Including Children's Views in Divorce Mediation: A Comparative Analysis and Recommendations or Kenya

Authors

DOI:

https://doi.org/10.17159/1727-3781/2024/v27i0a14416

Keywords:

divorce mediation, child participation, legal framework, hearing children's voices Advertising Regulatory Board, advertising, self-regulation, jurisdiction

Abstract

It is important that the views of children be considered during the process of their parents' divorce. Parental divorce mediation informed by the needs of children is more likely to produce better outcomes. The ways in which divorce mediators in South Africa, Australia and Kenya consider views of the children of marriages in the process of dissolution are compared. The extent to which these three countries have domesticated and implemented relevant international law and policies is compared. Recommendations are provided for Kenya, where empirical research was undertaken to establish the practices and attitudes of Kenyan divorce mediators. The outcome of this empirical research indicates that – prior to mediating between their parents – most of Kenya's divorce mediators fail to elicit the views and wishes of the children who will be affected by the divorce. Proposals are put forward on how this may be rectified. In formulating these proposals, practices in South Africa and Australia are examined for the purposes of comparative analysis. The recommendations for Kenya include the formulation of appropriate laws and policies; the establishment of cost-effective mechanisms for hearing the voices of children prior to their parents' divorce mediation; and the education of the general public on the importance of considering the views and wishes of children when their parents are divorcing.

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Author Biographies

Vivian Nyaata

Lecturer, School of Law, Kisii University (Kisii Campus), Kenya.

Frederick Noel Zaal, University of KwaZulu-Natal

Professor, School of Law, University of KwaZulu-Natal (Howard College Campus), Durban, South Africa

Stephen Allister Peté, University of KwaZulu-Natal

 Associate Professor of Law, School of Law, University of KwaZulu-Natal

References

Bibliography

Literature

Allen S and Hawkins A "Theorizing the Decision-Making Process for Divorce or Reconciliation" 2017 Journal of Family Theory and Review 51-73

Bamgbose O "Access to Justice through Legal Education: A Way Forward for Good Governance and Development" 2015 AHRLJ 12-24

Bergman K and Cummings E "Innovations in Research on Conflict, Families, and Children" 2018 Family Court Review 207-221 DOI: https://doi.org/10.1111/fcre.12334

Bergman K et al "Depressive Symptomatology and Program Efficacy: Examining a Program to Improve Communication in Community Families" 2018 Family Court Review 269-283 DOI: https://doi.org/10.1111/fcre.12340

Birnbaum R "Views of the Child Reports: Hearing Directly from Children Involved in Post-Separation Disputes" 2017 Social Inclusion 154-165 DOI: https://doi.org/10.17645/si.v5i3.922

Botha K Ascertaining the Voice of the Child in South African Divorce Law (LLM-thesis University of South Africa 2015)

Carson R, Fehlberg B and Millward C "Parents' Experiences of Family Dispute Resolution and Family Law Services in Australia Following Shared Parenting Reform: Recent Qualitative Findings" 2013 CFL! 2013 406-418

Cashmore J and Parkinson P "Children's and Parents' Perceptions on Children's Participation in Decision Making After Parental Separation and Divorce" 2008 Family Court Review 12-22

Cassandra A "Children's Interest – Lost in Translation: Making the Case for Involving Children in Mediation of Child Custody Cases" 2011 U Dayton L Rev 355-364

Cooper D and Schindler P Business Research Methods 12th ed (McGraw-Hill New York 2013)

De Bruin W Hearing the Voice of a Child and Representation in Legal Matters (LLD-thesis University of Pretoria 2010)

De Jong M "A Pragmatic Look at Mediation as an Alternative to Divorce Litigation" 2010 TSAR 515-531

De Jong M "Australia's Family Relationship Centers: A Possible Solution to Creating an Accessible and Integrated Family Law System as Envisaged by the South African Law Reform Commission's Issue Paper 31 of 2015?" 2010 TSAR 298-319

De Jong M "Child Informed Mediation and Parenting Coordination" in Boezaart T (ed) Child Law in South Africa 2nd ed (Juta Cape Town 2017) 134-163

Fabricius W "The Bad News about Divorce and Children is Worse than We Thought, but the Good News is Better than We Thought" 2015 International Journal for Family Research and Policy 21-32

Fehlberg B, Smyth B and Maclean M "Legislating for Shared Time Parenting after Separation: A Research Review" 2011 International Journal of Law, Policy and the Family 318-339 DOI: https://doi.org/10.1093/lawfam/ebr015

Fitzgerald R Children Having a Say: A Study on Children's Participation in Family Decision Making (PhD-thesis Southern Cross University 2009)

Henry P and Hamilton K "The Inclusion of Children in Family Dispute Resolution in Australia: Balancing Welfare versus Rights Principles" 2012 Intl J Child Rts 584-602 DOI: https://doi.org/10.1163/157181812X634832

Hart A "Child Inclusive Mediation in Cases of Domestic Violence in Australia" 2009 Conflict Resolution Quarterly 3-19 DOI: https://doi.org/10.1002/crq.246

Hoffman D and Wolman R "The Psychology of Mediation" 2013 Cardozo Journal of Conflict Resolution 759-807

M Kalmijn "How Childhood Circumstances Moderate the Long-Term Impact of Divorce on Father–Child Relationships" 2015 Journal of Marriage and Family 921-938 DOI: https://doi.org/10.1111/jomf.12202

Madigan S, Plamondon A and Jenkins J "Marital Conflict Trajectories and Associations with Children's Disruptive Behavior" 2017 Journal of Marriage and Family 437-450 DOI: https://doi.org/10.1111/jomf.12356

McIntosh J, Wells Y and Lee J "Development and Validation of the Family Law DOORS" 2016 Psychological Assessment 1516-1522 DOI: https://doi.org/10.1037/pas0000277

Milojerich H, Quas J and Yano J "Children's Participation in Legal Proceedings: Stress, Coping and Consequences" in Miller MK and Bornstein BH Advances in Psychology and Law Volume 1 (Springer Cham 2016) 185-216 DOI: https://doi.org/10.1007/978-3-319-29406-3_6

Moloney L, Qu L and Weston R "Evaluating the Work of Australia's Family Relationship Centers: Evidence from the First 5 Years" 2013 Family Court Review 234-239 DOI: https://doi.org/10.1111/fcre.12023

Moloney L, Weston R and Hayes A "Key Social Issues in the Development of Australian Family Law Research and Its Impact on Policy and Practice" 2013 Journal of Family Studies 18-25 DOI: https://doi.org/10.5172/jfs.2013.4211

Muigua K "Heralding a New Dawn: Achieving Justice through Effective Application of Alternative Dispute Resolution Mechanisms in Kenya" 2013 Alternative Dispute Resolution 73-78

Noppari E, Uusitalo N and Kupiainen R "Talk to Me: Possibilities of Constructing Children's Voices in the Domestic Research Context" 2017 Childhood 68-83 DOI: https://doi.org/10.1177/0907568216631026

Parkinson P "The Idea of Family Relationship Centers in Australia" 2013 Family Court Review 195-214 DOI: https://doi.org/10.1111/fcre.12020

Patel S and Jones K "Assessment of Family Care Issues Using Mental Health Evaluations: Implications for Mental Health Counsellors" 2008 Journal of Mental Health Counselling 189-194 DOI: https://doi.org/10.17744/mehc.30.3.67025mu607j75405

Quigley C and Cyr F "The Voice of the Child in Parenting Coordination: Views of Children, Parents, and Parenting Coordinators" 2018 Journal of Divorce and Remarriage 501-527 DOI: https://doi.org/10.1080/10502556.2017.1403823

Ramsden K "Children's Perspectives on their Wellbeing: 'I Don't Think They Can Hear Us" 2013 The Child, Youth and Family Work Journal 8-30

Robinson JA "The Right of Children to be Heard at the Divorce of their Parents: Reflections on the Legal Position in South Africa" 2007 THRHR 263-274

South African Law Reform Commission Issue Paper 31, Project 100D. Family Dispute Resolution: Care of and Contact with Children (SALRC Pretoria 2015)

Sheetal V Towards Being Heard: Representations of the Child's Voice in Care Evaluation Reports by the Office of the Family Advocate (MA-thesis University of Cape Town 2009)

Standing Committee on Family and Community Affairs Every Picture Tells a Story. Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (Parliament of the Commonwealth of Australia Canberra 2003)

Taylor N et al "International Models of Hearing the Voice of a Child in Family Law Proceedings Following Parental Separation/Divorce" 2012 Intl J Child Rts 645-653 DOI: https://doi.org/10.1163/15718182-55680006

Thornblad R and Strandbu A "The Involvement of Children in the Process of Mandatory Family Mediation" in Nylund A and Ervasti K (eds) Nordic Mediation Research (Springer Cham 2018) 183-210 DOI: https://doi.org/10.1007/978-3-319-73019-6_10

Williams G Children's Participation and Procedures at the Office of the Family Advocate (LLM-thesis University of KwaZulu-Natal 2004)

Yasenik L and Graham J "The Continuum of Including Children in ADR Processes: A Child-Centered Continuum Model" 2016 Family Court Review 186-206 DOI: https://doi.org/10.1111/fcre.12213

Legislation

Australia

Constitution of Australia, 1901

Family Law Act 53 of 1975

Family Law Act 53 of 1975

Family Law Amendment (Shared Parental Responsibility) Act 46 of 2006

Family Law Legislation Amendment (Family Violence and Other Measures) Act 189 of 2011

Kenya

Children's Act, 2001

Children's Bill, 2017

Constitution of Kenya, 2010

South Africa

Children's Act 38 of 2005

Constitution of the Republic of South Africa, 1996

Divorce Act 70 of 1979

Mediation in Certain Divorce Matters Act 24 of 1987

Government publications

Kenya

Legal Notice 167 in Gazette Supp No 179 of 9 October 2015 (Medication (Pilot Project) Rules)

South Africa

GN R48 in GG 999 of 12 January 1965, as amended (Uniform Rules of the High Court of South Africa, or Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the Supreme Court of South Africa)

GN R261 in GG 22076 of 1 April 2020 (General Regulations Regarding Children)

International instruments

African Charter on the Rights and Welfare of the Child (1990)

United Nations Convention on the Rights of the Child (1989)

UN Committee on the Rights of the Child General Comment No 12: The Right of the Child to be Heard UN Doc CRC/C/GC/12 (2009)

Internet sources

British Columbia, Ministry of Attorney General, Justice Services Branch, Family Justice Services Division 2003 The Involvement of Children in Divorce and Custody Mediation: A Literature Review https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-services-branch/fjsd/mediation.pdf accessed 22 June 2023

Kenyan Mediation Accreditation Committee 2016 Mediator Accreditation Standards http://kenyalaw.org/kenyalawblog/wp-content/uploads/2016/05/

MAC-Accreditation-Standards.pdf accessed 18 September 2023

McIntosh J 2007 Child Inclusion as a Principle and as Evidenced-based Practice: Applications to Family Law Services and Related Sectors. Australian Family Relationships Clearinghouse Issues No 1, 2007 https://childrenbeyonddispute.com/wp-content/uploads/2015/04/McIntosh-child-inclusion-AFRC-07.pdf accessed 26 September 2023

McIntosh J 2017 Children Beyond Dispute – Child Inclusive Mediation, Online Training Programme https://childrenbeyonddispute.com/child-inclusive-mediation/ accessed 22 June 2023

McIntosh J 2017 Children Beyond Dispute – Young Children in Divorce and Separation, Online Training Programme https://childrenbeyond dispute.com/practitionersycids/ accessed 22 June 2023

National Council for Children's Services 2015 National Plan of Action for Children in Kenya, 2015-2022 https://bettercarenetwork.org/sites/ndefault/files/2020-10/National-Plan-of-Action-for-Children-in-Kenya-2015-2022.pdf accessed 22 June 2023

Republic of Kenya date unknown Court Annexed Mediation http://kenyalaw.org/kenyalawblog/wp-content/uploads/2016/04/Court-Annexed-Mediation-at-the-Judiciary-of-Kenya..pdf accessed 18 September 2023

Interview

Mangerere Interview 2017

Interview by the first author with James Mangerere, Director of the East Africa Mediation Institute, on 13 January 2017

Published

01-02-2024

How to Cite

Nyaata, V., Zaal, F. N., & Peté, S. A. (2024). Including Children’s Views in Divorce Mediation: A Comparative Analysis and Recommendations or Kenya. Potchefstroom Electronic Law Journal, 27, (Published on 1 February 2024) pp 1–35. https://doi.org/10.17159/1727-3781/2024/v27i0a14416

Issue

Section

Articles