Child inclusion as a principle and as evidence-based practice: Applications to family law services and related sectors

AFRC Issues No. 1 – July 2007

Section 1: The mandate for child inclusion

A fundamental shift has occurred in Australian dispute resolution practices, away from negotiation models founded in neutrality and empowerment and towards models that actively seek to facilitate the often unspoken developmental agendas of the children affected by the dispute. Instructed by the UN Convention on the Rights of the Child ("Children's Convention") and buoyed by evidence of the impacts of post-separation conflict on children, an ethical mandate emerged for dispute resolution services to promote the psychological adjustment of separated families, in addition to facilitating the legal resolution of their parenting disputes (Moloney & McIntosh, 2004).

Article 12 of the Children's Convention has been a driving force behind a move towards more thoughtful and thorough representation of children in legal matters that affect them. Article 12 states:

State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law.

An early dominant discourse in Australia unfolded, around the responsibilities of "hearing children", and listening to "the voices of children", which was of interest in a number of ways. It underscored the equity and respect with which children would now be regarded in this field. Yet, on another level, the language belied an element of naivety about "listening to children", and the complex nature of the work it entailed. In the ensuing years, policy and practice moved beyond the position that "we will listen to children's voices because it is their right to be heard and, therefore, we should", to a more nuanced position, formed on a meeting ground between psychology, human rights and family law. This is a position characterised by a different emphasis, along lines such as these:

We enable consenting children to share their experiences of family separation, and for this to be sensitively considered with their parents, such that both the child's natural expressions and their often unspoken developmental agenda may be better understood and responded to within the context of their familial attachments and within the context of the family law dispute that surrounds them.

In timely fashion, research fed a deepening psycho-legal collaboration with evidence about divorce impacts and about mitigating factors for child wellbeing. The field acknowledged the normative nature of conflict and emotional distress in post-divorce parenting (King & Heard, 1999), but took to heart the additional layer of risk posed for children embroiled in high-conflict disputes (McIntosh, 2003a). So began a focus on persistent conflict between spouses, both former and current, which so pervasively undermines the quality of parenting and parents' affective or emotional responses to children (Fincham, Grych & Osborne, 1994; Krishnakumar & Beuhler, 2000). A spillover of negative affect between parent and child was identified (Kerig, 2001), increasing the likelihood of harsh styles of discipline and negative parenting behaviours associated with several child outcomes, including poorer social awareness, poor self-awareness and social withdrawal (Kline, Johnston, & Tschann, 1991; Harrist & Ainslie, 1998). While policies and practices focused on fathers and the importance of paternal involvement, McIntosh and Long (2006) added evidence of the crucial nature of maternal emotional availability to children's outcomes in divorce.

With these warnings came epidemiological data indicating that, in Australia, dependent children of divorced parents were twice as likely (25% versus 12%) as children from never-separated families to develop mental health difficulties in childhood (manifested in behavioural and emotional disturbances) (Sawyer et al., 2000). Early figures indicate that up to 40% of children involved in Family Court of Australia matters develop substantial mental health symptoms during the course of their childhood (McIntosh, 2006). Such findings reflect multiple strains inherent in this population of separating parents, including mental health issues together with the stresses of protracted litigation (McIntosh, 2006).

On this empirical base, the active representation of children's psychological needs within family law matters has taken its position as a public health imperative. The combined influence of the Children's Convention and indications from empirical research on divorce impacts opened for further review the core responsibilities of the family law field, resulting in a system prepared to move beyond its legal legacy, and to adopt an ethical mandate to influence the psychology of family restructure (Moloney & McIntosh, 2004). This evolution in turn required better synthesis of legal and psychological knowledge bases (Lamb, 2006) and, in significant ways, this is being realised in Australia.

The importance of child-inclusive practice is increasingly seen across the echelons of family law dispute resolution, from the Child Support Agency to the mediation consulting room. Changes on the frontline are notable; newest to the field, the Family Relationship Centres aim for early education and intervention with parents, promoting developmental sensitivity in the outcomes of divorce mediation and aiming to shorten the potentially hazardous journey of children going through conflicted family separations. These new services still require significant and rigorous evaluation, but their genesis in empirical research and social justice principles has created a solid conceptual beginning. Telephone services for separating parents, such as Mensline Australia and the Family Relationships Advice Line, now undertake to consider the child as a hidden client and, in their conversations with aggrieved parents, the telephone counsellors support parents to consider their child's experience of the conflict, often creating within the parent the motivation to better manage their dispute. At the highest end of the conflict spectrum, the Family Court of Australia has re-created much of its process, seeking to contain the psychological burden of an adversarial process for the children of parents already in bitter emotional dispute (McIntosh, 2006; McIntosh & Long 2006).

Research foundations for child inclusion

Beyond the reasons for "hearing children" and, moreover, enabling parents to hear their children, the clinical aims of child inclusion have also emerged from an evidence base about the predictors of children's adjustment to family trauma.

The role of parenting style and emotional responsiveness

The research literature suggests that two properties of parental presence are important to children's capacities to manage parental conflict and transition. At the psychological level, parental attunement is a concept upheld across the attachment and divorce literature as the cornerstone of a child's security, in the face of all manner of trauma. At the behavioural level, sensitivity of parental response is the manifest expression of parent's attunement to their children's needs and experiences.

Parental attunement or, more specifically, parental reflective function, refers to a parent's capacity to take their child's perspective. Parental reflective function is a crucial human capacity that is intrinsic to the regulation of affect and to productive social relationships. It is the clarity and accuracy of the parent's reflection on his or her own internal emotional states and ability to differentiate and process the child's internal states that lead to security for the child in his or her attachment relationships and sense of self (Slade, 2005).

"Secure base parents" refers to parents who, despite their own current experiences, have the capacity to experience, hold and regulate emotion, for both themselves and their children. Their children need make only minor adaptations to their own internal experiences. These children do not have to modify what they feel in order for the parent to better cope (McIntosh, 2005). As Marvin, Cooper, Hoffman, and Powell (2002) describe, major and ongoing derailments of parental reflection and sensitive response to children are powerfully disruptive to a child's development.

Evidence-based targets of a child-inclusive model

The child-inclusive interventions described in this paper are designed to target known risk and mitigating factors in children's wellbeing, in pre- and post-separation parental conflict:

  1. the risks inherent in divorce itself (Amato, 2006);
  2. the compounding nature of interparental conflict surrounding separation (Cummings & Davies, 2002; Kelly & Emery, 2003);
  3. parental capacity for attunement to the child, and restored emotional availability of the parent to the child (Buchanan, Maccoby, & Dornbusch, 1996; Cheng, Dunn, & O'Connor, 2006; Grych, Seid, & Fincham, 1992; Katz & Gottman, 1997);
  4. quality of the parental alliance (Abidin & Brunner, 1995; McIntosh & Long, 2006);
  5. parental acceptance and consistency of discipline (Wolchik, Wilcox, Tein, & Sandler, 2000);
  6. an emotionally available relationship with one and preferably two parents (Buchanan & Heiges, 2001);
  7. parental warmth, scaffolding and praise, with low levels of derogatory comments about the other parent (Emery, 1999; Katz & Gottman, 1997); and
  8. increased father involvement whenever appropriate for children (Amato & Rezac, 1994; McIntosh & Long, 2006).

A wide body of divorce education literature also underpins this model, focusing on the impact of core parent education strategies that are informative and therapeutic and tailored to the unique experience of each family (Emery, 2001; Johnston, 1998; McIntosh, 2006; McIntosh & Deacon-Wood, 2003).