Child Participation: Overcoming Disparity between New Zealand's Family Court and Out-of-court Dispute Resolution Processes
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THE INTERNATIONAL
JOURNAL OF
CHILDREN’S RIGHTS
international journal of children’s rights
25 (2017) 658-671
brill.com/chil
Child Participation: Overcoming Disparity between
New Zealand’s Family Court and Out-of-court
Dispute Resolution Processes
Nicola Taylor
Children’s Issues Centre, University of Otago, New Zealand
nicola.taylor@otago.ac.nz
Abstract
This article considers children’s right to participate in the context of private law
disputes concerning their post-separation, day-to-day care and contact arrange-
ments. In New Zealand the approach to ascertaining children’s views has been both
long-standing and systematic for contested proceedings within the Family Court (via
children’s legal representatives and judicial meetings with children). However, major
reform of the family justice system in 2014 shifted the emphasis to new out-of-court
processes for resolving post-separation parenting arrangements. The reforms were
disappointingly silent on the issue of children’s participation in the new Family Dis-
pute Resolution services, particularly mediation. A disparity has thus arisen between
opportunities for children’s engagement in New Zealand’s in-court and out-of-court
dispute resolution processes. Research evidence and international developments in
Australia and E ngland and Wales are reviewed for the guidance they can offer in rem-
edying this in New Zealand and elsewhere.
Keywords
child participation – child-inclusive mediation – family dispute resolution – uncrc
Article 12
Introduction
Article 12 of the United Nations Convention on the Rights of the Child
(uncrc) 1989 articulates a fundamental aspect of children’s participation
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rights by assuring children of the right to express their views in any judicial
and a dministrative proceedings affecting them. This right to participate has
become an internationally significant mandate in many jurisdictions, particu-
larly in the context of private law proceedings concerning post-separation dis-
putes over the care of children (Taylor et al., 2012). The General Comment on
Article 12 by the un Committee on the Rights of the Child (2009) recognises the
obligation to implement the right of participation in this context: ‘… all legisla-
tion on separation and divorce has to include the right of the child to be heard
by decision makers and in mediation processes’ (para. 52). When parents are
living separately and a decision must be made regarding their children’s place
of residence, Article 9(2) of the uncrc specifies ‘all interested parties shall be
given an opportunity to participate in the proceedings and make their views
known’. The phrase “all interested parties” is taken to include children them-
selves (Melton, 2006).
New Zealand’s commitment to ascertaining children’s views in private law
disputes pre-dates the uncrc, but only in respect of those cases where the
separated/divorced parents require a determination from the Family Court
to resolve their children’s future care arrangements (Taylor, 2005). Children’s
right to participate in out-of-court dispute resolution processes has never been
emphatically embraced and has led to a curious disparity emerging between
opportunities for children to express their views depending on whether their
parents’ dispute is in the judicial or mediation arena. Recent extensive reform
of New Zealand’s family law system in 2014, to shift the focus away from the
Family Court and onto out-of-court mediation, means it has become rather
more urgent to address this imbalance and to respect the right of all children
to express their views whether their day-to-day care and contact arrangements
are being made by parental agreement or court order.
This article examines New Zealand’s approach to ascertaining children’s
views, both in-court and out-of-court, and the challenges ahead in overcoming
the disparity evident in these two contexts in fully complying with Articles 12
and 9(2). Research evidence and international developments in Australia and
England and Wales regarding children’s right to participate are looked to for
guidance.
1 Child Participation in the New Zealand Family Court
The Family Court, established in 1981, was required to ascertain the child’s wish-
es if the child was able to express them and to take them into account to such
extent as the Court thought fit, ‘having regard to the age and maturity of the
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child’ (s. 23(2), Guardianship Act 1968). However, New Zealand’s ratification of
the uncrc in 1993 and the growing body of research and theory on children’s
participation (Taylor, 2005, 2006), subsequently led to a more expansive statu-
tory provision being introduced when the Care of Children Act 2004 replaced
the Guardianship Act in July 2005:
In proceedings involving the guardianship of, or the role of providing day-
to-day care for, or contact with, a child; … a child must be given reason-
able opportunities to express views on matters affecting the child; and
any views the child expresses (either directly or through a representative)
must be taken into account.
S. 6, care of children act 2004
The traditional “age and maturity” criteria were dispensed with, the broader
concept of “views” replaced “wishes”, and the Court now had to take any of
the child’s expressed views into account regardless of the age of the child. Two
mechanisms have primarily been used to ascertain children’s views within
Family Court proceedings: via the lawyer appointed by the Court to represent
the child and by judges meeting directly with children, usually in their cham-
bers, with the child’s lawyer present (Taylor and Caldwell, 2013).
2 New Zealand Family Justice Reforms 2014
On 31 March 2014 New Zealand’s family justice system was significantly re-
formed to shift the focus away from the Family Court and onto new out-of-court
Family Dispute Resolution services. These reforms (Family Dispute Resolution
Act and Regulations 2013), based on a review of the Family Court undertaken
by the Ministry of Justice from 2011–2014, marked the most significant changes
to New Zealand’s family justice system since the Family Court’s establishment.
The review had identified that the Court’s processes were complex, uncertain
and too slow; there was a lack of focus on children and vulnerable people; and
insufficient support for resolving parenting issues out-of-court (Office of the
Minister of Justice, 2012). There was also considerable concern about the cost
to the taxpayer of running the Family Court. This had increased 70 per cent in
the six years to 2012, from $84 million to $142 million per year, despite the over-
all number of applications to the Court remaining relatively steady. The rise in
the cost of Lawyer for Child appointments since the Care of Children Act 2004
took effect contributed to some of this criticism.
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The 2014 reforms largely focus on parenting matters, which accounted for
about 40 per cent of applications to the Family Court, and include issues relat-
ing to children’s post-separation care arrangements like day-to-day care and
contact. They aim to reduce the stress on families and children by avoiding,
wherever possible, the delays, conflict and expense that Court proceedings can
entail. Parliament wanted the Family Court to be regarded as part of a wider
family justice system that placed more emphasis on people sorting out dis-
putes about caring for children through access to faster and less acrimonious
out-of-court dispute resolution services.
The reforms made participation in Parenting Through Separation (pts)
mandatory as a first step in the dispute resolution process. This free, four-
hour course provides information for parents on the effects of separation
on children and how to make a parenting plan. Low-income parents eligible
for out-of-court support can now also access (a) up to four hours of free legal
advice through the Family Legal Advice Service, and (b) up to three hours of
counselling/coaching to help prepare them for mediation. The cornerstone
of the reforms involved introduction of a new Family Dispute Resolution
(fdr) mediation service for resolving parenting and guardianship m atters
out-of-court. An approved fdr provider (a mediator) assists separated par-
ents to identify the issues in dispute, facilitates discussion, and helps them
to reach an agreement that focuses on the needs of their children. fdr is
mandatory for most parties prior to commencing Care of Children Act 2004
proceedings. However, in cases where it is inappropriate (such as urgent
proceedings, where there are safety risks or a significant power imbalance),
then the parties can bypass mediation and go directly to the Family Court
on the ‘without notice’ track. The cost of fdr is nz$897.00, but this is fully
subsidised for participants who meet the eligibility test for out-of-court
support.
2.1 Child-inclusion in the New Out-of-court fdr Services
Whilst the 2014 reforms did not amend section 6 of the Care of Children Act
2004, they did constrain the appointment of children’s legal representatives
for in-court proceedings and they remained silent on the issue of children’s
participation in the new out-of-court fdr processes. Neither was an infor-
mation or support programme made available for children, like the free pts
course was for parents. Instead, the focus was on informing parents and assist-
ing them, through a range of new or expanded out-of-court services, to under-
stand better the impact of parental separation on children and to resolve their
parenting arrangements more co-operatively:
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Effective pre-court processes can reduce the number of cases coming to
the court by encouraging people to focus on the needs of their children
and on taking ownership of the agreement. This can improve outcomes
for children by reducing the likelihood of heightened conflict that often
results from litigation.
general policy statement, family court proceedings reform bill,
2012: 3
In many respects this lack of opportunity for children’s participation was no
different to what had occurred prior to the 2014 reforms (Goldson and Taylor,
2009). New Zealand never had a systematic means of engaging children di-
rectly in the six free sessions of Family Court counselling previously on offer
to, and widely used by, separated couples to reach agreement on children’s
day-to-day care and contact arrangements. Just one small-scale pilot project
with 17 families (34 parents and 26 children aged 6–18 years) had enquired
into the effectiveness of a child-inclusive model (Goldson, 2006). In this study
the counsellor/mediator working with the parents met with the children sepa-
rately, reported their views back to their parents, and then held a final joint
meeting with the parents and children together. Both the parents and the chil-
dren reported high levels of satisfaction with this process. The children wanted
to be informed, have a say and be heard; liked the improved communication
within their family; and were much less anxious about the emotional and prac-
tical aspects of their parents’ separation. The parents’ reported a heightened
awareness of the effect of their conflict on their children; recognised their chil-
dren’s need for parental co-operation; and said the child-inclusive process had
enhanced their ability to reach a co-parenting agreement.
In 2008 there was a glimmer of hope that children’s participation in coun-
selling and mediation might occur when the Family Court Matters legislation
was passed, but this was never implemented due to the impact of the global
financial crisis on family justice resourcing. The number of counselling ses-
sions for parents was subsequently reduced in anticipation of the reforms and
disbanded when they took effect.
The longstanding use of judicial mediation within the Family Court had
also stymied opportunities for the growth of mediation services in the fam-
ily law field, other than in the private sector. This was initially redressed by
the Family Mediation Pilot Project in four Family Court districts (March
2005–June 2006) that opened up mediation to professionally accredited fam-
ily mediators. The Guidelines for Mediators expected that children would be
represented by Lawyer for Child at all the mediations and that children might
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also be present at many mediations. However, the evaluation of the 380 cases
referred to a mediator found that children only attended 13 mediations (6 per
cent) for at least some of the time (Barwick and Gray, 2007). The pilot was
not extended nationally, but the Principal Family Court Judge implemented
the National Early Intervention Process (neip) in 2010 to allow the Family
Court to appoint lawyers as mediators in parenting disputes (Boshier et al.,
2011). While this again broadened the range of mediators beyond Family Court
judges, the enterprising use of the available funding enabled only lawyers
to be paid for this mediation service. This proved unpopular with non-legal
mediators and contributed to the highly criticised rising cost of the Family
Court. It was also rare for a child to be consulted as part of the neip mediation
process.
So it took the 2014 reforms systematically to herald the widespread intro-
duction of fdr mediation in New Zealand by accredited family mediators with
a diverse range of backgrounds (including law, psychology, social work and
counselling). However, many lack the experience and skills to engage directly
with children in this context. In the absence of a legislative or policy mandate
around child-inclusion, or even a set of national guidelines, it has been pretty
much left to the three main fdr supplier organisations (who are responsible
for the fdr intake/screening/mediation processes) to determine how child-
inclusion might be more systematically offered on a national basis. Encour-
aging developments in this regard have recently occurred in response to the
Ministry of Justice’s implementation of a new fdr 12-hour Service model from
1 December 2016. This increased the hours and flexibility of the fdr process
in place since 31 March 2014, and included child participation (along with cul-
tural competency) as new areas of practice the Ministry identified as critical
to implement. Opportunities for children to have a voice within the fdr me-
diation process are now available (or will soon be launched) for those clients
seeking this or for those whom their mediators consider it might be benefi-
cial. Whilst this development is undoubtedly a step forward in addressing the
disparity between child-participatory in-court and out-of-court processes, it
already involves different models of practice emerging across each of the fdr
supplier organisations depending on their resources and philosophy regard-
ing child engagement. Some children see a child consultant who then passes
on relevant information via a report to the mediator, while others speak with
the mediator externally to the mediation and s/he then conveys the children’s
views and feelings to their parents in the next mediation session. In the private
mediation sector child-inclusive practice also occurs on occasions, but is only
reported anecdotally as it falls outside any official data collection procedures.
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3 International Developments
Whilst New Zealand has had a more robust approach to child participation in
in-court proceedings, it is other jurisdictions such as Australia and England
and Wales that have led the way in the out-of-court context.
3.1 Australia
It was an Australian study that kick-started the evidence base for child-inclu-
sive mediation internationally (McIntosh, 2007). McIntosh and Long (2006)
compared the use of Child-focused (cf) and Child-informed (ci) models in
a 2004–2005 study with 169 families at Relationships Australia in Canberra,
Melbourne and Adelaide. One year later, 141 of these families were followed
up (McIntosh et al., 2007). By the four-year follow-up there were 133 families
(199 parents and 139 children) (McIntosh et al., 2009). In the ci model children
were seen separately by a developmental specialist (child consultant) who lat-
er met with the parents and their mediator to discuss the child’s experiences
and developmental needs, and how the dispute resolution process might best
support these. In contrast, the cf model aimed to educate parents about their
children’s needs, but did not include consultation with the child. ci media-
tion was found to have much greater benefits than cf mediation (McIntosh
et al., 2009). Children liked speaking with someone outside their family; high
conflict parents felt supported and relieved their child could discuss their feel-
ings; 50 per cent of the parents (mostly fathers) attributed a subsequent direct
change in their behaviour to their child’s feedback (including withdrawing
from a litigation pathway); there was greater stability and satisfaction with the
children’s living and contact arrangements; and the process had helped to ad-
dress children’s therapeutic needs.
In 2009 an American randomised control trial commenced to test further
Jennifer McIntosh’s findings as to whether or not bringing the child’s perspec-
tive to mediation, motivated parents to create better agreements (Holtzworth-
Munroe et al., 2010). This collaborative study conducted by the psychology and
law departments at Indiana University randomly assigned divorcing parents
seeking mediation to either the Mediation-as-usual (mau) control condition
or to Child-focused (cf) or Child-inclusive (ci) mediation. In cf mediation the
parents were presented with general information about children and divorce,
whereas in ci mediation the child consultant interviewed the child, provided
feedback to the parents two weeks later with the mediator present, then im-
mediately left and the mediator negotiated with the parents. The findings for
the 47 cf and ci cases were combined and compared with the 22 mau cases at
the conclusion of mediation:
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The cf and ci interventions had a positive effect on mediation outcomes
relative to mau (e.g., parents were more likely to report learning some-
thing useful, and mediators wanted their cases to be cf and ci). Cases in
cf and ci reached comparable rates of agreement as cases in mau, but
cf and ci agreements included more parenting time for nonresidential
parents, and were more likely to include provisions for coparental com-
munication and provisions assumed to be better for child outcomes.
ballard et al., 2013: 271.
The research team subsequently examined the frequency of relitigation across
the three study conditions (mau vs. cf/ci; cf vs. ci), and explored associa-
tions between relitigation and content of the mediation agreements:
… parents assigned to mau in comparison with cf/ci, as well as cf
in comparison with ci, had more motions, hearings, and orders in the
year following the final resolution of mediation issues. The differences
between mau and cf/ci were small in magnitude and statistically non
significant trends; the differences between cf and ci were medium to
large in magnitude and statistically significant. Mediation agreements
that included aspirational language about coparental communication
and the parent–child relationship, provisions about communication be-
tween parents, and were rated as higher in facilitating the co-parental
relationship, and child-adjustment, were associated with less relitigation.
rudd et al., 2015: 452
Research developments aside, Australia also engaged in significant reform
of its family law system, in 2006, to implement out-of-court fdr mediation
and establish Family Relationship Centres across the country. The Australian
Family Law (Family Dispute Resolution Practitioners) Regulations 2008 subse-
quently took effect on 1 January 2009. It is possible to include children in fdr
and this is determined on a case-by-case basis in accordance with the age, ma-
turity and capacity of the child and depending on the circumstances of each
parental dispute. Child-inclusion only occurs if the fdr practitioner (or other
expert, like a child consultant) has the appropriate skills and training.
One small qualitative post-reform study in Sydney compared 14 parents in
mandatory fdr using ci mediation with 19 parents whose children were not
involved (Bell et al., 2013). Parents were generally positive about their child be-
ing seen by the child consultant, but ci mediation was not better in improving
the parental relationship or the likelihood of resolving the dispute. It could
create disappointment when raised expectations from ci were not fulfilled.
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3.2 England and Wales
In 2011 the Norgrove Report (Family Justice Review Panel, 2011) analysed
problems with the family law system in England and Wales and proposed
far-reaching reforms. The Government response (Ministry of Justice and De-
partment for Education, 2012) noted ‘the need to act’ (p. 6) and included as
one of its key principles of reform, ‘That both in public and private law cases
children must be given an opportunity to have their voices heard in the deci-
sions that affect them’ (p. 8). The Government further stated, in response to
the Norgrove Report’s specific recommendations on “the child’s voice”, that the
new Family Justice Board would be ‘asked to consider how children can best be
supported, including through a menu of options, to make their views known
and be taken into account in decisions that affect them’ (p. 35).
In June 2014 the Family Mediation Task Force recommended that options
to include children in family mediation needed to be urgently reviewed, im-
provements made to training, supervision and registration, and the current
practice model and standard, dating from 2002, needed updating (Family Me-
diation Task Force, 2014).
In July 2014 the Right Hon. Simon Hughes, the Minister of State for Justice
and Civil Liberties, announced the Government’s commitment to children
having a greater voice in the family justice system in both in-court and out-
of-court dispute resolution processes (Ministry of Justice, 2014). The Ministry
of Justice was tasked with working with the mediation sector to establish how
children and young people aged ten years and over could have appropriate ac-
cess to mediators assisting parents to resolve the children’s future care arrange-
ments. ‘The age of 10 has been used to be consistent with other existing policy
and practice in this country. It is the age of criminal responsibility for young
people in England and Wales’ (Ministry of Justice, 2015: 1). Children younger
than ten could also have this opportunity if they so wished.
Four months later, in November 2014, the Right Hon. Simon Hughes estab-
lished the Voice of the Child Dispute Resolution Advisory Group to consider
child-inclusive models for out-of-court dispute resolution, including family
mediation, as it relates to private law matters. Co-chaired by Professor Janet
Walker and Angela Lake-Carroll, the Advisory Group’s Final Report, with
34 recommendations in five main groups, was delivered to the Minister in
March 2015. This noted that evidence gathered by the Family Mediation Task
Force had revealed ‘that hearing children’s voices was a minority activity’
(Voice of the Child Dispute Resolution Advisory Group, 2015: 1); a finding
consistent with the evidence in other jurisdictions as well (Birnbaum and
Saini, 2012; Taylor, 2006). The Advisory Group produced one of the most
comprehensive, thoughtful and practical reports to ever tackle the complex-
ity and challenges of child-inclusive mediation. Their definition is notable
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for accommodating the purpose and diversity of practice in the out-of-court
context:
Child inclusive practice gives children and young people the opportunity
to have a conversation (verbal, written, through play or storytelling) with
professionals who are assisting their parents to make arrangements for
the children’s future. It enables consenting children and young people to
share their experiences of parental/family separation and express their
concerns and views, and for these to be sensitively considered with their
parents so that their developmental needs and concerns can be better
understood and taken into account within the dispute resolution process.
voice of the child dispute resolution advisory group, 2015: i–ii
Four models of practice were outlined. First, the parents’ mediator also talks
with the children and reports back to the parents (the dominant model in Eng-
land and Wales). Secondly, a co-mediator talks with the children and reports
back to the mediator and the parents. Thirdly, another professional experi-
enced in working with children talks with the children and reports back to
the mediator and the parents. Fourthly, the children participate in a workshop
with other children and their views are reported back to the parents via the
mediator. The Advisory Group stated that there is no single model of child-
inclusive practice. Rather, a range of approaches is needed and it is up to prac-
titioners to decide which model(s) they prefer to use. Whatever the model,
child-inclusive mediation should be a skilled intervention by a trained and
experienced practitioner and underpinned by appropriate support and super-
vision. It should be a voluntary process for the child or young person and not
just a one-off meeting. The Advisory Group noted that child-inclusion is both a
principle and a practice, and that considerable change is needed in the culture
and practice of mediation/fdr processes. It will take time for child participa-
tion to be the ‘normal starting point for practitioners’ (2015: ii). Implementing
new principles, practice guidelines/standards, competencies and protocols
will be an iterative process, with the goal of taking the child’s affect and well-
being into account to provide dispute resolution with a therapeutic outcome.
This enables the child’s experience to underpin the resolution and helps to
preserve, and hopefully enhance, the parental alliance as the cornerstone of
the child’s attachment and security going forward.
The Minister endorsed several of the Advisory Group’s recommendations
on 18 March 2015. He stated, in particular, that:
The principle of child inclusive practice and the adoption of a n
on-legal
presumption that all children and young people aged 10 and above should
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be offered the opportunity to have their voices heard during dispute reso-
lution processes, including mediation, if they wish.
the right hon. simon hughes, 2015: 2
4 Where to from Here?
New Zealand, like Australia, England and Wales, and other jurisdictions, has
thankfully moved beyond questioning whether children’s voices should be
heard in family dispute resolution processes. Research with children has con-
sistently highlighted that most feel inadequately informed about their parents’
separation and its implications for their lives, and they do want their views
taken into account by their parents and/or family justice professionals even if
they are not making the final decision (Birnbaum and Saini, 2012). This holds
true in both the in-court and out-of-court contexts, so opportunities for child-
inclusion in fdr is timely given the recent enthusiasm of the New Zealand,
Australian and British governments for reform of their family justice systems
to encourage the use of out-of-court mediation services by separated parents.
Scholarly attention has now turned to how best to engage directly with chil-
dren so as to enhance evidence-based practice in the field (Beckhouse, 2016;
Turoy-Smith and Powell, 2016). New Zealand finally has the opportunity to ap-
ply its considerable experience with children’s right to participate in contested
proceedings in the Family Court to its now three-year-old, out-of-court fdr
mediation service, and to reduce the disparity that exists between them. Opin-
ion remains mixed in New Zealand as to who ideally should meet with the
children in the out-of-court context (a child consultant or the mediator), how
the child’s views and feelings should then be incorporated in the mediation
session (by the child consultant and/or by the mediator), and whether or not
the children should ever meet together with their parents and the mediator.
However, there is unanimous agreement on the importance of child-inclusion
being a skilled intervention by a trained and experienced practitioner which-
ever model is used.
The Australian child-inclusive research and practice developments and the
England and Wales report of the Voice of the Child Dispute Resolution Advi-
sory Group (2015) can provide New Zealand, and other interested jurisdictions,
with guidance on the challenges and nuances of child-inclusion. These include
how best to achieve consensus on such issues as the purpose of child-inclusion
in the out-of-court context (merely consultative or therapeutic too); the roles
and core competencies of the mediator and child consultant; parental consent;
developmentally-safe ways of including children; confidentiality and privilege;
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safeguarding; the child’s capacity due to their age or where there are severe de-
velopmental or mental health issues and/or learning difficulties; payment for
child-inclusive services (user-pays or free); alignment of government-provided
fdr processes with the private mediation market; practice guidelines, stan-
dards and protocols; training, accreditation, support and supervision of child-
inclusive practitioners; and the terminology to be used to avoid the confusing
use of a multitude of current phrases – child-focused, child-inclusive, child-
informed, child-aware, child-centred, child-safe, child participation.
The Voice of the Child Dispute Resolution Advisory Group (2015) was right
to recommend that there should be no single model of child-inclusive practice.
Options that accommodate the needs of the child, the skills of the practitioner
and the authenticity of the mediation process for the parents are necessary. Of
concern in the New Zealand context is that the emergence of child-inclusive
mediation has occurred in the absence of an explicit national agenda. Leaving
service developments in the hands of each fdr supplier may encourage the
desired diversity in child-inclusive models on offer, but risks improvisations
that may not really be conducive to best practice internationally or adequately
respect children’s needs and Articles 12 and 9(2) rights. Child-inclusion is both
an art and a science. To truly harness its transformative power in realigning the
co-parental relationship, with the goal of achieving consensual and durable
parenting agreements, it needs to be so much more than a mere conversation
with a child to ascertain their views. Skillful developmental consultations with
children ascertaining their affect, well-being and views, followed by strategic
and therapeutic integration of this feedback with parents during the media-
tion process, will elevate our investment in child-inclusion to a more rigor-
ous level, maximise its potential benefit for adults and children alike, and help
validate the aspirations underpinning the family justice sector’s out-of-court
mandate.
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