Will Somebody Please Think of the Children?!
Child Focused and Child Inclusive Models
Will Somebody Please Think of the Children?!
Child Focused and Child Inclusive Models in
Family Dispute Resolution
Dr Hadeel Al-Alosi*
In 2006, the Australian Federal Government made family mediation
compulsory before pursuing litigation concerning parenting matters. Since
then, much has been written about the benefits of mediation, such as the
advantage of parents being empowered to make their own decisions rather
than have the decision made for them by a court. The benefit of listening
to children in family law court proceedings has also spawned considerable
useful literature. However, less attention has been given to the importance
of empowering children to participate in the decision-making process in
matters affecting them before the matter reaches court. Giving children a
voice in the pre-trial stage is particularly important now that mediation is
compulsory and because most family disputes are settled outside the courts.
Accordingly, this article focuses on the pros and cons of including children
in family mediation. It also highlights how, when implementing family law
reforms, Australian legislatures missed the opportunity to promote a culture
of child inclusion in mediation. A child inclusive culture would have been in
furtherance of Australia’s international law obligations to protect children’s
participatory rights in matters affecting them.
INTRODUCTION
In the past few decades, there has been increased recognition around the world of the importance of listening
to children1 in decision-making processes in family law disputes. The impetus behind the inclusion of
children’s views is the United Nations Convention on the Rights of the Child, which was adopted in 1989
and has since become the most widely ratified human rights convention in the world.2 Among other things,
the Convention acknowledged the right of children to have a voice in the decision-making process involving
matters affecting them.3 In 2009, the United Nations (UN) Committee on the Rights of the Child clarified
that the Convention required state parties to implement legislation concerning separation and divorce “to
include the right of the child to be heard by decision-makers and in mediation processes”.4
However, whether children should participate in family dispute resolution (FDR) – which has become
mandatory in Australia for all parents before filing an application relating to children matters5 – is an
issue that still divides professionals including judges, lawyers, mediators,6 and child advocates. On the
* Lecturer and lawyer; LLB/Social Science (Criminology) (Hons) (UNSW), PhD (UNSW). Correspondence to Dr Hadeel
Al-Alosi: H.Al-Alosi@westernsydney.edu.au.
1
It is common under legal instruments to define a child as anyone under 18. This is problematic since it fails to recognise the
significant differences between very young children and those in mid-to-late adolescences. However, for consistency and brevity,
this article uses the term “child” as referring to anyone less than 18 years of age.
2
United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force
2 September 1990). Australia ratified the Convention in December 1990.
3
See especially, United Nations Convention on the Rights of the Child Art 12, which is discussed later in this article.
4
United Nations Committee on the Rights of the Child, Convention on the Rights of the Child General Comment No 12, 51st sess,
CRC/C/GC/12 (1 July 2009), 12. (General Comment No 12).
5
See Family Law Act 1975 (Cth) s 60I.
6
The terms “mediator” and “practitioner” are used interchangeably throughout this article.
8 (2018) 29 ADRJ 8
one hand, there are those who oppose child participation on the grounds that it, for example, places
children in the middle of their parents’ dispute, forces them to take sides, and causes undue stress on
children. On the other hand, those who support child inclusion in FDR highlight the benefits of children
being heard and their right to participation. While both sides raise important points, as will be argued in
this article, the advantages of including children outweigh the potential drawbacks.
This article focuses on the two main child-responsive models used in FDR in Australia: child focused
practice (CFP) and child inclusive practice (CIP).7 First, it provides an overview of the legislative
framework in Australia and how it supports a child focused approach in family law matters. Second,
this article explores the differences and similarities between CFP and CIP. Third, it investigates the pros
and cons of inviting children to participate in FDR, which is followed by an overview of why CIP is the
preferred model. Finally, this article concludes with a summary and recommendations to move forward
to promote child inclusion in FDR. The underlying argument running throughout this article is that FDR
should, at a minimum, be child focused and that CIP should be the norm in FDR unless exceptional
circumstances exist. In doing so, it challenges the outdated presumption that children are incompetent to
participate in post-separation family decision-making processes.
CHILD-RESPONSIVE FAMILY DISPUTE RESOLUTION: THE LEGISLATIVE FRAMEWORK
In 2006, the Australian Federal Government made significant amendments to the Family Law Act 1975
(Cth) to promote the “best interests of children”,8 which is a concept that is enshrined under international
law.9 The Act sets out the considerations courts must take into account when determining what is in the
best interests of the child.10 Section 60D also mandates “advisers”11 (which includes FDR practitioners)
providing advice or assistance to a person about matters concerning a child to inform that person that
they “should regard the best interests of the child as the paramount consideration”.12 The reforms
emphasised shared parental responsibility and encouraged parenting plans that allow, where possible,
children having an ongoing relationship with both parents post-separation as this was believed to be
in the child’s best interests. In 2012, further reforms were made to the objects of the Act to explicitly
acknowledge that one of its purposes is “to give effect to the Convention on the Rights of the Child”.13
Additionally, the reforms aimed to institute a more child focused regime by promoting “a cultural shift
in how family separation is managed: away from litigation and towards cooperative parenting”.14 The
reforms were influenced by stakeholders who argued that “children of any verbal age can and should be
consulted in important decisions about their lives”.15 It is therefore evident that the rationale behind the
reforms was to facilitate child-responsive practices.
7
Child inclusive practice is also known as “child informed practice”. For consistency, this article  only uses the term “child
inclusive practice”.
8
It is beyond the scope of this article to discuss the problems of applying the best interest of the child test, but it should be noted
this concept has been widely criticised for being, among other things, indeterminate and vague. For example, see Stephen Parker,
“The Best Interests of the Child -Principles and Problems” (1994) 8 International Journal of Law and the Family 26.
9
United Nation Convention on the Rights of the Child Art 3 states: “In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration”.
10
Family Law Act 1975 (Cth) s 60CC.
11
Family Law Act 1975 (Cth) s  60D(2) states that an “adviser means a person who is (a) a legal practitioner; or (b) a family
counsellor; or (c) a family dispute resolution practitioner; or (d) a family consultant”.
12
Family Law Act 1975 (Cth) s 60D(1)(b) further provides that advisors must “encourage the person to act on the basis that the child’s best
interests are best met: (i) by the child having a meaningful relationship with both of the child’s parents; and (ii) by the child being protected
from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (iii) in applying the
considerations set out in subparagraphs (i) and (ii)—by giving greater weight to the consideration set out in subparagraph (ii)”.
13
Family Law Act 1975 (Cth) s 60B(4).
14
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
15
House of Representatives Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a
Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003) 97 [4.135].
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Al-Alosi
An important amendment to the Family Law Act was the requirement that made FDR compulsory prior
to commencing litigation. Unless an exemption applies,16 parties must now attend FDR and “make a
genuine effort to resolve that dispute by family dispute resolution before”17 commencing proceedings
in relation to children. The change was aimed at assisting “people to resolve family relationship issues
outside the court system, which will have the benefits of providing flexible solutions, minimising conflict
and avoiding costly court procedures”.18
To meet the inevitable increasing demand for FDR, the Government created 65 Family Relationship
Centres throughout Australia that provide free or reduced fee mediation. These Centres commonly offer
mediation that is child focused and facilitative.19 As well as Family Relationship Centres, parents have
the option of attending an approved private mediation service provider, many of which embrace child-
responsive practices. However, the inclusion of children in FDR remains ad hoc and inconsistent and,
while the law sets out factors guiding practitioners when determining whether FDR is suitable,20 there
are no guidelines as to when children should be included in the process.
The reforms to the Family Law Act placed importance on a child’s ability to express their views in
court proceedings and have those views taken into account when determining what is in the child’s
best interests.21 However, Australian legislators failed to implement the recommendation of the UN
Committee on the Rights of the Child to expressly guarantee the rights of a child to voice their views in
all matters affecting them,22 and the Committee’s emphasis that this right should extend to “alternative
dispute mechanisms such as mediation and arbitration”.23 Thus, the Family Law Act is silent on the
participation rights of children in FDR and does not require child inclusion. This is ironic because
it seems that mediation, which is non-adversarial and aimed at collaborative problem-solving, would
provide a more child-friendly and less intimidating place for children to express their views than in
court proceedings. Consequently, legislatures missed the opportunity to empower children to have a say
in matters affecting them in mediation and also failed to consider how their participation can assist in
developing parenting arrangements that are in their best interests.
CHILD-RESPONSIVE FAMILY DISPUTE RESOLUTION: CHILD FOCUSED AND CHILD
INCLUSIVE PRACTICES
Attending to the best interests of a child, which has a legislative basis in Australia, requires identifying
the child’s needs when making decisions about their care.24 The two main child-responsive models that
are centred on the best interests of the child are CFP and CIP.
16
Exceptions to compulsory mediation include situations where there is a history of family violence, the matter is urgent, or where
an FDR mediator is of the opinion that the case was unsuitable for mediation. See Family Law Act 1975 (Cth) s 60I(9).
17
Family Law Act 1975 (Cth) s 60I(1).
18
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
19
See Jennifer Hannan, “Child Protection in Family Relationship Centres: Innovation in Western Australia” (2013) 51 Family
Court Review 268, 270; Cooper and Field note that “[t]he facilitative model is one which has traditionally involved the mediator
seeking to uphold the philosophy of party self-determination. That is, in assisting parties to communicate and negotiate together
to reach their own agreement, without offering any views about appropriate options and settlement outcomes”: Donna Cooper and
Rachael Field, "The Family Dispute Resolution of Parenting Matters in Australia: An Analysis of the Notion of an ‘Independent’
Practitioner” (2008) 8 QUT Law Journal 158, 165.
20
See Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25.
21
For example, when determining what is in the child’s best interests, Family Law Act 1975 (Cth) s 60CC3(a) requires the courts
to take into account “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that
the court thinks are relevant to the weight it should give to the child’s views”. Also see ss 60CD, 62G(3A), 68LA(5)(b).
22
United Nations Committee on the Rights of the Child, Convention on the Rights of the Child General Comment No 7, 40th sess,
CRC/C/GC/7, (20 September 2006), 6.
23
General Comment No 12, CRC/C/GC/12, 9.
24
See Family Law Act 1975 (Cth) Subdiv BA.
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Will Somebody Please Think of the Children?! Child Focused and Child Inclusive Models
CFP involves “finding the child’s voice in the absence of the child”.25 It requires encouraging parents to
consider the needs of their children when making parenting arrangements. As the child is absent from
the FDR process, “the child’s voice is heard through the parents providing information on their children
in the mediation”.26 Some of the aims of CFP include creating an environment that supports parents to
actively consider the needs of each of their children, facilitating parenting agreements that support their
children’s psychological adjustment to the separation, and ensuring that any decisions made reflect the
needs of their children.27 However, a criticism of CFP is that it risks parents making incorrect assumptions
about their children’s needs because they had no occasion to hear their children’s views during FDR.28
There are a variety of methods mediators can use to assist in ensuring parenting plans are child focused.
For example, at the start of mediation, mediators can write on the whiteboard that the goal of the session is
“working together towards agreements that are in the best interests of [the children X and Y]”.29 Mediators
can also bring the children “symbolically” into the mediation room by asking the parents to give details about
their children, such as their name and age, and write this information on the whiteboard.30 Some mediators
encourage parents to bring a photo of their children to the session, but this technique should be used cautiously,
mainly because it might cause anguish to a parent who has not seen their children for a while.31
In contrast, CIP involves “finding the child’s voice in the presence of the child”.32 Although there is no
universal definition of CIP, one useful definition is that provided by United Kingdom Voice of the Child
Dispute Resolution Advisory Group:
Child inclusive practice gives children and young people the opportunity to have a conversation
(verbal, written, through play or storytelling) with professionals who are assisting their parents to make
arrangements for the children’s future. It enables consenting children and young people to share their
experiences of parental/family separation and express their concerns and views, and for these to be
sensitively considered with their parents so that their developmental needs and concerns can be better
understood and taken into account within the dispute resolution process.33
The process of CIP does not involve children facing their parents in the mediation room. Instead, their
involvement occurs in a safe environment provided by a skilled child consultant, who is qualified in
working with children,34 in a separate interview. The purpose of the private interview is to explore “the
child’s feelings about the current living and visiting arrangements and their hopes for the future, without
placing them in a position of having to say or decide what they want”.35 Directly involving the child, who
usually needs to be of school age to participate in CIP,36 avoids parents having to assume or argue over
their children’s needs because they had an opportunity to hear their children’s voice.37
In Australia, mediators do not always take on the role of interviewing the child in child inclusive
FDR;38 it is usually a child consultant who meets with the child and later provides the mediator with
25
Jennifer McIntosh, “Child Inclusion as a Principle and as Evidence-Based Practice: Applications to Family Law Services and
Related Sectors” (2007) issues no. 1 Australian Family Relationships Clearinghouse, <https://aifs.gov.au/cfca/publications/
child-inclusion-principle-and-evidence-based-practic/section-1-mandate-child-inclusion>.
26
Linda Fisher and Mieke Brandon, Mediating with Families (Lawbook Co, 3rd ed, 2012) 97.
27
McIntosh, n 25.
28
Fisher and Brandon, n 26, 542.
29
Fisher and Brandon, n 26, 539.
30
Fisher and Brandon, n 26, 540.
31
Fisher and Brandon, n 26, 540.
32
McIntosh, n 25.
33
Voice of the Child Dispute Resolution Advisory Group, Final Report of the Voice of the Child Dispute Resolution Advisory
Group (2015),  p 6 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/421005/
voice-of-the-child-advisory-group-report.pdf>.
34
For a discussion about the necessary qualifications of child consultants see McIntosh, n 25.
35
McIntosh, n 25.
36
Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes (Oxford University Press, 2008) 45.
37
Fisher and Brandon, n 26, 542.
38
Parkinson and Cashmore, n 36, 45.
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Al-Alosi
feedback to pass on to the parents. A benefit of having a child consultant involved is that he or she would
have the formal training and experience in working with children and adolescents. While there is no
rule preventing mediators from directly interviewing the children, McIntosh warns that, “[p]articularly
in cases of significant conflict or complexity, and when neutrality appears important to good outcomes,
it is not advisable for one person to accomplish both roles”.39
Usually, CIP mediation cannot go ahead unless both parents consent to their child’s participation. This
can be controversial since it makes a child’s right to have a say in FDR dependent on their parents’
permission, and some parents may unreasonably withhold consent. In a small-scale Australian study
involving two groups of separating parents who engaged in FDR at a Family Relationship Centre,40 only
four of 33 parents who were offered CIP mediation declined, believing it was unnecessary to include
their children. When asked whether they believed it was appropriate for children to participate in FDR,
only one parent expressed strong views as to why she thought it was inappropriate:
You start giving them choices, or getting them to make a decision about their mother and father’s care, I just
think it’s going to go all wrong, it’s a bad idea. Based on any age of the child, it wouldn’t matter if the kid
was 15, I’d still say no. And I would say “No, I’m your mum, and that’s your dad, and that’s what we know
that is best for you”. And hopefully parents would make the right decision, but I don’t think the kid should
say, “Oh dad’s got me five days, and I only want him to have me two days”, and the parents need to come to
an agreement that hopefully with a mediator is the right decision for the child. But I just don’t think giving
kids adult rights, or an adult’s say in an adult’s matter is the way to go. I just think it stuffs with the head.41
To address the issue of parents unreasonably withholding consent, Brown and Campbell recommend
advising the parents “that children are seen as a matter of course in the service, thus building an expectation
that [child inclusive] practice is ‘normal’”.42 This is the approach used by Anglicare, a Western Australian
Family Relationship Centre, in cases where there are concerns about the safety of children.43
While there is no single model of CIP or a “one size that fits all” approach to ensure children have a voice in
the FDR process,44 Table 1 below provides an example of what is commonly involved in CIP mediation.45
TABLE 1. Example of CIP in the FDR Process
Premeditation session – the premeditation stage, which is commonly referred to as “intake” and a process
mandated under Australian law,46 is aimed at information gathering about the family and an analysis of the
dispute. The person conducting the intake session (usually the mediator) needs to specifically assess the
suitability of CIP in the specific case.47 Some of the indicators identified in the literature to guide mediators
contemplating the suitability of CIP include the parents’ reflective capacity and the potential of CIP in
improving the situation for the children.48 If suitable, the mediator needs to raise the possibility of the children
being interviewed by a child consultant with the parents.
39
McIntosh, n 25. McIntosh recommends, among other things, for those acting as child consultants to have a social science
background and tertiary qualifications encompassing the psychological development of children.
40
Felicity Bell et al, “Choosing Child-Inclusive Mediation” (2012) 23 Australasian Dispute Resolution Journal 253. The first
group comprised 14 parents who had undertaken CIP family mediation, and the second group comprised 19 parents who had
undertaken family mediation not involving their children.
41
Participant quoted in Bell et al, n 40, 261.
42
Thea Brown and Alan Campbell, “Parents, Children and Family Relationship Centres: What’s Working?” (2013) 38 Children
Australia 192, 195.
Tunya Petridis and Jennifer Hannan, “Innovations in Practice: A Safety Assessment Approach to Child-Inclusive Family Dispute
43
Resolution” (2011) 17 Journal of Family Studies 36, 39.
44
Voice of the Child Dispute Resolution Advisory Group, n 33, 19.
45
See Fisher and Brandon, n 26, 545–549.
46
Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25 states that, before providing FDR, a practitioner
must be satisfied that: “(a) an assessment has been conducted of the parties to the dispute; and (b) family dispute resolution is appropriate”.
It further lists the factors that must be taken into account when assessing the suitability of FDR under reg 25(2), which includes, among
other things, any history of family violence between the parties, the likely safety of the parties, and the risk that a child may suffer abuse.
47
See Petridis and Hannan, n 43, 39.
48
See Petridis and Hannan, n 43, 39.
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Will Somebody Please Think of the Children?! Child Focused and Child Inclusive Models
TABLE 1. continued
At the first mediation session – in the first joint session, the mediator should continue assessing the suitability
of CIP. If CIP is considered to be appropriate, each parent should be given information about this practice
including any fees, the aims of CIP and the parameters of confidentiality, including mandatory reporting
requirements where there are allegations of child abuse. Mediators should also manage the parents’ expectations
of including their children to avoid disappointment.49 At this stage, McIntosh recommends mediators giving
parents educational resources that can assist in achieving “optimal child inclusive outcomes in mediation”.50
Ultimately, however, mediators are required to obtain parental consent before a child can participate in FDR.
After the first mediation session – if it is determined that CIP is appropriate and consent is obtained from the
parents and children involved, private interviews with the children are arranged after the first mediation session.
Typically, a child consultant will make contact with the children and should inform them about their role,
the confidentiality requirements, and the limits of confidentiality. It is important to ensure that the children
do not feel they are being placed in the position of having to make a determination about, or resolve, their
parents’ dispute.51 For example, children should not be asked questions about the possible outcomes of FDR.52
Instead, child consultants should use a range of age-appropriate techniques to talk with the children about their
experience and aim to gain insight into the child’s view of the current situation.53 If more than one child is
involved, as in the case of siblings, the consultant may decide to see the siblings together or separately.
Feedback session – following the interview with the child, the mediator and consultant discuss the
feedback given by the children and determine what will be disclosed to the parents. A consultant should
not disclose something a child has expressly asked not to be disclosed unless reporting requirements dictate
otherwise.54As the consultant usually plays no further role in the FDR process after providing a handover to
the mediator, the mediator is responsible for communicating the feedback to the parents in a manageable and
coherent way.55
After the feedback session – the mediator communicates the agreed feedback to the parents in the joint session.
Having heard their children’s views, the parents are in a better position to develop parenting plans that reflect
their children’s expressed interests and needs.
Of course, CIP mediation is not always appropriate. This may be because the children are too young
to be involved or it is apparent that the parents will not use the feedback constructively.56 There is
also debate whether CIP is appropriate when there has been a history of family violence.57 Despite
the “dominant protectionist beliefs”58 that support excluding children from the process in high conflict
situations, CIP may nevertheless be appropriate even in cases involving allegations of abuse.59 Arguably,
CIP may be particularly important in such cases because, if the children are not heard, they may feel
49
See Felicity Bell et al, “Outcomes of Child-Inclusive Mediation” (2013) 27 International Journal of Law, Policy and the Family
116. In their study, the researchers found that some parents who engaged in CIP mediation were disappointed because they had
high expectations that it would “change their former partner’s attitude and behaviour” (p 137). Their study highlighted the need for
mediators to clarify each parents’ understanding and expectations of giving their children a voice in FDR.
50
McIntosh, n 25.
51
McIntosh, n 25.
52
Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis Butterworths, 2nd ed, 2012) 314.
53
For example, consultants may ask children to draw pictures of their family, use bear cards, or use sand play: Fisher and Brandon,
n 26, 548.
54
Fisher and Brandon, n 26, 546.
55
While it is beyond the scope of this article, CIP does raise the difficult question of how to support parents who cannot cope with
the feedback and cannot proceed with the mediation.
56
Boulle and Alexander suggest that CIP is appropriate when the child is over five years of age: see n 52.
57
Brown and Campbell, n 42, 193.
Amanda Shea Hart, “Child-Inclusive Mediation Cases of Domestic Violence in Australia” (2009) 27 Conflict Resolution
58
Quarterly 3, 12.
59
See especially Petridis and Hannan, n 43.
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Al-Alosi
further disempowered and distressed,60 and their exclusion from FDR “automatically increases their
vulnerability”.61
Mediators play a key role in helping the parties reach an agreement that is in the best interests of the
children involved.62 It is therefore essential that mediators have training in facilitating child-responsive
practices,63 which are designed to encourage parents to place their children’s needs as paramount.
This requires placing the needs of the children at the forefront during the FDR process – from intake
through to completion. Before mediation, mediators should seek the commitment of both parents to
formulate parenting plans that consider the best interests of the children and, throughout the process,
help them reach agreements that reflect those needs. It is especially important for mediators to ensure
that “best interests of the child” does not become a meaningless slogan used by the parents to serve their
self-interests:
Parents may well have difficulty differentiating between their own desires, feelings and goals, and those
of their children. This is probably the most difficult of situations because it requires the ability of the
mediators to “see past” words and “expose” the adult’s own, disguised, wishes.64
Furthermore, to assist parents to develop child focused parenting plans, mediators should educate parents
about the impacts of parental conflict on children, which research shows can be quite damaging.65
Parents would benefit from being given appropriate resources to help them understand their children’s
needs at different developmental stages, such as fact sheets and brochures, and inform them about parent
education seminars.66 Where necessary, mediators should make referrals to relevant service providers,
such as counselling services or legal service providers.67
THE PROS OF CHILD INCLUSIVE PRACTICE
Child inclusion in FDR has several potential benefits for children and parents. Research suggests that
CIP is superior to mediation that does not invite children to express their views. For instance, in their
study evaluating CIP and CFP, McIntosh and Long reported that CIP mediation yielded significantly
higher rates of satisfaction among parents and children with the parenting arrangements a year after the
mediation than those involved in FDR where the children’s voices were not heard.68 Parents who were
in the CFP group were found to be more likely to have pursued litigation than the group who undertook
60
Hart, n 58, 10.
61
Hart, n 58, 12. In response to the concerning number of child safety issues identified at the intake stage with parents, Anglicare
in Western Australia has developed an approach to promote the safety of children in cases involving high-risk cases that uses
CIP but does not proceed to mediation: see Hannan, n 19. Where child protection issues arise, the Centre will regularly interview
the children involved to obtain their perspectives. Feedback is only given to the parents where it is determined safe to do so, and
mediators are mindful of any possible consequences of disclosing the information obtained for the child: see Petridis and Hannan,
n 43.
62
See Family Law Act 1975 (Cth) s 60D.
63
As pointed out in the United Kingdom by the Voice of the Child Dispute Resolution Advisory Group, it is particularly important
that mediators are trained to adhere to several CIP principles. This includes the principles that children’s participation should
always be voluntary, the children must consent to any disclosure made to the parents, and that the safety of the children must
always take priority: see n 33, 23.
64
Eva Ryrstedt, “Mediation regarding Children - Is the Result always in the Best Interests of the Child? A View from Sweden”
(2012) 26 International Journal of Law, Policy and the Family 220, 237.
65
For example see Jennifer McIntosh et al, Parenting after Separation, The Australian Psychological Society (2009) <https://
www.psychology.org.au/getmedia/f5dfbf01-b110-4ecf-b04f-578e7dc8136a/Parenting_separation_2009-position-statement.
pdf>; Jennifer Baxter, Ruth Weston, and Lixia Qu, “Family Structure, Co-Parental Relationship Quality, Post-separation Paternal
involvement and Children’s Emotional Wellbeing” (2011) 17 Journal of Family Studies 86.
66
Fisher and Brandon, n 26, 541.
67
Fisher and Brandon, n 26, 542.
Jennifer McIntosh and Caroline Long, “Children Beyond Dispute: A Prospective Study of Outcomes from Child Focused and
68
Child Inclusive Post-Separation Family Dispute Resolution”, Final Research Report, Australian Government Attorney-General’s
Department (2006) <https://aifs.gov.au/cfca/sites/default/files/publication-documents/n3.pdf>.
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Will Somebody Please Think of the Children?! Child Focused and Child Inclusive Models
mediation that was child inclusive.69 McIntosh and Long concluded that CIP “assisted parents to create
‘developmentally correct’ agreements, tailored to the core experiences of their children, and made it
easier to resist arrangements tailored to any sense of adult entitlement”.70
Moreover, research demonstrates that CIP mediation is an effective way of promoting greater
understanding of children’s experiences post-separation.71 For example, in a study undertaken at two
Family Relationship Centres in Western Australia, “parents whose children had participated [in FDR]
expressed significant satisfaction with the outcomes. Parents reported that the children appreciated the
chance to express themselves to a neutral and informed professional. … In addition, parents whose
children had participated reported having greater understanding about the children’s views.”72 Parents
and practitioners also reported that the “children appeared happier and more relaxed following their
conversation with the child consultant”,73 which is consistent with the findings of other research on CIP.74
Research further indicates that many children want the option to express their perspective.75 In McIntosh’s
study that involved 17 children aged between five and sixteen who participated in FDR, the majority (15
out of 17) reported that inclusion was beneficial and made comments such as:76
“All kids should be given the opportunity to talk with someone, and then they can choose if they want to.
It’s better than having no one and not knowing what to say to Mum and Dad.” (nine-year-old girl)
“It’s good because you just need to say how it is for you.” (ten-year-old boy)
The findings are consistent with a more recent study conducted by McIntosh et al where 86% of children
reported that meeting with a child consultant was helpful for various reasons.77 For example, some
children believed that participating improved their relationship with their parents and claimed that “[i]t
helped to have someone listen to what I said, for it to be kept confidential, but also [the child consultant]
would pass on to the parents what I wanted them to know”.78 In another study exploring children’s
views on parenting arrangements, the researchers observed that the “key concern for many children and
69
It should be noted that McIntosh and Long’s study was conducted prior to the 2006 amendments to the Family Law Act 1975 (Cth)
that made FDR mandatory before filing a parenting application. This means that the participants were voluntarily using mediation
to resolve their parenting dispute. In a small-scale study undertaken on FDR provided at Family Relationship Centres based in
New South Wales after the 2006 reforms, the researchers compared CIP and CFP. They did not find CIP to be more beneficial than
CFP in helping parents resolve their dispute or parental relationship. However, the parents involved in CIP mediation reported that
allowing children to be seen by a child consultant was generally positive: Bell et al, n 49, 116.
70
McIntosh and Long, n 68.
71
See McIntosh, n 25.
72
Brown and Campbell, n 42.
73
Brown and Campbell, n 42.
For example see McIntosh and Long, n 68; Pamela Henry and Karine Hamilton, “The Inclusion of Children in Family Dispute
74
Resolution in Australia: Balancing Welfare Versus Rights Principles” (2012) 20 International Journal of Children’s Rights 584.
75
For example see Dale Bagshaw, “Reshaping Responses to Children When Parents are Separating: Hearing Children’s Voices in
the Transition” (2007) 60 Australian Social Work 450; Judy Cashmore and Patrick Parkinson, “Children’s Participation in Family
Law Disputes: The Views of Children, Parents, Lawyers and Counsellors” (2009) no. 82 Family Matters 15; Judy Cashmore
et al, Shared Care Parenting Arrangements since the 2006 Family Law Reforms, Report to the Australian Government Attorney-
General’s Department Sydney, Social Policy Research Centre, University of New South Wales (2010); Judy Cashmore, “Children’s
Participation in Family Law Decision-Making: Theoretical Approaches to Understanding Children’s Views” (2011) 33 Children
and Youth Services Review 515; Bagshaw et al, “Family Violence and Family Law in Australia: The Experiences and Views of
Children and Adults from Families who Separated Post-1995 and Post-2006” (2011) no. 86 Family Matters 49; Robyn Fitzgerald
and Anne Graham, “The Changing Status of Children within Family Law from Vision to Reality?” (2011) 20 Griffith Law Review
421; Rachel Birnbaum and Michael Saini, “A Qualitative Synthesis of Children’s Participation in Custody Disputes” (2012) 22
Research on Social Work Practice 400.
76
Jennifer McIntosh, “Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study” (2000) 18 Mediation Quarterly
55, 65.
77
Jennifer McIntosh et al, “Child-Focused and Child-Inclusive Divorce Mediation: Comparative Outcomes from a Prospective
Study of Postseparation Adjustment” (2008) 46 Family Court Review 105, 119.
78
McIntosh et al, n 77, 119.
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Al-Alosi
adolescents, and one that was significantly associated with how happy they were with the arrangements,
was their perception that they had some say [in the process]”.79 Those who were given a say in the
arrangements were found to be happier than those who had not.80
A limitation of much of the available research, however, is that it only shows the short-term benefits
of engaging in child inclusive FDR and does not glean into the long-term impacts participation has on
children and parents.81 Therefore, there is a need for more longitudinal research assessing the long-term
impacts CIP mediation has on families.
THE CONS OF CHILD INCLUSIVE PRACTICE
While there is little contention that FDR should be child focused, there is ongoing debate whether it
should be child inclusive. It would be naïve to assume that CIP does not have its limitations. Parkinson
and Cashmore have considered some of the “pitfalls of listening to children”,82 including the risk that
it can place children in the middle of the conflict; “[w]hen children are asked to take sides in their
parents’ battles, this can be very damaging”.83 For example, some parents may manipulate their children
to benefit their own case. Consequently, the child’s voice may be lost or distorted by what a parent has
pressured their child to say. The more weight a child’s view is given in the decision-making process,
the more likely the child will be manipulated or pressured by either parent.84 Accordingly, it is vital
for practitioners to be able to “identify when children are expressing their own preferences, views, and
perceptions, and distinguishing these from views that merely parrot the opinions of a parent”.85
It has also been argued that CIP mediation is not suitable because, in the midst of family turmoil, children
do not know what is in their best interests:
In some families children align themselves with the parent they most fear, or the parent they regard as
most unstable. Other children take on the responsibility of caring for a needy parent. … Although these
children may be outspoken in their custodial preferences, their wishes may not reflect their genuine best
interests.86
However, the argument that participation in FDR is not in the best interests of the child is undermined
because, as noted previously, CIP is about giving children a voice, not a choice. This means that “children
do not control the decision and they are not responsible for it”.87 It can also be argued that hearing the
views of the child is advantageous because it can give parents a greater understanding of what is in the
best interests of their children.88
Studies show that, although they want to have a voice, most children do not want to be decision-
makers.89 According to Kelly, children “clearly understand the difference between expressing their
79
Cashmore et al, n 75, 124.
80
Cashmore et al, n 75, 124.
81
For a study that compared the long-term outcomes of CIP, see McIntosh et al, n 77. The researchers in that study reported that
parents and children who engaged in CIP remained more content with parenting arrangements than those who did not engage in
this practice a year after mediation. Therefore, they were less likely to commence court proceedings over parenting arrangements
post-mediation.
82
Parkinson and Cashmore, n 36, 13.
83
Parkinson and Cashmore, n 36, 14. Also see Fisher and Brandon, n 26, 545.
84
Richard A Warshak, “Payoffs and Pitfalls of Listening to Children” (2003) 52 Family Relations 373, 375.
85
Parkinson and Cashmore, n 36, 15.
86
Warshak, n 84.
87
Parkinson and Cashmore, n 36, 20 (emphasis in original).
88
See Parkinson and Cashmore, n 36, 191.
89
See Joan B Kelly, “Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current
Research and Practice” (2000) 10 Virginia Journal of Social Policy & Law 129, 151. In a study conducted by the Australian
Institute of Family Studies involving 623 adolescents, it was found that “[g]iving adolescents a role in decisions about family
arrangements was associated with them having more positive feelings about their living arrangements. However, more than one
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Will Somebody Please Think of the Children?! Child Focused and Child Inclusive Models
thoughts and making final decisions” and research shows that most children “state that they do not want
to make autonomous decisions”.90 Nevertheless, there is a concern that some children may be under the
misapprehension that they have to make a determinative decision about their parents’ dispute.91 It is
possible that even where a child has been reassured that they are not the decision-makers they may still
feel “the burden of responsibility”92 and that they have been given a level of power they are not equipped
to hold.
Indeed, some children may not want to participate in the process or feel uncomfortable speaking with a
child consultant, which makes it critical to emphasise that participation is voluntary. However, children
who may have voluntarily participated in FDR may later feel they have been harmed in doing so. In
Henry and Hamilton’s study, although the majority stated that they benefited from speaking with a
child consultant, two of the 24 children participants said it had been harmful because their father was
angered by the feedback the child consultant had relayed back to him.93 This example illustrates why
it is essential for mediators to assess the suitability of CIP in intake by gauging the parents’ ability to
take on their children’s views and gleaning into how they might react to confronting information.94 As
noted in Table 1 above, during intake and throughout the process, mediators should be attuned to the
risks of CIP and should be particularly cautious in cases involving family violence because there is
“potential for parents to retaliate against children”.95 It is therefore advisable for service providers to
implement a follow-up mechanism to check on the safety of children from abusive families following
their participation in FDR.
Furthermore, involving a child consultant and the time required to interview a child raises concerns about
the added financial costs for offering CIP in mediation.96 As mentioned above, the Federal Government
established Family Relationship Centres – many of which embrace CIP – throughout Australia to help
alleviate the costs of FDR. Although these Centres often provide free mediation, there is a limit on
the number of free sessions per family. In some cases, it may take several sessions until the child feels
comfortable in communicating their views to a consultant.97 However, it has been argued that “[t]he
financial and emotional savings to families from successful mediation, obviating the need for costly,
lengthy, and profoundly negative trials may well merit the additional cost of including children in the
mediation process”.98 Even in cases where the mediation is not successful in resolving the dispute and
the matter proceeds to court, children would have benefited from the ability to express how they feel.99
in three adolescents did not want to be asked to make such major decisions—in most cases, this was because they wanted to
avoid having to ‘choose’ between parents”: Jodie Lodge, Parental Separation from an Adolescent Perspective: What Do They
Say?, Australian Institute of Family Studies, CFCA Paper No 5, p 4, <https://aifs.gov.au/cfca/sites/default/files/cfca/pubs/papers/
a142071/cfca05.pdf>.
90
Kelly, n 89.
91
Cashmore and Parkinson, n 75, 18.
92
This “refers to the notion that involving children in post-separation arrangements unfairly troubles them”: Henry and Hamilton,
n 74, 595. Henry and Hamilton’s study suggested that, even though the majority felt that CIP was beneficial, they believed their
input had a significant bearing on the outcome of their family arrangements.
93
Henry and Hamilton, n 74, 590.
94
As emphasised by Kochanski, mediators “should never underestimate the importance of an intake” since it provides an
opportunity to assess the suitability of FDR and whether it is safe to proceed: Linda Kochanski, “Family Dispute Resolution: The
Importance of an Intake” (2011) 1 Family Law Review 164.
95
Henry and Hamilton, n 74, 591.
See Stacey Platt, “Set another Place at the Table: Child Participation in Family Separation Cases” (2016) 17 Cardozo Journal of
96
Conflict Resolution 749, 761–762.
97
Henry and Hamilton note that “a one hour consultation may not be enough to allow some children to open up about their thoughts
and wishes. As one of the counselor[s] explained, it took up to 5 sessions for one child client to even begin to communicate about
their inner world”: see n 74, 594.
98
Platt, n 96, 761. Also see McIntosh, n 25.
99
Platt, n 96, 761.
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Al-Alosi
WHY CHILD INCLUSIVE PRACTICE SHOULD BE THE PREFERRED MODEL
Despite the risks of CIP, there are strong reasons why it should be encouraged and preferred over practices
that are not child inclusive. One reason is that, because the agreements made in FDR affect children, they
ought to have a say, and this right is reinforced by Art 12 of the United Nations Convention on the Rights
of the Child, which stipulates:
1. States 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.
2. 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.
In a study on children’s participation in family law disputes in Australia, many counsellors argued that
the right of children to be heard should not be “dependent on the children being rational in their views.
The need to involve them arose from respect for their intrinsic personhood and position as primary
stakeholders in the decision – the ones who had to ‘live’ with the arrangements”.100 The older the child is,
the more critical it is to give them an opportunity to have their voice heard. Parkinson and Cashmore also
argue that the “older the child, the more difficult it will be to maintain parenting arrangements which do
not accord at all with what they want. Younger children under the authority of the primary carer are much
more likely to adjust and accept the situation”.101 However, even young children can provide insights
into the family situation and the information disclosed can be useful in identifying what is in their best
interests.102
In McIntosh’s study, parents who were involved in CIP reported that listening to their child’s feedback
was invaluable because it gave them information they would not otherwise have.103 One father commented
that he had “learned why my children didn’t want to live with me. … Now I know how to handle it and
make it better for the kids”.104 Another parent claimed that child inclusive mediation revealed to them
“the kids miss their dad, and I’m okay with that”.105
Although the burden of responsibility must always fall on the parents, children involved in the FDR
process may generate solutions that were not contemplated by the parents. When the proposal comes
from the children it also makes it “easier for each parent to accept it without loss of face”.106 For example,
Chisholm referred to a case study where two parents encountered an impasse about where their children
should live. They could not agree to any of the suggestions they had generated. In mediation, the children,
aged 11 and 9, suggested an alternative arrangement to the mediator in a private session that had not been
considered by the parents. The children were reported to have said:
[T]hey knew each parent was sad when they were not with the children, and that they too missed that
parent. The children said that they did not need to be together all the time. And so they suggested a regime
in which for some periods one child would be alone with each parent and at other times the children
would be together. This proposal was greeted with relief and high emotion, and formed the basis of the
100
Parkinson and Cashmore, n 36, 191. In the United Kingdom, the Voice of the Child Dispute Resolution Advisory Group
recommended there should be an adoption of a non-legal presumption that all children aged 10 and above should be offered an
opportunity to have their say in FDR if they wish. This age was seen as appropriate “because it is the age of criminal responsibility
and, as such, signals an appropriate age at which all children should be given the opportunity to have a say in decisions that affect
them”: Voice of the Child, n 33, 1. Also see Brown and Campbell, n 42, 193.
101
Parkinson and Cashmore, n 36, 201. Parkinson and Cashmore also argue that the “older the child, the more difficult it will be
to maintain parenting arrangements which do not accord at all with what they want. Younger children under the authority of the
primary carer are much more likely to adjust and accept the situation” (p 202).
102
Parkinson and Cashmore, n 36, 192.
103
McIntosh, n 76, 64.
104
McIntosh, n 76, 64.
105
McIntosh, n 76.
106
Richard Chisholm “Children’s Participation in Family Court Litigation” (1999) 13 Australian Journal of Family Law 197.
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Will Somebody Please Think of the Children?! Child Focused and Child Inclusive Models
eventual solution finalised by the parents. The point is that the kids thought of it and the parents had not
been able to.107
Furthermore, even though it is not the main aim of child inclusive FDR, speaking to a child consultant
can have a significant therapeutic value for the children involved. Given the opportunity to be
heard has been shown to bring children “certain benefits in the form of releasing pent-up emotions,
improving communication channels with other family members, and changing family relationships in
positive ways”.108 Conversely, not giving children the chance to express themselves may have negative
implications, such as depression,109 and can leave children feeling angry, confused and lonely.110 Thus,
despite the drawbacks of CIP, as argued by Parkes, “failing to involve children in these decision-making
processes may cause them more harm—both psychologically and developmentally in the long term”.111
SUMMARY AND MOVING FORWARD
This article explored CFP and CIP in family mediation. It discussed the advantages and risks of listening
to children in post-separation mediation. In doing so, this article  drew upon informative research to
demonstrate why the benefits of giving children a voice in the FDR process outweigh the potential
pitfalls for most families. Naturally, further research is needed to shed light on the long-term impacts of
child inclusive mediation on children and parents, especially in cases where there have been allegations
of family violence. Additionally, because there is no single model of CIP, research should test and
evaluate the different models that facilitate child inclusion in FDR.
Child inclusive mediation is still developing in Australia and around the world, but the evidence so
far indicates that it holds major promise for families. CIP is therefore the preferred model in FDR but,
in cases where CIP is not feasible or appropriate, “a child focused environment in family law dispute
resolution needs to become the minimum standard for good practice.”112
Children evidently want to be heard and, to some extent, this has been recognised by amendments to
family law recognising the right of children to be heard in court proceedings. However, in Australia,
and other parts of the world, there is no legislative requirement that children be given a voice in the
FDR process. Accordingly, it is crucial to “move beyond the focus on hearing children in trials”113
by inviting them to share their views in mediation. This is particularly important now that FDR has
become compulsory before pursuing litigation and because only a small minority of families will go
to court.114
Moving forward, national professional standards on best practice to guide mediators on child inclusion
in FDR should be developed. This would help achieve consistency and establish CIP as a norm rather
than the exception in FDR throughout Australia. As part of the accreditation process, approved education
providers should provide consistent training on CIP and should assess the competency of potential
mediators to implement CIP in family mediation. Some of the core competencies that a person should
demonstrate to become accredited should include the ability to effectively communicate with parents
about CIP, how to work with child consultants, and how to communicate directly with children in the
absence of a child consultant.
107
Chisholm, n 106.
108
Henry and Hamilton, n 74, 585–586.
109
Parkinson and Cashmore, n 36, 192.
110
Fitzgerald and Graham, n 75, 432–433.
111
Aisling Parkes, “Implementation of Article 12 in Family Law Proceedings in Ireland and New Zealand” in T Gall and B Duramy
(eds), International Perspectives and Empirical Findings on Child Participation: From Social Exclusion to Child-Inclusive Policies
(Oxford University Press, 2015) 113.
112
Lawrie Moloney and Jennifer McIntosh, “Child Responsive Practices in Australian Family Law: Past Problems and Future
Directions” (2004) 10 Journal of Family Studies 71, 72.
113
Parkinson and Cashmore, n 36, 198.
114
See Parkinson and Cashmore, n 36, 216–218.
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 Al-Alosi

It is acknowledged that the increased cost associated with training mediators and offering CIP is an
obstacle to including children, which makes it is essential for governments to address funding barriers
to promote child inclusive FDR. As mentioned above, the costs associated with CIP can be offset given
its ability to facilitate workable parenting arrangements, thereby avoiding the need to go through lengthy
court proceedings. There may also be cost “savings derived from the prevention of escalating conflict”
and, therefore, can be seen as an “investment in the future”.115
Moving forward also requires legislative guidance on child inclusion in mediation to avoid ad hoc and
inconsistent practices. For example, providing parents with information about CIP can be included under
reg  28 of the Family Law (Family Dispute Resolution Practitioners) Regulations  2008 (Cth), which
sets out the information that must be given to parties before commencing FDR. Legislation should
explicitly foster a child inclusive culture by, for example, providing a positive presumption that children
have a right to be heard in FDR unless there are exceptional circumstances overriding a child’s wish to
participate. This would be more consistent with the participatory principle embodied in Art 12 of the
United Nations Convention on the Rights of Child. Not only would such legislation give recognition to
the importance of children’s participatory rights but it would also give practitioners a legislative basis
for recommending parents to consider CIP in appropriate cases. In turn, it is hoped that the mediation
landscape will transform into a more supportive environment of listening to children that will assist
parents when developing parenting plans that are in the best interests of the child.

115
McIntosh, n 25.

20 (2018) 29 ADRJ 8

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