Changing the Ring Tone. Beyond the Voice of the Child in FDR
This paper examines the stated intent of FDR to promote welfare and best
interests of children. I suggest that parenting agreements and children
having the right to comment form but a trailer. The movie is the evidence
based impact of entrenched family conflict on children – from
neurobiology to intergenerational transmission – and what that has to do
with us as mediators.
“The end is where we start from.” (Little Gidding” TS Eliot 1942)
It has been 6 months since Family Dispute Resolution (FDR) was passed into
New Zealand family law.
In explaining the reform Judith Collins (2013) said,
“This Government has three priorities driving the reform and are committed to
creating a court which protects vulnerable people, provides fast and efficient
resolution of private disputes and, as a priority, puts the needs of children first”.
(My underline)
In the process of FDR, there is a window of opportunity to prioritise children,
which can go beyond agreement making and potentially act on their right to
participate, be consulted or to comment. Why this matters and how it might be
done forms the basis of this brief paper.
Earlier this year I was at a seminar where it was debated whether it was possible
to be to be a neutral mediator whilst also advocating for best interests of the
children. The significant question seems to be - is the process of FDR, as an
agreement forming process, sufficient in itself to be in the best interests of the
children? Are we as mediators, to paraphrase Sasponek, neutral facilitators of
negotiations between two parents - or are we direct advocates for the children
who are the subject of the dispute? Is it possible to do both?
FDR will create greater speed in resolution of parenting disputes, but two issues
reside: one is that the parties to the dispute are already locked in high conflict
and secondly, that their children will have been, (and at least indirectly will still
be), exposed to conflict.
Some children will be managing the transitional conflict of movement to
different structures within their family. Others will be mired within chronic,
ongoing and toxic dispute, which has been a feature of their childhood.
Volumes of research exist on the impact of conflict for children. Variables will
lessen conflict impact and support resilience for some – but for other children,
caught in chronic and ongoing conflict, the consequences for their mental health
will already be serious.
What sort of opportunity might we have, as a result of FDR, to build on the
outcome of making agreements? How might we add value by ensuring our
process utilise the findings of cutting edge empirical research on families and
children?
Before the passing in 2013 of the Family Proceedings Reform Bill, around 95%
of cases settled without court action. My argument was then, and is now, that the
majority of children involved did not therefore have an opportunity to be heard
in matters that affected them. (This, despite the fact that our country is a
signatory to the United Nations Convention on the Rights of the Child –UNCROCwhich enshrines the right of children to comment). These children were not the
subject of specialist reports and nor did they have a lawyer appointed for them.
Nor were they allowed to be part of their parents court funded counselling under
the Family Proceedings Act.
We know that children fare better without the delay of prolonged legal processes
where their parents become ever more entrenched in dispute – but if we are to
prioritise the children who are struggling with the worst of the lingering
acrimony and its dysfunctional impact –then FDR is finally an opportunity to
access child participation within the family context.
This is nothing new, and promising research trends reinforce this way of
working throughout international jurisdictions. (McIntosh et al 2009,HoltzwothMonroe et al 2009, ,Schoffer 2005,Sasponek 1991, Goldson 2006, Rae, 2006),
At the time of writing this paper, (July 2014), Simon Hughes, Family Justice
Minister, UK, had just announced,” We are committing to putting children firmly
at the heart of the family justice system. Children and young people by law must
have their views heard before decisions are made about their future. For too long
they have been pushed and pulled through the system with little or no say on
what happens to them. The Government will also work with the mediation sector
so that children have appropriate access to mediators in cases, which affect
them. Ministry of Justice will be working with judges and with CAFCASS and,
most importantly, with the young people themselves, to implement this change”.
The enigma is that it has taken our country so long to apply these principles to
family law, renowned though it is for our pioneering work in participatory
practice in Care and Protection, (Children, Young Persons and their Families Act
1989)
We now have a ripe context for the fusion of the legal mandate and of
understanding and working with the psychology of family restructure. Society is
at the crossroads of negotiation and transformation, maintaining health and
wellbeing via management of social change is surely a core remit for social
policy.
Given the knowledge we have about the dangers of the impact of parental
conflict on child psychology, this seems a timely opportunity for us as FDR
mediators to become more familiar with the research and evidence based
training, to collaborate across interdisciplinary professions and to refer out,
depending on the presentations we are working with, and our own professional
orientation.
Why is conflict is so bad for children? It’s easy just to “know” that it is, – but even
a cursory glance at the volumes of research findings tells us that this is indeed a
public health issue.
A literature review of the existing research data on the impact of conflict on
children far exceeds the limits of this short paper - but a snapshot of the
research headlines (Reynolds, Houlston, Coleman & Harold 2013) suggests that:

Children exposed to conflict are at a risk of a range of negative outcomes
including emotional and behavioural difficulties (depression and
aggression), trouble relating to others, problems with school
achievement, sleep and poor health (El Sheik et al 2011, Cummings
&Davies 2002,Reynold et al 2014)

Emerging research points to inter parental conflict impacting on specific
neurobiological processes, which affect the emotional and cognitive
functioning of the child. (El-Sheikh & Erath M, 2011)

Long-term exposure to conflict is a key variable in explanations about
why some children have less resilience at separation than others
(McIntosh et al 2009,Schoffer, 2005)

Conflict impacts the ability to parent adequately and in turn affects the
relationship between parent and child. (E.g. parenting may be highly
intrusive and hostile through to lax or uninterested – all with negative
outcomes.) (Grych et al 2004)


The data points to an intergenerational transmission of family conflict
(Harold & Murch 2005)
Given the diminished parenting capacity which has been shown to manifest in
the year or two following separation, (Amato, 1994), owing to task overload,
emotional distress, financial problems (Hetherington and Kelly 2003), parents
often get out of tune with their children’s emotional needs (McIntosh et al
2009,Reynolds et al 2014) – and the parent- child relationship is adversely
impacted.
Children tell researchers they want to be consulted and informed (Parkinson,
Cashmore & Single 2005) and far from being able to help their children at this
time, parents inadvertently add to their children’s distress.
The inclusion of the child’s voice in the negotiations about rearrangement of the
family structure correlates positively with that child’s ability to adapt to the
rearranged family situation (Pryor & Rodgers 2001, Sasponek 1991,Smart, Neal
& Wade, 2001,Smith Gollop & Taylor 2000, Goldson 2006)
In the FDR process we are likely to be working in cases with frequent,
unresolved, intense conflict, which is centres on child arrangements. Statistics
tell us that these participating parents are likely to pursue more destructive
forms of conflict behaviour, (Reynolds et al 2014). Still bound to the child as they
are, there is a high chance that parents will use their child as source of conflict.
This type of conflict is particularly dangerous for children. A resolution of this
conflict – as distinct from simply making an agreement -can be located in a
dispute resolution which manifestly prioritises children.
There is a high chance that the children of the parties in FDR will be struggling
with a lack of a sense of belonging. And this, in my view, goes to the heart of the
matter. Children, like all of us, need to feel connection. We are hardwired for this.
To belong, approval and support of the key attachment figures are essential–
typically these figures are the parents - the very parents whose terrifying
conflict has now centered on their child.
Loyalty conflicts create anxiety, depression; sleep disturbance and any number
of psychosomatic symptoms (internalisation). Fear and threat of separation,
emotional disruption, disapproval, criticism will lead to externalised behaviours
such as tantrums, aggression, bullying. (Reynolds 2014 et al)
Enter the impossibility of the double bind - the child is “damned if he does and
damned if he doesn’t”. How can he enjoy being with dad when mum disapproves,
and vice versa, when he is with mum and dad disapproves?
A little boy of 8 with whom I worked told me his greatest dilemma was what
paint colour to choose for his bedroom wall at his father’s new home “because
mummy likes green and daddy likes blue…and I don’t know which colour to
choose”. (Goldson 2006)
The parents of this child had asked me to talk with him, as they were worried
about the chronic tummy pains he had.
When a biological parent is devalued or disconfirmed over time, the child’s sense
of trust in the world diminishes. As Bowlby said back in the early 1950’s:
“The attachment of children to parents, who by all ordinary standards are very
bad, is a never-ceasing source of wonder to those who seek to help them” (in
Owusu-Bempah 2007)
Thus the reciprocal denial or denigration of the parent in conflict can result in
the negation of the child’s sense of self and a subsequent splitting off of that self.
The cost for children of seeing the parent as “bad” is high. And children become
ill in their efforts to make the situation right again – either by withdrawing or
acting out or trying to find ways to mediate.
Best practice for families is the safe navigation through transition. This includes
parents and children. Not just parents. Not just children. It is attending to the
psychology of the rearranged family which increases the chances of adding some
durability to the agreements made in parenting plans. And which in turn can
forecast further conciliatory agreements.
In this brief and targeted intervention of FDR, it is surely this process of
deconstructing the acrimony and of rewriting the narrative of the shame of
separation, conflict which needs to inform our work.
Whilst parenting education programmes (e.g Parenting Through Separation)
have significant value, research suggests that the more general focus is not
specific enough for parents locked in dispute –brief generic educational
programmes alone, may not be enough to make a substantial difference in post
divorce family life for children. In fact they can have an indirect and possibly
cumulative influence on expectations and attitudes and criticism of the other,
regarding appropriate control of parental conflict for the sake of the children.
(Sigal et al 2006)
In our FDR work, as we seek agreements, we are implicitly looking to support
negotiation between parents about their co parenting relationship. Why?
Because the welfare and best interests mandate demands that we assist parents
in understanding what it is that their children need - in order to remove the
danger from them.
It is their children’s understanding and response to - and experience of - the
meaning of this specific conflict, which must underpin efforts to mediate an
agreement. An agreement arrived at in a manner, which can release the children
from their position as hostages to parental conflict.
No one is suggesting that children should be tiebreakers – but to facilitate
children to express how it is to be in their position – in a manner which parents
can hear – maximises the important chance of a softening in the impasse, which
is implicit in conflict. A major task is that of facilitating a parent’s understanding
of just what it is that is happening to their children caught in the middle of
conflict. ‘Telling” people things about their own children can come dangerously
close to sounding patronising or admonishing. Or being seen as critical. Frankly,
parenting is a shame and judgement minefield –don’t most of us wade through
uncertainty and self doubt when it comes to raising our children?
The parents in dispute are often angry and upset about many aspects of their
separation– but the overwhelming side product of their dispute is that they
appear to be negating each other as adequate parents. Most of us, when we feel
shame, revert back to feeling child like and small. When we work with parents in
transition I believe we need to be mindful of the child within the parent as well.
When the other parent – the one who knows and loves our children just as much
as we do – tells us we are incompetent or don’t know how to parent – or should
not share our child’s upbringing – nor take them on holiday, nor understand how
to choose a school – then our worst fears and pain are triggered-and enormous
defences are set in motion. And what is it that gets triggered for so many parents
in conflict?
How we feel about ourselves and our stories of worthiness – of being enough, or
not being enough – all began in our families of origin. If you open up any family
history and describe only shameful events – then shame will define that
narrative. But we know that in all our histories that there are stories of
worthiness, best intent, courage, vulnerability, hope, success and failure. Just like
in everyone’s lives.
When we can harness the mutual concern and love that parents have for their
children, to a shared desire for improvement in their children’s lives – then we
get close to targeting the reduction of conflict. Once former partners begin to
refocus on their parental alliance, their children’s exhausting strategies to hold
onto some sort of order in their world can diminish and the children can relax
back into the necessary developmental tasks of being children.
In the end, children tend to want “a voice not a choice” (Taylor 2013). Children
have told researchers that they want to be consulted and informed (Parkinson, et
al 2005,Rae 2006,Goldson 2006,McIntosh 2009) and the inclusion of their voice
in negotiations about the rearrangement of the family structure correlates
positively with their ability to adapt to the rearranged family situation, (Pryor &
Rodgers 2001,) they want to know what is happening. They want their parents
to know how they are feeling. They prefer to talk to someone known to their
parents and who is neutral. (Smart 2003,Goldson 2006)
Feedback to parents about their child’s self reported position – illustrated by the
ways their child reports trying to make sense of their world can result in the
underpinning of an agreement. If this agreement comes from the right place it
will carry a level of conciliation, which will enhance durability. (McIntosh 2009,
Rae 2006, Goldson 2006). This is a poignant use of motivational interviewing
and one, which, further and significantly, will have the potential to generate the
parental attunement so urgently, needed by the child.
Our work must normalise the problems; reduce stigma, inform; and be confident
about what works and why it works, in order to support child development and
how it sits in the rearranged family.
This is the essence of family facilitation.
I have gathered a number of tools for eliciting the views and affect of the child
whose family is in transition - some developed with Cafcass (Douglas 2014) and
others developed over my years as practitioner researcher.
The work of family facilitation is child focussed by definition and can be, and
often is, child- inclusive.
Used carefully and with humility and humour, parents can be supported to
disarm and to open up thought and to have a facilitated dialogue together.
Metaphors about how it feels to be that child assisted by appropriate and
emotionally resonant information can assist the pivotal feedback conversation.
This should not be viewed as impossibly complex work – but it should be
recognised as going to the core of prioritising children and involve responsible
evidence based training for best practice. (Goldson, Taylor 2009)
I am talking about dispute resolution with a therapeutic outcome. It is systemic
work and is about family rights in FDR as opposed to child rights. It is not work
which should be undertaken without careful screening.
In the end, there is no legal solution, which comes even close to the
understanding of the relationship between the other parent and the child.
(Smart, 2003)
We need to ‘make everything as simple as possible but no simpler’, as Einstein is
alleged to have said.
Jurisdictions will have relative values, beliefs, attitudes and expectations about
children within a given society - and best interests are due to unique
interpretations and shaped by cultural values. Families do not offer homogeneity
in their presentations and our humility must prescribe our practice with the
situations in which we are involved.
Significantly, for children who are part of the process, exposure to constructive
conflict resolution is cited as a major contributor to resilience and positive role
modelling. (Reynolds et al 2014)
“…No child should be disadvantaged economically, psychologically or spiritually
from that child’s parental separation”, (Henaghan, 2013)
Just as family members are emotionally interdependent, so is the health of our
communities interdependent on the state of our families, which incubate
tomorrow’s parents.
Gluckman, (2011), urges the NZ application of international and national
evidence on which to base policy formation and programme development along
with population norms fostered by robust evaluations. Programmes such as FDR
mediation and the assessment of children’s mental health are a case in point.
We may not be many months since the inception of FDR – but I see its
implementation as a milestone in working with the rearranged family. It has
serious potential for the promotion of the health and wellbeing of both children
and their parents.
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