INCLUDING THE VOICES OF CHILDREN OF
SEPARATION AND DIVORCE IN THE LEGAL
SYSTEM : 2013 STUDY
LORRI YASENIK PHD
PRESENTATION OVERVIEW
• Including children: A Few Words about how we got here?
• Provide a snapshot of what the literature says about
including children
• Provide a snapshot of what children say about being
included
• The Research Question?????
• Proposed timing of Inclusion of children
• Interventions – Areas of Importance to Therapists and
Children’s Lawyers
UNITED NATIONS CONVENTION ON THE RIGHTS OF
THE CHILD
Emergence of Children’s Rights…
More emphasis has been placed on including children’s
voices in separation and divorce since Canada
ratified the United Nations Convention of the Rights
of the Child in 1991.
UN CONVENTION ON THE RIGHTS OF
THE CHILD
Autonomy
Capacity
Age Limits
A FOCUS ON INCLUDING CHILDREN’S VOICES
ARE SYSTEMATIC METHODS FOR
GAINING THE CHILD’S VOICE
AVAILABLE?
• Some guiding frameworks exist – What to look for, contributing
factors, systems-based models for assessment, child factors,
alienating behavior lists, recommendations for working in teams
etc.
• The higher the conflict in a family, the more we know that
traditional ways of working may be unhelpful and create more
divisiveness
WHAT DOES THE LITERATURE SAY ABOUT
INCLUDING CHILDREN’S VOICES - PROS?
The Pros:
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Rights-based and interest-based considerations
Desire of children to be active participants
Consideration that participation is linked to broader policy perspective
Participation positively correlated to adaptation in family post separation
and divorce
Direct participation provides the most direct summary of children’s
needs
Children’s participation provides children with a sense of responsibility
Improved parent/child relationships and therapeutic benefits to families
(Birnbaum, 2009) – Lit Review
WHAT DOES THE RESEARCH SAY ABOUT
INCLUDING CHILDREN’S VOICES- CONS
The Cons:
• Competing issues – principles of child welfare and
participation can collide
• Competing goals of protection from emotional harm and
protection of litigants due process when gaining the voice
of the child
• There is a question as to “meaningful” feedback to the
system
• Some believe that children of separation and divorce are in
untenable positions (children’s voices can be lost or
modified to please a parent)
WHAT DOES THE LIT SAY- CONS CONTINUED
• Children may align with a parent who is feared, some
engage in caring for an ailing or needy parent or report
recent fear of a previously loved parent due to an atypical
isolated conflict incident
• Some children are concerned about creating more conflict
or worry about a parent retaliating in anger which drives
their desire not to participate
• Overall – studies from various countries indicate a low level
of consultation and participation in family law related to
custody and access
LITERATURE: WHAT DO CHILDREN SAY?
(Butler et Al.) British Study (104 Children 7-15 yrs)
• Children wanted to know what was happening at the time of their parents’
separation
• They wanted someone to gain their input about their living arrangements
• Most children wanted to continue to have relationships with both parents
• Most children wanted to spend equal time with each parent
• Children often felt powerless and in the middle of parent agendas, guilty
about expressing what they wanted when their parents held conflicting
opinions to one another and torn loyalties.
Butler et al. (2002)
WHAT DO CHILDREN SAY?
Smart (2002): Qualitative Study
Children reported a number of areas of importance to them-
• physical space – (living spaces, adjustments, organizing
possessions)
• emotional space- (emotional zones between parent homes –
emotions at transitions)
• psychological space- (distance between themselves and their
parents- differentiation)
• dimension of “time”- (time apart, equal time, time to oneself,
who’s time?)
• Children wanted flexibility and not to have to make choices
LITERATURE: WHAT DO CHILDREN SAY?
Fitzgerald (2009) and Graham and Fitzgerald (2006)
Found Key Themes to What Children Thought Participation Was To Them?
• To be respected and seriously considered
• They wanted an opportunity to participate based on
genuine efforts for change
• Access to information – to make decisions and cope with
decisions made for them
• They did not want their participation to be mistaken for
them being responsible for decision-making
• They wanted those who spoke to them to see their input as
a discussion and they wanted to avoid “individual claims”
LITERATURE – WHAT DO CHILDREN SAY?
Birnbaum, Bala and Cyr (2011) (29 children)
What were children’s experiences with family justice professionals (lawyers and
mental health professionals and Judges? (Ontario and Ohio sample)
Thematic Results:
• How children found out about the plans for their care?
• Level of their involvement in developing these plans
• Did they feel heard by the people that spoke to them?
• What did they find helpful or not about their
involvement with the professional?
INCLUDING CHILDREN
The question is not
Should We Include Children?
BUT…….
WHEN and HOW should we Include
Children?
CHALLENGES TO GAINING THE
CHILD’S VOICE(S)?
Two Main Professionals Provide Feedback to the Court as Proxy Voices for Children:
1) Children’s Counsel- Legal
2) Child Therapist/Assessor/Parenting Expert
Bilateral Assessor -Clinical
RESEARCH QUESTION
What factors do therapists and children’s
lawyers consider important when
gathering and constructing the child’s
voice for inclusion in court proceedings
and how do they do it?
RESEARCH PARTICIPANTS
22 Participants: 11 child therapists and 11 children’s lawyers
• Therapists are defined as having a minimum Masters
Degree in Clinical Social Work or Psychology
• All participants were senior in the their fields of practice
(Average age 55 yrs. practicing between 6-20 years – more
than half the participants > 20 yrs. experience)
• Other than the Judge and sometimes mediators/PCs –
these are the primary 2 groups that provide children’s
voices back to the court
RESEARCH METHODOLOGY AND METHODS
QUALITATIVE RESEARCH - BASED ON RESEARCH QUESTION
• Nature of question is “what and how” versus a “why” question which
lends itself to quantitative comparison or cause and effect study
•
Interviews were both individual and group – increasing variation of
responses (different people in each type of interview)
•
The interviews (group and individual) of both lawyers and therapists
were transcribed, coded, deconstructed analyzed and compared –
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Grounded Theory – approach used to analyze the qualitative data
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Similarities and differences between the two professional groups was
reviewed
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Theory was developed
WHAT EMERGED?
The research question was initially skirted
High focus on current legal process/procedures that get in the way
The two professional groups were more similar than different
Including children happens later in the process
No standard processes utilized to gain the voice of the child
Best practice guidelines for interfacing with children were generated
The complexity was a legal system that professionals tried to work “around”
Therapist input was very important due to the multiple and varied ways children
express themselves
CHILDREN’S LAWYERS: WHAT THEY SAY
BLUE TREE
WHAT LAWYERS WERE CONCERNED ABOUT
CHILDREN’S THERAPISTS: WHAT THEY SAY
RED TREE
WHAT THERAPISTS WERE CONCERNED ABOUT
BLENDED TREE
THE SIMILARITIES AND DIFFERENCES BETWEEN LAWYERS AND THERAPISTS
RESULTS/CONSIDERATIONS
Consideration #1: Procedural Reform –
Proposal for a Pilot Project
Consideration #2: Early inclusion of
children
Consideration #3: Proposed best
practices for Including children’s
voices
DISCUSSION AND FUTURE CONSIDERATIONS:
CONSIDERATION #1 PROCEDURAL REFORM
Review FIGURE 4: CURRENT INCLUSION OF CHILD’S VOICE
1) Current Inclusion of the child’s voice- Notice that the bright
block of yellow is at the bottom of Figure 4 diagram. Essentially,
children are included once the conflict between parents is
entrenched. Parents begin at the top of the diagram with legal
processes (some of them settle right away – others do not).
CONFLICT BUILDS OVER TIME AND CHILDREN END UP BEING
THROWN IN AS “TIE BREAKERS”
CONSIDERATION #2 EARLY INCLUSION OF
CHILDREN
Review Figure 5: Proposed Practice - Early
Inclusion of Child’s Voice
Notice that this diagram identifies a number of services that
we already have available in Calgary and coordinates them so
that children are included earlier in the process – BEFORE
THE CONFLICT BECOMES ENTRENCHED.
The big yellow block is at the top of the diagram instead of the
bottom.
CONSIDERATION #3 PROPOSED BEST
PRACTICES FOR INCLUDING CHILDREN’S
VOICES
• Preparation Phase
•
Early Intervention
• Factors related to Parent
Inclusion
•
Provide Conflict Story
•
Provide Role Child Plays in
Conflict Story
•
Manage Personal Bias
•
Language – Provide
Descriptions
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Multi-disciplinary teams
•
What to Include for
Presentation to the Court
• Review Factors Related to
Confidentiality
• Use Structured and
Unstructured Activities and
procedures – multiple
approaches
• Know Child Development
(understand the limitations
of verbalizations)
PROPOSED BEST PRACTICE: MENU OF ACTIONS
• With each heading comes a menu of
actions (sample provided)
• The menu of actions reflects current
practice considerations of both therapists
and children’s lawyers in Calgary
PROPOSED BEST PRACTICE (CONTINUED)
• Children’s voices are a product of social interaction vs. individual property
• A Team approach is highly recommended based on the complexity of gaining the
voices of the child
• Lawyers generally felt they needed the input of a mental health specialist
• Parent involvement is essential for therapists/others providing context to the
court
• Children’s Privacy and their involvement about what will be said about them was
essential
• Children under the age of 6 should see a child and play therapist
• Depending on role – children must be seen multiple times (minimum 2-6) One
interview will not suffice –see children over time
• Knowledge base must include advanced child development concepts
• Providing the details of the conflict story provides the context for the Judge