views arethought out and reflect their worldswhich the adult may learn about if theyare open to this, but not if their tendencyis to trivialise children’s expressed views.The challenge for adults is to listen tochildren’s opinions and integrate theseviews into their decision-making(Morrow, 1998b, p. 49).

• The adult needs to bear in mind that thechild will need adequate information ifthey are to express an opinion.Opportunities need to be provided forexploring options (Lansdown, 1992, p. 4;ChildLine, 1998, p. 23; Lyon et al., 1998, p.53; Ruegger, 1999).

• The adult should reassure the child thatthere are no right or wrong answers; it isthe child’s own experiences and opinionsthat are important (Neale, 1999, p. 14).

• The interview should begin with open,general questions to establish rapport andfree discussion and move on to specific,closed questions (Hall, 1996, p. 66). Thequestions should be simple and direct,based on a shared understanding of thepurposes of the interview; indirectquestions should be avoided as these areexperienced by children as ‘unfair’ or‘trick’ questions (Neale, 1999, p. 14).

• The adult should be non-judgemental andopen-minded about children’s views andallow the child space to raise their own

29

Children’s views

agendas as well as responding to those ofthe interviewer (Neale, 1999, p. 14).

• The adult must learn to allow the child totell their whole story. Try not to take anynegative emotions that are expressedpersonally. Do not rush to interpret thechild’s story (Barnes, 1996).

• Younger children may find it much easierto speak if they have a friend with them.One-to-one interviews, especially with anadult who is a relative stranger, may betoo pressurising for younger children(Morrow, 1999a, pp. 298–9).

• Good communication is more likely tooccur if adults see children’s abilities andcompetencies as being different fromrather than lesser than adult ones. It maybe appropriate to use drawing, sentencecompletion, descriptions of who isimportant to me, group discussions orother such methods rather than followinga question-and-answer format. However,adults must guard against over-interpreting or misinterpreting children’sdrawings – it is necessary to talk with thechild about what they have produced(Morrow, 1999a, p. 299). Vignettes areanother very helpful way of encouragingthe child to talk (Brannen and Heptinstall,1998).

• It is important to bear in mind that somechildren may not want to participate indecision-making at all. Some childrenfind the loss of parental authority whichis evidenced in any legal procedures verydisturbing. It is crucial to treat each caseas unique (Trinder, 1997, p. 303).

• The interviewer should always be alertfor any sign that the child is becomingdistressed. If the child does get distressedthen the interviewer should acknowledgethis: ‘I can see it upsets you to talk about… would you prefer not to talk about …’(Brannen and Heptinstall, 1998, p. 3).

• The adult should be aware that theirchoice of clothes etc. can serve toemphasise power differentials rather thanminimise them (Ross, 1996, p. 96).

• If possible the venue should be chosen bythe child. In Smart and Neale’s researchthey found that most children chose to beinterviewed in their own bedroom (Neale,1999, p. 13). If an interview must be in anoffice then it should be child-friendly(Ross, 1996, p. 96).

Summary

• If adults are to listen to childreneffectively then they need to rethinkradically their attitudes towards childrenand be aware of the ways that theseattitudes inform their practices.

• Professionals need to bear in mind thatmost children would not choose to talk to‘outsiders’ about themselves or theirfamilies and many children may not wishto talk to anyone at all.

• If adults want to ascertain the wishes andfeelings of children, then in anyinterviews they must understand theneed for: confidentiality; non-judgementalism; direct not indirect

30


questioning; respect for the child’sagenda which may be different fromadults’ agendas; respect for the child’sdifferent competencies; the child to befully informed of the purposes of theinterview.

• The right to participate must include theright not to participate if that is what anindividual child wishes.

• Some children may wish to participatebut may need support and assistance todo so.

• Acknowledging children’s right to belistened to is not the same as giving themthe responsibility of making decisions. Inthe majority of cases children do not wantto make the decision.

• Separation and divorce are not singleevents. Support services for children needto be accessible by them and available asand when they feel that they need them.

• Judicial decisions need to take thecomplexities of family life into accountand the fact that it will keep changing.

In conclusion, in the words of a 15-year-old:

… we are people too and shouldn’t be treated likelow-lifes just because we are younger. I think kidsdeserve the same sort of respect that we areexpected to give to so-called adults. (Morrow,1999b, p. 25)

Notes

1 Alan Cooklin notes the lack of trainingregarding talking to and listening to

children, particularly young children, ofsocial workers, psychologists, medicalpractitioners and even child psychiatrists(Cooklin, 1999).

2 The main motivation behind this researchwas the expressed desire of young peoplewho had been attending seminars on lawand the family at the Centre for the Study ofthe Child, the Family and the Law inLiverpool to have some input into thedevelopment of any support service forchildren and young people consequent onthe Family Law Act.

The consultation day and the questionnairethat was given to the young people wereorganised so that they should be as well-informed about the issues as possible beforeanswering the questions. There wereopportunities throughout the day for theyoung people to ask questions to obtainclarification of any of the issues.The commitment of the young people wasdemonstrated by the fact that 110 out of 120of them completed the 12-pagequestionnaire, a large majority taking theopportunity to express their views in moredetail by contributing their own commentsas well as answering the closed questions.

3 Other researchers have pointed out theimportance to children and young people ofindependent access to written information:‘In their interviews the children and youngpeople generally remarked favourably onbeing given written information about theprocess. Although they sometimes reflectedthat they had not understood leaflets orletters, they liked having them and had keptthem. Leaflets had given them information

31

Children’s views

and had prompted some questions whichmight not otherwise have been asked’(Masson and Oakley, 1999a, p. 96). ‘Lack ofwritten information leaves children andyoung people dependent on social workersor other adults to provide informationabout services, these people are themselvesunaware of all the services which youngpeople would find helpful’ (Oakley andMasson, 2000).

4 ‘Most calls [to ChildLine] are at thebeginning or early on in the process; themost acute anxiety and alarm areexperienced in the early stages. But the factthat more than 20 per cent of callers weretalking about events which had happenedmore than two years before, some as manyas ten, shows that the passing of time doesnot necessarily resolve matters for children.Indeed, some children feel increasinglyalienated and troubled as time passes andfurther changes occur. Any legal ormediation process of family negotiationwhich assumes that a settlement can bemade in a “once and for all way” is likely toleave some children adrift’ (ChildLine, 1998,p. 22).

On the basis of its research with youngpeople, the National Stepfamily Association(NSA) also stresses the importance ofongoing, readily accessible support services.As they point out, the separation anddivorce of the child’s parents may be onlyone of many significant family changes thatthey have to adjust to. Subsequently, theymay have to adjust to stepparents,stepsiblings, halfsiblings and so on. Therecannot be a once-and-for-all settlement of

family issues after a relationship breakdown(NSA, 1999b).

Trinder makes a similar point where shestresses the importance of meetingchildren’s ‘basic substantive rights’ tocounselling and support which are just asimportant as any ‘right to procedure’(Trinder, 1997, p. 302).

5 The process of facilitation is described indetail in Marshall, 1997, pp. 96–8.

6 Smith gives details of her interviews withyoung people who felt that their parentshad had a ‘good divorce’. What had madethe experience positive for the young peoplewas that at the time there had been opencommunication and at all times theirfeelings had been respected; other majorchanges, such as repartnering, hadhappened gradually, not all at once; theyhad retained contact with their fathers butthis arrangement was flexible and they hadmore control of it as they got older; theirparents developed more positiverelationships towards one another after theseparation and the conflict that was presentin the marriage was avoided post-divorce.The children knew that they were loved andsupported by both parents (Smith, 1999b,pp. 70–75).

7 Smith (1999b) describes children’s groupswhich have been set up in some areas tohelp children who are going through theseparation/divorce of their parents. Thegroups are voluntary; children comebecause they have seen leaflets about thegroup (sometimes given to parents bymediators). The groups provide anopportunity for children to talk about their

32


feelings, and to listen and be listened to byother children of roughly the same age. Thegroup leaders make it clear that everythingis confidential – no notes are taken andparents are not party to the group’sactivities. Groups can help children to cometo terms with what has happened, to look tothe future and to become more confident.Such groups are very positive for somechildren; some children may not wish totake part and they may need individualcounselling (Smith, 1999b, pp. 85–92).

33

The original purpose of the seminar on 5 July1999 was to discuss the findings from currentresearch on the issues of listening to childrenand considering their best interests. This was inthe context of the Lord Chancellor’s Department(LCD) being in the process of developing courtrules in relation to section 11 of the Family LawAct. But, because of the Lord Chancellor’sannouncement of 17 June 1999 regarding thepostponement of the implementation of Part IIof the Act, this concern was not so immediateand the seminar ranged more widely. Therewere very general concerns about, for example,the need for deep-seated cultural changes sothat children’s rights to information andparticipation are accepted. There were alsospecific suggestions for ensuring that children’svoices are heard when families break down. Inorder to make the wide-ranging contributions tothe seminar accessible, they have beenorganised under the following headings:‘Children’s rights’; ‘Children’s right toinformation’; ‘Listening to children’;‘Supporting children and families’; ‘The role ofcourt welfare officers in listening to children’;‘The role of solicitors in listening to children’;‘The role of mediators in listening to children’;‘Representation of children’; ‘Statement ofArrangements’; ‘Parenting plans’; ‘Broadercultural issues’; and ‘Summary of ideas forpromoting change’.

Children’s rights

• All children have a right to be informedand to be listened to about matters thataffect their lives. This is true irrespective

of whether their parents are married orwhether they are involved in a privatelaw or a public law case.

• The UN Convention on The Rights of theChild operates on four levels: (1) thechild’s right to information so that theyknow what is happening; (2) the right toexpress a view, even if this makes mattersmore complex; (3) the right to express aview that might influence the adults’decisions (this will be linked to age andability); and (4) the right to makedecisions. Adults often confuse the firstlevel with the fourth one and this putsthem off allowing children anyinvolvement at all on any level.

• In the drafting of the UN Convention thechild’s right to be heard in judicial andadministrative proceedings was originallyin article 3, which is about ‘interests’, andnot in article 12. If children’s interestswere to be the primary consideration thenthey should have a right to speak orcontribute in judicial and administrativeproceedings which concern them. When adecision is being made that is supposedto be in the interests of the child then, ifthe child has a view about this, theyshould be heard.

• There are fundamentally opposed valuesystems in society: on the one hand thechild is a bearer of rights; on the otherhand the child is seen as a minor andadults are assumed to be able to judge thechild’s interests better than the child.

4 Summary of the seminar on 5 July

1999

34


• There is a lot of resistance to givinginformation to children. There is a clashhere between what is acceptable in oursociety and what is enshrined as therights of the child.

• Parents may come to arrangements abouttheir children which may not be in theinterests of the children and about whichthe children have not been consulted.Although this infringes the rights of thechild, the state does not intervene.

Children’s right to information

• The best place for children to getinformation and support is within theirfamilies and this role of parents should besupported and encouraged.

• It is not just the child involved in courtprocesses but all children who have a rightto information on matters affecting them.

• Past experience of leaflets produced forchildren indicates that producing theleaflets is not enough (see Lyon et al.(1998) research showing that informationleaflets produced by the Department ofHealth for children involved in divorceproceedings are not reaching them).

• At present the Department of Health isnot proactive in the distribution of theleaflets it produces – it responds to localauthorities’ requests.

• These leaflets were written for childrenwith a reading age of 14 – a lot of childrenin care and others will not be able to readthem.

• However, it is valuable for children tohave information in the form of leaflets –they can choose who to take them to forhelp in understanding them. It may behard for children to retain oralinformation or formulate questions in theimmediate situation.

• It is important that leaflets take account ofthe variations in practice in different partsof the country or they may be verymisleading.

• The experience of attempting toimplement the principles of the UNConvention in Scotland regarding givingchildren information shows theimportance of this information being age-appropriate – much of that informationwas incomprehensible to its targetaudience.

• There is a problem about gettinginformation to children from familieswith poor literacy standards who maythemselves be poor school attenders.

• Children need information before they arein the midst of a crisis.

• The Internet and CD-ROMs may be moreaccessible to children than leaflets.

Listening to children

• Most children would choose to talk withtheir families rather than any outsider.Parents may need help andencouragement to do this, particularlywhen they are going through the traumaof family breakdown.

35

Summary of the seminar on 5 July 1999

• The differing perceptions that adults haveof children and childhood affect the waysin which they communicate with childrenand understand what the children aresaying.

• Practitioners may have difficulty listeningto children, partly because of the pain anddistress that children may express andpartly because the focus of the court maybe the ‘implacably hostile parent’ ratherthan the child.

• Adults may confuse listening to the childwith asking the child to make decisions;children are able to distinguish ‘havingtheir say from having their way’.

• It is important for adults to be aware thatthey do not always know best; the child’sview may be their construction of what isthe ‘least worst’ scenario – the only waythat is tolerable for them.

• It can be a relief for children to talk tosomeone outside the family aboutdistressing things.

• It is of value to listen to children – it haspositive mental health outcomes andincreases their social competence.

• Careful listening takes time and there aretherefore resource implications. Legal aidavailable is very limited.

• It is not enough simply to give childrenthe opportunity to be listened to; thecontext in which they are seen (e.g. awayfrom younger siblings; not in the presenceof parents) and the way that they arespoken to should facilitate goodcommunication.

• Professionals need to be aware thatchildren may express views which areintended to placate adults; these may notbe their own views.

• Professionals very often do not have theskills to help children to talk.

• Professionals need to be aware thatchildren may not have a sense of howthings evolve over time; their experiencesof change may be limited. Professionalsneed to be aware of this possible lack ofexperience when talking with a child andit may be helpful to talk of ‘what if?’ andrefer to the shared experiences of peersand siblings.

• Children should always be listened to ifthey do not want contact with a parent.This may be a child protection issue andany decisions may be crucial indetermining how a child copes in the longterm.

• Children should be allowed to say no, tochange their minds and to make mistakes.It is through making mistakes that we canlearn.

• It is important that it is apparent to thechildren why it’s useful to talk to thepractitioner.

• It is difficult for a basically bureaucraticsystem to be available to a child when thechild is ready to speak.

• Listening should not be solely aboutverbal communication – childrencommunicate also by behaviour. It is alsoimportant to be attentive to what is notbeing said.

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• Listening is not the same asunderstanding. Practitioners need tolisten, reflect back what they haveunderstood, see whether they are correct.If all this is done properly then thepractitioner is in a much better position tosay the child’s wishes and feelings havebeen heard (whether or not the courtfollows them).

• It is harmful to suggest that you arelistening when in fact you have nointention of doing so.

• It is very helpful if children can bedebriefed – ‘we thought about what yousaid but there were other factors to takeinto account …’

• Query whether Family GroupConferences would be a good way ofenabling children to be heard. It waspointed out that children may find it veryhard to speak up in that kind of groupand also such Conferences may replicatethe power imbalances within families andthis will negate the possibility of helpfulcommunication (this latter point was alsomade about mediation).

Supporting children and families

• Preparation for parenting is veryimportant so that people are prepared toface future crises, helped to cope withchange and receive information that helpsthem to accept their responsibility fortalking to their children about difficultissues and considering their children’sviews. Some parents may not be able to

do this on their own and thenprofessional help may be needed. It isimportant that this help is to facilitateparents communicating with theirchildren, compulsion is unlikely to workwell.

• People who are involved with childrenalready on a day-to-day basis (teachers,medical and social work practitioners)should be encouraged to ‘expand theirrole’ to make it a fuller, more caring andsympathetic one. It is unhelpful toassume that involving more specialised,highly trained people is the answer tocrises and difficulties facing families.

• Parents phoning ParentLine often ask forhelp in talking to their children aboutseparation/divorce. The parent is askedto reflect on how they have managedother changes in their lives. This helpsthem to appreciate that they have someskills which will help them to cope.

• Work with children in schools, in groupsand individually, shows that children cangain a lot of confidence from realisingthat they are not alone and this can leadto them initiating discussion with theirparents.

• There is at present no training courseteaching the skills needed by peopleworking in this way with children. Thereis a need for thinking about the corecompetencies involved.

• Children find it very helpful to talk toother children who have been throughsimilar experiences.

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• All schools should have a counsellingservice with access to someone whose jobit is to provide information for children,see children on an individual basis, createsupport groups to help them to deal withchange, etc. It should be accessible in anon-stigmatising way.

• Children want information to beprovided by specialists, not teachers.

• Certain subjects which are at presenttaught in schools lend themselves todealing with issues of change (e.g. art,English, drama, PSE).

• One of the problems for schools is thatteachers are very wary of doing anythingwith the children that they think mightupset the parents.

• It would be helpful to work towards asituation where services are providedwithin an umbrella that providesinformation and education to parents andchildren on things such as conflictresolution, management of the emotionsand how to communicate effectively. Thisis necessary before a crisis occurs.

• Any agreements reached should berevisited as the children get older. Thisshould be a service to help peoplethrough a crisis and tide them over itsaftermath.

The role of court welfare officers in

listening to children

• Several contributors made the point thatthe practice of court welfare officers

(CWOs) with regard to listening tochildren is more varied across the countrythan the research would suggest – insome services the focus is very clearly onthe children, taking their wishes andfeelings into account in making decisionsand recommendations. It was felt that thisinconsistency is primarily anorganisational matter and highlights theneed for confident practitioners and goodleadership. It was pointed out that it isdifficult for managers to encourageCWOs and ensure that they operate in aconsistent way. However, it was pointedout that it is still very unclear what therelationship between CWOs and childrenshould be; the focus remains on adults.Even where children are specificallynamed in Family Assistance Orders thereis still no direct contact between the CWOand the child.

• The CWO may not see the child becausethe parents don’t bring the child withthem; sometimes the child is not seenbecause the parents reach an agreementand want to settle the case quickly.

• According to National Standards, theCWO should always ascertain the wishesand feelings of the children; however, thisis in tension with the requirement tocomplete the report within 12–13 weeks.It is very difficult for CWOs to engage inrealistic discussion with children in afraught situation when they are workingto such time constraints.

• There is some uncertainty about thepurposes of the conversations with the

38


children and where they fit into the workof the CWO.

• The role of the CWO is not clear. It isdefined for them by other people in thefamily justice system and CWOs are moreor less susceptible to these pressures.

• CWOs seem to be increasingly reluctantto make definitive recommendations tothe courts. This may be because theywork within the ethos of trying to getparents to agree – makingrecommendations is seen to be theprerogative of the judiciary.

• The finding from research is that CWOsgenerally believe that they could operatemore effectively if their role wereenhanced. It was pointed out that thiswould probably require more resources,although it was also suggested that, ifCWOs used their time in a moredifferentiated way, according to theparticular case, then they could deliver abetter service.

• As part of the probation service, the courtwelfare service has a broad statutoryresponsibility to the community andshould be initiating relevant projects. Forexample, the court welfare service inDudley has invested partnership moneyin developing a project with a school inDudley about using new technology toenable children to access information.

The role of solicitors in listening to children

• In terms of the Children Act, every

solicitor should have the welfare of thechild as the paramount consideration.

• A solicitor made the point that where shehad to decide on the competence of achild to instruct a solicitor it would bevery helpful if there were more fundingso that she could see the child with theCWO or, alternatively, so that the CWOcould see the child and report back to thesolicitor.

• It was suggested that the forms whichsolicitors complete for divorce/separationproceedings should include questionsindicating how the wishes and feelings ofthe children had been ascertained.

• Various difficulties with this suggestionwere mentioned: solicitors representindividuals, not families; there is likely tobe more than one solicitor involved in anyone case; children going in to seesolicitors is at odds with solicitors’professional practice about conflict ofinterest and on this ground alone wouldnot be possible; and cost.

• Solicitors are not trained in social workskills and do not feel able to makejudgements on the best interests of thechild.

• Most people who go to solicitors havealready sorted out issues regarding thechildren. If any problems regarding thearrangements for the children becomeapparent in this first meeting then this isthe time for the solicitor to suggestcounselling.

39


The role of mediators in listening to

children

• The College of Mediators is trying todevelop guidelines on the involvement ofchildren in mediation – should they beinvolved directly/indirectly? Who shouldsee them? How should this be carried out,etc?

• The quality assurance system which ispart of franchising for legally aidedclients should ensure that the code ofpractice for mediators (to encourageparents to consult the wishes of childrenand consider whether the children shouldbe involved in the mediation process) isworking.

• However, it is important to be realisticabout these regulatory mechanisms andtheir ability to affect practice – in effect itis just a tick box system and that isinadequate.

• Is the code of practice for mediators clearenough about the role of children?

• Why is it so rare for mediators to consultchildren?

Representation of children

• From the research, it is clear that childrenwant separate legal representation onlywhere circumstances demand it (thechildren in the research felt thatprofessionals working within the systemshould be able to identify such cases). Byand large, children want to talk to parents

or people who will help them to come toa decision.

• In practice, representation for childrendoes not work out like representation foradults. Representatives find it verychallenging to follow what children wantwhen the representatives think that thiswould not be in the child’s best interests.

• It is important not to lose sight of theneed to protect children and their accessto separate legal representation may beone important way of doing this.

• Problem of funding – resources to pay forseparate representation of children?

• There is a tension in the Family Law Act.It is predicated on mediation andsettlement-seeking, yet section 64 opensup the possibility of nightmare scenariosof children and parents being separatelyrepresented which could do enormouslong-term damage to family relationships.This makes it vital that children’s wishesand views are more fully represented tothe court than they are at present.

• Given the fact that most disputes are infact settled by conversations betweensolicitors and not in mediation, shouldsolicitors see children so that their wishesand feelings are ascertained?

• Should there be a children’s ombudsmanto represent them?

• At present in private law cases, thejudicial decision on whether childrenshould be separately represented is madeon the basis of age (but there are no strict

40


rules). It was suggested that competenceis more linked to experience than age;very young children may have relevantknowledge and experience. Thisviewpoint was disputed by othercontributors.

Statement of Arrangements

• The general view was that these arevirtually worthless in their present form:even if alarm bells ring for the judge, thisrarely leads to action; they seem to bemostly written by solicitors.

• It was suggested that they could be useddifferently so as to make the exercise ofsome value. The point in time in whichthey are done may be crucial in theirvalue. Parents could be asked to certifythat the arrangements have beendiscussed with their children.

Parenting plans

• There is enormous cultural resistance tothe involvement of children in parentingplans.

• There was a suggestion that the Statementof Arrangements procedure should bescrapped and instead some form ofparenting plan, to which the children area party, could be used. The court shouldfollow up if the views of the children arein conflict with the parents’ plans.

• Australian experience of parenting plansindicates that registering plans in court is

a disaster because they will then bewritten by solicitors, not parents.

• The research into parenting plans andinformation meetings shows that manyparents welcomed information on how tohelp their children through the process.

Broader cultural issues

• What do children actually want? Notmore and more leaflets, more and moreprofessional helpers but help from thepeople they know best and see daily. Oneview was that teachers should play amore active role in helping and that this isan educational responsibility. Childrenare being excluded from schools becausethey are going through the trauma offamily breakdown and this has not beentaken on board by schools. Theassumption that teachers and schoolsalready have too much to do is leading tomore legal and social work, more law-and-order work, a greater division oflabour and professionalisation when it isthe people who are in everyday contactwith children who should be helpingthem to cope with change.

• The first stage should not be gettingprofessionals involved, we should behelping parents to accept theirresponsibility to talk with their childrenabout difficult things.

• People should be prepared for parentingand this will include learning that therewill be change, such as divorce orseparation.

41


• We need a change of culture in our societyso that there is an acceptance of a cultureof information, accessible by children,without prejudice.

• In our culture, asking for help is seen as asign of failure; in other cultures, askingfor help is a positive sign of beingresponsible. Information meetings wereseen more as ‘this is where you go to betold and not this is where you go for help,support and advice’. It is vital that ourculture moves in the direction of seeingasking for help as being a positive way ofbeing a good parent.

• Despite the Children Act, the culture ofparental rights is still very strong in oursociety.

• The cultural frame of mind that you fightfor your rights, rather than seek tocompromise, is deeply entrenched.Change is needed at this fundamentallevel before information meetings andmediation can be successful.

• As noted, there was enormous culturalresistance to children being in any wayinvolved in parenting plans. The viewthat children should be consulted is veryfar from being generally accepted.

• This cultural resistance is not found justamongst the ‘general public’ or‘practitioners’ but also amongst the legalprofession, solicitors and judges.

• In our culture, we tend to identifyproblems, label some people as lesscompetent then others. People need theirconcerns addressed but also need praise,

encouragement and help to get throughsome difficult changes.

Summary of ideas for promoting change

• It would be helpful to work towards asituation where services are providedwithin an umbrella that providesinformation and education to parents andchildren on things such as conflictresolution, management of the emotionsand how to communicate effectively. Thisis necessary before a crisis occurs.

• Listening is not enough: adults who areendeavouring to understand childrenmust listen carefully and reflect back tocheck their understandings; adults needto be aware of other ways in whichchildren communicate their feelings;adults also need to be aware that becauseof the child’s lack of experience they mayhave difficulty projecting into the futureand may need help with this.

• Children should be debriefed so that,even if things don’t work out exactly asthey wished, they know that they werelistened to.

• Children need information as a right andif they are to be proactive aboutparticipating in decisions which affectthem. Leaflets for children must be freelyaccessible, of a suitable reading age andshould reflect the local practices of thearea. The Internet and CD-ROMs havegreat potential in providing children withinformation without prejudice.

42


• Preparation for parenthood is vital andshould include guidance on managingchange and communicating with childrenso that people are able to deal with criseswith some confidence that they will beable to come through them.

• Parents may need ongoing help, supportand encouragement to enable them todeal with difficult family issues and tocommunicate with their children. Anyarrangements that have been agreedshould be revisited periodically as thechildren get older.

• The mental and physical well-being ofchildren is an educational matter –schools and teachers should be moreinvolved. Every school should have acounsellor responsible for providinginformation to children, creating supportgroups, etc.

• One school’s community project invitedall parents at the beginning of the schoolyear to come and talk about problems.This can lead to engagement with thewhole family and may be a way ofreaching families of low literacy skillswho may not be able to access othersupport services.

• Children who have been through familybreakdown may be the best people tohelp other children cope. Opportunitiesshould be created to facilitate this.

• There are issues to do with the trainingand competence of people who areinvolved in helping children cope withfamily breakdown and other life changes.

A list of core skills and competenciescould be drawn up.

• Should there be a children’s ombudsmanto meet the need for separaterepresentation?

• The role of the CWO regarding childrenneeds to be clarified. There are also issuesregarding skills and training. The best ofcurrent practice needs to be adoptedwidely so that it becomes the norm.

• The court welfare service could beproactive in supporting children, as in theDudley example.

• Should there be more funding so thatsolicitors can liaise with CWOs regardingchildren?

• Should there be somewhere in the divorceforms for the solicitor to document howthe wishes and feelings of the childrenwere ascertained?

• The Statement of Arrangementsprocedure could function more effectivelyif it were done at a different point in theprocess and if the parents had to certifythat the children had been involved in thediscussions.

• Research on adults who as childrenexperienced divorce/family breakdownand have coped well could enable us toidentify the significant factors at work.

Addendum

Harriet Bretherton, a senior CWO, who openedthe second session on 5 July, would like to share

43


some of her further reflections on the issuesdiscussed.

• Children who are involved in legalproceedings need professional help toenable them to say what they want andlearn what the likely outcomes are. Whatis the most helpful way of providing thishelp in the context of the Children Actand the Family Law Act?

• It may be more helpful to talk aboutcommunication rather than information

giving and listening. ‘Communication withchildren’ may be a better starting pointthan ‘Listening to children’.

• She suggests the formation of two groups:the first group would concentrate on theneeds of all children who areexperiencing family breakdown forinformation and support; the secondgroup would focus on the needs ofchildren who are subject to courtproceedings.

44

ALC (Association of Lawyers for Children)(1998) ‘The future of representation forchildren’, Family Law, Vol. 28, July, pp. 403–11

Bainham, Andrew (1998) ‘Changing familiesand changing concepts – reforming thelanguage of family law’, Child and Family Law

Quarterly, Vol. 10, No. 1, pp. 1–15

Barnes, Gill Gorell (1996) ‘Gender issues’, inRonald Davie, Graham Upton and Ved Varma(eds) The Voice of the Child. A Handbook for

Professionals. Falmer

Brannen, Julia and Heptinstall, Ellen (1998)‘How do children experience change’, draftchapter of book

Brannen, Julia, Heptinstall, E. and Bhopal, K.(1998) Research in Brief, September, No. 10, fromstudy funded by Dept. of Health, Aug 1996–April 1999, research directed by Julia Brannenfor Thomas Coram Research Unit

Bretherton, H., Buchanan, Anne and Hunt, Joan(1999) Research summary: ‘Welfare reporting incontested applications for orders under s.8 ofthe Children Act 1989: family perspectives onprocess and outcomes’

Butler, Ian, Douglas, Gillian, Fincham, Frank,Murch, Mervyn, Robinson, Margaret andScanlan, Lesley (1999) ‘Children’s perspectivesand experience of the divorce process’, somepreliminary data

ChildLine (1998) Unhappy Families. Unhappy

Children. A ChildLine Study

Cooklin, Alan (1999) Paper given to workshop‘Children abused in families: is the criminal lawthe only redress’, at ChildLine Conference‘Hearing Children’s Voices’

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Voice of the Child. A Handbook for Professionals.Falmer

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the Child. A Handbook for Professionals. Falmer

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48

Julia Brannen, Ellen Heptinstall and

Kalwant Bhopal, ‘Children’s views and

experiences of family life’, funded by the

Department of Health

Aims

• To examine children’s views about beingparented and cared for.

• To ascertain their views on theircontribution to care and family life.

Methodology

Both extensive and intensive methods havebeen employed to analyse the experiences ofchildren aged 11–13 living in four types offamily or household context: two-parent (birth)families; lone-parent households; step families;foster care. In the first stage of the study, 941children aged 11–13, who were either about tostart or were recent entrants to secondaryschool, took part in a survey by means of aquestionnaire administered in class time. On thebasis of the first study, a sample of childrenwere selected for the second stage of the studywhich will consist of case studies of childrenand their key carers, according to differentfamily types, including foster care.

Findings

• Children’s views of family life werestrongly child-centred. They wereconcerned that their mothers and fathersshould ‘be there’ for them.

• Few children favoured parents splittingup; most expressed a preference forparents to try other solutions than divorcein the first instance.

• The great majority of children were infavour of adults having children andviewed parenthood largely in terms oflove rather than duty.

• When children were very young, mostchildren thought both parents should be athome rather than working.

• Parents, mothers before fathers, werereported to be the most important peoplein children’s lives. Children who were notliving with their fathers were less likely tomention them than children who were.

• Children reported spending time withtheir family: 27 per cent ‘most of thetime’, 41 per cent with both family andfriends.

• Children wanted more of their fathers’time, especially if their fathers did not livewith them, but many preferred not toanswer this question. Children wantedmore of both parents’ time, especiallywhen they worked full time.

• Children’s views and experiences ofbeing parented were generally non-gendered, with high proportions of thoseliving in two-parent families mentioninga variety of different kinds of parentingactivities carried out by both parents,including expressive and emotional care.

• Children reported being concerned forothers and making a considerablecontribution to family life.

• The great majority of children reportedcarrying out caring activities within thepast week.

Appendix: Research summaries

49


• The great majority of children reportedcarrying out household tasks within the lastweek. Children were more likely to do‘self-care’ tasks frequently (e.g. tidyingown bedrooms) than ‘family care’ tasks(e.g. hoovering).

• The majority of children said that theydid household tasks without being asked,especially self-care activities.

• The great majority of children believedthat they should have a say in everydaypersonal matters and some input, withtheir parents, into major family lifedecisions which affect them, notablydivorce, moving house and choosing asecondary school. Children’s views varyby ethnicity, age, number of siblings, etc.but tend to depend on the particulardecision.

• Seventy per cent thought that childrenshould have some input into decisionsabout divorce. Almost half thought thatthe decision about who to live with afterdivorce should be shared between parentsand children. Twenty-eight per centthought that children should decidethemselves.

• The amount of autonomy children weregranted by their parents is variable. Moreboys than girls had autonomy outside thehome. Asian children, especially girls,were least likely to have externalfreedom; black children were most likelyto.

• Children reported variable contact withnon-resident fathers and considerable

amounts of contact with wider kin. Whitechildren were more likely to see theirnon-resident parents frequentlycompared with black children. Children’scontact with kin was more frequent thancontact with non-resident parents. Blackand Asian children were more likely thanwhite children to see their kin morefrequently.

• Children generally favoured talking toadults about their problems. The personsreported to be most helpful in relation tostarting secondary school were: bestfriends, teachers, mothers, parents andsiblings. Girls and primary schoolchildren were more likely than boys andsecondary school children to mentionsupport from members of their family.Asian children were more likely toperceive siblings and parents as helpfulcompared with other ethnic groups. Onein ten children expected no one to behelpful.

Joan Hunt and James Lawson, ‘Integrating

support services for the family jurisdiction’,

funded by the Nuffield Foundation

Published as Crossing the Boundaries: The Views of

Practitioners with Experience of Family Court

Welfare and Guardian ad Litem Work on the

Proposal to Create a Unified Court Welfare Service

(National Council for Family Proceedings,1999).

Aims

The study aimed to inform the policy-makingprocess regarding the possible future

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amalgamation of the court welfare service,guardian ad litem service and the children’swork of the Official Solicitor to create a unifiedcourt welfare service. In order to do this thestudy researched the perspectives ofpractitioners with experience of both courtwelfare and GAL work.

Methodology

A sampling pool of 77 practitioners wasidentified by means of a survey of every GALpanel and probation service in England andWales. Face-to-face interviews were conductedwith 38 informants, all but seven of whom werefieldworkers rather than managers.

Findings

• The needs of children and families inprivate law cannot always be met undercurrent arrangements.

• The role of the CWO should be morechild focused.

• CWOs should have a more central role inproceedings.

• CWOs should be able to call on expertadvice.

• Improvements are needed in courtwelfare practice, particularly in workingwith children and in the understanding ofchild care and child protection.

• Unrealistic workloads are a seriousproblem.

• Nearly all the informants favoured makingthe legal representation of children morewidely available in private law.

• Representation of children would focusthe attention of the parties on the childrenand strengthen the child’s position in theproceedings by: the ability to instructexperts; bringing a legal perspective tothe child’s case; advocacy andnegotiation.

• The courts should be able to retain thediscretion to order separaterepresentation according to thecircumstances of the case. The CWOshould be able to recommend separaterepresentation, perhaps on the basis ofpreliminary enquiries.

• The general view was that the public lawmodel of the GAL and solicitor workingin tandem was the most appropriate oneto follow.

Conclusions and recommendations

• Section 64 of the Family Law Act 1996should be implemented as soon aspossible.

• There should be guidelines on thecircumstances in which legalrepresentation might be appropriate, butnot restrictive criteria.

• The CWO should be required to considerand should be empowered to recommendseparate legal representation.

• Children’s interests should besafeguarded by a spectrum of provisionranging from a welfare report to fullrepresentation by a solicitor and a GAL.

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• The role of the CWO should bestrengthened to include the power tocommission expert reports.

• It should be made clear that the CWO’soverriding duty is to protect and promotethe interests of the child even though thismay be done, in the first instance, byworking through the parents.

• The capacity of CWOs to deliver anadequate service to the courts and tofamilies needs to be enhanced byappropriate training and a workloadreview.

• Integration of the court welfare andguardian services is an appropriate wayforward. However, it needs to be madeplain that the primary aim of the serviceis to promote the welfare of children inthe family courts and that this is a servicefor children involved in courtproceedings, rather than a service for thecourts about children.

Harriet Bretherton, Anne Buchanan and

Joan Hunt, ‘Welfare reporting in contested

applications for orders under s.8 of the

Children Act 1989: family perspectives on

process and outcomes’, funded by the

Nuffield Foundation

Aims

Sixty thousand children per year are the subjectsof welfare reports by CWOs. At present little isknown about whether the decisions made inproceedings do promote the welfare of children.This research aims to contribute to theknowledge base on the consequences for

children and parents of decisions made incontested s.8 proceedings and the processes bywhich decisions are reached.

The Family Court Welfare Services haveagreed to participate in the study, which willrun for two years from March 1999.

Methodology

This study will follow up parents and childrenafter a decision has been made in contested s.8applications and where a welfare report hasbeen ordered. There will be face-to-faceinterviews with 50 mothers and 50 fatherswithin three months of the completion ofproceedings. Subsequently, the CWO will beinterviewed by telephone and the welfare reportwill be read. Twelve months later parents willbe re-interviewed. At this second stage,permission will be sought to interview childrenaged nine and above.

Adrian L. James and Louise Sturgeon-

Adams, ‘Family Assistance Orders’,

supported by the Joseph Rowntree

Foundation

Published as Helping Families after Divorce.

Assistance by Order? (Policy Press for the JosephRowntree Foundation, 1999).

Aims

In the light of previous research about thevariations in the practice of the family courtwelfare service both within and betweenprobation areas, this study asked the followingquestions about FAOs.

• Are there variations in local policies

concerning the use of FAOs?

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• Are there variations in local practices

concerning the recommendation of FAOsin welfare reports, independent of localpolicies?

• To what extent are either of these theproduct of negotiations, either formal orinformal, within local courts?

• What do courts and CWOs regard as thepurposes of FAOs and what criteria dothey use when considering the use ofFAOs in individual cases?

• How do courts and CWOs regard the‘exceptional circumstances’ requirement?

• In those areas which make little or no useof FAOs, are alternative services availableto families?

• What work is done by CWOs in thecontext of FAOs?

• What are the main problems which arethe focus of the work done with childrenand families in the context of FAOs?

• To what extent do FAOs give children avoice in the post-divorce readjustment offamily life?

Methodology

The research design consisted of four mainelements: a national survey of probationservices’ family court welfare policies; a studyof reports and case records in areas selectedbecause of their markedly high or markedly lowuse of FAOs; interviews with practitioners,managers and judges in each of these areas; anda telephone survey of a sample of other areas.

A questionnaire was sent to all 54 probationareas in England and Wales seeking information

about their policies and practices in relation toFAOs and requesting copies of relevant policydocuments and protocols. The response ratewas 78 per cent.

Fieldwork was undertaken in four of theprobation areas with the highest rate of use ofFAOs and in four of the areas where it seemedthat there had been little use made of FAOs.Much of this work consisted of a study of caserecords. In all, 244 files were examined – 168FAO case records in which an FAO had beenmade and 76 cases in which there had been atleast one court welfare report and anaddendum.

A total of 55 interviews were conducted – 12with judges, 11 with senior CWOs and 32 withfamily CWOs.

In order to increase the reliability andgeneralisability of the data, telephone interviewswere conducted with middle and seniormanagers in a further ten probation areas.

Findings

• The official statistics regarding FAOs areunreliable.

• The vagueness of formal definitions andguidance gives courts considerablediscretion regarding FAOs. Some CWOshad avoided them altogether – by neverrecommending them and by never havingone imposed by the court. The majority ofCWOs had made recommendations insome cases and in others had experiencedFAOs being made by the court withoutrecommendation. In the latter case, theywere reluctant to supervise them and hadreservations about their value.

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• There is little clarity about any aspect ofFAOs – purposes, circumstances in whichone may be imposed, appropriate ways ofcarrying out the order, etc.

• There is no agreement over the definitionof ‘exceptional circumstance’. Decisionsare reached by a combination of judicialdiscretion and the orientation of theCWO. Only 37 per cent of FAOs wererecommended by CWO; the majoritywere imposed by the courts.

• There is a variety of family welfareservices throughout the country. Someareas have access to more services thanothers. There is no clear evidence thatareas making less FAOs make more use ofpartner services.

• National Standards are supposed toregulate the work done in the context ofFAOs. However they are not alwaysfollowed. There are a large number ofFAOs where there appears to be nocontact made with the children, despitetheir being named in the order. There is avariety of views regarding theappropriateness of working withchildren.

• A wide variety of work is undertakenunder the provision of the FAO. Acommon aim is to move the parents froma less to a more ‘healthy’ position in termsof the parental relationship for the benefitof the children, based on the assumptionthat the children should have acontinuing relationship with the absentparent.

• Interviews with judges and CWOsrevealed that there is disagreement aboutthe boundaries between social servicesand the family court welfare service. Acommon view was that social serviceshave so much high priority childprotection work that they are unable todeal effectively with FAOs.

Conclusions

• There is a need to establish clear policiesabout the definition and use of the FAO,the circumstances under which theyshould be made and the purposes of suchorders. There is at present no clear policy,resource or practice framework governingservices for families and children post-separation/divorce.

• A standard definition of FAOs is essentialif reliable statistics are to be collected.

• Funds should be allocated for FAOs todiscourage the present situation where inmany probation areas FAOs are avoidedbecause there is no funding attached.

• The nature and extent of the role of socialservices departments in the supervisionof FAOs should be clarified.

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Christina M. Lyon, Edward Surrey and

Judith E. Timms, ‘Consultation with

children and young people, welfare

professionals, legal professionals on

support services for children and young

people experiencing the breakdown of their

parents’ relationship’, funded by the

Gulbenkian Foundation

Published as Effective Support Services for

Children and Young People when Parental

Relationships Break Down. A Child-centred

Approach (University of Liverpool, 1998).

Aims

• To ascertain the need for a support servicefor children experiencing their parents’relationship breakdown.

• To ascertain the views of children andyoung people about the sorts of serviceswhich they felt might be helpful to them.

• To identify what problems wereexperienced by children and youngpeople whose parents have been involvedin private law proceedings.

• To consult with four groups (children andyoung people; welfare professionals; legalpractitioners; judges and magistrates) asto the need, if any, for the formalprovision of the services of information,consultation and separate representationfor children and young people.

• To consult with the four groups as to thesituations when such service provisionmight be appropriate, and also howyoung people could be referred toservices or access services independently.

Methodology

A consultation group of legal and welfarepractitioners and young people was set up todiscuss and determine details regarding matterssuch as the sending out of invitations, theformat of consultation days and the format ofthe questionnaires.

Letters were sent to head teachers and alsoto all the young people who had been involvedin seminars at the Centre for the Study of theChild, the Family and the Law. The youngpeople who agreed to participate in theconsultation day came from a variety of socio-economic backgrounds.

The questionnaires that were distributed tolegal and welfare practitioners (‘serviceproviders’) and the judiciary (‘decision-makers’)in advance of their consultation days were inessence the same as those which were given outto the young people on their consultation day.

The young people’s questionnaire includedbriefing information on the roles of CWOs,GALs, mediators and children’s panel solicitors.This information was supplemented on theyoung people’s consultation day bypresentations by staff at the Centre. The youngpeople’s questionnaire was 12 pages long andincluded space for their own comments. It wasoptional whether they put their names on thequestionnaire.

There was a consultation day with thejudiciary and lawyers when there werepresentations, debate, feedback andconsideration of the questionnaires.

Fifty questionnaires were distributed to thejudiciary; 11 were completed. One-hundred-and-fifty questionnaires were sent out tosolicitors who work in family law; 38 werecompleted.

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There was a separate consultation day for 71welfare professionals when there werepresentations, group discussions on thepresentations and on the questionnaires, whichwere completed on the day. A total of 78questionnaires were completed by welfareprofessionals.

One-hundred-and-twenty young peopleattended their consultation day, some in the roleof group leaders. There were presentations,group workshops, opportunities throughout theday for asking questions and questionnaireswere completed, with group leaders answeringquestions rather than filling in questionnaires.One-hundred-and-ten questionnaires werecompleted.

Findings

The young people

• A large majority of the young peopleexpressed the need for a readily accessibleinformation service for young peopleaffected by the separation, divorce orrelationship breakdown of their parents.

• The young people expressed the need forsupport services whose functions andresponsibilities were clearly intelligible tochildren/young people.

• A large majority of the young peopleexpressed the need for a consultationservice. A minority felt that it was notalways best to consult a child.

• Nearly half the young people felt thatchildren and young people should alwayshave access to separate representation inthese situations; around a quarter

believed it should be available only whereit was definitely needed; over a quarterfelt that children/young people wouldnot be mature enough to expressthemselves and thus could be denied thepossibility of separate representation.

Welfare professionals

• The majority were in favour of: acomprehensive children’s support service,which should be non-legal and shouldencompass: an information service; aconsultation service in the majority ofcases and, in a minority of cases, separaterepresentation of children.

• The main reasons given for these serviceswere: to help the child to access relevantservices; to help the child to understandwhat is going on; to assist them in makingdecisions; to help the child where theirviews are in conflict with the parents’views; to ensure the child is heard; to helpthe child express their views; to minimisethe impact on the child; and so that thechild is not ignored.

The lawyers

The large majority believe:

• that information should be provided forchildren/young people in all or amajority of cases

• consultation should be provided in allcases or a majority of cases

• separate representation should beprovided in a minority of cases.

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The judiciary

• All 11 judges felt that there should be aneasily accessible support service forchildren affected by private lawproceedings. Reasons given were: so childunderstands what is happening; tominimise the impact on the child; toprovide emotional support; to promotethe welfare of the child.

• Most of the judges believed thatinformation should be provided forchildren/young people; all believed thatconsultation should be provided in somecases and that separate representationwas needed in a minority of cases.

Judith Masson and Maureen Winn Oakley,

‘Out of hearing: the representation of

children by guardians ad litem and

solicitors in public law proceedings’,

funded by the NSPCC

Published as Out of Hearing. Representing

Children in Care Proceedings (John Wiley andSons, 1999).

Aims

A small, in-depth study of the representationprovided for 20 children and young people agedbetween nine and 15 involved in ‘specifiedproceedings’ under the Children Act 1989. Theresearch aimed to find out what the children/young people’s experiences and understandingof the proceedings were.

Methodology

The researchers observed 63 meetings betweenchildren/young people and their

representatives (guardians ad litem andsolicitors). Interviews were conducted after thecompletion of the cases with the children/young people, 12 GALs and 12 solicitors.

Findings

• The majority of the children and youngpeople were isolated from their families,friends and communities, living intemporary foster homes or residentialplacements during some or all of theproceedings. Few had good relationshipswith social workers who knew them well.Consequently, many children and youngpeople valued the support of adults whowould discuss their concerns andadvocate their interests.

• Children and young people were veryconcerned about the day-to-dayarrangements for their care, where theywould be living and go to school, andwhen they would move. Contact withrelatives or friends was a major issue formore than half of them.

• Little written information about theproceedings taken for their protectionwas given to the children and youngpeople. Most had none. The leaflets whichare currently available are misleading andcurrent practices amongst GALs,solicitors and the courts are very diverse.

• Children and young people had a generalunderstanding of the role of the GAL andtrusted them. GALs are skilled atestablishing rapport with children andyoung people, and sensitive to theiranxiety.

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• Solicitors relied on GALs for guidance;most GALs had strong views on how theywanted solicitors to act. GALs usuallyintroduced the solicitor to the child oryoung person.

• Children and young people had lessunderstanding of the role of the solicitor.Half saw their solicitors only once. Halfonly saw their solicitor with the GAL.

• The young people in the study who wereinvolved in secure accommodationproceedings related strongly to theirsolicitor. They attended court, had moredealings with their solicitor and were clearabout their solicitor’s role. All but one hadlimited involvement with their GAL.

• GALs were reluctant to attend caseconferences. Where they did so they sawthemselves as observers. Solicitors rarelyattended case conferences when acting forchildren but did so if they wererepresenting parents.

• Most children saw only limited parts ofthe GAL’s report and did not haveopportunities to discuss the report withtheir solicitor. Almost all were dissatisfiedwith the access they had to the GAL’sreport.

• Most of the children and young peopleaccepted the need for a court order. Tendisagreed with major aspects of the localauthority’s plan for their care, e.g. wherethey were to live or contact arrangements.

• For at least five children and youngpeople, the outcome of the case left majorissues unaddressed.

• The GALs and solicitors worked to avoidchildren and young people instructing thesolicitor directly.

• GALs and solicitors were reluctant to talkto children and young people aboutattending proceedings because of thenegative attitudes towards this.

• The children and young people wereequally divided between those whowanted opportunities to participate in theproceedings and those who did not.

• Arrangements to inform children andyoung people about the outcome of caseswere haphazard. Some heard the outcomeof the case only from others involved inthe proceedings.

Conclusions

The problems identified in this research are aresult of the structure of the system itself,attitudes to children and young people, and thelimitation of substitute care for children andyoung people who need protection. The unevendistribution of power between courts and localauthorities, solicitors and GALs, and GALs andsocial workers undermines the system’s abilityto deliver outcomes which are responsive to theconcerns of the children and young peopleinvolved and therefore it cannot make theirwelfare paramount.

Although all children and young people areparties to the proceedings, they rarely receivethe service adult clients expect. In practice thechild’s solicitor acts for the GAL. Young peoplewould benefit from a solicitor who engaged withthem by explaining the process, helping them tounderstand it and discussing their participation.

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Recommendations

• Age-appropriate information should begiven to all children and young people insuch proceedings.

• Older children who wish to attendhearings should have the opportunity todo so.

• Children should be informed of theoutcome of proceedings.

• Young people should have access to theGAL’s report after the proceedings.

• Parents and other parties should berepresented only by specialist lawyers.

• Solicitors should attend case conferenceson behalf of their clients.

• The form and content of the care planshould be regulated.

• The court’s powers regarding the careplan should be extended.

Maureen Winn Oakley and Judith Masson,

Official Friends and Friendly Officials

(NSPCC, 2000)

Aims

The study aimed to ascertain the knowledge,understanding and experiences of children andyoung people regarding those who areappointed under the Children Act to ‘visit,advise and befriend’ them. This is a requirementof the local authority for any children it islooking after where this would be in the child’sbest interests and where communicationbetween the child and its parents or those with

parental responsibility is infrequent or non-existent.

The Children Act requires local authorities toestablish a complaints system. A number ofdiverse schemes have developed to providesupport, advocacy or representation for childrenin public care raising concerns or makingcomplaints. Some local authorities employchildren’s rights officers. The National YouthAdvocacy Service and the Voice for the Child inCare provide representation services to anumber of authorities on an ad hoc basis. Also,some areas are served by local advocacyschemes.

Little is known about how children find outabout and access all these different services orwhat they gain from using them. Claims for theseservices have been made by service providers.This study aimed to find out more on theperspectives of service users and potential users.

Methodology

The children and young people in the samplecame from different ethnic backgrounds andincluded some with disabilities. It includedthose who had independent visitors and thosewho did not. Interviews were semi-structuredand discursive.

Findings

• Information for children and youngpeople about their rights and services isgenerally lacking; leaflets which havebeen produced are poorly distributed.Those in foster homes are unlikely tohave them.

• Lack of written information leaveschildren and young people dependent on

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social workers or other adults to provideinformation about services. These peopleare themselves unaware of all the serviceswhich young people would find helpful.

• Where they existed, children’s rightsofficers were a good source of writteninformation and advice about rights andexisting services.

• Independent visitor schemes variedwidely in their size, scope, recruitmentmethods and their policies, particularly inrelation to visits by young people to theirvisitor’s home and whether the visitorshould advocate on behalf of their youngperson.

• The unavailability or restricted scope ofindependent visitor services operates toconceal the need for such services. Thereis a reluctance to inform children andyoung people where these services arenot provided.

• All the young people who had anindependent visitor were positive aboutthe experience. They enjoyed newopportunities, a wide variety of activitiesand the individual attention that thisrelationship brought them. Theyparticularly valued being able to confidein someone who did not haveprofessional responsibility and would notrecord their concerns.

• Independent visitors’ roles ranged fromthe entirely social to relationships wherethey took on wider responsibilities,advocating for the young person withinthe care or education systems and

attending their reviews. The role playedby the independent visitor depended onthe young person, the independentvisitor’s willingness to take on the caresystem and the policy of the schemewithin which they operated.

• Although schemes were not able toguarantee continuity by an independentvisitor and some appointed visitors onshort-term contracts, well-matchedrelationships provided continuity oftenlacking from social workers.

• Advice, representation and advocacyservices were valued by the young peoplewho have access to them. The availabilityof support did not necessarily give youngpeople the confidence to raise concerns ormake complaints; the lack of opportunityfor confidential discussions was onereason for this. The need to justify seekinga representative or children’s rightsofficer limited some young people’saccess to these services.

• There is general confusion aboutdifferences between similar soundingschemes and similar sounding titles –befriender, mentor and independentvisitor schemes; independent visitors,independent representatives andindependent persons. The term advocacyis capable of different interpretations.Clarification of roles and the provision ofconsistent terminology is the first step toproviding understandable and accessibleservices.

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Virginia Morrow, ‘Attending to the child’s

voice: children’s accounts of family and

kinship’, funded by the Joseph Rowntree

Foundation

Some publications arising from the study are:‘The ethics of social research with children: anoverview’, Children and Society (1996) Vol. 10,No. 2, pp. 90–105 (with M.P.M. Richards);Understanding Families: Children’s Perspectives

(National Children’s Bureau/Joseph RowntreeFoundation, 1998); ‘Understanding families:children’s perspectives’, Childright (1998), Vol.149, pp. 17–18; ‘My animals and other family:children’s perspectives on their relationshipswith companion animals’, Anthrozöos (1998) Vol.11, No. 4, pp. 218–26; ‘“If you were a teacher, itwould be harder to talk to you”: reflections onqualitative research with children in school’,International Journal of Social Research

Methodology: Theory and Practice (1999) Vol. 1,No. 4, pp. 297–313 ‘“It’s cool …‘cos you can’tgive us detentions and things, can you?!”:reflections on researching children in school’, inP. Milner and B. Carolin (eds) Time to Listen to

Children: Personal and Professional Communication

(Routledge, 1999); ‘“We are people too”.Children’s perspectives on rights and decision-making in England’, submitted to International

Journal of Children’s Rights.

Aims

• To explore how a sample of ‘ordinary’ (i.e.non-clinical) children perceive and makesense of the concepts of ‘family’ and‘kinship’ in the context of rapidlychanging family forms.

• To review ethical guidelines for socialresearch with children.

• To explore how, methodologically,children’s views can be elicited in anappropriate and satisfactory manner,according to age, gender and ethnicbackground.

• To analyse how ‘the family’ is representedto children in school curricula, media andliterature, and how children make senseof such representations.

Methodology

The research is based on empirical datagathered in schools from 183 children agedbetween eight and 14 in two parts of EastAnglia: a rural area and a large town with apopulation of British Muslims originating fromMirpur and Azad Kashmir in Pakistan.

Structured activities included: draw-and-write on ‘who is important to me?’; sentencecompletion on ‘what is a family?’ and ‘what arefamilies for?’; a short questionnaire askingwhether or not five one-sentence descriptions offamily type counted as family.

Open-ended group discussions exploredmore closely children’s responses to thequestionnaire. Group discussions also focusedon media images of families, children’sinvolvement in decision-making and the extentto which they felt listened to, generally, infamilies, schools and the wider community.Discussions were taped and transcribed.

Findings

• Children can be constructive andreflective commentators about theconcept of ‘family’.

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• Children have a pragmatic view of familylife, and are aware of a wide variation infamily practices and structures.

• From children’s point of view, love, careand mutual respect and support were thekey characteristics of ‘family’. This wasthe case regardless of gender, ethnicbackground and location. Overall,children appeared to have an accepting,inclusive view of what counts as familyand their definitions did not centrearound biological relatedness or the‘nuclear’ norm.

• There were some differences between agegroups, in that younger children seemedto present concrete explanations whileolder children were more generalised intheir use of language and drew oncomplex abstract notions of quality ofrelationships.

• The centrality to children of parents,especially mothers, as providers ofphysical and emotional care, emergedclearly.

• Sibling relationships were also importantand, while such relationships are rarelyconflict-free, they are often underpinnedby a good deal of mutual affection andsupport.

• For some children, regardless of ethnicbackground, social life appeared torevolve around relatives and extendedkin.

• Friendships became more important theolder the children were. Girls inparticular described their close friends as

central for emotional support, though thiswas the case for some boys too.

• In response to questions exploring ‘beinglistened to’, children wanted to be able to‘have a say’ in what happens to them,rather than to make decisions themselves.Some children did feel they are listened towithin their families, others did not, andothers showed a sophisticated awarenessthat decision-making may not bestraightforward.

Conclusions

• Narrow definitions of ‘the family’ asnuclear are ethnocentric and obscure awide diversity of family forms and familypractices.

• Similarly, children are not a homogeneouscategory. Children of different agesdescribed ‘family’ in different ways.Younger children used concrete examplesand older children were more abstract,but there was wide variation and someeight and nine year olds could generalisebeyond their own experiences and seethings from a different point of view.

• Overall, children had an accepting andinclusive view of what counts as family.Their definitions did not centre aroundthe ‘nuclear norm’ or genetic ties.Children’s households appeared toprovide a supportive setting and thesehouseholds could encompass a range ofsignificant others, including pets. Thepeople who matter to children are thepeople who are available to them andaround them.

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M. Murch, Gillian Douglas, Lesley Scanlan,

Alison Perry, Catherine Lisles, Kay Bader

and Margaret Borkowski, ‘Safeguarding

children’s welfare in uncontentious divorce:

a study of s.41 of the Matrimonial Causes

Act. Report to the Lord Chancellor’s

Department, funded by the Lord

Chancellor’s Department

Aims

Under s.41 of the Matrimonial Causes Act,details concerning the proposed arrangementsfor the children of divorcing couples have to beprovided to the court in a Statement ofArrangements form. A similar process willhappen under the Family Law Act.

The aims of this study were:

• to provide a picture of how s.41 works inpractice

• to evaluate whether the informationgiven on the Statement of Arrangementsform is an effective means of highlightingpossible concerns relating to post-divorcearrangements for children inuncontentious cases (i.e. where there hasnot been an application under s.8 of theChildren Act regarding the children)

• to determine to what extent parents maybe colluding in the submission of false ormisleading information on the Statementof Arrangements.

The study also looked at current practicesregarding mediation to ascertain the extent towhich parents ensure that their childrenunderstand and, where appropriate, contributeto decisions about them.

Methodology

Data from ‘uncontentious’ divorces where therewere one or more children under the age of 16were collected from ten different court areas.Data were collected from 353 files. Thisrepresents about 4.5 per cent of divorces in theten selected courts where couples have one ormore children under 16. This sample is at leastcomparable to the specific population fromwhich the sample was drawn.

Sixty-three parents who had recentlydivorced were interviewed.

Thirty-five district judges from the ten courtareas were interviewed. The judges had beendealing with special procedure divorces forbetween one and 21 years; just under 40 per centof them said they deal with from 400 to 500 peryear.

Forty solicitors were interviewed, four fromeach of the ten court areas. Experience ofdealing with divorce cases varied from underfour years to 25 years; 82 per cent had had sevenor more years’ experience. Seventy-seven percent estimated that divorce accounted for 50 percent or more of their workload.

For the mediation audit, a postalquestionnaire was sent to all known familymediation providers – 719 returned completedquestionnaires, a response rate of 47 per cent.

Findings

• There is general scepticism among districtjudges and solicitors as to the utility ofthe current law, although there is anacceptance (shared by parents) that thestate has a role to play in safeguardingchildren’s welfare in divorce.

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• District judges vary as to the issues theyidentify as potentially problematic andthe action they should take inconsequence.

• District judges rarely take action afterscrutinising the written details, largelybecause they do not consider there ismuch they can usefully do to ‘solve’ anyproblems they have identified.

• The Statement of Arrangements form isnot well designed to elicit informationwhich might be expected to enable thecourt to gain a clear insight into thechild’s welfare.

• There was no evidence of significantattempts by either parents or theirsolicitors to ‘conceal’ information or topresent a misleading picture to the court.

• Respondents do not usually contribute tothe completion of the petitioner’sStatement of Arrangements.

• Parents would welcome more supportand advice during the divorce processand would be happy for ‘someone’ to talkdirectly to their children about theirwishes and feelings.

• Mediators are well aware of theimportance of children’s welfare, wishesand feelings, but seek to address theseindirectly through encouraging parents tothink about their children’s position,rather than directly by talking to the childthemselves. Those mediators who areprepared to involve children directly inmediation only do so occasionally.

• Mediators are more likely to rateimproving communication betweenparents as extremely important inmediation, than helping parents reachagreement.

Ian Butler, Gillian Douglas, Frank Fincham,

Mervyn Murch, Margaret Robinson and

Lesley Scanlan, ‘Children’s perspectives

and experience of the divorce process’,

funded by the Economic and Social

Research Council

Aims

Divorce law reform stresses the importance ofsafeguarding children’s interests during andafter divorce. Through listening to children talkabout living through their parents’ divorce theproject:

• helps build a fuller picture and betterunderstanding of children’s experience offamily breakdown

• provides information of relevance andbenefit to professionals working withfamilies

• provides information of interest andvalue to parents and children.

Methodology

A random, representative sample of recentlydivorced families was drawn from six courtareas in South Wales and the South West ofEngland. One hundred and four children agedeight to 15 years were interviewed within 14months of decree nisi. Each child agreed toparticipate and was guaranteed fullconfidentiality. Each child was interviewed in

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their own home. Each child talked alone withthe interviewer. Qualitative and quantitativedata were collected from children and parents.

Progress

The analysis of data is in the early stages.

National Stepfamily Association, ‘Children

and young people project’, funded by the

National Lotteries Charities Board

Aims

• To give children and young peopleexperiencing family change anopportunity to express their views so thatthey can directly influence the servicesand policies that affect them.

• To consult professionals (teachers, youthworkers, counsellors, social workers, etc.)and national agencies who work with andare concerned with children and youngpeople about ways of developing moreappropriate services to meet theidentified needs of children and youngpeople.

• The ultimate aim of the project is toidentify models of good practice insupporting young people experiencingfamily change so that these can bedisseminated nationally.

Methodology

Through questionnaires, workshops anddiscussion groups in schools, youth clubs andplay schemes the views of young people whohave experienced family change are beingelicited.

Findings

• Children and young people’s resiliencethrough family change (separation,divorce, repartnering) is very muchdependent on how sensitively thesechanges are handled by the adultsinvolved. They are much more resilient ifparents are amicable and not hostile or inconflict with one another. Such hostility isvery difficult for children and youngpeople because they feel loyalty to bothparents.

• Most children and young people feelpowerless in situations of family change.They find themselves in situations whichthey are forced to accept and yet they feelthat they have had no say in them. Whena new family is formed they may have toaccept different rules and discipline, oftenwithout negotiation.

• Children and young people want to beconsulted in the decisions that affectthem; they want to be listened to, not tohave the ultimate responsibility fordecision-making.

• Many children and young people will puttheir parents’ feelings before their own.This inhibits communication.

• Children and young people want theirparents to be open and honest, to taketime to discuss the situation, and to allowthe child an opportunity to talk abouttheir feelings and needs and to be trulylistened to. Children and young peoplewho are not allowed to express theirfeelings, including feelings of anger,

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admit that they sometimes resort to badbehaviour to get attention.

• Many children and young people feelisolated and would like to know that theyare not alone. They may feel scared andlonely during situations of family change.

• Many children and young people blamethemselves for their parents splitting up.They do not feel able to express thesefeelings to their parents and so parentscannot reassure them.

• Many children and young people havefound it useful to talk to someone (youthworkers, neighbours, teachers,counsellors, ChildLine, NSPCC, etc.) inorder to explore and practise ways oftalking to parents and step-parents. Thelarge majority of children talk to family,especially grandparents, and friends.

• Many children and young people want totalk to others who have had similarexperiences and who thereforeunderstand and are in a position to givesupport and offer advice. Some childrenand young people did not talk to friendsbecause they did not think that they couldunderstand if they had not been throughsimilar experiences.

• Children and young people want to beable to access information, advice andsupport easily and independently.

• Many young people do not use the termstepfamily when describing theirsituation.

• Young people welcome the opportunityto talk about issues around family change

in the form of general discussion, notnecessarily talking about personalsituations.

• Children and young people are moreresilient through periods of family changeif there is as much stability as possible inother areas of their life.

• There are many difficulties for childrenand young people in adjusting to step-parents: it makes it clear that the parentsare not going to reunite; it may take a lotof time to adjust to the parent’s newpartner; sometimes it seems that theparent is putting their own needs and thenew partner’s needs before the child’sneeds; there are problems regardingjealousy/favouritism surrounding step-and half-siblings; there may be differentrules and discipline.

Caroline Sawyer, ‘Rules, roles and

relationships: the structure and function of

child representation and welfare in family

proceedings’, funded by the Berks, Bucks

and Oxon Child Care Group

Published under the above title by the Centrefor Socio-Legal Studies, University of Oxford.

Aims

How is the position of the child in familyproceedings addressed by the professionals?

Methodology

Semi-structured interviews were carried out with12 panel GALs, 12 Children’s Panel solicitors andeight CWOs in the Thames Valley area.

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Findings

Public law

• There is some evidence of ‘cosiness’between solicitors and GALs.

• There are also certain areas of uncertaintyor friction.

• There are few practical problems despitethe fuzziness around the welfare/representation division.

• There is little or no evidence ofduplication of work or time wasted.

• GALs’ independence of operation washighly valued.

• Their connection with local authoritieswas invidious.

Private law

• CWOs were under severe pressure tobring about settlements on a pre-statedmodel.

• They could not withstand cross-examination on their views andrecommendations either as to legalprovisions or as to social workrecommendations.

• They generally expressed similar viewson the principles of the law and of socialwork research but were unable tosubstantiate those views.

• Parental rights overwhelmed any view ofthe child as a person.

• The preconceived notions of child‘welfare’ were judicial in origin.

• CWOs’ working structures did not allowor equip them to resist the judicialideology even where they believed theywere not working in children’s bestinterests.

• They would not necessarily see children.

• Children dissenting from the approvedsettlement of the case would not be takenseriously and would be categorised asrepeating parental concerns or asmentally ill.

Public law and private law practices compared

• Solicitors found CWOs to be lessthorough, independent and child-focusedthan GALs and most attributed this totheir working practices rather than to thearena of their practice.

• GALs usually, not invariably, madecriticisms of CWOs’ practices similar tothose made by solicitors.

• CWOs usually had little idea of whatGALs did.

• The researcher found it remarkablydifficult to persuade CWOs to address thequestion of the child’s individualpersonality.

• CWOs (mirroring judicial attitudes) weremuch less ready than GALs to accept theidea of reasonable dissent and disputefrom anyone, especially children, but alsoparents.

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Conclusions

• The processes for hearing the voice of thechild in public law and private lawoperated on entirely different principles.

• Judicial ideology in private law obscuredthe voice of the child beneath a near-irrebuttable assumption that parentswould behave appropriately towardschildren. Dissent, where seen asopposition to the presumption of contact,was characterised as bad or mad; childrenso dissenting would have their viewsattributed either to presssure from thecaring parent or to mental illness. Similarmadness or badness would be attributedto dissenting adults. As the outcome ofthe case was known before the facts of thecase, those facts became irrelevant andattempts to argue against thepresumption of contact on the basis offacts, such as past sexual abuse by theapplicant parent, would be furtherevidence of unreasonableness,intransigence or insanity on the part ofthe caring parent.

• In private law, the voice of the child, orthe factual situation of the child, wastherefore wholly irrelevant to theprevailing judicial culture of familyprivacy on a specific model, which was sostrong that the social work personnelwere unable to resist it. In public law,however, the judicial culture was, ifanything, opposed to the private familystructure, and the social work personnelwere in any event organisationally andculturally more independent, being child-rather than court-based.

Carol Smart, Bren Neale, Amanda Wade,

‘Post-divorce childhoods: perspectives from

children’, funded by the Nuffield

Foundation; ‘New childhoods? children and

co-parenting after divorce’, funded by the

ESRC

Some publications arising from the study are:Neale, Wade and Smart, ‘“I just get on with it”:children’s experiences of family life followingparental separation or divorce’, Working PaperNo. 1 (Centre for Research on Family, Kinshipand Childhood, Leeds University, 1998); Nealeand Smart, ‘Agents or dependants? Strugglingto listen to children in family law and familyresearch’, Working Paper No. 3 (Centre forResearch on Family, Kinship and Childhood,Leeds University, 1998); Smart and Neale,Family Fragments (Polity Press, 1999); Smart,Neale and Wade, Changing Childhoods, Changing

Families (Polity Press, due out 2000)

Aims

• To explore children’s experiences underthe prevailing conditions of post-divorcefamily life.

• To explore their agency within theirfamilies and to bring their perspectivescentrally into policy debates around post-divorce family life.

Methodology

Nuffield study

Fifty-two children living in a variety of post-divorce arrangements (with varying degrees ofcontact, from reliable through to no contact) wererecruited via their parents who had previouslytaken part in a study of post-divorce parenthood.

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ESRC study

Sixty-five children in co-parenting arrangements(dividing their time between two homes), plus acontrol group of ten children in ‘intact’ families,were recruited via their parents using a varietyof methods, including advertisements andpersonal contacts. The samples were diverseand non-clinical, balanced across the boundariesof age, gender, class and locality (but not interms of ethnicity; the researchers could recruitonly a handful of ethnic minority children intothe samples). The children had lived for at leastone year (but, in most cases, more than threeyears) in separated households. The age rangewas four to 22, with most clustered in themiddle age range of eight to 16. The researchersdivided them into older children of high-schoolage and younger children of primary-schoolage.

In-depth, qualitative interviews, usually on aone-to-one basis, were carried out in thechildren’s own homes. Confidentiality wasguaranteed. A conversational style of interviewsupplemented by written activities as a way ofdrawing out the children’s accounts was used.Children’s direct experiences and their valuesabout family life using hypothetical scenarios(vignettes) were explored.

Findings

• The families were diverse in structure andmembership. Children were aware offormal structures (legal and blood ties,household composition, frequency ofcontact) but defined the essence of familyin terms of the quality of relationshipsand how these relationships werepractised. They used flexible notions of

family, which could include blood andnon-blood relationships and wider kin(e.g. grandparents), but which could alsoexclude a parent or a new partner (whomight be seen in terms of friendship notkinship).

• Children valued good relations of carewithin their families (ties of love andaffection in which parents had time forthem, and prioritised and met theirneeds). Children also valued goodrelations of trust and mutual respect withfamily members, and fairness for all. Theyaspired to democratic relations built onopen communications and meaningfuldialogue.

• These relations of care and respect werereciprocal. Children gave care/respect aswell as received them and activelyparticipated in sustaining good familyrelations. Following divorce they had aheightened awareness that relationshipscould not be taken for granted. As moralagents they creatively balanced their ownneeds against the needs of others.

• Children wanted relations of mutualrespect (if not of care) to operate betweentheir parents (and between parents andnew partners) so that they could be partof a network of supportive relationships.Children hoped that their parents wouldbe ‘adult’ enough to be civil to each other,for their sake, although they recognisedthat this wasn’t always possible.

• The majority of the children in oursample enjoyed good relationships intheir families and regarded their families

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as perfectly normal. They did not feelstigmatised by divorce. But children whodid not have good relations of care/respect for themselves or were embroiledin parental/adult conflict expressedregret or unhappiness about theirfamilies.

• Children did not necessarily feel the sameway about their mothers and fathers.Many had good relations with bothparents, but even where they valued themequally they often related to them indifferent ways. There was a tendency torely on mothers more than fathers forconfiding in and for emotional and day-to-day support, reflecting the currentgendered patterns of parenting. Wherechildren had a difficult relationship withone parent they relied heavily on theother parent for support and tonegotiate/advocate on their behalf. Inthese circumstances, they preferred to livewith/spend more time with theirsupportive parent and, where possible,they modified residence and contactarrangements accordingly.

• Children did not go on givingunconditional love and respect to a parentwho did not reciprocate or who disruptedgood relations, either directly orindirectly. Eleven children/young peopleopted to pare down their family by notseeing a parent who had actedoppressively and/or had embroiled themin conflict. This was sometimes apermanent solution. Others, however,saw it as a temporary solution. Someolder children in our sample eventually

rekindled such relationships when theycould do so on their own terms.

• Children wanted to participate in familydecision-making but drew a distinctionbetween participation and self-determination. They were aware thatdecisions over residence and contactaffected all family members and were bestdecided democratically. Younger childrencould trust their parents to decide forthem while older ones participated morefully and expected their views to carryweight. They valued flexiblearrangements which they could negotiatethemselves and which could be fitted inaround their social lives.

• Where democratic decision-making waspractised, children did not necessarilywant or need outside intervention atseparation, divorce or subsequently. Nordid they necessarily need this at times ofparental conflict as long as they were notembroiled in the dispute or otherwisemanipulated by a parent. Where theywished to change arrangements, this toocould be achieved within the family aslong as they had at least one parent whorespected their wishes and couldnegotiate/advocate effectively on theirbehalf.

• Children valued outside support wherethey were unhappy about their familiesand lack of good relations preventedthem from changing things. This mightoccur at any time. As a first step, theyopted to talk to wider kin or friendsbecause they could remain in control of

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the process and their confidentiality wasguaranteed.

• Children’s experiences of professionalsupport were less than positive. In mostcases they had had little choice aboutparticipating. They did not receive butwould have valued: an informed choiceabout whether, when and how toparticipate; knowledge of their rights andwhat support was available; a flexible

range of services (legal and non-legal)tailored to their needs, which offeredindependent access as and when needed;confidentiality; counselling; consultationover how a problem could be managed(not necessarily a legal route); and,perhaps most crucially, respect fromadults who ignored or re-interpreted theirdefinitions of the problem and failed toacknowledge their wishes and feelings.

listening to children's views: the findings and recommendations of recent research ·...

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