When parents separate, children have the right, under domestic and international obligations, to participate meaningfully in potentially life-changing decisions about their futures. Feeling heard and understood in decision-making can be empowering (Roe, 2021), yet, almost 20 years after Lundy’s seminal article ‘Voice is not enough’ (Lundy, 2007) while court proceedings and child-inclusive mediation (CIM) can facilitate hearing children’s voices, this is not routine (Hargreaves et al, 2024). We remain far from realising a system that truly embeds children’s meaningful participation in the decision-making when parents separate. The UNCRC Committee is consulting on a draft General Comment (no. 27, 2024) to identify the practical, legal, social and cultural barriers that hinder children’s access to justice (and right to be heard), including in informal processes. Against this backdrop and UK Government commitments to uphold international law (Labour Manifesto, 2024), this paper will consider how to reframe family justice in England and Wales through a children’s rights lens.
Article 12-compliant ‘meaningful’ participation requires giving children the opportunity (space) and facilitation (voice) to express their views, listening to (audience) and acting upon these views as appropriate (influence) (Lundy, 2007). Voice alone is not enough, yet even this element is usually missing from processes, beyond CIM and some court proceedings.
Adopting a child-inclusive approach would increase children’s agency in family justice matters, which may benefit their well-being (Barlow and Ewing, 2024), potentially leading to better experiences and outcomes for families. Widely adopted internationally in education and healthcare contexts, the Lundy Model of Child Participation provides a framework for children’s meaningful participation. Drawing on research measuring CIM against Lundy’s model (Barlow and Ewing, 2024), this paper would explore the barriers and enablers to children’s meaningful participation and propose ways of realising comprehensive child-inclusive approaches that avoid tokenistic attempts to hearing children’s voices.

The Family Law Amendment Act 2023 saw two important changes to the law and regulations involving international child abduction cases in Australia. They were the repeal of a provision which allowed Independent Children’s Lawyers to be appointed only in ‘exceptional circumstances’, and the removal of a stipulation that children’s objections to being returned to their country of habitual residence could only be taken into account if they showed a ‘strength of feeling beyond a mere preference or of ordinary wishes’. These provisions were not required by the Convention itself, and arguably stifled the voices of children in these often complex and protracted proceedings in contravention of their rights and interests. With reference to recent cases, this presentation will discuss the actual and anticipated impact of those changes in light of global understanding of the importance of listening to children. Other important Australian developments, including specific reference to family violence in the ‘grave risk of harm’ exception and the initiation of a scheme to provide legal assistance for taking parents, will also be explored to give an up-to-date perspective of how children’s voices are heard in international abduction cases in Australia.

Mediation is considered as a ‘family friendly’ method of dispute resolution in family law cases. Portrayed as a means of giving space to separating couples to manage the transition of their relationship, and to tailor settlements to their own needs, the evidence internationally suggests that children’s views are rarely heard, as is their right under Article 12 of the United Nations Convention on the Rights of the Child. Many reasons are cited for this lack of engagement with children ranging from a lack of financial resources for training in child-inclusive methods on the part of the mediation providers, to lack of time and reluctance amongst mediators and parents. Recent research undertaken by Barlow and Ewing in England and Wales, points to mediators being the key gatekeepers. This paper will present the initial results of research undertaken into child-inclusive mediation in Ireland, how often children are included, and outline what the stumbling blocks may be. It will detail the aims of this research to design a model of child inclusive mediation that, from the outset, has input from those at the coalface: mediators, parents and children, identifying what supports each stakeholder requires to provide the reassurance necessary to facilitate this right for children, taking a bottom-up rather than top-down approach. It is expected that the findings in this project will provide evidence for how best to hear the voice of the child across the wider family justice system, at an opportune time, when Ireland is working towards the establishment of dedicated family law courts.
Research funded by the Irish Research Council (COALESCE scheme)