The purpose of this assignment is to highlight the position of children involved in parental separation disputes. Within this essay, I will include the rationale for this project, with a background of my experience gained as a Court Children’s Officer. I will also identify aims which will seek to critically analyse the role of the child during parental separation, and compare and contrast their role in both public and private legal proceedings. I will attempt to provide an analytical literature review of Northern Ireland, UK and International literature, which will demonstrate historical, psychological, sociological, legislative and policy perspectives of including or excluding the child during parental separation. I will then proceed to provide service user and service provider perspectives, with a critical basis for recommendations for future practice. Throughout my assignment I will endeavour to incorporate my learning to demonstrate anti-discriminative and anti-oppressive practice, and how these can be challenged to enhance the service further.
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Introduction:
Evidence based practice (EBP) refers to using evidence from research to indicate the effectiveness of an outcome (Davies, 2008). It is a controversial topic which notes that professionals should only intervene in people’s lives when they can bring about change, without causing adverse consequences. EBP indicates an approach to decision-making which is accountable and based on best evidence (Davies, 2008). Within my own experience, EBP was important for refining my knowledge and practice so that the service user was provided with appropriate support for their individual needs. I used EBP to carry out research to determine what evidence supported or rejected the inclusion of children during family break down.
My experience for this Evidenced Based Project was gained as a Court Children’s Officer (CCO), based at the Belfast Family Proceedings Court. This is a relatively new service provided by the Belfast Health and Social Care Trust to help courts resolve family issues, such as residence and contact for the child. There are currently seven small Court Children’s Teams working throughout Northern Ireland. As a CCO, my role was to deal with cases where assistance was needed to help parties agree on the needs of their children, as opposed to continuing the incriminations as to who was responsible for the breakdown of their relationship, through private law proceedings. I was only permitted to be involved with a case, and ascertain the wishes and feelings of the child, if a court direction was issued.
Background and Rationale:
It is estimated that over one half (53%) of children in the UK will experience parental divorce before they are aged 16, with two thirds of them under age 11 (Office of National Statistics, 2007). In 2005, Northern Ireland’s rate of divorce was 2,363 (Northern Ireland Statistics and Research Agency, 2006). Of these 2005 divorce statistics, there were 2,052 children involved, under the age of 16. However, these statistics mask many more children who go through parental separation each year, and these are not formally recorded (www.rcpsych.ac.uk). It is well documented, within research, that some children can experience a range of complex problems socially, emotionally and economically before, during and after the breakdown of their parent’s relationship (Timms, 2003), and it is important to note that divorce and separation of parents can be a confusing and stressful time for children making them more vulnerable to psychological, emotional or financial short or long term difficulties (Timms, 2003). Numerous studies have reported on the consequences for children going through parental divorce or separation, yet the voice of the child has remained predominantly silent (Butler et al. 2003).
The Children (NI) Order 1995 brought together both public and private law proceedings relating to children in Northern Ireland, into an amalgamated order, but the processes for hearing the voice of the child still remain entirely contradictory. Article 3 (3) suggests that “the wishes and feelings of the child should be taken into account, with consideration of age and level of understanding”. To address this requirement children in public proceedings have separate legal representation, in the form of a solicitor, and guardian to ascertain their wishes and feelings, and present them in court. However, children involved in private law proceedings regarding residence and contact are not included in the proceedings. In private cases the emphasis of the court is to help the parties reach agreement; therefore, the child is reliant on the parents considering and protecting their interests. This is a debatable process which will be discussed below.
It is the child’s lack of ‘voice’ throughout parental separation and private law proceedings that has provided the rationale for this project.
Aims:
- This project will seek to examine a child’s needs through family breakdown.
- It will seek to critically examine the child’sright to participate in private law proceedings, and compare these with concerns.
- I will aim to address the debate of including or excluding children during private law proceedings.
- It will also seek to examine current gaps in support provision for children and young people involved in parental separation, and make recommendations to how these can be addressed.
- The project will consider the literature, which includes policy and legislation from Northern Ireland, the United Kingdom and Internationally.
The literature review below will aim to critically evaluate the perspectives of including or excluding the child in the processes of parental separation. I will use historical, psychological, sociological, legislative and policy perspectives to evaluate the need to include or exclude children. I will compare and contrast the pros and cons, including an analysis of the methods of child participation, with a summary of the findings.
Literature Review:
With the continuing rise of children experiencing parental separation in Northern Ireland, The United Kingdom and Internationally, it has facilitated the awareness of the child’s right to be heard and for their wishes and feelings to be considered. Promoting the child’s participation in decision-making during parental separation is a relatively recent event. Historically, children were viewed as needing protection from parental conflict, and lacked the capability to actively participate in family matters (Graham and Fitzgerald, 2005, cited in Birnbaum, 2009). It was assumed that, if children were not informed, they would be sheltered from the major emotional impact separation brought (Smart, 2002). I was also assumed that parents knew what was in their child’s best interests (Timms, 2003), and, therefore children’s views were represented by their parents.
Through child psychology and social science research, the importance of the child’s right to have their wishes and feelings considered has gained a greater significance (Lansdown, 2005), and more importantly, perspectives on the inclusion of children in parental separation disputes have been changing (Williams, 2006). Children are now being seen as having their own rights, rather than parental property (Lansdown, 2005). Psychological research has also increasingly indicated that not listening to children may be more detrimental to their well-being (Kelly, 2002), and that the meaningful participation of children in contact and residence disputes can actually shelter them from emotional hurt during a time when they are most vulnerable (Butler et al., 2003). Social science research also validates that the child’s participation in the processes of family breakdown can draw a parallel with their ability to adapt to a new family structure in the future (Butler et al., 2003), as well as gain power and control in a confusing and stressful time (Butler et al., 2003).
Research also indicates that young people themselves want to be heard through the legal process, as the outcome has a major effect on their lives (Cashmore and Parkinson, 2008). Adolescents, in particular, have expressed that they want to be involved in major decisions, and be able to make choices (Neale, 2002).
A child’s participation in the decision-making processes of parental divorce and separation can be largely diverse; direct or indirect. Children can voice their opinion and be involved in contact or residence arrangements that affect them, they can provide input into the development of services, or participate in the development of broader policy issues (Birnbaum, 2009).
Legislative and Policy Perspective:
It is evident in legislation within Northern Ireland, the UK and Internationally that children have theright to be heard. Article 12 of The United Nations Convention of the Rights of the Child (1989) stipulates “children have the right to express their opinions and have their opinions considered”. The Convention encourages adults to listen to the voice of children and involve them in decision-making. The Children (NI) Order 1995 (Article 3: 3), and The Children Act 2004 (Article 54) both stipulate the need for the “child’s wishes and feelings to be ascertained, and taken account of according to the child’s age and understanding” (http://www.opsi.gov.uk). Yet, despite legislation, research and social trends in Northern Ireland specifically, no single government policy or strategy has been developed to indicate how best to support the needs of children experiencing parental separation (Weatherall and Duffy, 2008). Certain apprehension, within legislation and policy, remains in respect of allowing children to participate in the decision-making process of parental separation. This apprehension is created by “attempts to balance the vulnerability of children, given their age and development, with their rights as individuals” (Smart, Wade and Neale, 1999: 152). There is also much debate about how children should be included – in which circumstances and in what way.
Argumentsfor the inclusion of children during parental separation:
Those who are in support of including children during times of parental separation claim a number of rights-based reasons. The most significant being that the child has a right to be included, according to theConvention on the Rights of the Child (1989), and a right to have their wishes and feelings ascertained (Children (NI) Order 1995). In addition to this, theory suggests that children should be seen as active participants in decision making and not as parental property to be controlled (Atwood, 2003). The United Nations Convention also suggests that children have the right to be respected and heard, and also indicates that they have a right to full access of social, economic, and civil rights that are given to everyone else (Birnbaum, 2009).
Secondly, and perhaps most significantly, those in support of including children explain that children want to be involved in decision-making during parental separation, as it affects their lives (Cashmore and Parkinson, 2008). Children understand the difference of providing input and reaching the final decision (Kelly, 2002). Smith (2007) states that by being open and honest with children, and allowing them to participate in separation processes translates into better communication and respectful listening. Research also suggests that children themselves rate their participation as important when it comes to family issues (Taylor, Smith and Nairn, 2001).
Thirdly, from a policy perspective, children’s participation is linked with a wider form of social inclusion. Namely, policies, services and programs are more effective if children are included in their design, planning, delivery and implementation (Lansdown, 2005). Smart, Neale and Wade (2001: 269) suggest that “family policy issues must include children’s viewpoints if children are to be treated ethically” and respectfully. Jameson and Gilbert (2000) claim that children’s views should be incorporated into policy development, as it impacts directly on them. Without doing this decision-makers cannot benefit from children’s perspectives or suggestions about how to resolve the problem. The same argument can be made about the inclusion or exclusion of the child during parental separation.
Through a legal and legislative point of view, some have argued that the inclusion of children during private law proceedings can help parents to focus on their children, as opposed to the adversarial ‘blame’ role. “Focusing on the needs of children early in the process of parental law proceedings can reduce both the intensity and duration of conflict” (McIntosh, 2003: 232). Goldson (2006) also suggests that focusing on the needs of the children may enhance communication between parents, as it helps them identify common ground. Gray (2002) has also indicated that the child’s participation in private law proceedings can facilitate understanding their own wants and needs, and can help develop advocacy skills regarding communication and negotiation within the family. Williams (2006: 158) also suggests that “by including the child in decisions about parental separation can enhance their sense of self-esteem and control, thereby enhancing their resiliency”.
Argumentsagainst the inclusion of children during parental separation:
As mentioned above, there are firmly held viewpoints about children being involved in the decision-making process of their parent’s separation, however, there are a similar number of arguments against the inclusion of children.
Firstly, from a rights-based understanding, researchers mention some concerns when adhering to children’s rights. Atwood (2003) argues that a balance needs to be found between protecting children from emotional harm and protecting their rights and Guggenheim (2003) expresses that there is a certain price associated with providing children with rights; he indicates that rights are relational. He claims that “if children have a right then someone else has a duty and children’s legal rights are always in the hands of adults” (Birnbaum, 2009).
Secondly, concerns have been expressed by those who ascertain the wishes and feelings of children. Mediators suggest that children can often be manipulated by a parent, and can take sides accordingly during contact and residence disputes, creating stress and worry for children (Saposnek, 2004). Parental Alienation Syndrome (PAS) is becoming increasingly significant also – this is described as the child expressing unjustified hatred for one parent due to the influence (direct or indirect) of the other parent, which does not benefit the child.
Garrity and Baris (1994) argue that involving children in parental disputes can also lead the child to tell each parent what they want to hear, which has no benefit to the child. The child is then seen as wanting to please both parties, rather that choose between them, which again has no benefit. Another concern in the debate of including children in disputes is that the child may not want to become involved for fear of feeling responsible for the outcome, and causing hurt to their parent. Furthermore, some children withhold theirtrue feelings as they fear their parents may get upset with what they say, and therefore should not be placed in such a position (Brown, 1996),.
Thirdly, research conducted by Kelly (2003) and Saposnek (2004) indicates that not all children essentially want or need their voice to be heard. They point out that unless a child specifically makes a request to voice their opinion, there is no reason to do so. Research reported from McIntosh (2007) also claims that children would not benefit from being included in the separation process in certain circumstances – where there is high conflict between the parents, including previous allegations of domestic violence, or mental health issues. This is due to the power and control issues one parent may have over the other, or the child.
Involving the child;
Mediation:
Mediation has been used for decades as an alternative to court processes, in separation and divorce proceedings (Folberg, Milne and Salem, 2004). Mediation provides parties with an alternative to the traditional adversarial approach, by introducing a neutral third-party to assist in reaching agreement about the child(ren) (Birnbaum, 2009). Children are therefore more likely to benefit emotionally and socially from parental cooperation. However, children’s involvement in the mediation process is relatively new (Austin, Jaffe, and Hurley, 1991). A child’s participation in mediation varies from country to country. Saposnek (2004) indicates that children’s direct participation in mediation only occurred in 4%-47% of cases across public and private sectors, in the United Kingdom, the US and Australia. This illustrates that despite adults finding an advantage to mediation, children continue to remain the silent majority, with their parents making decisions. It can therefore be understood that this may leave the child feeling powerless, and disempowered by the process (Birnbaum, 2009).
The differing attitudes over whether to incorporate children in mediation are similar to those who debate on the overall process of including children in divorce and separation decisions – the child right’s versus shielding them from emotional harm (Elrod, 2007).
The Child and Legal Proceedings:
As mentioned above, within Northern Ireland there are contradictory principles on the inclusion of children in the public and private legal systems. Children within public law proceedings have a guardian and a separate legal representative to advocate on their behalf in court, but children within private law proceedings are not contributors to the process and have no direct involvement (Timms, 2003). “Northern Ireland stands apart from the United Kingdom for having no legislative provision for the separate representation of children in specific private law proceedings” (COAC, 2005b cited in Weatherall and Duffy, 2008: 279). According to Weatherall and Duffy (2008: 279) this is interesting considering there were “2,186 Children Order applications brought to Court between January and June 2007, of which 1,925 were private law cases and only 261 were public law cases” and public law children were represented separately.
The concerns about children becoming involved in private law proceedings originate from the Human Rights Act 1998 (Article 8) which states that an adherence is needed in respect for private and family life, with minimal state intervention, unless deemednecessary for the protection of others. However, Timms (2003) argues that due to the number of children involved in private law proceedings, compared to public law proceedings, there needs to be a balance found between minimal state intervention and the protection of vulnerable children. Some researchers suggest that children’s voices are being silenced by traditional reluctance to interfere in private and family life, causing concern that some children are being forced to remain quiet in situations of violence, neglect or child abuse, due to a lack of appropriate representation (Radford et al, 1999 cited in Weatherall and Duffy, 2008).
The differentiation between public and private law proceedings is not recognised in other countries, such as Scotland, Canada, and Australia with children being seen as having independent rights with an important emphasis placed on having their wishes and feelings ascertained, in legal separation disputes (Timms et al., 2007). This is worth considering in order to examine the effectiveness of our court processes compared to other systems.
Child and Parental Perspective:
As a Court Children’s Officer (social worker) based in Belfast Family Proceedings Court I had a range of experience working with parents and children during private law proceedings. My role was to adhere to the Children (NI) Order 1995 to provide Article 4 reports to the court, when directed to do so. This was to provide the court with any welfare concerns for the child and/or the child’s wishes and feelings having contact or residing with a parent. To provide Article 4 reports the Court Children’s Team first had to receive a court direction to do so, and not all cases requested the CCO to ascertain the child’s wishes and feelings separately from the parents. Other roles, through a court direction, included parental conciliation, mediation, and contact observation for the welfare of the child. In cases where there had been previous social services involvement, the article 4 request was transferred to the appropriate social work team in Belfast for further involvement.
Through working with children and parents through the court process I was able to ascertain their perspectives on separation disputes and court processes.
Child E (14), who had recently moved in with his father, following the separation of his parents, stipulated that he did not understand the court process and would like someone to explain how it would affect him. He continually requested that he wanted limited contact with his mother (maximum two days per week), due to frequent arguments, yet the court continually directed more contact with his mother, and he could not understand why. I feel through this case and others that children are not being listened to, despite their wishes and feelings being ascertained.
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Child G (12) expressed that he was told “not to interfere” by his parents, as they had already came to an agreement about contact arrangements. The child articulated that he was concerned about the arrangements, as he wanted to take part in other activities on the same days, with his friends. This is cause for concern as contact arrangements in this case suited the interests of the parents, as opposed to the child. This created anxiety for the child, and as a result the child refused to attend contact, so the case returned to court.
The above cases represent just two of the children I had the privilege of working with during my practice placement, but both represent, the need for the child to be involved in court proceedings and listened to when they express their wishes.
Parents, however, display relief and satisfaction with the court children’s team involvement in private law disputes. This is due to a neutral third party mediating between parties to discuss unresolved issues. Many parents have expressed thankfulness for the service, as it helped them to focus on their children, as opposed to “hear say” about one another, from other people. Thankfully, then, many parents do begin to work together to consider their child’s needs, without the continual intervention of a CCO, or constant court proceedings.
When asking parents how they would improve the service, most claimed they would like continuous mediation, and the opportunity to discuss issues of separation as an ongoing process, with a neutral third party.
When gaining child feedback about speaking with me as a CCO, Child G expressed that it was nice to have someone to listen to whathe wanted.
Service Provider Perspective:
Through the help of my manager and research conducted for this project, I have identified criticisms and gaps in the court children’s service, and provided recommendations on how these can be addressed, to better facilitate service users;
1.Time restraints for involvement due to the court process – In my experience, the CCO service had limited time to gather appropriate information about the families involved. Weatherall and Duffy (2008: 287) explain that “the danger for Article 4 work is that the meaningful engagement that promotes cooperation for full assessment and therapeutic potential is encroached by time pressures.” This then provides difficulties in building a relationship with a child and gaining their trust, to be able to express their wishes and feelings about contact or residence issues. Limited assessment of the child and family may also pose risks and potential significant oversights.
However, due to the “no delay” principle applied to the courts through the Children (NI) Order 1995, it may not be feasible to carry out lengthy assessments that may delay proceedings.
Recommendation 1: What is necessary is that decisions for children are reached through appropriate information gathering and careful consideration. A child should be assessed appropriately, but if support services are needed, CCO’s should be permitted to make referrals to other organisations.
2.The majority of the court children’s officer’s time is spent with parents – In my experience, the central role of the CCO was to mediate and conciliate between parties to help reach agreement about the child. It is assumed that by helping the parties agree, will therefore benefit the child as less conflict will occur, through better cooperation for contact arrangements. However, this leaves a critique to be made in respect of “acting in the child’s best interests”, or on the agenda of the parents (Weatherall and Duffy, 2008). Child oppression can therefore be implied, if the child’s feelings are assumed on the basis of their parent’s point of view.
Recommendation 2: Children should be given the opportunity to take part in mediation. All children involved in private law proceedings should be given the opportunity to have a third party involved to represent their wishes and feelings.
3.The consideration of the welfare of all children involved in private legal proceedings – Only a minority of children are involved with the court welfare service, as it is directed by the court. This indicates that the majority of children are not involved, and remain silent through their parent’s decisions. This poses two significant risks to these children;
a) Social service safeguards are not implemented to assess child welfare – i.e. to indicate previous instances of domestic violence, child abuse or neglect, in order to protect the child. “Domestic violence is present in 50% of cases whichrequire Article 4 reports” (Timms, 2003: 165) and safety needs to be addressed for children during contact.
b) The child remains powerless and oppressed by not being involved in decisions made about them.
Recommendation 3: Children through private legal proceedings should have the right to separate legal representation by a third party, to ensure their needs, wishes and feelings are being met, and welfare is protected.
Recommendation 4: Social services should carry out checks to ensure no previous cases of child abuse or domestic violence have occurred, when the welfare of the child is questioned.
4.Lack of support services available to children following parental separation – Through my own experience it is evident that any work completed with the child is for the production of an Article 4 report. This lack of time provision and nature of involvement does not supply the child with any level of intervention or understanding of parental separation. Weatherall and Duffy (2008: 288) express that “in light of research findings indicating the short-term and long-term effects of parental separation on children, it is concerning that the need for therapeutic services is seldom considered” in private law proceedings.
Recommendation 5: Provide children and families with the opportunity to seek therapeutic support services, further mediation, and person centred work for parental separation. The Court Children’s Team could have the opportunity to provide these provisions with a further expansion of the service.
5.Public Law versus Private Law:As highlighted above, the Children (NI) Order 1995 amalgamated public and private legislation in relation to children, yet the processes for listening to the child still remain entirely contradictory. Children are separately represented in public law cases, despite fewer children being involved; therefore, children involved in private proceedings do not have the same rights as their counterparts, in terms of representation or service provision (Weatherall and Duffy, 2008).
Recommendation 6: The conflicting rights of the child through public and private law should be addressed. Children should have equal rights to represent their views. In Northern Ireland specifically, I would recommend government policy development, and further social service provision to protect vulnerable children in private law proceedings.
Recommendation 7: Involve children as participants in private law proceedings, as opposed to them remaining silent in the majority of cases. This would promote ethical practice, partnership and anti-oppressive procedures.
Conclusion
What I have tried to identify within this Evidence Based Project is to highlight that children’s voices are an important aspect in the separation process between parents. This is evidenced from practitioners and experts through legislation, policy, and research. Regardless ofhow children’s wishes and feelings are ascertained, what remains important is that childrenare acknowledged and listened to. This is not only good, ethical practice, but also helps to promote anti-oppressive practice and partnership with the child. The debate between researchers regarding children’s inclusion continues, but what should remain important is that parents are further encouraged to have better relationships, and helped to focus on what is important – the needs of their children throughout the process of separation.
The Children (NI) Order 1995 merged public and private law, but what seems to remain is its conflicting views of children. In Northern Ireland there are approximately two thousand children every year who are unrepresented through private law proceedings. To provide them with separate representation, from that of their parents, would offer an independent person to represent their feelings, not only acting in the child’s best interests, but addressing some of theConvention’s rights of the child.The differentiation between public and private law only seems to be evident in the United Kingdom and Northern Ireland, so perhaps conducting research into international successes is what is needed to gain consistency locally.
Throughout this project I have identified that not only does research, policy and legislation support the inclusion of children, children themselves express to be involved in the processes. In Northern Ireland there seems to be a lack of consistency in children’s law, and there is no current policy that seems to be addressing the needs of children suffering family breakdown. This needs to be tackled multi-disciplinarily if we are to protect and support children. The Court Children’s Service could address some of the children’s needs, if the service was expanded, and provided with new policy and legislation
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