Give children a bigger voice more of the time: Children’s and young people’s experiences of the family law system

Give children a bigger voice more of the time: Children’s and young people’s experiences of the family law system

Rachel Carson and Norma Williams
27 September 2018

This webinar discussed recent research on young people’s experiences of the family law system and its implications for child-inclusive practice.

Audio transcript: Give children a bigger voice more of the time: Children’s and young people’s experiences of the family law system

Audio transcript (edited)

MS SMART:

Good afternoon everyone and welcome to today's webinar, "Give children a bigger voice more of the time. Children and young people's experiences of the family law system." My name is Jessica Smart and I'm a senior research officer here at the Australian Institute of Family Studies. Today's webinar presentation will discuss recent research on young people's experiences of the family law system and its implications for child inclusive practice. Before I introduce our speakers, I would like to acknowledge the traditional custodians of the land on which we are meeting. In Melbourne the traditional custodians are the Wurundjeri People of the Kulin Nation, thanks to their Elders past, present and future, and we'd like to welcome all Aboriginal or Torres Strait Islander people who may be participating in the webinar today.

Firstly, some housekeeping details. One of the core functions of CFCA information exchange is to share knowledge. So I would like to invite everyone to submit questions via the chat box at any time during the webinar. We will respond to questions at the end of the presentation. And if there are questions that we don't have time to answer, we'll publish these along with your fist name on the CFCA website so the presenters can answer them after the webinar. If you don't want your question or your first name to be published, please do let us know. So as I've said there will be a forum on our website where we can continue the conversation we begin here today. In this forum we can discuss the ideas and issues raised, submit additional questions for our presenters and access related resources. We will send you a link to the forum at the end of today's presentation. Finally, as you leave the webinar, a short survey will open in a new window and we would really appreciate your feedback. Please remember that this webinar is being referred and that the audio, transcript and slides will be made available on our website and on our YouTube channels.

It is now my pleasure to introduce today's presenters,
Dr Rachel Carson and Norma Williams. Dr Rachel Carson is a socio-legal researcher with expertise in family law and qualitative research about family law disputes. After practising as a family lawyer, Rachel worked as a researcher in family law at the Melbourne Law School and was awarded a Melbourne Research Scholarship to undertake her PhD in the field of research at the University of Melbourne. Since joining the family law and family violence team at the Australian Institute of Family Studies in 2012, Rachel has worked here on a range of projects including the independent children's lawyer study and the evaluation of the 2012 family violence amendments project.

Rachel was the lead researcher on the children and young people in separated families project that we're hearing about today, and also on the direct cross-examination in family law on that study. Rachel has contributed to the institute's elder scoping studies and is currently working on elder abuse national research program commissioned by the Australian Government Attorney-General's Department. Rachel is a consulting editor for the Family Law Review Journal and has represented the institute in various capacities including as the AIFS observer on the Family Law Council, a body that provides policy advice on family law to the Commonwealth Attorney-General. Welcome Rachel.

Norma Williams has a professional practice leadership and management background in children and family services spanning over 30 years. This has included early childhood care and development, early childhood education, children services resource and advisory programs, professional development and education and training. In addition, Norma has maintained a parallel career path in mediation and alternative and commercial dispute resolution. The reforms to the Australian family law system in 2006 inspired Norma to join a newly established family relationship centre in 2007. Norma currently works as a child inclusive family dispute resolution practitioner and service delivery manager and in this role she has contributed significantly to the advancement of professional practice. Part of this contribution has been evidencing through action research how family dispute resolution can integrate with child inclusive practice. Welcome Norma.

Now Rachel and I are here in Melbourne and Norma is joining us from Queensland so please everyone join me in giving our presenters a very warm virtual welcome.

DR CARSON:

A recording of a range of selected quotes from our research with children and young people which is focused on their post separation experiences of family law system services. Although I hasten to clarified for ethical purposes the quotes that were spoken but hopefully will be available in due course were spoken by people who are not participants in our study. And before I begin I will just note that the views expressed in this paper today are the views of the report authors and may not reflect the views of the Australian Institute of Family Studies or the Australian Government Attorney-General's Department who commissioned and funded this research.

So today in this presentation I will briefly outline this research project before discussing the key research findings as they addressed our four primary research questions which related to the important issues from the perspective of children and young people when making post separation parenting arrangements, the experiences of children and young people whose families have used family law system services, the services that children and young people found to be of assistance, and what effective professional practice looks like from the perspective of children and young people.

As foreshadowed, the aim of this research was to investigate the experiences and needs of children and young people whose parents had separated and had access to family law system services. And when we use this term we were including judicial and legal and non-legal services such as the courts, independent children's lawyers, family consultants and single experts, family dispute resolution, individual and family post separation counselling, domestic and family violence services, children's contact services, and the range of post separation and parenting programs.

In undertaking this research, the aim was to focus on children and young people's experience with these services and how the family law system may better meet their needs. The research is particularly significant in that it addresses a gap in the existing body of research by investigating this specific issue by data collected directly from children and young people themselves.

In order to facilitate an in-depth investigation of these research questions, a purposive sample of families who had engaged with one or more family law system service and had resolved their family law matters were recruited via both legal and non legal services, semi structured in depth interviews were conducted with 61 children and young people and with one of their parents with the interview schedules developed to cover the key themes emerging in the project research questions. The interviews were conducted between May 2017 and April this year and face to face interviews were prioritised for children and young people but interviews via Skype were undertaken in a very small number of situations where geographical access was a consideration, the participant was sufficient in age, they had access to the internet and both the young person and their parent were comfortable with the use of this online technology for the purpose of the interview.

Interviews with parents were undertaken by telephone and enabled the collection of demographic information by way of background to the data that was provided by the children and young people. These data enabled the research team to understand the services access by the families as well as the pathways taken to resolve their family law matters. Against this backdrop the data from the interviews with children and young people provided very rich insights into the experiences and needs of children and young people whose parents had separated and they had accessed family law system services. Although significant attempts were made to invite participation from families in all States and territories, with the research team liaising with over 500 legal and non-legal organisations, and more closely with 70 of these to circulate the recruitment material, as we can see from the slide the participating families in the study lived across Victoria, New South Wales, Queensland and South Australia. The families had an average of two children and just over half of the participating children and young people were male. And the average age of young participants was 13 years with 53 per cent aged between 12 and 14 years, 31 aged 15 years or over and 16 per cent were aged between 10 and 11 years of age.

When asked about the contact with family law system services during and after separation, parents reported having access with an average of eight services when finalising parenting matters, with the main services including lawyers, counselling, family dispute resolution or mediation, court services, family consultants and report writers and independent children's lawyers.

The main pathways identified as being used to finalise parenting arrangements were courts and counselling services, and FDR mediation. A high proportion of children and young people whose parents accessed judicial or legal professionals or family consultants recalled this occurring as compared with non- legal professionals such as FDR. Of particular note, 50 percent of the participating parents reported that they had safety concerns for themselves and/or their children in relation to the ongoing contact with the other parent with emotional abuse, anger and mental health issues being the most common reasons cited for these concerns.

So to our findings. A key theme emerging in our research was the importance of listening to and supporting children and young people through their parents' separation. And there were some similarities in relation to what children and young people said they needed from their parents and from family law system professionals. In relation to parents, most of our participating children and young people, in fact more than three-quarters, indicated that they wanted their parents to listen to their perspectives and to communicate with them in relation to the separation and when making post separation parenting and decisions.

These children and young people wanted parents to provide them with the space and time to process events and for their parents to enquire about and to respect their views. And in relation to family law system services, most, over two-thirds, wanted professionals to listen more effectively to their views and experiences and to be provided with access to safe and effective options to participate in the decision-making processes. Feeling safe and secure in their living environments was also nominated as important to participating children and young people.

Children and young people participating in our research also indicated that they wanted open communication. They wanted to be kept informed about the decision-making process and the decisions made and not to be kept in the dark. They wanted to better understand the separation process and the making of parenting arrangements involved. They wanted to have access to therapeutic assistance if they needed it and avenues to speak to independent third parties for support. And this was actually identified as assisting with their post separation adjustment and with the development or restoration of their familial relationships.

This process was described by children and young people as requiring their parents to listen to them and to invest in quality time with them. More specifically more than one-third, in fact 38 per cent of children and young people who participated in our study, described wanting ongoing communication with parents and others to understand more about what was going on in the post separation context over the longer term.

They indicated that they wanted to be kept informed about the various aspects of the legal process and this involved knowing more about who was representing their parents. Who if anyone was representing them. When and how they might have an opportunity to communicate their views. What the possible outcomes were. Who was determining the parenting arrangements. What the steps were in the decision-making process. When matters would be decided and what support services might be available for them. In the longer term, children and young people valued flexibility in their arrangements and indicated that they needed to reflect safety concerns and that they may require to change, to better reflect their best interests on – over the longer course.

Unfortunately however, most of the participating children and young people, in fact more than half, indicated that their views had no impact or limited impact on the decision making process and that one or both of their parents had not listened to them. There was a distinct sense of dissatisfaction for these participants with their level of input and how they were kept informed. And there were very vivid descriptions of the lack of genuine engagement or meaningful involvement. There was certainly some positive experiences of participation with some children and young people who identified as being direct beneficiaries of family and law system services. For example, the participant that we named Jeremy in the 12 to 14-year age bracket, reflected on his inclusive FDR practitioner, as converting his speech into action. Another participant that we named Robbie in the 15-years and over age bracket, reflected on the ICL and the family consultant in his family's case as genuinely wanting what was best for everybody and that they were nice to talk to. But positive experiences were more likely to be described in relation to non-family law related services and I'll return to these services towards the end of the presentation.

More specifically, when children and young people participated in this study were asked about their experiences with the family law system services that the families engaged with when separating, responses indicated mixed experiences in relation to the – to which children and young people identified service providers as acknowledging their views and experiences. Most children or young people who recalled their families engaging with family law system services report feeling negatively towards this process.

They described for example, limited or no interaction. If it was limited, it might have been infrequent or short in duration. It may have been difficult or uncomfortable and this may have been because of the setting or perhaps a lack of rapport professionally. And they also described a perceived inaction on the part of the family law system professionals, especially in response to safety concerns raised by children or young people, or interactions that were focused on what parents wanted.

In relation to ICLs most participating children or young people who could recall accessing an ICL reported meeting their ICL with almost half of these participants indicating that the ICL acknowledged their views. In relation to family consultants or other family report writers, of those children and young people who could recall engaging with these professionals, almost half reported that they were acknowledged and acknowledged in the process.

Some participants described their disappointment and concern at the short duration of these interactions which formed the basis for the recommendations in the family report. Some spoke about professionals who from their perspective did not generally listen to them. And those who they perceived to have breached their trust when recounting their experiences of family violence, only to be reunited with the perpetrator during the family report session, or that they faced repercussions from the parent upon the release of the report regarding what they'd said to the family consultant.

And as we can see from the quotes here on the slide, some young participants identified this focus on adults as a particular issue and this especially arose where they had no visibility of the decision-making process or where they felt that the views had not been accurately heard or communicated, or considered in the decision-making process. For example, the participant that we have named Oscar described how the legal process in his words, was mainly focusing on what the parents wanted and not really what the children wanted.

So overall most participants described not having the opportunity to effectively participate with the young participants, commonly stating that they were either not consulted or not heard. Indeed, the responses of a substantial proportion of children and young people with experiences of the family law system, suggested that the processes developed by the family law system professionals with whom they interacted, actually operated in a way that limited their practical impact or effectively marginalised their involvement in in the decision making process. And this finding was exemplified by the quotes that are featured on the slide here and others in report. They show not only a need to have a voice, but for their voice to be accurately heard, considered and respected. For example, the participant that we have named Ryder, felt that because of his age, his opinion really did not matter.

And these findings are important to consider in the context of the United Nations Convention and Rights of the Child, to which Australia is a signatory, which recognises the rights of children and young people to participate in decision making relevant to their care and for their views to be given due weight in accordance with their age and maturity and our research actually indicated that whilst steps taken to shield children and young people from their parents' negotiations or litigation, maybe benevolent in their intention but this may also be associated with the experience of harm on the part of children and young people where they have agency and capacity to participate in decisions affecting them and this is not accommodated.

And a number of children and young people in our study in cases characterised by issues such as family violence, were particularly adamant about the importance of having a say and in some of the cases of this nature where children were not afforded a say, they described living in unsafe parenting arrangements and their frustration with living in unsafe parenting arrangements and not being heard, resulted in one child in our sample, running away and in two children in the sample destroying their parents' property.

What also emerged very clearly from our research was that for most young participants it was important to seek support by speaking to a trusted third party, who had insight into and understanding of the challenges of parental separation. The participants in our study, in fact most of the participants in our study found that members of their family for example, were a great source of support. And that could be a parent or a grandparent or an extended family member. While just over half of participants also identified friends and peers as part of their support structure in the context of their parent’s separation. And this was particularly so where peers had some knowledge and experience of post-separation issues.

Approximately half of the participating young people described receiving support from their school, during or after separation, with this support primarily from interactions with counsellors or teachers. A majority of participants had some engagement with mental health professionals and services, such as psychologist or psychiatrists or Headspace or Kid's Helpline. More than three-quarters of these young participants described these services as helpful in some capacity. What also emerged however, was that there were issues with the visibility and accessibility of these services and the availability of this type of support in the context of the family law system.

So in summary, what did participating children and young people identify as effective professional practice? They described seeking genuine and good listeners who employed child inclusive approaches, who provided them with the space to speak and who listened effectively to their views and experiences, who took steps to build trust and rapport with them, who enabled them to participate and be accurately heard in the decision making process, who engaged in open communication and kept them independently informed, giving them a clear and accurate explanation of the process, its progress and of the decisions being made.

Participating children and young people wanted to feel safe and secure in their living arrangements and to this end they sought proactive professionals who act protectively, as well as ongoing and meaningful communication and openness to flexibility and change. So in a nutshell in the words of one of our young participants, they called for giving a children a bigger voice and more of the time. And a need was also identified for training of professional development to improve professionals capacity and trust with and support for children and young people to communicate with them and to know how best to keep them informed. So that they can demonstrate to them that their views are important, that they have been heard and how they have been considered in the decision-making process.

And I'll give the last word on (audio malfunction) practice to the participants that we've named, (audio malfunction) calling for professionals (audio malfunction) to be more down to earth and to be more human. And to Zoe, who calls for professionals to follow through and to do what they say they would do and to put themselves in the shoes of children and young people. And may I conclude by thanking the Australian Attorney-General's Department, the AIFS executive, my co-authors and researchers of this study, Edward Dunstan, Dinika Roopani·and Jessie Dunstan. And most importantly the children and young people and parents who participated in this research, thank you.

MS WILLIAMS:

Thank you for this opportunity to participate in today's webinar. And I will also acknowledge that the views that I express may not be those of the Australian Institute of Family Studies and Uniting Care. I would also like to thank Australian Institute of Family Studies and Uniting Care in Queensland for the opportunity to participate today.

So in this presentation I'm going to be focusing on how child friendly practices in family law and family relationships services can be achieved through a paradigm change. Thinking about why and when it's important to include children in processes where matters and decisions that will affect and impact on them, are being discussed and how to approach this non-adversarially. Also hearing from children and young people about their safety and security and how this can be taken into account.

So we know that the key findings of the research in summary have found that the family law system professionals should listen more to their views and experiences and for that to be given due consideration. The importance to them, that when parents and professionals are having conversations about what is happening, is going to happen, they are also given opportunity to have a say about their lived experience, needs, concerns, views and expectations. They should get information about what's going to happen when decisions have been made, an opportunity to receive and give feedback. And the professionals could learn how to do this in the best interests of children and young people and their safety. These are the views of the young people consulted in the research.

Everyone else is having a say. Give children and young people a bigger voice. Giving the flip to parents conflicted ways of relating and bringing the focus back to the children in children's matters. Recent reforms to the Australian family law system and the Family Law Act 1975, embrace articles in the UN Convention of the Rights of the Child. We will consider articles 12, 13, 18 and 19 in this presentation. Also consider how child focused practice, in a family law context, can support and assist children affected by long-term, high conflict, domestic violence and detachment trauma, post-separation.

We can take an educative approach to informing parents of the UN Convention ratified by Australia in 1990 and embraced in the Family Law Act. This approach to informing parents of the importance and value of child inclusive process has had a strong impact at FRC (Family Relationships Centre) Logan in Queensland on how they feel about their children participating. And this approach arose out of an action research project, that we undertook in 2014 to evidence the effectiveness of child inclusive practice in the context of an FRC. And making it possible through seriously evaluating our thinking, our process and our approaches and emerging new practice during that period of action research.

Taking this approach and educating parents about the UN Convention on the Rights of the Child, also validates the intention of a child inclusive practice as stated in article 12 and brings clarity for practitioners, when they're getting caught up in the poletics and politics of such practices. And I'll just add to that we note often that parents appreciate having this information, because they're totally unaware of it. Young people consulted in the research have said that adults and professionals can learn how to be more natural with them and have conversations about their lived experience for their safety, psychological, emotional and physical care. And for this to be given primary consideration in matters, where their living and time spent and parenting arrangements are being discussed and decisions being made.

This theory is directly in mind with the key articles of the UN Convention, 12, 13, 18 and 19. Communication in conversations with children in family law matters can be scaffolded. This PD has been provided to FDR professionals at FRC Logan Uniting Care. It's important to have purposeful and intentional conversations that invite the child and young people's personal story and feedback. I'll just give you a brief example of a scaffolded conversation.

What's it like to be you in your family situation? How do you describe that experience? Or how would you describe that experience? What are the things that are going okay?" What's not so okay, what needs to change? How have you coped when things are not okay? How do you see things can improve for you? What would you like to stay the same? What are your hopes for yourself now and in the future? What do you expect from significant adults in your life right now? Is there anything you would like to say to any of them about this, but you haven't been able to do so? What can I, or the service, do that would help your hopes and expectations to be heard and taken into account? Narrative practice is a skill that can be learnt as professional development training. And this is in responding well to converted speech into action as we have heard from a young person in the previous presentation.

I wanted to share this quote with you from the National Commissioner, Megan Mitchell, as I think its positions our predicament and dilemma very well. As professionals we can find a will and the way to bring clarity and solution focused responses in complex procedures. The primary purpose being to be young people's into having a say as stated in article 12 of the UN Convention.

When we can support parents through our processes to hear the experience, views and wishes of the children, this service all serves to bring a readiness to look beyond their own needs and seriously consider the needs of their children. Building on strengths and positioning them as parents, not litigants. Focusing on the parenting of their children, their best interests, what they need for happiness and healthy development. However, creating opportunities for children to have their views and opinions heard, should be independent of the intention to gather information or bring the feedback for disputing parents.

(Indistinct words) child inclusive practices in over 10 years since the reforms in the family law system, and introduction of family dispute resolution, indicates clearly there are significant individual and systemic barriers that are impacting the effectiveness of child participation practices. I'd like you to consider a paradigm for advancing inclusive practice. This is a paradigm that I want to share with you and I'm sure that many people have many ideas about what the paradigm could look like.

Young people are capable and have the right to say - have a say about their views and opinions and what is and is not in their best interests, as they are affected by parental separation in every area of their lives. Family law professionals are capable of changing systems and organisational culture in ways that place children and young people first and foremost in accessing justice. We will create a base and means to do this. Family law professionals can communicate with children and young people and adults safely using child focus, non-adversarial means for addressing family violence, family safety and parenting after separation. We will learn what to do from consulting young people and professionals who currently do this.

Move away from traditional models of mediation and implement all the aspects of more contemporary dispute resolution practice in family dispute resolution. Bringing a richer and more holistic experience to resolving disputes and dissolving acrimonious ways of relating about children out of court. Courts give greater weight to the requirement to attempt family dispute resolution, when parents refuse or fail to participate and order participation as the most effective means of resolving disputes, restoring safety and ensuring children's needs and interests are given the highest priority. When court is the best and safest option, court family consultants can meet with young people and parents in family relationship friendly work areas.

Child and family relationship professionals and family law professionals can work together for child safety and strengthening the relationships, whilst also protecting children and young people from being overlooked and making their valuable contributions to changing the way parenting disputes after separation are managed. So what do many FDR child inclusive practitioners who consult frequently with children say? Children's view about (indistinct words) not okay in their experience of family separation and their expectations for quality of life and safety are aligned with the best interest of children, as expressed in family law and key articles in the UN Convention.

The child or young person's own story of what's been happening, is generally quite consistent with what we know from what we have heard in assessment conversations with their parents. What can be different is how they describe they were affected and are affected and the impact on their relationships and quality of life. When parents hear this it brings insight to their own behaviour, what is okay and what needs to change. If the purpose is to make arrangements that serve children and young people's best interests, surely this insight is the most authentic and compelling in guiding solutions focus and decisions.

Sustainable parenting plans are achievable when all concerned parties can have a say about their interests. (Indistinct words) not possible, however, such circumstances are limited and should not be considered the norm.

Evidence of effectiveness of child inclusive practice in FDR in a FRC.

In 2012 FRC Logan (indistinct) research activity over a period of 12 months (indistinct words). The project included all staff and active clients and undertook to evaluate the effectiveness of two model pathways of child inclusive practice. One child consultant responded to referral to the screener based on parental capacity assessment.

An FDRP also trained as a child consultant, acting as an FDRP, a child practitioner and as totally (indistinct words) a totally inclusive screening in approach for all children over school age. Non-inclusion was in response to the child or young person's developmental presentations or health capacity, or the suitability of FDR as an assessment outcome. The action research activities included exploring the belief, values and attitudes of the practitioners about the children, young people or their capacity to participate in child inclusive FDR. Reflection on the FDR culture and the positioning of practitioners in client engagements. Review of all of the administrative processes and procedures in FDR from the first point of contact with parents and collecting feedback from children and parents, pre-FDR and post-FDR.

The outcomes of this action research and the impact on service delivery has been a steady increase in child participation, increased knowledge and confidence in parents of the purpose and value of child inclusion in FDR. Increased knowledge, clarity and confidence in FDRPs and general staff of the purpose and value of child inclusion in FDR. Advancement of family dispute resolution practices and skills and a collective impact for the emergence of fully focused child inclusive culture in the service. A reduction in the frequency of parents returning to FDR in a three to six month period. A reduction in the number of s.60(I) certificates issued. And here you can see how the participation rates of children and young people have advanced since 2013 using this approach.

So what can we do to communicate effectively with children and young people outside of court? Develop transparent policies, processes and procedures for the information of staff and clients that position young people as having the same human rights and intelligence capability as adults. Child inclusive culture involves all staff and is explained to clients from the first point of contact.

Meet with children and young people for their own right and discuss age appropriately how they see things and listen to what they say can help them and their family. Provide information in age appropriate language about the purpose of inclusion for children and young people. Develop the narrative skills to feel confidently and competently capable to have these conversations with parents about their behaviour and their actions getting in the way of their children and young people feeling safe, respect and having a meaningful relationship. Motivating the will to change. Use solo practitioners in child inclusive processes wherever possible. And co-ordinate administrative systems to be timely flexible and well-communicated to everyone involved.

It's time to move away from theory to practise with clarity, confidence and determination as we are now seeing the new generation emerging with the same if not more impact of retractable unresolved parenting disputes, as were highlighted in the research that informed the first reforms to the Australian family law system in 2006. Every picture tells a story. Through our signatory to the UN Convention on the Rights of the Child, we can all act to able children's rights and create opportunity for them to have a say, share their lived experience and share their views on what they consider to be parenting arrangements and relationships that serve their best interests and rights. When we do this we show that we value, respect and present them - and protect them.

MS SMART:

Thank you very much Norma and thanks Rachel as well. As a former youth worker this is a – hearing the voices of children is something that's really close to my heart, so it's fantastic to hear this reflected in both, that it's happening and also in practice.

So thank you very much to Rachel Carson and Norma Williams and thank you very much to everyone for attending today. We had heaps of questions come through that we couldn't get to, so remind you all again to link into the forum where those – where we can get to some of those questions. So do follow the link on your screen there, that will take you to that forum on our website to continue the conversation. So thanks very much and we'll see you next time.

WEBINAR CONCLUDED

IMPORTANT INFORMATION - PLEASE READ

The transcript is provided for information purposes only and is provided on the basis that all persons accessing the transcript undertake responsibility for assessing the relevance and accuracy of its content. Before using the material contained in the transcript, the permission of the relevant presenter should be obtained.

The Commonwealth of Australia, represented by the Australian Institute of Family Studies (AIFS), is not responsible for, and makes no representations in relation to, the accuracy of this transcript. AIFS does not accept any liability to any person for the content (or the use of such content) included in the transcript. The transcript may include or summarise views, standards or recommendations of third parties. The inclusion of such material is not an endorsement by AIFS of that material; nor does it indicate a commitment by AIFS to any particular course of action.

Slide outline: Give children a bigger voice more of the time: Children’s and young people’s experiences of the family law system

1. Give children a bigger voice, more of the time

Findings from the AIFS Children and Young People in Separated Families Study

Paper presented for CFCA Webinar - 27 September 2018

2. Children’s Voices

[audio clip]

3. Disclaimer statement

The views expressed in this paper are those of the authors and may not reflect the views of the Australian Institute of Family Studies or the Australian Government, Attorney-General’s Department.

4. Ryder 12-1 4 years

I think … everyone seemed to think I was pretty young. My opinion didn’t really matter or something.

5. Aim of the research

  1. To investigate the experiences of children and young people who had accessed family law system services during separation and divorce.
  2. To focus on children and young people’s experiences of these services to articulate how the family law system may better meet their needs.

6. Outline of the research project

Purposive sample of families who

  • had engaged with family law system
  • had resolved their family law matters
  • recruited via legal and non-legal service providers.

In depth interviews with children and young people (n = 61)

  • aged 10-17 years,
  • structured and semi-structured questions.

Telephone interviews with one parent of each young participant (n = 47)

  • demographic and background information (e.g. services accessed).

7. National spread

Participating families had an average of two children.

  • Average age 13 years
  • Male – 56%; Female – 44%

8. Services accessed

Average = 8 services

  • Lawyers: 96%
  • Counselling and FDR/mediation: 94%
  • Court: 83%
  • Family consultants/family report: 60%
  • ICL: 36%

Main pathways

  • Court: 62%
  • Counselling/FDR: 21%

50% of participating parents reported safety concerns for parent and/or child

9. Important issues when making post-separation parenting arrangements

Young people wanted their parents to listen to them and to communicate with them regarding the separation and parenting arrangements.

Young people would like family law professionals to listen to their views and experiences.

Young people need safe and effective options for participation.

Young people want everyone concerned to appreciate the importance of them feeling safe and secure in living environment.

10. Key findings: Important issues when making post-separation parenting arrangements

Communication, relationship development and therapeutic support

  • Being kept informed rather than kept “in the dark”.
  • Parent-child communication supports understanding of decision-making process, acceptance of new living arrangements and development of post-separation relationships.
  • Access to therapeutic support and assistance if needed.

Flexibility to change, ongoing communication and a meaningful say

  • More than 1/3 wanted ongoing communication.
  • Importance of flexibility and having a say to change arrangements over time.

11. Claire 12-14 years

"We should take it into account that some kids may feel bad about the fact that their parents are split up and they - they should know that isn't their fault. it's never the kid's fault...

teaching kids that it's ok if your parents are going through a divorce... And I think kids need to understand that we can have a generation of people who think that and not a generation of people who think that failure in a relationship immediately results in failure in a family".

12. Impact of participants' views on decision-making

  • More than half the participants reported that their views had no impact or limited impact on decision-making process with professionals and family.
  • Positive experiences were reported predominantly from non-family law related services.

13. Key findings: Experiences of children and young people when families accessed services

"She kind of converted my speech into action". (Jeremy 12–14 years)

"They both seemed like they wanted what was best for everybody and they were nice to talk to". (Robbie 15+ years)

14. Mixed views and experiences of participation

"They didn't really - the lawyers... didn't really communicate or get our perspectives on it, so they didn't really help us". (Oscar 15+ years)

"She didn't listen to anything I said and interrupted everything that I had to say... and was trying to force me to go with my Dad". (Tahlia 12–14 years)

15. Key findings: Experiences of children and young people when families accessed services

Legal process

  • Some young participants described the legal process as focusing more on what their parents wanted, particularly where they had limited or no interaction with these service providers.

Independent children’s lawyers (ICLs)

  • Some expressed dissatisfaction with their level of input in decision making via the ICL, with this more commonly associated with the ICL’s lack of engagement or the way they engaged.

16. Key findings: Experiences of children and young people when families accessed services

Concerns reported about interactions with family consultants/family report writers:

  • Some expressed concern about the uncomfortable and short duration of interactions on which parenting recommendations were based.
  • Some expressed disappointment at what was identified as a failure to genuinely listen.
  • Some described experiencing breaches of trust when, having recounted experiences of family violence, they were reunited with the perpetrator during the family report sessions or when they faced repercussions from a parent upon the release of the family report.

17. Experiences of children and young people when families used services

"I think … everyone seemed to think I was pretty young. My opinion didn’t really matter or something". Ryder 12–14 years

"Well, I felt fine having a voice but not a big impact really". Lucy 12–14 years

"She didn't listen to anything I said and interrupted everything that I had to say... and she was trying to force me to go with Dad". Tahlia 12–14 years

18. Key findings: Services of assistance to children and young people

Children and young people want to engage with support services that are familiar with their situation:

  • Most participants (70%) reported family members as a source of support.
  • Almost ½ described receiving support from their school counsellors or teachers.
  • More than ½ indicated that friends and peer support could play a key role in assisting them to cope with their parents’ separation.
  • A majority of young participants (62%) had access to mental health services and more than ¾ of these reported that these services were helpful.
  • Accessible counselling and support services during and post separation prioritised but issues were identified with visibility and accessibility of services.

19. Max 12–14 years

"... tell who you trust... and ask for their advice... and ask for their support. Because, like, the more support you get the better you feel about the situation. ...don't be afraid to say what you truly want".

20. Key findings: What is effective practice from the perspective of children and young people?

  • Family law system professionals to listen more to their views and experiences.
  • Genuine and good listeners employing child-inclusive approaches:
    • Enable children and young people to contribute to, and be accurately heard in the decision-making process;
    • to keep them independently informed of the nature and progress of this process; and
    • Pro-active and act protectively.
  • Access to ongoing therapeutic support and assistance.
  • Ongoing communication, flexibility and receptive to change.
  • Training and professional development to improve capacity to build trust with, and support, children and young people

21. Savannah 15+ years

".… I know they’re like professionals and they’re really, like – I don’t know, when I think of the court, I think like uptight, but like I just think they need to be really down to earth. You know, need to put themselves in our shoes a bit more. I just think, yeah, I just think they need to be more human beings".

22. Zoe 12–14 years

"Just listen and go through with things you say you're going to do. So, if you say you're going to help them, HELP THEM. If you say, okay, if you want me to stop, we'll stop. JUST STOP.

Just show them and you've really got to build that trust but you've got to understand them

Like put yourself in their shoes and think, okay, how would a this many year old think about it? And how would a this many year old think about it?".

23. Acknowledgements

The Australian Government Attorney-General’s Department

The AIFS Executive

Co-authors of the AIFS research report, and most importantly, the children and young people and parents who participated in our research.

24. Give children a bigger voice in the family law system

A response to the key finding of AIFS Children and Young People in Separated Families Study 2018

AIFS Webinar 27 September 2018

Norma Williams, Manager & Family Dispute Resolution Practitioner norma.williams@uccommunity.org.au

The views expressed in this paper are those of the author and may not reflect the views of the Australian Institute of Family Studies or UnitingCare.

25. Topics

  • Key findings of the research
  • UN Convention and Rights of the Child
  • Family law reform and family dispute resolution
  • Supporting the participation of young people through professional development

26. Key findings of the research

What young people said about effective inclusive practice in summary:

  • Family law system professionals should listen more to their views and experiences and for that to be given due consideration
  • Its important to them that when parents and professionals are having conversations about what is happening and is going to happen they are also given opportunity to have a say about their lived experience, needs, concerns, views and expectations
  • They should get information about what’s going to happen when decisions have been made and opportunity to receive and give feedback
  • That professionals can learn how to do this in the best interests of children and young people and their safety

27. Everyone else is having a say - give children and young people a bigger voice

Taking the conversation focus away from the conflicted and accusatory way of relating and communicating in when engaged in family dispute resolution.

28. Articles of UN Convention on Right of the Child In child-friendly language – key in family law proceedings

Article 12

Children have a right to say what they think should happen when adults are making decisions that affect them and to have their opinions taken into account

Article 13

Children have the right to get and share information as long as the information is not damaging to them or to others

Article 18

Both parents share responsibility for bringing up their children and should always consider what is best for each child

Article 19

Governments should ensure children are properly cared for and protect them from violence, abuse and neglect by their parents and anyone else who looks after them

29. UN Convention on Rights of the Child

We can take an educative approach to informing parents of UN Convention ratified by Australia in 1990 embraced in the Family Law Act 1975 amendments in 2006 as “best interests of the child

This approach to informing parents of the importance and value of child inclusive process has had a strong impact (FRC Logan SE QLD) on how they feel about their children participating

It also validates the intention of child inclusive practice and brings clarity for practitioners when getting caught up in the polemics and politics

30. Supporting the participation of children and young people through professional development

Young people consulted in the research have said that adults/professionals can learn how to be more natural with them. And have conversations about their lived experience for their safety: psychological, emotional, physical. And for this to to be given primary consideration in matters where their living and time spent with parents arrangements are being discussed and decisions being made

This view is directly in line with the key articles of the UN Convention, 12,13,18,19

31. Advocating for the rights of children and young people is the responsibility of governments and those who have power in procedural matters and decision making affecting their life, wellbeing and healthy development

Quote: Megan Mitchell, Children's Commissioner
16th National Family Law Conference. Wednesday 8 October 2014
Ever seen or heard? The voice of children in family law:

“The UN Committee on the Rights of the Child has stated in General Comment 12 that while the right to be heard means that children’s views must be taken into account, it does not necessarily extend to making decisions consistent with those views. This reflects the interdependent and complementary relationship between the right to be heard and the consideration of the child’s best interests.(15) The UN Committee also stated that children should be given feedback about how their views have been considered in the decisions made.(16)

The Australian Family Law Act, as it currently stands, seems to undermine the relationship between these core principles by diminishing the right to be heard. In their analysis of international models of child participation in family law, Taylor et al, in line with (Parkinson’s) views, claim that the Act is inconsistent with the intention of the UNCRC because “ascertaining the views of the child is included as one of a number of ‘additional’ considerations rather than a ‘primary consideration’”.(17) In contrast, the Convention emphasises the right to be heard as foundational, not additional to decision-making processes”.(18)

32. Creating opportunities for children to have their views and opinions heard should be independent of the intention to gather information or bring feedback for disputing parents

When we can support the parents through our processes to hear the experience, views and wishes of their children, this serves to bring a readiness to look beyond their own needs and seriously consider the needs of their children. Building on strengths and positioning them as parents not litigants; focusing on the parenting of their children, their best interests, what they need for happiness and healthy development.

33.Shielding children and young people from the family law system and dispute resolution brings silence and not safety.

We can find ways of protecting children through participation, and not through exclusion. As professionals in the family law system and child protective systems we are advocates of child rights and have a vital role to play in making participation happen as the norm.

Little progress in child inclusive practices in over ten years since the reforms in the family law system and introduction of family dispute resolution indicates clearly there are significant individual and systemic barriers that are impacting the effectiveness of child participation practices.

34. A paradigm for advancing inclusive practice

  • Young people are capable and have the right to have a say about their views and opinions on what is and is not in their best interests as they are affected by parental separation in every area of their lives. UNCRC says they have a right to have a say and be heard
  • Family law professionals are capable of changing systems and organisational culture in ways that place children and young people first and foremost in accessing justice. We will create ways and means to do this
  • Family law professionals can communicate with children, young people and adults safely using child-focussed non-adversarial means for addressing family violence, family safety and parenting after separation. We will learn what to do from consulting young people and professionals who currently do this

35. A paradigm for advancing inclusive practice cont...

Move away from traditional models of ‘mediation’ and implement all the aspects of more contemporary dispute resolution practice in FDR, bringing a richer and more wholistic experience to resolving disputes and dissolving acrimonious ways of relating about children, out of court

Courts give greater weight to the requirement to ‘attempt family dispute resolution’ when parents refuse or fail to participate and order participation as the most effective means of resolving disputes, restoring safety and ensuring children’s needs and interests are given highest priority (Family Relationship Centres)

When court is the best and safest option court Family Consultants can meet with young people and parents in family relationship friendly work areas

Child and family relationship professionals and family law professionals can work together for child safety and strengthening relationships. Whilst also protecting children and young people from being overlooked and making their valuable contribution to changing the way parenting disputes after separation are managed

36. What many FDR child inclusive practitioners who consult frequently with children have said

Children's views about what is ok and not okay in their experience of family and separation and their expectations for quality of life and safety, are aligned with the best interests of children as expressed in family law and key articles in the UN Convention.

The child/young person’s own story of what’s been happening is generally quite consistent with what we know from assessment conversations with their parents. What can be different is how they describe they were affected and the impact on their relationships and quality of life.

Why is this important?

When parents hear this it brings insight to their own behaviour, what is OK and what needs to change. If the purpose is to make arrangements that serve their best interests, surely this insight is the most authentic and compelling in guiding solutions focus and decisions. Sustainable care and parenting plans are achievable when all concerned parties can have a say about their interests and needs.

There will be occasions when this is not possible. However, such circumstances are limited and should not be considered the norm.

37. Evidencing the effectiveness of child inclusive practice in FDR in FRC

In 2014 FRC Logan undertook an action research (AR) activity over a period of 12 months under the leadership and management of the presenter. The project included all staff and active clients and undertook to evaluate the effectiveness of two models/pathways of child inclusive practice:

  • One child consultant responding to referrals using screening-out based on parental capacity assessment (6 FDRPs)
  • An FDRP also trained as a child consultant (FDRP/Child Practitioner) and a totally inclusive screening-in approach for all children over school age. Non-inclusion was in response to child or young person’s developmental presentations or health capacity or suitability for FDR assessment outcome

AR activities included exploring the beliefs, attitudes and values of practitioners about children/YP and their capacity for participation in child inclusive FDR. Reflection on the FRC culture and the positioning of practitioners in client engagement with parents. Review of all the administrative processes and procedures in FDR from the first point of contact with parents. Collecting feedback from children and parents post FDR

38. Outcomes of the AR and impact on service FDR service delivery

  • Steady increase in child participation
  • Increased knowledge and confidence in parents of the purpose and value of child inclusion in FDR
  • Increased knowledge, clarity and confidence in FDRP’s and general staff of the purpose and value of child inclusion in FDR
  • Advancement of FDRP skills and collective impact for the emergence of fully focussed child inclusive culture
  • Reduction in the frequency of parents returning to FDR in a 3-6 month period. Reduction in the number of 60I (c) Certificates issued

Participation rates of children and young people 2013-2014 and 2015-2017:

- 2013-2014 = 63 individual and sibling sessions
- 2015 = 344 individual and siblings sessions
- 2016 = 370 (292 individual and 78 sibling sessions)
- 2017 = 448 (individual and 151 sibling session)

7 FTE FDRP’s and on average 5 acting as Solo FDRP Child Practitioners

38. What Family Law (FDR) practitioners, counsellors and child and family workers can do to communicate effectively with children and young people outside of court:

  • Develop transparent policies, processes and procedures for the information of staff and clients, that position young people as having the same human rights and intelligence capability as adults
  • Child inclusive culture involves all staff and is explained to clients from the first point of contact
  • Meet with children and young for their own right and discuss age appropriately how they see things and listen to what they say can help them and their family
  • Provide information in age appropriate language about the purpose of inclusion for children and young people

39. What Family Law (FDR) practitioners, counsellors and child and family workers can do to communicate effectively with children and young people outside of court: cont...

  • Develop the narrative skills to feel confidently and competently able to have conversations with parents about behaviour and their actions getting in the way of their children and young people feeling safe, respected and having a meaningful relationship. Motivating the will to change
  • Use solo practitioners in child inclusive process wherever possible
  • Seamlessly coordinate administrative systems to be timely, flexible and well communicated to everyone involved

40. Its time to move from theory to practice with clarity, confidence and determination as we are now seeing the new generation emerging with the same, if not more, impacts of intractable and unresolved parenting disputes as highlighted in the research that informed the first reforms to the Australian family law system in 2006. Every Picture Tells a Story 2005

“Life will impose difficulty and sometimes trauma upon those who are least able to determine their own paths: children. If at these times we can lend children our minds, and build environments for their emotional safety and recovery, we make the load more manageable and less damaging to the developing self.”

Dr Jennifer McIntosh

41. Through our signatory to the UN Convention on the Rights of the Child we can all act to enable children’s rights.

And create opportunity for them to have a say, express their lived experience and share their views on what they consider to be parenting arrangements and relationships that serve their best interests and rights.

When we do this we show that we value, respect and protect them

This webinar was held on Wednesday, 27 September 2018. 

A recent study by the Australian Institute of Family Studies has highlighted the importance of listening to and supporting children and young people throughout the process of parental separation and their involvement in the family law system. 

Many children and young people who participated in the study reported a lack of communication from parents and family law services about the separation and the decision-making process, and reported feeling excluded from decisions that affected them, particularly in relation to parenting arrangements. The study findings highlight a need for more child-inclusive processes across the family law system. 

This webinar presented findings of the Children and young people in separated families study, which investigated the experiences and needs of young people whose parents had separated and had accessed the family law system. It discussed implications for policy and practice, with a focus on developing child-inclusive practices in the area of family dispute resolution and the family law system more generally. 

Related resources

Further reading


Featured image: GettyImages_Sladic

About the presenters

Rachel Carson

Dr Rachel Carson is a socio-legal researcher with expertise in family law and qualitative research about family law disputes. After practising as a family lawyer, Rachel worked as a researcher in family law at the Melbourne Law School (University of Melbourne) and was awarded a Melbourne Research Scholarship to undertake her PhD in this field of research at the University of Melbourne.

 

Since joining the Family Law and Family Violence team at the Australian Institute of Family Studies in June 2012, Rachel has worked on a range of projects, including the Independent Children’s Lawyer Study and the Evaluation of the 2012 Family Violence Amendments Project. Rachel was the lead researcher on the recently completed Children and Young People in Separated Families: Family Law System Experiences and Needs project, together with the Institute’s Direct Cross-examination in Family Law Matters Study.

 

Rachel has contributed to the Institute’s elder abuse scoping studies and is currently working on the Elder Abuse National Research - Strengthening the Evidence Base - Stage 1 research program commissioned by the Australian Government, Attorney-General’s Department.

 

Rachel is a consulting editor for the Family Law Review journal and has represented the Institute in various capacities, including as the AIFS observer on the Family Law Council, a body that provides policy advice on family law to the Commonwealth Attorney-General.

Norma Williams

Norma Williams has a professional practice, leadership and management background in children's and family services spanning over 30 years. This has included early childhood care and development, early childhood education, children's services resource and advisory programs, professional development and education and training. In addition, Norma has maintained a parallel career path in mediation and alternative and commercial dispute resolution.

 

The reforms to the Australian family law system in 2006 inspired Norma to join a newly established Family Relationship Centre in 2007. As a child-inclusive family dispute resolution practitioner and service delivery manager since that time, Norma has contributed significantly to the advancement of professional practice and evidenced through action research how integrated child-inclusive practice in family dispute resolution practice can be achieved.

Comments

Wonderful to see that there is such strong evidence that children and young people are capable of having a voice and that their understanding does align with their best interests. It is also great to see evidence that when they are heard, the outcomes for families are better. It seems it is time that parents and practitioners learned to have confidence in hearing and taking these voices into account. Thanks Norma and Rachel for your work in getting this message out.
Kathryn
Wonderful to see the voice of the child being acknowledged and validated. I was interested to hear that children had expressed concern about having a trusted individual that THEY have nominated with them during any questioning and that 'grandparents' were mentioned. As part of an organisation that advocates for grandparents (Grandparents For Grandchildren SA Inc) we often find that they are excluded from much of the FDR or court process because of family conflict with the child's parents, even when the child requests their presence. FDR must be a time for parents to put aside family politics and focus on what is best for their child/ren.
Joanne Lauritsen
Children’s views are often nullified by allegations of a parent that they have been 'alienated' by the other parent. Although this theory of 'Alienation', has been widely discredited by the relevant professional community, it is still used by some Psychologists. Psychiatrist acting as Family Court Consultants and is accepted by many Family Courts. This is despite two psychologists having been subjected to disciplinary proceedings against them for using such theories.
Webinar participant
There is undoubtedly a need for kids to have resources and access to professionals. The dissatisfaction of the children with the court and process when I read the list seems to also be that of the parents that I meet.
Terry