Voice of the child
Voice of the child
Winnie Chow, Collaborative Practitioner and Partner of CRB
https://www.crb.com.hk/en/winnie-chow
Long gone is the expectation that “a child should be seen and not heard” and rightly so! Whilst there is an increase in the recognition of a child’s rights, are we doing enough?
Children are one of the main stakeholders in a family dispute, and the most vulnerable; thus, they are usually impacted the most. Despite so, their ability to participate in the resolution process is quite limited in Hong Kong.
Currently, within family law proceedings, a child’s voice is predominantly heard via the feedback from a Social Welfare Officer in the Social Investigation Report. This is not ideal as the child’s input is not directly received by the Court. The child’s views and wishes are subject to the Social Welfare Officer’s interpretation. Sometimes, there is miscommunication between the child and Social Welfare Officer, and what a child meant or meant to say may be lost in translation, or misunderstandings arising from cultural differences. Furthermore, in most cases, the Social Welfare Officer is only able to meet the child on 2 or 3 occasions altogether, spending no more than a few hours interacting with the child. This means that a child is expected to talk about very personal and private matters with a stranger, in an unfamiliar venue (such as the Social Welfare Officer’s office), and often without very much time for the child to settle down and to feel safe and at ease.
Another possible avenue for the child to be heard is to meet directly with the Judge. However, not many children or their parents are aware of this possibility.
A child can also be separately represented, be it by the Official Solicitor (usually on the basis of advocating for the best interest of the child) or a lawyer (usually advocating for the actual views/position of the child). This is of rare occurrence, and again, many children and parents are not aware that this route is available to them.
In all the above options, litigation is usually already on foot and the battle lines have been drawn; a combative approach has already been adopted by the parents, and the children are caught in the middle of a high-conflict situation. Consequently, there is a greater risk of the parents seeking to manipulate their children, especially when the child wants to participate in the process as the parents want to have the child “on side” with their own position.
Therefore, in an ideal situation, parents should consider other forms of dispute resolution processes outside of litigation, right at the outset. There are options which allow for greater focus on the child to be heard in a child-friendly and child-focused setting, providing an opportunity for the child to meet with a neutral professional who can offer feedback to the parents as they explore an amicable resolution that works for the family as a whole. These processes include :-
Collaborative Practice – Here the parents, their respective lawyers, and all professionals involved sign a Participation Agreement confirming that they will not engage in litigation. This creates a genuine moratorium and moves the parties to a non-adversarial setting, upon which they can proceed with the settlement dialogue. A child expert, usually a child psychologist, is appointed on a neutral basis by the parents to meet with the child and advise them, while guiding the parents through a child-focused settlement.
Child inclusive mediation – This is where either a mediator alone, or a specifically appointed Child Consultant who works with the mediator, meets with the child, and acts as the conduit for the child’s voice to be brought back to the parents, and prioritized in the settlement discussions on the future arrangements for the child.
Parenting Coordination – In some circumstances, the parenting coordinator may also meet with the child directly to ascertain their views, wishes and feelings. This may help the parents construct a more specific parenting plan, or to resolve their child-related dispute.
In any of the above options, the approach adopted in bringing in a child’s voice can be tailor-made, so it caters to the specific needs of the child. These specifications will include consideration of, and provisions being made for, the child’s age, levels of understanding, maturity, and sensitivities. Meetings will be in a child-friendly environment, and at times and a venue which suit the child and their routine. Time is given as needed, for the neutrally appointed professional to develop a rapport with the child, before the children is expected to communicate their views, wishes and feelings and if applicable their thoughts on the family situation.
All these options are designed specifically to provide a platform for the child to express their concerns and views at greater ease. The input from a child’s perspective is a vital component in helping the parents as they try to work out a resolution for the family. Whilst the adults involved will ultimately make the decisions, it allows the child to know their voice is heard, helps them feel that they are a part of the process, and the neutral professional ensures that proper regard is given to their views and factored into the consideration process by the parents.
Even in the most polarized cases, such as in an international relocation (where a child either stays or goes), experience has shown that consensus can be much more readily reached following input, being appropriately obtained and presented, from the child.
Children are a vulnerable part of our society and in any family, and extra precautions should be taken to safeguard their interests and rights. In any other decision–making process, an interested stakeholder has the right to be heard and be involved. Children are equally entitled to such right and it is not just a matter of paying lip service to them. Children should be given the opportunity to adequately and appropriately access those rights, and parents should be given the opportunity to hear and consider them. It is a delicate balance between safeguarding the child’s rights to be heard against protecting the child from manipulation by the parents, and minimizing the risk of the children getting caught in a loyalty conflict.
This is not a ‘one size fits all’ situation -many options are available. The CRB team is trained in different forms of dispute resolution matters and can help you find one that best suits your family. Our partners, Winnie Chow and Jain Brown, are trained collaborative practitioners, parenting coordinators, and mediators. Further, they are both trained in child-inclusive mediation. Jain currently practices as a mediator and, therefore, with Winnie acting as the child consultant, CRB is also able to offer child-inclusive mediation in-house.
This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.