Listening To Children's Views: The Findings And .

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Listening to children’s viewsThe findings and recommendations of recentresearchAnn 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.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. Joseph Rowntree Foundation 2000All rights reserved.Published for the Joseph Rowntree Foundation by YPSISBN 1 902633 70 9Prepared and printed by:York Publishing Services Ltd64 Hallfield RoadLayerthorpeYork YO31 7ZQTel: 01904 430033; Fax: 01904 430868; Website:

ContentsvSummarySECTION I1What do we know about the way that children’s views are represented at present?BackgroundWhy is it important to listen to children in family proceedings?Listening to children involved in family proceedings at presentMediation – are children listened to in the mediation process?Does the Statement of Arrangements form safeguard children’s interests?Family Assistance OrdersSolicitors and listening to childrenViolenceListening to children in public law proceedingsParents listening to childrenChildren speak out about being listened toSummarySECTION II21112566789101011More fectiveefrepresentationWhat do we know about how children’s views might be better represented under newarrangements?Enhancing the role of the court welfare officerSeparate legal representation of childrenAltering the Statement of Arrangements procedureUnified serviceMediationInformation meetings and parenting plansSummarySECTION III3The present situation1616171819192020Children’s viewsHow would children like to be involved, who would they like to talk to directly, whatare successful ways of doing this?Children are not used to being listened toWhy do adults have difficulties about listening to children?Children’s feelings about their experiences of talking to professionalsSome suggestions from research about the support services children might wantRespecting children’s agendasHow children would like to be involvedSuccessful ways of listening to childrenSummary232323242425272829

4Summary of the seminar on 5 July 1999Children’s rightsChildren’s right to informationListening to childrenSupporting children and familiesThe role of court welfare officers in listening to childrenThe role of solicitors in listening to childrenThe role of mediators in listening to childrenRepresentation of childrenStatement of ArrangementsParenting plansBroader cultural issuesSummary of ideas for promoting aphy44Appendix: Research summaries48

SummaryThis 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:1the present situation regarding therepresentation of children’s views inprivate law proceedings2the more effective representation ofchildren’s views under newarrangements;3children’s views on how they would liketo be involved.The present situationListening to children involved in familyproceedingsCourt welfare serviceCourt 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 oftenlose sight of the individuality of the child.MediationMost 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 formsafeguard 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.SolicitorsSolicitors are in a powerful position vis-à-vistheir 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 seev75

Listening to children’s viewschildren as potential manipulators and asvictims of manipulation by parents.ViolenceResearchers 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.counselling. Full consideration needs to begiven to the provision of any necessary furthertraining of practitioners.MediationThere were mixed views as to whether theincreasing importance of mediation could havepositive outcomes with regard to hearing thevoice of the child.More effective representationPossible ways of enhancing the role of theCWOCWOs 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 childrenThis 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 formThis 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 serviceA new unified welfare service should aim to fillin the gaps in present provision, notablychildren’s access to information andvi76Children’s viewsChildren’s experiences of talking toprofessionalsChildren 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 needChildren want: access to information in a nonstigmatising 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.

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 nonjudgemental, 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. 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 1999A 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. Good communication is more likely tooccur if adults see children’s abilities andcompetencies as being different fromrather than lesser than adults’.vii77

1 What do we know about the way thatchildren’s views are represented atpresent?BackgroundOn 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; Butleret 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 infamily 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 viewsinto 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 in1

Listening to children’s viewsfamily 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.2Very 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 familyproceedings at presentThe 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.5We do not know about the situation ofchildren involved in family breakdown wherethe parents are not married.Court welfare officersThe probation service has been responsible forwelfare reporting since the 1950s. Currentlythere are around 700 family CWOs, including 70

The present situationsenior 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 roleregarding 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 havea 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 roleregarding children as perceived by researchersSawyer’s research (Sawyer, 1999b)7Sawyer 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.3

Listening to children’s viewsThe 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.8Smart et al.’s research9Smart et al. conclude that children may feeldisempowered by the legal process because ofthe lack of confidentiality in their dealings withthe CWO, the way in wh

Children’s feelings about their experiences of talking to professionals 24 Some suggestions from research about the support services children might want 24 Respecting children’s agendas 25 How children would like to be involved 27 Successful ways of listening to children 28 Summary 29 . 4 Summary of the seminar on 5 July 1999 33 Children’s rights 33 Children’s right to information 34 .

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