dialogues with children children, divorce and...

DIALOGUES WITH CHILDRENChildren, divorce and citizenship

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The principle that children have the right to participate in decisions aboutmatters which affect their everyday lives is enshrined in the United NationsConvention on the Rights of the Child (Article 12), and has become anestablished tenet of child policies in the UK.1 English family law is an inte-gral part of this trend.2 In line with the UN Convention, the Children Act(1989) and the Family Law Act (1996) make provision for children toexpress their wishes and feelings over the arrangements for their care, toinstitute court proceedings in their own right, and be made parties to a dis-pute with their own legal representation. The legislation thus appears pro-gressive and liberal in its child-centredness.3 Yet, in the context of the privatelaw provisions of the legislation, those concerning divorce and parental con-flict, this potential has yet to be realized. Children in this context areaccorded limited opportunities to express their views, let alone to decidewhen to do so. Overall, there remains a great deal of professional uncertaintyover what it means to ‘ascertain the wishes and feelings of the child’, or,indeed, whether their views should be ascertained at all.

The first part of this article explores how the welfare principle, which

BREN NEALEUniversity of Leeds

Key words: children, citizenship, divorce, family law,

welfare

Mailing address:Bren Neale

Centre for Research on Family, Kinshipand Childhood, Department of Sociology

and Social Policy, University of LeedsLS2 9JT, UK

[email: [email protected]]

Childhood Copyright © 2002SAGE Publications. London, Thousand Oaks

and New Delhi, Vol. 9(4): 455–475. [0907-5682(200211)9:4; 455–475; 026046]

The notion of listening to children so that they can

participate in decision-making about their everyday

lives has become an established principle of child

law and policy in England and Wales. That there

are fundamental constraints to putting this principle

into practice, however, is widely acknowledged,

particularly in the context of divorce and parental

conflict. This article shows how the operation of the

welfare principle in an English context constrains

children’s participation within private law

proceedings. It goes on to explore children’s own

discourses around the issue of being listened to and

reviews current debates about their participation in

the light of this evidence. The children’s

commentaries offer fresh insights into what it

means to listen to children, along with some new

ways of thinking about young people’s citizenship

within and outside their families.

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www.sagepublications.com

underpins the Children Act 1989, serves to constrain children’s participationin an English context. This is followed by an exploration of children’s dis-courses around the issue of being listened to, both within and beyond theirfamilies. Current debates about children’s participation in family proceed-ings are then reviewed in the light of the children’s evidence. The articleconcludes by arguing for the adoption of a social model of citizenship,which would foster a greater integration of children’s welfare and rights bothwithin and beyond their families.

The child of legal discourse and the construction of the welfareprinciple

The paramount principle of the Children Act 1989 is that of the welfare ofthe child. This welfare principle is essentially an adult construction thatassumes children to be inadequately socialized dependants in need of care,protection and control (Lansdown, 1994; Roche, 1995, 1996; Piper, 1996,1999; Trinder, 1997). This dependency construction sits somewhat uneasilywith a ‘liberationist’ view that sees children as creative social and moralagents with the capacity to act, to interact and to influence the shape of theirchildhoods (Archard, 1993; Roche, 1996, 1999b).

In practice the welfare orientation of the law operates in a variety ofways to constrain children’s participation in private law proceedings (Eeke-laar, 1994; Roche, 1991; Sclater, 1998). Perhaps the most deep seated con-straint is the dominant hierarchical construction of ‘adult’ and ‘child’ thatkeeps children in subordinate positions in relation to adults. Put simply, chil-dren are presumed to be incompetent and their right to participate is condi-tional. Their freedom to speak is not a free-standing, autonomous right but istied to and therefore subordinate to their welfare. Paradoxically, children canonly exercise their right to speak if they gain the permission of adults to doso, and they are unlikely to be granted permission unless they can prove thatthey are ‘adult’ enough to express a view (and that they have a cast ironcase). The whole process relies on adult discretion to judge children’s devel-oping competencies (discretion being the appropriate word because ‘compe-tency’ is nowhere clearly defined [Sawyer, 1997]).

This reluctance to consult with children is compounded by anotherpresumption underlying English legislation: that of family integrity (whatAlanen [1992] has called the familialization of childhood). In contrast tosome Scandinavian jurisdictions (Furstenberg, 1997), English children areseen to ‘belong’ to their parents rather than to the state. In the context ofdivorce, they are treated as part of the family system rather than as individu-als whose interests might diverge from those of their parents. Where disputesarise over arrangements for their care there is a marked preference for deal-ing with the parents and resolving disputes through parental agreementrather than engaging directly with the child. The child’s welfare can be met

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simply by getting the parents to agree. It is only where agreement cannot bereached that an investigation of the child’s interests is launched by officersof the court, and even then children may not be consulted directly (Cantwellet al., 1999; Jones, 1992; Piper, 1997). Court welfare officers are encouragedto see a child wherever possible when compiling their reports but they areunder no obligation to consult with children directly, let alone represent theirviews. They may choose to treat children as part of the family ‘system’ anduse their evidence selectively (James and James, 1999; Trinder, 1997). Incontrast to public law (child protection) proceedings, where it is seen aslegitimate to dis-aggregate children from their parents, children in privatelaw proceedings remain submerged within their families. Taken together,these presumptions of childhood incompetence and family integrity meanthat children are effectively barred from becoming legal actors in their ownright (Houghton James, 1994; Lyon et al., 1998; Roche, 1996; Sawyer, 1997;Timms, 1997).

What of the status of children’s views once they are heard? Here too,presumptions about children’s inferior status come into play. Much like Arti-cle 12 of the UN Convention, children’s views under the Children Act haveto be ‘considered in the light of his [sic] age and understanding’. In otherwords, adults must assess whether children are competent enough to havetheir views taken seriously. Yet adult judgements about children’s innateintellectual and emotional abilities and their limited moral integrity may notpredispose them to respect children’s views. In a climate where it is pre-sumed that children may lie, fabricate, fantasize or manipulate (or, alterna-tively, be manipulated by others), their views are inevitably viewed asuntrustworthy (Murch et al., 1998; Trinder, 1997).

This is part of a widespread developmental view of children that seesthem as half-finished ‘products’ that will become fully socialized only whenthey reach adulthood. This produces what Cockburn (1998) calls a ‘futures’orientation, a tendency to place overriding importance on how children willturn out when they reach adulthood rather than focusing on the nature oftheir day-to-day lives as children. In a legal setting this may mean that chil-dren’s long-term interests are prioritized over their immediate or short-terminterests. For example, a child may be ordered to have contact with anoppressive parent against the child’s wishes because it is presumed that,regardless of the impact in the short term, this will eventually benefit thechild (Neale and Smart, 2001). A child’s welfare can, therefore, be con-structed by adults in ways that may run counter to children’s own individual-ized constructions of their welfare.

Whether children’s wishes and feelings carry any weight at all maywell depend on how far these wishes accord with current legal presumptionsabout what they need. What is in the best interests of children whose parentsdivorce is subject to changing interpretations over time. In the 1950s and1960s, it was presumed that children were harmed by marital conflict.

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Following divorce, their needs were to be met through the provision of a sta-ble home and family unit and an enduring emotional tie with their primary(or psychological) parent, usually their mother (Goldstein et al., 1979). Thisnotion was so pervasive that it became enshrined in the UN Declaration ofthe Rights of the Child (1959), which stated that what children needed wastheir mothers. Subsequently, this interpretation of the child’s needs under-went a substantial revision. Children were now presumed to need two bio-logical parents, ideally within an intact family built on marriage but, failingthat, in a post-divorce co-parenting arrangement operating across two house-holds (Cockett and Tripp, 1994; Hetherington et al., 1978; Richards, 1982;Wallerstein and Kelly, 1980). This interpretation of the child’s best interestswas subsequently endorsed in the UN Convention on the Rights of the Child(1989, Article 9(3)) and has since been elevated to a substantive principle ofEnglish law (Family Law Act (1996)). Underlying this new orthodoxy is arevised notion of what damages children. Parental conflict is no longer theprime culprit; it is divorce itself, seen as the ‘break up’ of the family and thepotential for loss of contact between the child and the non-residential parent,that is deemed to cause harm. The nature of the potential damage wroughtby divorce is never very clearly spelt out. But it is said to be wide ranging,incorporating images of the ‘passive and innocent victim’ (educationally,economically and emotionally disadvantaged) through to the ‘potentialthreat’ (descent into delinquency, substance abuse or teenage pregnancy)(Piper, 1997, 1999; Roche, 1991; Sclater, 1998). Children with divorced par-ents have thus come to be seen as vulnerable ‘children in need’, whose inter-ests must be safeguarded for them by the law.4

The point about these shifting orthodoxies is not that one is right andthe other wrong, but that children’s welfare is notoriously difficult to deter-mine, let alone predict.5 Blanket formulations such as those outlined in thepreceding paragraph are not flexible enough to accommodate the diversity ofchildren’s circumstances. Nor do they allow for children’s own constructionsof their welfare to be taken seriously. In effect they assume a commonalityof children’s experiences, while glossing over the complexities and plurali-ties of real lives. If the law presumes to know in advance what arrangementsare best for children, then the need to consult with them becomes somewhatsuperfluous. As a result, the child of legal discourse has become a somewhatgeneralized, theoretical child rather than a real, embodied, biologicallyunique and socially differentiated child. Family law thus operates accordingto a welfare paradigm that allows for a limited notion of children’s agency,one that recognizes children’s competence to speak but only in carefully pre-scribed circumstances and according to adult agendas.

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Conversations with children

To date, debates on children’s participation in family law have rarelyincluded children’s own views on the subject. In this section of the article Iexplore children’s perspectives on the issue of being listened to and partici-pating in family decision-making, drawing on data gathered as part of asmall programme of research into post-divorce childhoods. The research wasbased on in-depth, conversational interviews carried out with a sample of117 young people, who were living under a variety of post-divorce/separa-tion arrangements.6 The research had three broad aims. We wanted to under-stand more about the day-to-day lives of these young people, to explore theirexperiences as children, rather than assessing long-term adjustments or out-comes. We sought to explore ‘what matters’ to children as a necessary pre-cursor to understanding ‘what works’ (or doesn’t work) for them in theirfamilies. Second, we wanted to explore young people’s agency within theirfamilies by focusing on how they influence and actively contribute to familylife (rather than focusing on how their families impact upon them). A thirdaim of the research was to bring children’s voices centrally into policydebates around post-divorce family life and to explore, from the perspectiveof children, what it means to ‘ascertain the wishes and feelings of the child’.Our exploration of this theme was not confined to family law. Our startingpoint was to explore children’s views on participation and choice withintheir families and to go on to document their reflections on talking to ‘out-siders’, including friends, wider kin and legal and therapeutic agencies. Wewanted to know under what circumstances young people might choose thesedifferent sources of support or advocacy and under what conditions they pre-ferred to talk.

Mutual respect in families

The young people in our study regarded meaningful conversation as a cru-cial ingredient of family life:

[how would you describe your family?]David (15)7: It’s quite a close knit family because mum and dad, they talk to usa lot . . . I’ve always had a close relationship with mum ’cos she’s quite under-standing and loving. . . . It’s a lovely family, really, because mum and dad willalways go out their way for us, to make sure we’re happy

[What makes for a good mother?]Catherine (20): Just someone who you can talk to and who will listen to youand won’t force their opinions on you but you can ask them for their opinion . . .and they give guidance as well. . . . My mum kind of trusted me to make myown choices really

[What about a good father?]Catherine: The same sort of thing, really. . . . My stepfather, Ewen, he doesmore fatherly things, like he’s quite happy to sit down and talk to me. . . . He


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doesn’t interfere or anything . . . he offers advice. But he doesn’t, like, tell mehow to do things.

[What do families mean to you?]Charley (13): People you can trust

Quentin (13): [Mum is important] because we’ve got a relationship where wecan tell her everything, I can go and talk to her and she’s like close to me. . . .They don’t, like, tell me what to do, they tell me to make my own decisions.

Being part of a ‘proper’ family meant being able to talk to others and be lis-tened to, trust others and be trusted and be treated as a person in one’s ownright. We have called this an ethic of respect. This ethic is mutual: it is notjust a matter of being respected and trusted but of respecting and trustingothers. The children in our study aspired to achieve such relationships withboth their parents (although, in practice, they tended to rely more on theirmothers for day-to-day support and for confiding in). They also placed ahigh value on relations of mutual respect and civility between their parents.Children recognize, of course, that this is not always possible after a divorcebut, at the least, they wanted their parents to manage their conflicts in waysthat did not implicate them or force them to take sides. Overall, they valuedbeing part of a network of supportive relationships which included both par-ents and could be extended to include new partners (Smart et al., 2001).Similar findings have been reported in other studies of children’s familyrelationships (Brannen et al., 2000; Katz, 1999a, 1999b; Morrow, 1998,1999).

The majority of children in our sample enjoyed good quality relation-ships with family members, based on open communications and sharedunderstanding. A minority, however, did not enjoy such relationships withone or both parents. Some felt marginalized by the way they were treated bya parent, and/or by their parents’ treatment of each other:

[What’s your idea of a good mother?]Maya (15): I don’t know really, sort of like a nice mum, I suppose, you know,who will actually listen to you, instead of shouting back.

[How does your family compare with your friends’ families?]Maya: I don’t know really, the mothers always seem a lot kinder . . . I have thisimage of these really nice parents . . . but our family definitely isn’t like that. . . . It’s stressful because nobody really gets on. . . . Sometimes I wish I had adifferent family. My mum isn’t really that close. She doesn’t listen. . . . When-ever I try to talk to mum or something or try to ask her something it sort of con-flicts. . . . It’s just like I’m a person who lives here . . . sort of like a tenant.

[What is it like living in your family?]Sally (12): Very hard, apart from when I go to my mum’s, it’s hard because of[everyone] fighting. . . . My dad decides where I have my birthday, when I cansee my mum, he decides everything. I just get my life ruled by him. . . . Hedoesn’t sit and listen like my mum. My mum doesn’t tell me what to do, sheleaves me to work things out for myself. I think of Mick [stepfather] more as adad than my dad because of the way he talks to me. He doesn’t shout at me and

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my dad does. He doesn’t talk to me like I’m thick and my dad does. And hedoesn’t raise his voice.

Catherine (20): My dad sometimes made you feel that you weren’t that impor-tant and that it didn’t matter if you weren’t there. He isn’t the sort of person Italk to about me. . . . He won’t speak to my mum. . . . Another reason, I sup-pose, why I didn’t really like going was because he slagged my mum off to meand that was horrible because, no matter what he thought about her or shethought about him, they were still, like my mum and dad. . . . It was quite hardbecause you wished that, even if they were divorced, that they’d just be a bitmore normal, that they could at least be civil to each other.

There is widespread evidence to suggest that poor communication and lackof mutual respect between parent and child, and between parents themselves,are major causes of distress for children following parental divorce and sep-aration.8 Family life is and perhaps always has been characterized by a rangeof parenting styles (‘authoritarian’, ‘permissive’, ‘absent’ and ‘democratic’)and there are many children who continue to experience their families assites of oppression. But there is an ideological shift towards a democraticstyle that is replacing the old adages that children should respect their eldersand be seen but not heard (de Winter, 1997).

Participation or choice?

We wanted to know whether children aspired to participate in decision-mak-ing or make autonomous choices, and in what circumstances the lattercourse of action might become desirable or necessary. The answer to thisquestion depends, in part, on the nature of the decision to be made (Morrow,1999). As we have seen, the older children in our sample attached impor-tance to their autonomy when it came to making decisions about their per-sonal lives, for example about their personal appearance or social activities(although they also wanted to be able to consult with their parents as part ofthe process). Younger children, too, might want some degree of personalautonomy. But in dealing with decisions which affected other family mem-bers, such as contact and residence, self-determination was seen as moreproblematic. In exploring this issue, we gave the children a vignette in whichwe asked them to consider what a hypothetical child should do if she or hehad been asked to choose which parent to live with. As a rider to this, weasked whom they felt should make such decisions in families. Their repliesreflected the complexity of this issue:

Mark (15): I think he should have an opinion, I don’t think he should necessar-ily decide, he should get a say in it, he shouldn’t just be left out, I mean it’s hislife as well, he shouldn’t be stuck with someone he didn’t want to be with.

Percy (10): They should have a vote or something. . . . If he has a brother andthey both choose different places then it’s going to be even more complicated.The parents should decide really.


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Nina (12): She should be involved in sorting it out but I don’t think her parentsshould actually make her choose or anything, because she’s going to feel awfulis she says one parent and lets the other one down.

Ralph (8): Well, he should choose but he can discuss it with his mum and dad[who should decide then?] All discuss it together.

Jake (11): I think there should be some kind of agreement between him and hisparents as to what should happen, rather than him just deciding himself. . . . Ithink the people who are involved should get to decide, not by themselves, butby helping each other to reach some kind of agreement as to what would bebest.

These young people took their rights of participation in their families forgranted. What they valued, however, was participation in a democraticprocess of decision-making rather than the right to make autonomous deci-sions. In other words, they distinguished between participation and choice,recognizing that compromises might have to be reached (Morrow, 1998,1999; Trinder, 1997).

A substantial number of children in our sample had negotiated familypractices in these democratic ways. Decisions could be made by consensus,or, for younger children, they could be delegated to one or both parents inthe knowledge that the parents would understand their feelings and act intheir best interests. This is what Boyden and Ennew (1997) have called a‘weak’, as opposed to a ‘strong’ sense of participation. Built into this democ-ratic process is recognition of the fluidity of family life. Arrangements couldbe flexible and open to renegotiation according to the changing needs offamily members. This flexibility was not only important for children of highschool age who wanted to balance their family commitments with theirsocial lives but was also valued by younger children. James and his parents,for example, used trial and error to determine what kind of co-parentingarrangement would work best for them:

James (9): I thought I’d probably like to spend a bit more time at each house, soI said, ‘can I spend a week [instead]?’ We talked about it and thought, ‘well, aweek is a long time, but . . .’. Then we decided we’d try it and if it didn’t workwe’d go back to before. . . . We tried it . . . just as a test . . . and thought about itand then we went back for a few weeks . . . and then we decided it might be agood idea.

In such families it was accepted that young people might want to try out newways of doing things, even to the extent of making mistakes and learningfrom them.

But not all children can work democratically with their parents. Wherethe children in our sample had experienced relations of oppression or neglectin their families, their answers to the vignette about who should choose achild’s residence were somewhat different:

Alistair (11): The child should decide, definitely.

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Helen (8): I think she should choose, in case her mum is really horrible to her,or her dad is really horrible to her. . . .

Sally (12): I think it’s important that the child should choose, because I wish Icould have chosen . . . I don’t know, it takes a lot of thought because you don’twant to make the wrong decision or hurt any of your family.

Such children were more likely to assert their right to decide for themselveswho they would live with and how much they would see their parents(although as Sally shows, such decisions cannot be taken lightly for they runthe risk of alienating family members). These children tried to find ways towork round an oppressive parent. Alistair, for example, had a difficult rela-tionship with his father, who frequently lost his temper and resorted to phys-ical punishments. Alistair relied heavily on his mother for support and, withher help, negotiated a change in contact arrangements that gave him moreweekends with his mother. He did not need professional involvementbecause of his mother’s effectiveness in managing the negotiations on hisbehalf. Much of what is currently perceived almost automatically as ‘manip-ulation’ of a child’s views by a parent might just as appropriately be seen inthis light: as a parent consciously seeking to understand their child’s point ofview and actively supporting them (Davis and Roberts, 1989; Smart andNeale, 1999).

Support/advocacy beyond the family

We wanted to know under what circumstances children might seek help out-side their immediate family and whom they might turn to first. In exploringthis question, we gave the children a vignette about a child who wanted hisparents to stop arguing over contact and asked what the child should do. Formost children the strategy was obvious; the child should talk to the parents,explain the problem and ask them to stop. We then asked what they shoulddo if this strategy didn’t work, in particular, whether the child should talk tosomeone outside the family:

Alistair (11): Well, I wouldn’t [talk to an outsider] ’cos it’s more of a familything.

Ben (14): He could talk to his granny or one of his mum’s friends. I mean if hesort of went to talk to someone outside his family then it would probably getaround and make the situation worse.

Quentin (13): Someone in his family, . . . they can talk to his parents

Pele (10): ’Cos they might not listen to a child as much as another adult.

David (15): Talking to your friends is quite important, to give their opinion andjust to help . . . as long as he can trust that person not to go telling peoplebecause I wouldn’t want everyone knowing.

Sally (12): She could talk to a friend because then she wouldn’t tell anyone. . . .


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Last year I talked to my friend Joanna and she helped me a lot . . . she con-vinced me to tell my teacher. . . . So, friends are a lot of help.

There was a marked preference among these young people for keeping fam-ily problems within the immediate family where possible or, failing that,using informal sources of support such as wider kin or friends. Kin wereseen as useful sources of advocacy. Friends, on the other hand, could beaccessed independently, without adult knowledge and at the child’s initia-tive, and they offered non-judgemental, egalitarian support, along with theopportunity for a reciprocal exchange of experiences. Crucially, they alsooffered confidentiality or a ‘safe space’. They could be relied on ‘not to tellanyone’, especially not family members or other adults. There were no con-sequences from this kind of interaction other than an opportunity to crystal-lize one’s thinking about what, if anything, needed to be done. For somechildren this was all that was needed for them to feel that they had theresilience to manage a problem by themselves. For others, such as Sally,using such a safe space was an empowering process, enabling them to workout what the next step might be and to take it at their own pace. Peer supportschemes and services like Childline, which offer independent access andconfidentiality, are also highly valued by children as a first step in taking aproblem outside the family. As Cooper (1999: 156) observes, ‘We can onlybe sure “what children want” if we create conditions under which childrenare able to find out what they think about their predicaments and this is notsomething which courts have been designed to facilitate.’

Using therapeutic and legal services

Approximately 20 percent of the young people in our study had had directexperience of legal, mediation or therapeutic services but in most cases theyhad only vague recollections of the process. Those young people who couldrecall their experiences were less than complementary about them. Maya, forexample, had been referred for family therapy:

Maya (15): Sometimes I get really sort of upset, . . . first of all [mum] took meto the doctors, and said, ‘oh there’s something wrong with you, Maya’. . . .Then, it’s sort of like this child psychologist stuff, but, I don’t know, it’s just theapproach that they had, it just sort of made me cry more. I feel more comfort-able talking to you because I know there’s nobody staring at me. . . . There wasabout seven of them [behind the mirror]. It felt weird, you know, because youdon’t know what they’re doing and most of the time I was just sitting there, youknow, and with my stepdad there as well, he didn’t agree with anything I wassaying. He was saying, ‘no, no, no it’s not like that, it’s like this, blah, blah, blah. . .’. He’s always so decisive . .. I don’t know, I didn’t really find it helped. . . .I just didn’t really talk much because, I mean the other people around me, it’sjust like including my mum and stepdad, it’s just, you know . . .

This therapy lacked privacy as well as confidentiality and was an effacingexperience for Maya in that it seemed to replicate the oppressive treatment

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she was receiving at home. She was treated as part of her family and notgiven a chance to speak confidentially about herself as a person in her ownright. The problem had been presented to her as a problem of her own mak-ing, she was intimidated by the number of professionals involved and had noone to help her express her views. Similar experiences have been reportedfor children attending family meetings at court and those interviewed underthe children’s panel system in Scotland (Griffiths and Kandel, 2000; Trinder,1997).9

As a further example, Alex had been referred to a counsellor butstopped attending after two sessions:

Alex (12): When they first split up there was this counsellor at school and mumarranged for me to meet her every Monday but that was annoying because I hadto miss PT. . . . I really didn’t like her. She just, basically asked questions, likeyou’re doing but she didn’t put them in the same way. She didn’t, like, make methink about stuff, she made me tell her stuff [emphasis in the original].

Being made to turn up at a time which did not suit him, in a school settingwhere his peers would inevitably know of the referral, and being ‘made totell’ by the counsellor, coloured his experiences so that he did not feel he hadreceived sympathetic, non-judgemental support.

Children who had been referred to the court welfare service as part oftheir parents’ legal disputes over residence were equally disillusioned withthe process. One such dispute, for example, was eventually resolved by per-suading a full-time mother who had recently fled the family home to acceptgood contact rather than residence of her two children. This outcome wentagainst the strongly expressed wishes of her young daughter, who wasadamant that ‘girls need their mums’. But while she had been consulted, herviews, at the age of 7, were discounted; it was decided that she should not beseparated from her older brother who wished to remain in the family homewith his father. She continued to miss her mother and commented wryly, ‘Ifthe court chooses, you don’t get a word in edgeways.’

Two other children had endured years of legal dispute between theirparents over residence and contact. The problem, as they defined it, was lessthe issue of where they lived or how long they spent with each parent, butthe fact of the dispute itself. Caroline, then aged 13, had decided, in consul-tation with a district judge,10 that shared residence would be a fair compro-mise, while Molly, then 15, chose to change residence and live with herfather:

Caroline (17): I wanted to split the thing because I wanted to keep my mumhappy still and I wanted to keep my dad happy, so I thought a week each, butmy mum didn’t want that. . . . It didn’t work.

Molly (22): The court welfare officer and that, they don’t really know the fam-ily. I don’t think it helped talking to her, nobody gets on with everybody dothey? I didn’t see why everybody should ask all these questions and when youdo tell them certain things it doesn’t go in the report . . . I only really told them


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what they wanted to hear. . . . I really had no one to talk to, sort of thing, so Ijust made up my mind [about which parent to live with] and that were it. . . .Somebody else to be involved is an idea, who isn’t going to go straight back andsay, ‘well this and this’ to the [court] but just get them sat down and sort of talkbetween them, and if you do want them to pass it on, they would.

Molly’s ‘evidence’ was used selectively and she had no confidential space inwhich to crystallize her thinking or explore alternative strategies for dealingwith her warring parents. The narrow judicial focus on the issue of residencedid not resolve the parental conflicts in these cases but only intensified them,with further repercussions for the young women. Caroline suffered bitterrecriminations and oppressive treatment from her mother for ‘interfering’ inthe legal process and failing to support her mother’s position, while Molly’smother took an overdose and thereafter made further applications to court toget the residence decision reversed. Eventually both girls found their ownmeans of resolving the conflicts. Molly left home at the age of 17 andstopped contact with her father, while Caroline went to live permanentlywith her father and stopped contact with her mother.

Just as children might differ in what they perceive as solutions to theproblems in their families, they might also differ in the way they define theproblems in the first place. But these child-led agendas do not necessarily fitthe agendas of the court. Legal solutions that downplay or ignore children’sown perceptions of the problem might be perceived as no solution at all bychildren themselves (Lyon et al., 1998).

One of the significant factors about the cases reviewed above was thatthe children had been referred to the various agencies without any choice ontheir part. Consequently, they saw professional involvement not so much as‘support’ but as ‘intervention’, almost to the point of ‘interrogation’. Thiswas so even where the purpose of the encounter was therapeutic rather thaninvestigative. As noted already, gaining access to legal services is notori-ously difficult for children (Sawyer, 1997, 1999). Two of the children in oursample had sought outside support for themselves – in both cases the ser-vices of a solicitor – and this had, in both cases, been facilitated by a parent.Karl, who was trapped between warring parents, wanted a flexible contactarrangement which he could control for himself but found it difficult to con-vince his solicitor that his views were his own:

Karl (15): Rather than have my mum and my dad fighting over me, I sort of hada bit of a say as well, you know, ’cos my mum wants this and my dad wantssomething totally different and I wanted a sort of in-between. . . . They were . . .trying to persuade me, you know, saying what they wanted and I just sort of hadto stay independent. . . . It wasn’t that easy. . . . The solicitor . . . she just treatedme as a kid, basically. . . . If I said I wanted to do something she’d sort of tryvery hard to persuade me not to do it, . . . she didn’t really want to take myorders. . . . [She] was sort of cautious that what I was saying was what I wanted,not my dad pushing me, and occasionally [my dad] did try to, you know, get meto do things.

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Maintaining his autonomy was the only way that Karl could appear fair toboth his parents and convince his solicitor that he was not being manipu-lated. He managed to steer a middle ground between the different agendas ofhis mother, father and the solicitor and eventually secured an order for flexi-ble contact. Sandy’s attempts to change residence and thereby escape anoppressive father were less successful:

Sandy (13): I wrote to a solicitor . . . I just wanted to know how I could getsomething done about going to live with my mum. That’s what I wrote. . . . Itwas a relief to do something about it. . . . I didn’t tell my dad, I had tried to talkto him but he wouldn’t listen.

Sandy found, however, that the solicitor was unwilling to take up his case.His mother supported him and began proceedings for a residence order butin the face of staunch opposition from the father and the lack of legal sup-port, Sandy was forced to back down. Both of these young people were sus-pected of being manipulated and doubts were cast on their personal integrity.These were demeaning experiences for them, particularly for Sandy, whoseproblems were unresolved.

Overall, these young people saw professional support as a last resort.One of the main problems, as children see it, in talking to ‘outsiders’ is pre-cisely their perception that family issues are best kept in the family and thatby talking to professional agencies they are somehow being disloyal or esca-lating problems so that they seem insurmountable or out of control. Wherechildren cannot talk to a parent they may have real fears of repercussions if aparent should find out that they have turned to outside agencies for help orhave otherwise ‘undermined’ their parent’s position (Childline, 1998). Theexperiences reported here also suggest that children may have valid groundsfor feeling ambivalent about professional involvement. Our data are limitedand unrepresentative11 but are supported by wider evidence which suggeststhat children do not generally perceive adults beyond the boundaries of theirfamilies as reliable sources of support, help or empowerment (Lyon et al.,1998; Masson and Oakley, 1998). Indeed, they are more likely to view themas bossy, inflexible, unfair, dismissive, intrusive, intimidating, interrogatory,critical, patronizing, judgemental, condescending, coercive, deceitful, secre-tive and untrustworthy, as reinforcing in myriad ways their superiority tochildren (Cantwell, 1996; Morrow, 1999; Williamson and Butler, 1995). Ifadults ‘other’ children, seeing them as essentially different (Cockburn, 1998)then children also ‘other’ adults in ways that determines their own behaviourand expectations towards them. Either way this ‘othering’ is not conduciveto good relationships between adults and children, nor does it foster chil-dren’s competence to express their views or take part in decision-making.

Recent research has indicated that, whatever the impact of divorce onchildren, there are other significant factors at play that can make a difference(Hetherington and Stanley-Hagan, 1999; Rodgers and Pryor, 1998). Rela-tions of respect and meaningful communication between family members


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would seem to be crucially important here. This is hardly surprising, sincethese are the key components of citizenship. In a world where children havefew civil rights, the family is the one setting where they can aspire to beingtreated as people in their own right. The children’s accounts also suggest thatongoing conversations conducted as a daily part of family life are morelikely to hold value for them than stilted, ‘one-off’ consultations with socio-legal professionals. Building in the right conditions for listening effectivelyto children is not an easy or straightforward task. Adults would have to learnto trust and respect children’s judgements and accord them the integrity toact in morally responsible ways. In effect they would have to begin ‘observ-ing the elementary rules of democracy’ in their dealings with children (deWinter, 1997: 139).

The participation debate in family law

The issue of involving children in private family law proceedings has beenthe subject of much analysis and debate in England and it remains controver-sial. Policy-makers have recently come under renewed pressure to grantchildren separate representation in these proceedings. Two rationales havebeen put forward for changing the operation of the law. The first is a wel-farist argument that challenges the presumption of family integrity. Propo-nents argue that children may be harmed if they are excluded fromprofessional decision-making, particularly in a context where they cannotnecessarily rely on parental support.12 This argument has been fuelled byconcerns that parents cannot be trusted to meet their children’s needs at thepoint of divorce or when parental conflicts arise, because they are presumedto have a ‘diminished capacity’ to parent properly. Granting children a voiceat the point of divorce, it is said, will allow for their welfare to be properlyinvestigated and secured, thereby bringing a necessary corrective to the cur-rent balance of power between parents and the state (James and James,1999; Lyon et al., 1998; Timms, 1997).

In contrast, those who defend current policy and practice argue, alsoalong welfarist lines, that it is not necessarily in children’s best interests tobe dragged into decision-making, or to voice their views in a way that setsthem apart from or even in opposition to their parents. Participation, which,in this formulation, is not clearly distinguished from decision-making (Chil-dren’s Rights Office, 1995), is deemed harmful to children, placing undueburdens of responsibility and guilt on them at too young an age and compro-mising their loyalties. There are also significant resource implications if chil-dren are to be made parties to disputes (Jones, 1992). Rather than forcingchildren to express a view they should retain their right to ‘act like children’and let others decide for them (Cantwell and Scott, 1995; Law Commission,1988: 3.23).13 Whatever the relative merits of these opposing views, they arecouched in the language of what is ‘good’ or ‘bad’ for children, rather than

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in the language of what children themselves might want or be entitled to.Underlying these arguments is a subterranean debate about which group ofadults (mothers, fathers, legal, welfare or therapeutic professionals) are bestequipped to take charge of children’s welfare needs, a debate from whichchildren themselves have been largely excluded (Shamgar-Handelman,1994).

A second line of argument for promoting children’s participation is arights-based argument that challenges the presumption of childhood incom-petence (Freeman, 1997). Granting children a voice, it is said, will liberatethem from adult oppression and bring a necessary corrective to the currentbalance of power between adults and children. As Roche (1996) observes, ina world where children have few political, economic or material resourcesbut only words and bodies with which to resist adult power claims, the lan-guage of rights and political citizenship may be a critical resource for them.While this argument is powerful and persuasive, framing the debate in thisway has certain drawbacks. Much like welfarist arguments, the rightsapproach glosses over the important distinction between participation andindividual choice. Participation becomes equated with a legal or politicalmodel of citizenship, one based on the individualized ethics of autonomy,personal freedom and self-determination (Children’s Rights Office, 1995;Roche, 1999). As a result, the issue tends to become polarized in a way thatuniversalizes children’s interests and needs and appears to set children andadults in opposition to each other (Minow, 1987; Morrow, 1999).14 Just aswelfarists argue over what is ‘good’ for children, so liberationists argue overwhat is ‘right’ for children, particularly over what strategies should beadopted to secure children’s participation and whether an autonomous,rights-based power struggle is a necessary or desirable part of the process.

Of course, resolving the issue of what is ‘good’ or ‘right’ for children-in-general is inherently difficult when the needs and interests of individualchildren are so varied. Once children’s perspectives are brought into the pic-ture, however, it becomes possible to move beyond these impasses. As wehave seen, the children in our study who had experienced neglect or disre-spect from a parent were forceful in insisting that children should be able tochoose residence and contact arrangements. In these contexts, specialist sup-port, an independent voice and legal representation were seen as crucial to achild’s well-being. Children will clearly assert their rights to self-determina-tion where their family relationships are oppressive or abusive. On the otherhand, most young people in our study did not espouse a politicized, rights-based model of citizenship for themselves in a family context. They did notneed to because they had already secured parental trust and respect, andthereby achieved citizenship in their families. Rather than asserting theirrights to individual choice or autonomy, they aspired to good communica-tions and inclusion in decision-making. At times of family change they weremore likely to value their privacy and make use of informal networks of


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support than to seek public involvement in and scrutiny of their circum-stances.15 If someone should be listening to children, then children prefertheir parents to undertake this task and it seems that where parents are doingthis, state intervention is neither needed nor wanted.

These differing points of view from children about their participationare inevitable, for they reflect children’s varied experiences of family life.What is good for one child may well be bad for another, an insight that is tooeasily glossed over in a system driven by adult-centric notions of welfare.Blanket rules designed to predict when children are ‘in need’ (as well aswhat they need) are not likely to be flexible enough to respond to theirdiverse circumstances. Equally, what is right for one child may be wrong foranother; an overly rigid discourse of rights may be no less problematic forchildren than a presumptive discourse of welfare. This does not necessarilymean that we should abandon the language of welfare or rights for children:after all, both are important. But these concepts need to be refashioned ifthey are to work in the interests of real children.

The language of social citizenship has much to offer here. Under thismodel, rights and welfare are contextualized within social relationships andpractices rather than understood simply in the context of impartial reasoningand public legislation (Kiss, 1997; Roche, 1999b). Such a model acknowl-edges that children’s rights, interests, needs and competencies are not identi-cal but vary from child to child according to age, gender, cultural context,family dynamics and circumstance (in much the same way that adult inter-ests and competencies vary). In this way, children’s interests are context spe-cific, arising out of and in tune with their lived experiences. A social modelof citizenship is closely aligned with children’s own thinking, for it groundsthe individualized rights of recognition, respect and participation within therelational ethics of care, responsibility and interdependence.16 As Kiss (1997:8) observes, ‘Rights must begin in small places, close to home.’ This modelhas further advantages over a politicized model of rights; it does not imply apower struggle between adults and children and the necessity for adults torelinquish some of their power, a position which, understandably, adults maywell resist. It allows for a more nuanced understanding of the position ofchildren in relation to adults, one which acknowledges the possibility ofmutuality as well as oppression, and the value of connectedness as well asindividuality (Brannen and O’Brien, 1996; Roche, 1996).

What might social citizenship mean for family law and professionalpractice? As a starting point, the debate over children’s participation wouldneed to be reframed. A system that allows for a range of solutions to theproblems faced by children, and a range of processes (non-legalistic as wellas legalistic) for identifying and working towards those solutions, would beneeded. The vexed (and essentially welfarist) question concerning whenshould the state intervene in children’s family lives could be replaced by amore fruitful, ‘citizenship’ question: how can the state provide a flexible

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range of support services for children that they can access as and when theyneed them? In short, an approach founded on social citizenship requires thedevelopment of a responsive mode of provision,17 one that allows for openand independent access for children who need help but respects the privacyand integrity of those who do not. Of course, for this to happen, adultswould have to accord children the competence to act in morally responsibleways and allow them to determine for themselves whether and in what wayto exercise their right to be heard. They would also need to find new ways ofengaging with children based on trust in their judgements and respect fortheir views. In particular, practitioners would need to abandon their precon-ceived ideas about welfare and rights and, instead, cultivate a healthy degreeof uncertainty about what individual children might need or want (Trinder,1997). These strategies would depend upon adults giving children an ade-quate knowledge of their rights of participation and protection, and empow-ering them, through the provision of local information, to know how toexercise those rights should they need to do so. Complementary strategies,such as promoting children’s citizenship among adults and providing supportprogrammes for parents, would also be needed (Children’s Rights Office,1995; Murch et al., 1998; Neale and Smart, 2001). Through these strategies,a social model of citizenship would allow for the rights and welfare of chil-dren to be more closely integrated in family law and professional practice.More broadly, it could provide an effective framework for fostering mean-ingful communications between adults and children, both within and outsidetheir families.

Notes

I am grateful to my colleagues Carol Smart and Amanda Wade for their contributions to theideas developed in this article and to the children and young people who participated in theresearch reported here.

1. See, for example, Davie et al. (1996); de Winter (1997) and Daniel and Ivatts (1998).2. The principle of listening to children has a long history in family law, particularly inmatters of child protection and guardianship (Custody of Children Act 1891 section 4). SeePiper (1999) and Roche (1999a).3. It also has the radical potential to empower children in a way that many adults finddeeply problematic. The popular press in England initially dubbed the Children Act a ‘bratscharter’ which would herald the breakup of the family as children ‘divorced’ their parents(Lansdown, 1994).4. These presumptions do not, of course, always determine how individual cases areresolved in court; on the contrary, they are continually contested within legal proceedings. Yetthey operate at the level of legal and policy rhetoric as the standards against which alternativeconstructions of children’s rights and welfare have to be judged if they are to find acceptance.5. The research evidence upon which these presumptions have been built is equivocal.Outcomes for children are varied and appear to be related to a whole constellation of individu-alized factors that cannot be determined a priori or reduced to one or two key principles of thelaw. This is the case for findings within discrete projects, across the corpus of research as a


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whole and across the numerous reviews of the literature (Burghes, 1994; Maclean and Eeke-laar, 1997; Piper, 1999; Rodgers and Pryor, 1998; Sclater, 1998). However, the contradictionshave been glossed over and the complexities distilled out in the process of translating the evi-dence into clear-cut principles which can easily be applied in a legal/therapeutic context (Kingand Piper, 1995). The favoured interpretations are then legitimized over time through an over-reliance on legal precedent and case law (Cantwell et al., 1999).6. Two projects were undertaken, funded by the Nuffield Foundation and the Economicand Social Research Council (L129251049). Full details of the methodology can be found inSmart et al. (2001). The Nuffield study explored the experiences of 52 children living under avariety of post-divorce arrangements, while the ESRC study focused on the experiences of 65children who were being shared between their parents across two homes. The children, most ofwhom were living in the north of England, ranged in age from 4 to 22, with over 100 clusteredin the 8–16 age group. They had varied socioeconomic backgrounds and mixed experiences ofparental accord/discord. The names of the young people have been changed to preserve theiranonymity.7. The age of the child is given in brackets after their name.8. See for example, Bonkowski (1989), Childline (1998), Mitchell (1985), McGredie andHorrox (1985), Smith (1999), Walczak and Burns (1984) and Wallerstein and Kelly (1980).9. Griffiths and Kandel (2000) report that only a small minority of the children broughtbefore the Scottish children’s panel entered into meaningful dialogue with the panel members.The rest used a variety of strategies (overcompliance, rebellion, or dogged silence) to avoidengaging in the process.10. The practice of judges directly consulting with children has become increasingly raresince the implementation of the Children Act because of the perceived problems of makingdecisions without following due processes of law in the public arena of the court. For this rea-son magistrates are prevented from such consultation (Jones, 1992). While 74 percent of thedistrict judges in Murch et al.’s (1998) study saw themselves as the child’s protector, relativelyfew of them felt it appropriate for the judiciary to canvass children’s views directly becausethey could not offer them confidentiality.11. Innovative professional agencies and services are available in England, although thechildren in this sample had not benefited from them. Some mediation services, for example,have introduced flexible approaches to working with children and responding to their wishes.See Davie et al. (1996); Childline (1998) and Smith (1999).12. See, for example, Makrinioti (1994), Timms (1997) and Lyon et al. (1998).13. The merits or otherwise of children’s participation has also been debated in the contextof mediation. See Simpson (1989, 1991) for reviews of earlier evidence and more recently,Murch et al. (1998) and Smith (1999).14. The ‘democratization’ of family life has been characterized in precisely this way – asthe grasping of new ‘personal freedoms’ by young people in which they break away from the‘serfdom’ imposed upon them by their parents and assert their right to ‘fashion their own lives’(Beck, 1997).15. See for example, Lyon et al. (1998). The right to privacy is also enshrined in the UNConvention (Article 16).16. For further exploration of these themes see Kiss (1997), Minow (1987), Minow andShanley (1997), Roche (1995, 1999b), de Winter (1997), Sevenhuijsen (1998), Cockburn(1998), Morrow (1999) and Diduck (1999).17. This theme is developed further in Neale and Smart (2001).

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