Alternative Dispute Resolution in Child Welfare
By: Veronika Válová
Separation of couples through divorce, legal separation or termination of a registered partnership may include issues regarding division of property furthermore personal arrangements affecting third parties, children. In order, to solve conflicts outside of the usual court litigation process having an impact on both parties and especially children involved, it is important to maximize engagement of the parties through ADR. Most recognized forms of Alternative Dispute Resolution regarding child welfare cases are Child protection mediation and Family group conferencing. Child protection cases are not limited to separation and can affect as well families who are just facing difficulties concerning children.
Family group conferencing is family-focused programme, where parents, older children, other family members and social service professionals work together to find solution for problems and make decision for and with the family. It is process, which is community-based, and its aim is to strengthen and support the family. FGC model is not limited to child welfare cases as it has been used in criminal proceedings or juvenile justice. FGC can be found in the United States, Canada, and Europe as well.[1]
Child protection mediation on the other hand is widely used in cases of separation and child custody arrangements. Mediation is process, where mediator as impartial person helps to resolve an issue between parties out of the court.[2] Main purpose of the CPM is to create an agreement, which will be in the best interest of the Child and satisfy participants to the mediation. Family mediation can be conducted cross-border as well. European Union gives an opportunity to parents to start mediation among Member States regarding family matters including parental responsibility and access rights, child abduction, child protection measures, maintenance of children or ex-partners and other consequences of divorce or separation.[3] Good example of ADR in child protection on national level is Family Mediation Council in the UK, where professional mediators assist parents to find common ground in decision making, regarding their children.[4]
There are numerous advantages of ADR with reference to Child protection. Parties to the dispute working towards the solutions have more control over the process and its outcome. Active participation in the resolving problem and cooperating with impartial mediator brings personal satisfaction and makes the process flexible. Another advantage is cost, and time spent, that is beneficial not only for partners but also for children as court proceeding are heavy burden. Child protection cases involve people, who need to continue to collaborate in the future and solving the issues together help to maintain relationships to certain extend. Voluntary use of ADR leads to better compliance as parties can influence the process and create the arrangement instead of getting court decision imposed on them.[5]
Future development of ADR regarding Child welfare lies with minimalizing or avoiding court involvement serving as most beneficial for all parties included. Negotiations on relatively equal basis with other parties represent one of the biggest challenges in Child protection mediation. Alternative dispute resolution has been used in those cases and has been proven efficient securing best interests of the child.[6] Hereafter, we can expect the growth of Alternative dispute resolution in Child welfare cases.
[1] Kelly Browe Olson, 'FAMILY GROUP CONFERENCING AND CHILD PROTECTION MEDIATION: ESSENTIAL TOOLS FOR PRIORITIZING FAMILY ENGAGEMENT IN CHILD WELFARE CASES' (2009) 47 Fam Ct Rev 53
[2] Anne Elizabeth Rosenbaum, 'Embracing the Strengths and Overcoming the Weaknesses of Child Protection Mediation' (2011) 15 UC Davis J Juv L & Pol'y 299, p. 308
[3] Cross-border family mediation, (2020), available at < https://e-justice.europa.eu/content_crossborder_family_mediation-372-en.do > accessed on 02.03.2021.
[4] Family Mediation Council, available at < https://www.familymediationcouncil.org.uk/family-mediation/ > accessed on 02.03.2021
[5] MINISTRY OF CHILDREN AND YOUTH SERVICES ALTERNATIVE DISPUTE RESOLUTION POLICY DIRECTIVE, Questions and Answers for Children’s Aid Societies. P.2
[6] Gregory Firestone, 'EMPOWERING PARENTS IN CHILD PROTECTION MEDIATION: CHALLENGES AND OPPORTUNITIES' (2009) 47 Fam Ct Rev 98