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:

• 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 –

• Grounded Theory – approach used to analyze the qualitative data

• Similarities and differences between the two professional groups was reviewed

• 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

• Factors related to Parent Inclusion

• Review Factors Related to Confidentiality

• Use Structured and Unstructured Activities and procedures – multiple approaches

• Know Child Development (understand the limitations of verbalizations)

• Early Intervention

• Provide Conflict Story

• Provide Role Child Plays in Conflict Story

• Manage Personal Bias

• Language – Provide Descriptions

• Multi-disciplinary teams

• What to Include for Presentation to the Court

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

QUESTIONS A

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