Mapping Paths to Family Justice: Resolving Family Disputes Involving Children in Neoliberal Times

Abstract

Using interviews with various families and mediators/lawyers involved in three types of out-of-court procedures in England and Wales, this contribution assesses, first, to what extent the interests of the child are in focus in such procedures. And second, whether in certain types of cases, the interests of the child are better protected by means of in-court procedures. The authors find that, while out-of-court procedures are generally child-focused, it is less common that they are child-inclusive or that the clear voice of the child is represented in the adult decision-making. Further, in the out-of-court context, ‘child welfare’ tends to be understood in terms of ongoing contact with both parents and co-parenting. Consequently, the protection of children from an abusive parent can be under-emphasized. In some instances, concerns about children tend to be overshadowed by the financial dispute. Additionally, given there is growing evidence that many children would like to be consulted in out-of-court family dispute resolution, and that (where it is appropriate and safe) this can be a positive influence on their wellbeing. Consideration is given to how current practice in family dispute resolution fits with the rights expressed in Article 12 of the United Nations Convention on the Rights of the Child. In conclusion, the authors highlight a need for distinguishing between different types of conflicts and adjusting procedures accordingly. For example, in high-conflict cases and/or those involving issues of child safety, the interests of the child might be better protected in court, rather than through out-of-court dispute resolution. Whereas in other situations, barriers to hearing the child’s voice out-of-court must be overcome.