19 January 2022 - Article
It is a known fact that children can suffer irreparable psychological damage on the breakdown of their parents’ relationship in circumstances where there is conflict. This of course ranges widely from one case to another, but the increased use of mediation to resolve these disputes, with its emphasis on reducing conflict, can only be good news for children. A party can divorce their spouse but they will be forever bound as parents and reducing the conflict at the outset increases the likelihood of the parents cooperating with each other.
Mediation is a process in which parties seek to resolve their disputes with the assistance of an independent mediator. The process focuses on what can be agreed between the parties at the outset. Going the litigious route creates ‘positions’ taken by each parent. From this polarised situation, the couple are then supposed to find a compromise, or not, in which case the matter must be decided by a judge. Mediation, by starting with the positive, means that both parents are looking at what they can agree on first, which makes for a much better atmosphere in which to start talking. This works for all family disputes but where children are concerned the benefits are many and obvious. In fact, parents can often agree on many aspects relating to their children’s care, in particular their education, extra-curricular activities, routine and what they hope for them longer term. It is rare to find a divorcing couple who would say that their children’s welfare is not their priority, it is only that they forget this as they engage in their own emotionally charged dispute.
Difficult Legal Terminology
By starting the conversation in this way, the focus is also taken away from the terminology which currently exists in Hong Kong and may lead to misunderstandings. ‘Custody’ suggests possession and the ‘non-custodial’ parent will inevitably feel as if he or she has ‘lost’ the battle and the children. This has a devastating effect on the parent who may not bother keeping in contact, and on the children who lose regular contact with that parent. It has been proven that children benefit from contact with both parents except in cases of abuse.
At present the terminology of the orders which can be made relating to children is divisive but in fact there is little practical difference between orders for sole and joint custody as both parties ultimately can have a say in the important decisions in their child’s life. Parents are rarely aware of this and will fight determinedly for sole custody. In practice the important matter for the children is which parent will have care and control as this determines where they will live and what happens to them on a daily basis. The court regularly makes orders for care and control in favour of one parent and reasonable access in respect of the other. This effectively allows the parents to organise the routine which suits the family, although it would still appear to one party that the other has ‘won’. Additionally orders can range from defined access which specifies the days and hours which the non-custodial parent can see the children to, increasingly, an order for joint care and control, reflecting the more modern approach that time with children should be shared.
Rather than trying to resolve who gets “custody”, “care and control” of the children and who gets access, mediation starts with a consideration of how the daily routine of the children is actually carried out and what the parents’ respective responsibilities would be. The divisive terminology need not be discussed until the final order is made, by which time a parenting plan will have been drawn up.
Court Led Mediation
Although the family court in Hong Kong has done much to seek to reduce conflict in children’s cases by introducing court led mediation called the Children’s Dispute Resolution hearing, the process still involves attendance at court, filing of affidavits and a social welfare report. The long term benefits of mediation of children’s disputes was recognised by the judiciary in their statement set out at the beginning of Practice Direction 15.13 which specifies the aim to be to “support mothers and fathers, so that they are able to effectively parent their children post separation or divorce. The intention is to ensure that whilst the best interests of children remains the court’s paramount concern, that lasting agreements concerning children are obtained quickly and in a less adversarial atmosphere. The focus is therefore on the children’s best interests together with the duties and responsibilities of their parents.” The procedure focuses on the children’s needs, with court forms which direct the parties to think about specific aspects of their children’s lives and their responsibilities for them. The statement also gives a nod to the importance of ongoing parental involvement and the ability of parties to be able to work with each other for the benefit of their children in the aftermath of separation and divorce and long term.
Drawbacks of Litigation: Polarisation and the Involvement of Children
The difficulty with a contested custody case is that it tends to polarise the parties into separate camps and this will often result in a destructive campaign against the other party whereby they seek to undermine the other parent in order to enhance how they are perceived by the court. Once said, it is difficult to ‘unsay’. The child may often feel caught in a loyalty conflict between the parents, and in some cases, children may be alienated by one parent.
In addition, in a contested custody case, the court will direct that a social welfare report be prepared by the Social Welfare Department. It is a statutory duty of the court to take into account a social welfare report under the Guardianship of Minors Ordinance Cap 13, section 3. The social welfare officer is a social worker who will interview the parents separately and with the child and will also normally interview relevant people who have regular contact with the child. The officer will interview the child at home to ascertain how that child interacts with the carers, including parents, step-parents, relatives and domestic helpers, to properly assess their environment and also to see the child at ease. The officer may convey the child’s wishes if he or she is of sufficient age and maturity to express them.
The officers are trained and therefore are sensitive to the task in hand,nevertheless it is daunting for a child to be interviewed. Interviewing the child is also fraught with difficulties. On the one hand it is important to hear the voice of the child, particularly if the child is old enough to express a view. On the other hand, the child is then potentially exposed to influence from the parents or handicapped by the need not to be seen to be choosing between his parents. These issues do arise in mediation too but in most cases there will be no need for an interview and the procedure is much more flexible: it is possible to have a range of involvement by the child, which may include the child’s direct involvement in the mediation itself.
In high conflict cases, the court may find it necessary to have the children examined by child psychologists. The courts will try to keep the number of interviews the child has to go through to a minimum but, in order for the court to ascertain the welfare of the child, these sessions and the reports which are written as a result, provide an invaluable steer for Judges, who rarely meet the child and therefore cannot make a direct assessment.
Mediation allows the parents to resolve issues relating to their children directly without putting their children through the process of being interviewed by child experts and having to express their views and wishes which may be seen as having to “take sides”.
How Mediation can Help
Mediation is suited to these disputes because the parents can make detailed arrangements for their children post separation. They are encouraged to prepare a parenting plan. This focuses the mind on their children’s daily routine and how it will be for them. Many disputes relating to children involve the detail of their lives: who picks up who from school and when the child attends a lesson and how he gets there. Disputes often arise in relation to how to allocate time spent and the logistics of holidays. These issues are best dealt with by the people who know them and their routine best: their parents.
By drawing up a comprehensive parenting plan, taking into account the child’s daily needs, the pattern of their lives can take shape and the parents do not get bogged down in the terminology surrounding custody battles. If the focus is on the children’s routine from the outset, the parents, who have come up with the agreement with the assistance of the mediator, will fully understand where the other party is with the decisions which have been made.
Conflict of course also arises in the course of a mediation. The idea is to settle on what can be agreed and then focus on those aspects which are causing problems. The couple can work through these issues which may involve concerns about the choice of school, overnight access for small children, and holidays. Through the careful discussion with both parties and with the parties separately, the mediator can encourage parents to find a compromise and to explore what is of particular importance to one party. Subtle exploration is not something the courts have the time or the capacity to do.
It is also hoped that a mediated agreement, as an agreement reached voluntarily between the parties as opposed to one which has been imposed on them by a court, will be longer lasting and there will be a reduced need for the parties to return to court to resolve issues, big and small, which arise in the future. In addition, if mediation has been successful once, this increases the chances of resolving any further disputes in future in the same way.
Involvement of Third Parties: Parenting Co-Ordinators
For more complex cases, the process of mediation also allows for the direct involvement of parenting coordinators and co-parenting counsellors which is complimentary and ancillary to the spirit of mediation. Parenting coordinators can facilitate the creation and implementation of the parenting plan. They are trained to help parents by educating and monitoring them and to improve communications and cooperation with each other. The emphasis is on making parents more aware of their children’s needs, rather than spending time interviewing their children. They can assist the parties in reaching agreements and to help resolve daily issues without the need to go to court. By joining the mediation, their experience and knowledge of the family can be invaluable in reaching an agreement with which both parents can live.
There is no doubt that mediated agreements are beneficial to children. The process encourages a reduction in conflict and puts the interests of the children firmly in the centre from the outset. By creating a parenting plan which has been produced by both parents working together, the chance of a longer lasting agreement is improved, rather than living with an order which has been imposed on them by the court. The parenting plan also allows for details in relation to the children’s arrangements to be included which the court otherwise may not have the jurisdiction to determine or make into an order. Mediation begins the dialogue which the parents will need to continue in order to effectively parent their children into the future.