Putting children first in family matters

‘Putting Children First’ is the title of a report published by the Family Solutions Group (FSG). This is a multidisciplinary group with practical experience of working with separated parents and their children outside of the court process. In early 2020, The Honourable Mr Justice Cobb set it up as a subgroup to the Private Law Working Group.

The FSG was asked to consider what was needed, within existing legislation, to improve the experience of families who separate before any application is made to the Family Court. The theme of all discussions was essentially the need to restore the child to the centre of systems that currently operate in the main for parents.

In summary, the ‘Putting Children First’ report recommended the following:

1. That the government should appoint a Commissioner for Separated Families with responsibility for improving outcomes for children experiencing parental
2. That family law professionals should send their separating parent clients a newly developed letter signed by the Children’s Commissioner for England, Dame Rachael de Souza, to encourage them to put children’s welfare top of their agenda during the process of separation and going This letter encourages parents to put their children’s needs first and to avoid parental conflict and court hearings.
3. That family lawyers should adopt and be responsible for a conflict resolution approach rather than adopting an adversarial approach to family separation and should consider the voice of the child beyond their direct contractual obligation to the parents when advising
4. That professionals working with separated families should undertake appropriate training in how to reduce conflict and best support separating The suggestion has been made for a Family Solutions “Kitemark” to be developed to ensure that the public can be confident that the person on whom they are relying for professional advice has received such training, which could come under the oversight of the new Commissioner for Separated Families.

Although there is a duty on family lawyers to provide clients with full details of out-of-court processes and to try to help clients to reduce conflict generally, particularly where children are involved, this report firmly puts a duty on family lawyers to consider how the children of separating parents can be heard. This is generally covered when parents are in mediation, but even then there can be some unwillingness by parents to agree that a child can be seen by the mediator (so long as the mediator holds the necessary additional qualification to see children in mediation) or by a specially child-inclusive trained mediator.

How child-inclusive mediation works

There has long been provision for children to have a voice if parents are in the court system (children can be seen by a court-appointed social worker) and in mediation by a child-inclusive mediator. However, the report casts some light on those children whose parents have not adopted either of those processes. Child-inclusive mediators can be used to facilitate a child having a voice where the parents are dealing with arrangements between them or with the help of solicitors. The FSG report sets out how those children, whose parents are represented by solicitors, can be seen by a child-inclusive mediator. Whichever process is being adopted, the voice of the child is an important consideration.

When a mediator speaks with children, the focus is entirely on letting the child have an opportunity to have a voice; the focus is not on shifting the decision-making responsibilities onto the child. It is simply a “relaxed chat” to see what life is like for the children at that time, given the changes in family circumstances.

After a child has spoken to the mediator and if the child agrees, feedback is given to the parents. The child then clearly understands that their voice is important to their parents and that the family is being considered as a whole. The child is not seen with the parents and whatever the child says is only fed back to the parents if the child agrees that that is alright for the mediator to do that.

The Family Mediation Council code requires that all children aged 10 and above should be offered the opportunity to have their voices heard in mediation, but younger children can also be included in mediation if the parents agree.

There is no written report recording the conversation that the child has had with the mediator; the mediator simply feeds back to the parents in a meeting with them. The mediator prepares the parents as to their expectations from the process and parents should be prepared for the fact that children may not say much or not agree to anything being fed back to them and may not say anything that will necessarily help in their decision-making. However, these informal chats with children can highlight some important issues which might seem small to the parents but could be hugely significant to the children. Feeding that back, when the child might otherwise not have said anything directly to their parents, could be massively beneficial in how decisions are reached. Apart from anything else, the children feel like they have had an opportunity to say whatever they wanted to say and that can only be a good thing. Parents might think that their children are “fine”, but how do they really know that?

Going forward, the onus must be on everyone to put children first, as the report says. Family lawyers and parents must ensure that children’s voices are heard outside of a court process, as a matter of standard practice, unless there are exceptional circumstances as to why this should not happen.

For further information on family law and family mediation issues, please contact Family & Matrimonial partners and mediators Emma Harte or Rachel Lemon.