Scottish Government

Section 2 - Participation and Advocacy Beyond the Children's Hearings System

As noted in the introduction, the UNCRC has been ratified by over 170 States worldwide indicating a commitment from each of these states to adhere to the principles within the Convention, including those contained within Article 12(2) concerning the participation of children and young people in "any judicial and administrative proceedings affecting the child".

In a review of reports to the UN committee charged with monitoring implementation of the UNCRC, Marshall (1997: 34-53) highlights the provisions which have been established in some states. These provisions include both informal processes and more formal, judicial procedures. In terms of the former, the Danish Social Assistance Act, for example, allows that children of 12 years have the right to be consulted about proposed measures of family assistance. Similar provisions have also been established in Norway. In Sweden, the Social Services Act states that "a child must be given the opportunity of speaking on its own behalf in dealings with social services, especially when the question arises of placing the child away from its parental home" (Marshall, 1997:36). In Canada, where more formal, judicial procedures are adhered to, the provisions introduced differ in each state. In Alberta, children over 12 years are considered capable of giving 'reasoned views' and ought to be consulted in proceedings concerning them. In Ontario, the Children's Law Reform Act provides that the courts shall consider the 'views and preferences of the child' in private custody disputes. Whereas in Manitoba, the Child and Family Services Act allows that children aged 12 years and over are entitled to be notified of any family support or child protection proceedings and to be given an opportunity to express their views and preferences.

However, as the evidence in section one demonstrates, statutory provisions do not necessarily or immediately translate into effective participation by children and young people in decision-making which affects them. Indeed, as Marshall notes, "While these provisions are to be welcomed, monitoring is clearly necessary to ensure that they are working effectively" (Marshall, 1997:36). In view of this, section two of this review aims to explore research on approaches to securing effective participation by children and young people in proceedings involving them (other than the Children's Hearings System). This exercise seeks to identify and examine models of participation and advocacy, in the broadest sense, especially where evidence suggesting effectiveness was available directly from children and young people. The review identified three broad types of proceedings involving children for consideration and where useful literature was available. These are:

• public law/youth justice/welfare proceedings;
• family or private law proceedings; and
• family group conferences.

In each area, evidence was gathered on the extent to which children are involved in decision-making, any barriers that prevent their participation and mechanisms which are currently in place to facilitate children's and young people's participation.

Public Law, Youth Justice and Welfare Proceedings

Public law, covering both youth justice and child welfare proceedings, is by far the broadest category being considered in this review and the category in which arguably, there is most international variation in procedures. The variations between different countries' systems for dealing with youth justice and child welfare concerns are great. As such, it is necessary to bear in mind that what may be shown to be effective as a mechanism for achieving participation in one system may not transfer successfully to another system. The problems inherent in comparisons of this kind are aptly noted by Buist and Whyte (2004) in their recent international review of decision-making and service provision for children and young people who offend.

'Many different models [of youth justice and child welfare systems] exist; few are completely satisfactory; compromises abound. The manner in which each country has responded to children's needs and risks cannot be understood in isolation from their historic development, which makes comparison problematic.' (Buist and Whyte, 2004: v)

Relevant information on public law proceedings was available from the United States, England and Wales, and Canada - all systems that are adversarial in nature. This is considered below.

Children's Involvement in Decision-Making

Measurement of the actual extent of children's participation and involvement in public law proceedings is somewhat scarce. However, Your Shout! (Timms and Thoburn, 2003), a NSPCC-funded survey of over 700 looked-after children in England and Wales included a range of questions on the extent to which young people felt they had participated in the proceedings which had led to them coming into the care of a local authority.

Whilst some of the young people surveyed would have been accommodated at the request of a parent/carer or themselves, the majority would have been the subject of a range of different court proceedings. In such proceedings in England and Wales, the child's views are normally provided to the court by a solicitor and the child's guardian to the extent that the presence of the child in court has become extremely rare (Agnello-Hornby, 2003). As such, it is not surprising to find that less than one quarter (23%) of the Your Shout! sample said that they had been to court when decisions were being made about them. Of those children who did not go to court, 17% indicated that they would have liked to (Timms and Thoburn, 2003:9).

Interestingly, unlike Children's Hearings, the non-attendance of the child at welfare proceedings concerning them is not unusual, particularly in jurisdictions where adversarial procedures are followed. Griffiths and Kandel (2000), for example, in their study of family court proceedings in New York State explain that in abuse and neglect cases in particular "… the child's voice is virtually never heard 'directly' or 'audibly' - for their 'protection' the children are often kept far from the courthouse door" (2000:167).

Of the young people who had attended court in the Your Shout! survey, only around one quarter (27%) were given an opportunity to speak to the judge directly. 13% of the court sample admitted that they did not wish to speak to the judge even given the opportunity, although one fifth admitted that they would have liked the chance. Of those children who did not attend court but indicated they would have liked to, the proportion was higher with 34% stating that they would have liked to speak to the judge.

Considering participation and involvement more broadly, young people in the Your Shout! survey were asked whether they felt they were listened to and their rights had been respected (Timms and Thoburn, 2003:12). Whilst 43% of those answering the question indicated that they felt they had been listened to, almost one-third (31%) said that they had not been listened to and the remainder simply didn't know. One young person added:

'I would have wanted my opinion to be listened to rather than just my carer's [opinion]. But the social workers should have been listening to me instead of just the opinion of the carer.' (Timms and Thoburn, 2003:13)

The indication is therefore that children appear to have only limited involvement, certainly of a direct nature, in court-based welfare proceedings. Evidence from parts of the process beyond the courtroom supports this. Thoburn (2004) in discussing children's involvement in planning and review services (part of the care process in England and Wales) notes, "… it appears that in many cases children's wishes are either not clarified or not respected about how the review process should unfold" (2004:128). In addition, studies by Farnfield (1997) and Boylan (1996) indicate that children felt they were not being listened to in child protection conferences and care reviews.

Barriers to Participation

Perhaps the most obvious barrier identified in the evidence above, is that the children feel they are not being heard. This often stems from the exclusion of the child from the discussion/ decision-making forum, and, when they are present, a lack of opportunity to speak. As has been noted, a fair proportion (34%) of young people in the Your Shout! survey who did not attend court reported a wish to have attended and further to be given the opportunity to speak to the judge (Timms and Thoburn, 2003).

In addition, Thoburn (2004) notes the importance of acknowledging the family power dynamic when encouraging children and young people to express their views and in basing decisions on those views. This indicates that children may not want to express their views if they feel they will be undermining their parents. Indeed, further research, (Schofield and Thoburn, 1996) found that children are happier when social workers adopt methods of consulting them during the care process which do not place them in opposition to their parents.

A key barrier for children and young people in contributing to decisions affecting them in welfare proceedings, according to the evidence available, is a lack of information. A number of findings within the Your Shout! survey suggest this to be the case. Children directly involved in court proceedings, reported being kept generally well informed - 84% of this group reported that someone had explained to them what was happening. However, within the sample as a whole, 37% of respondents stated that no-one had explained what was happening. The respondents were given opportunities to add 'other comments' to the set questions. Analysis of responses to these questions show that, in terms of understanding the court process, 34% of the young respondents in the sample as a whole believed that they had not been given enough information. One young person commented:

'I would have liked more info and would of liked to have more say in the matter.' (Timms and Thoburn, 2003:13)

Mechanisms to Facilitate Participation

A range of mechanisms currently exist which seek to facilitate the participation of children and young people in the public law proceedings examined. All of these are largely influenced by the adversarial nature of the proceedings and are as such concerned with the representation of children's and young people's views in court.

In England and Wales, the child's case is presented to the court in the majority of cases by a solicitor and a Children's Guardian. It is the Children's Guardian role that facilitates the expression of the child's interests and wishes in public law proceedings as an adapted form of the previous Guardian ad Litem. The service is provided by the Children and Family Court Advisory and Support Service, which was established in April 2001 through an amalgamation of the Guardian ad Litem service, the Court Welfare Service and the children's division of the Official Solicitor. The Children's Guardian is independent of all other parties to the proceedings where the child's welfare is an issue. Their function is to speak to the child and ascertain the child's views in respect of the case, they will also speak to family members and others associated with the child before preparing a report for submission to the court, which children are entitled to see. Significantly, whilst the child's views may be expressed within the report, its core object is that the Guardian recommends what he or she considers in the best interests of the child - a conclusion which may differ from what the child wants.

Although thus far little research exists on the effectiveness of the Children's Guardian, some research, conducted by the Children's Society (Bourton, 2000), is available. This assesses the effectiveness of the previous and very similar role of Guardians ad Litem. A total of 28 children were interviewed, of whom 25 believed that their Guardian ad Litem had listened to them. In some cases, however, the difference between what the Guardian ad Litem saw as best for the child and what the child wanted created a negative assessment. As one young person commented:

'I don't think she [the Guardian] understood … I know she wanted me to go to stay with mum. She didn't understand why I didn't want to go.' (Bourton, 2000:17)

Crucially, almost three-quarters of the children interviewed rated the ability to listen to children as the most vital quality of an ideal Guardian and 43% reported that the ability to explain the legal process to children was very important. Whilst there is no doubt from the research that Guardians ad Litem contributed considerably to the outcomes of the court cases, since the report concluded that the outcome would have been different in 15 out of 21 cases, there is little to indicate that their contribution was beneficial in providing an outcome agreeable to the young people involved. Neither does the report indicate that Guardians ad Litem ensured that the young people themselves felt they had been given an opportunity to participate effectively in proceedings.

Mechanisms similar to the Children's Guardian exist in other jurisdictions. Griffiths and Kandel (2000a) describe the role of the Law Guardian in family court cases in New York State. Statute requires that in all abuse, neglect, persons in need of supervision and juvenile delinquency proceedings children are represented by a Law Guardian, which the authors describe as a "cross between an attorney, advocating for the child's wishes, and a Guardian ad Litem, taking an independent position based on the child's best interests" (2000:169). The Law Guardian is the child's key spokesperson in court and like the Children's Guardian, interviews the child to ascertain his or her wishes before presenting a report to the court. The rules governing the role of Law Guardians express that they are to function primarily as the child's 'lawyer', operating from a rights stance. However, there is provision to introduce a best-interests approach where it is considered that the child is immature and that the child's wishes are contrary to the child's best interests. The authors note that when interviewed, the majority of Law Guardians admitted that "they primarily took a best-interests welfare view, but one informed by what the children said they wanted" (2000:170). Significantly, whilst the Law Guardians report playing an effective role and carrying out extensive investigations into children's wider lives, the young people themselves were less convinced of the Guardians' thoroughness and their ability to connect with the young people they are supposed to be supporting.

'Several children summarised their interaction with their law guardians as having first met at the courthouse, the lawyers using big words, telling them what to do and not really explaining things … Several pointed out that the law guardians were members of the community elite, and hence more connected outside the courtroom to judges and lawyers than to the working class families who are typically the parties in court.' (Griffiths and Kandel, 2000)

A number of arguments exist against the representation of the child's best interests as the primary consideration over the expression of their views and protection of their rights. Eitzen (1985), cited in Hallett and Hazel (1998), argues that a child's legal interests are often not well represented by experts such as Guardians ad Litem. Ramsay (1993), also cited in Hallett and Hazel (1998), makes a case for advocacy that is based on instruction directly from the child rather than someone deciding what may be in their best interests. She recommends that lawyers should represent the child's wishes where the child is considered capable of making a measured decision.

Griffiths and Kandel (2000a: 169) also note the use of the "Lincoln hearing" in family court proceedings in New York State. This is where the judge interviews the child in private in chambers. The judge, the child, a court stenographer and the child's law guardian are present in the judge's chambers. Whilst a stenographic record is made of the interview it is non-public and sealed, only the law guardian may review it and only to check for accuracy (usually done in the judge's chambers).

The Court Appointed Special Advocate ( CASA) system in the United States serves to assist children and young people involved in public law proceedings in all 50 states. This volunteer advocacy programme serves three purposes (Hallett and Hazel, 1998), to:

• Investigate the child's situation on behalf of the judge and determine facts.
• Speak for the child in court, representing the child's best interests; and
• Act as a broader 'watchdog' for the child for the life of the case providing continuity and protecting the child's legal interests.

Recent legislative changes in England and Wales have seen an increased role for advocacy for children and young people. Whilst such services have existed for a long time, the implementation of section 119 of the Children and Adoption Act 2002 on 1 April 2004, which obliges local authorities to establish procedures for considering complaints by looked after children and children in need, gives these services an increased role and puts them in higher demand.

The services are provided in the main by a number of key players, including specialist advocacy providers (Voice for the Child in Care, National Youth Advocacy Service, Children's Rights Officers and Advocates, Voices from Care Cymru, Voice of the young person in care) and larger voluntary sector organisations, including NSPCC and Barnardo's. The services are governed by a set of national standards published by the Department of Health in 2002. These standards set out the core principles that children and young people can expect from advocacy services and provide a framework under which local authorities can plan, develop and review the practice of child advocacy.

(Department of Health, 2002)

Voice for the Child in Care

An in-depth study was undertaken of one service, Voice for the Child in Care ( VCC), to provide detail on the role that the advocate fulfils, and the comments of children and young people who have used the service.

Established in 1975, VCC operates to provide children in care with a voice and to campaign for improvements in the lives of children and young people in care (Voice for the Child in Care, 2004). Currently the organisation has a head office in London and four regional offices covering all local authority areas in England. In 2003-04, VCC provided a direct advocacy service to almost 3,000 children and young people in England.

VCC's seven key aims are:

• To empower children and young people to speak out for improvement to the quality of their lives by providing information, advice and advocacy.
• To raise awareness of children's rights and promote the full implementation of the UNCRC.
• To campaign for changes in law, policy and practice for the benefit of children and young people in care and those in need.
• To support the active participation of children and young people in the development of the law, policy and practice and in the delivery of services.
• To deliver high quality services to children and young people.
• To ensure equality of opportunity and anti-discriminatory practice in the delivery of all services.
• To provide a link for people and agencies who aspire to good childcare practice in their daily work.

Practically speaking, VCC provides three distinct types of advocacy for children and young people - individual advocacy, visiting advocacy and independent services.

• Individual advocacy is undertaken on a one-to-one basis where a child has contacted VCC through the national helpline because they have a problem with their care arrangements. An advocate will then meet with them to help them resolve the issue. Recently, VCC has developed a range of specialist individual advocacy services tailored to the specific needs of children with disabilities, those with mental health issues, unaccompanied asylum-seeking children and care leavers ( VCC, 2004:7).
• VCC provides independent visiting advocacy to children and young people in children's homes, secure care, residential schools and psychiatric hospitals. Regular visits mean that the advocate becomes a familiar and trusted person who children can approach with any problems. This service is currently provided for 51 children's homes, 24 secure units, 3 secure training centres and 10 Young Offender Institutions.
• The independent services were set up in 1991 to provide 'Independent Persons' to assist in the investigation of complaints under the Children's Act 1989.

The advocate's assistance can take a number of forms. VCC's research demonstrates the range of different situations in which a VCC advocate can become involved and the different methods through which they support the young person ( VCC, 1998). In some instances, VCC has assisted children with complaints against local authorities. This involved simply discussing the issue with the child and providing them with the information they need to make the right decision, and writing letters on behalf of the young person after agreement of what the content of the letter should be. Advocates have also prepared children for review panels and assisted them, either through providing them with support at the panel or presenting the child's issues on their behalf. In some cases, advocates have enlisted additional support, for example, by assisting the child to instruct a solicitor where he or she is entitled to legal representation.

A number of broad positive characteristics and benefits of advocates emerge from the narratives in Shout to be Heard. Of importance is that children and young people like that advocates listen to what they have to say. They also appreciate that advocates are comfortable with young people and can communicate easily with them. One young girl commented:

'Once I met her I relaxed straight away. She seemed to be really at ease with young people, she also had some of the street slang down as well which gave her some cool points. Someone acceptable to be seen out on the street with!' ( VCC, 1998:74)

In particular young people find it helpful that advocates can explain things to help them understand the often complex processes that they are involved in. Finally, it is clear that children and young people savour seeing real results and, in addition when these are in their favour because of the advocates' support.

Thus, in recent years advocacy for children and young people has been placed higher on the agenda in England and Wales, and more advocacy provision of the sort detailed in the VCC profile is available to children and young people than ever before. However, Plummer (2004) identifies a number of difficulties with the increased provision. First, there is a lack of understanding amongst professionals about the advocate's role, which can lead to conflict. Also, conflict can arise because advocates guide young people in their own direction, a direction sometimes completely opposite to that desired by the professionals involved in the case. The provision of services is also problematic: whilst all the guidance recommends that advocacy services should be independent, Plummer notes that a number of local authorities employ their own advocates, calling the independence of the service into question.

Private and Family Law Proceedings

Private law proceedings involving divorce, contact and custody arrangements are generally more standardised across the international arena than public law proceedings. In some jurisdictions they are similar in form to public law proceedings and may, in some cases, be heard in the same court. Considerable debate has occurred, often at an international level, on the role that children's preferences or wishes should play in decisions taken about residence and contact arrangements following the separation and divorce of their parents (Cashmore, 2003).

Children's Involvement in Decision-Making

Chisholm (2000), cited in Cashmore (2003), indicates a number of ways in which children and young people can be involved in the family law process. They can be kept informed of what is happening, be given an opportunity to express their feelings and wishes, contribute to the consideration of options and in some cases provide "creative and useful solutions not considered by the adults" (Cashmore, 2003:159).

Research exists across a number of jurisdictions on the extent to which children are involved in the family law decision-making process. A review of this evidence suggests that the potential involvement discussed by Chisholm is not universal. Indeed, he acknowledges such sentiments himself.

'My impression is that internationally and locally, it has been more the exception than the rule to involve children in primary dispute resolution [custody and access].' (Chisholm, 1998:7)

Approximately one-third of children in Marshall's et al (2002) feasibility study on children's views on matters that affect them under the CSA 1995, said that they had not had a say in the decisions, affecting their lives, made in legal proceedings. In the same study, the children and young people expressed that they felt they were not being listened to by adults and that adults did not do enough to help children understand what was going on. A survey of 200 parents involved in contact disputes in England and Wales undertaken by the Children's Legal Centre found that of those parents who had been to court for a contact order, 66% said that the court had not been made aware of the children's wishes (Moylan, 2004). Where the children's views had been expressed in court, 43% of instances had been via a court welfare officer. Staying in England and Wales, Douglas et al (2001), cited in Cashmore (2003), found that less than half of the 7 to 15-year-old children interviewed had been asked who they would prefer to live with but that over half (55%) said they wished they had been asked. Further afield, the results of an Australian study reported by McDonald (1990) cited in Cashmore (2003), showed that only one-quarter of 8 to 12-year-old children stated that they had been consulted about initial contact arrangements. Similarly, research in New Zealand found that 37% of the children aged between 6 and 15 years interviewed were consulted about initial contact arrangements (Gollop et al, 2000 cited in Cashmore, 2003).

The extent to which children are given an opportunity to present their views directly in the proceedings almost mirrors that in adversarial welfare proceedings. Indeed, evidence demonstrates a professional reluctance to allow children to participate in such a manner. A survey of judges and lawyers in Canada shows that whilst over three-quarters of respondents (78%) thought that legislative reforms or service improvements were necessary to better enable children to voice their views when parenting decisions affecting them were made, only 15% believed direct testimony by the child to be an appropriate way to achieve this (Paetsch et al, 2001). And in Scotland, Marshall et al (2002) found that only 17% of judges would consider speaking to the child, should the child write to the court requesting this.

Barriers to Participation

Children and young people involved in research undertaken by Marshall et al (2002) were asked what, for them, were the biggest barriers in stating their views and being heard. The responses highlighted a number of issues. One of the most common barriers was reluctance amongst young people to talk about certain subjects or to express their views for fear of hurting other people's feelings. Children do not want to upset the sometimes delicate balance of their relationships with the other people involved, as this quote form a 14-year-old boy demonstrates:

'… you're probably thinking you really want to say something and then you change it because you know it's going to hurt people's feelings and like it's probably just the relationships that you're going to break up and you really don't want to do that.' (Marshall et al, 2002:41)

Children also felt that they weren't being listened to by adults and, further, that adults do not do enough or provide any information to help children understand the process that they are involved in and the decisions being made. A number of children in the study made a specific reference to adults' poor listening skills. The lack of sufficient information for children, in a form and at a time when they most needed it, was strongly felt by almost all the respondents.

Mechanisms for Participation

In Scotland the legislative position of children and young people involved in family law proceedings is, like their legal position in the Children's Hearings System, provided by the Children (Scotland) Act 1995. In considering whether or not to make an order on parental responsibilities, children must be given an opportunity to indicate whether they have any views. If they do, the child or young person must be given the opportunity to express these views and have them taken into account by the court (s11(7)(b)). As with the similar provisions in relation to the Hearings System, these conditions are subject to practicality and the age and maturity of the child.

Similar statutory backing for the child's participation in family law proceedings exists in other legal jurisdictions. There are also a number of identifiable mechanisms, some unique to particular jurisdictions and others more universal, which seek to enable the child's practicable involvement in the family law process.

The submission of written reports, prepared by children themselves, exists in a number of jurisdictions. In Scottish court proceedings, if children are served they receive a Form F9 which requests their views by allowing the child to complete a box entitled "What I Have to Say About My Future". The form also allows the child to nominate someone to tell the Sheriff about their views including a friend, relative or other person. The child is able to fill this in and send it back to the court. Research by Marshall et al (2002) found that of the 31 children and young people consulted only one young person had filled in Form F9 and the rest had never seen it. Infrequent use of the form was also reported by Sheriffs. Despite this, the young people interviewed thought that they or their peers would consider using the form if they received it. There was also support from children and legal professionals for the use of letters written by children to the court as an effective way of bringing children's views into proceedings. However, as to some extent with the Form F9, this mechanism relies on children having the ability and confidence to write something they feel adequately conveys their views.

Cashmore (2002) identified mediators as one the "main avenues" for children's views to be included in proceedings. A more informal approach, mediation allows parties to review decisions outside of the courtroom by using an impartial person to guide disputing parties, to help them make informed decisions using conciliation and to develop mutually acceptable agreements. Whilst in principle the process seems more amenable to incorporating the views of children, in practice this does not appear to be the case. As Cashmore comments:

'There is a fair degree of similarity of practice across jurisdictions in that most family mediators and conciliators in Australia, New Zealand, Canada, the United States and the United Kingdom do not directly seek the views of children in the mediation or conciliation process.' (2002:163)

Court counsellors and Court Welfare Officers are a more common method through which children's views are brought before the court (in the UK, Canada, Australia and New Zealand). A position similar to the Guardian ad Litem, the court counsellor is charged with preparing a report which, generally speaking across jurisdictions, is required to address the ascertainable wishes and feelings of the children, taking into account their age and maturity. Chisholm notes that such reports are "one of the recognised ways of obtaining information about the children's wishes" (1998:5). However, such wishes are based on an assessment by the court counsellor or court welfare officer who is preparing the report and as such the child's views may not be explicitly outlined in the report. A worrying trend in this respect, noted by Cashmore (2002:163) is that in many cases children do not appear to have an opportunity to review the report before it is submitted. As such, the child cannot dispute any misinterpretation in the author's assessment of his or her wishes.

Legal representation is available in most jurisdictions. The assistance provided by the solicitor can be varied. In Scotland, for example, a child's solicitor may provide help completing Form F9 or may write to the court on the child's behalf. Permission may also be sought to include the child as a third party to the action. Alternatively, the lawyer may appear on the child's behalf. However, Cashmore (2002) notes that in a number of countries, the direct involvement of children with lawyers is low with few children having their own legal representation. Research by Murch et al (1999), cited in Cashmore (2002), showed that most parents' solicitors said they do not talk to the children; 45% admitted they would never talk to a child, but a little over one-quarter (28%) said they would consider doing so. In Scotland, where solicitors did speak to children, Marshall et al (2002) found that most solicitors interviewed believed that ascertaining a child's wishes involved asking them about residence and contact. Only a small number saw it is an opportunity for the child to express their views (2000:40). Despite these flaws, Marshall et al (2000) found that children who were represented by a lawyer during the process had a much more fulfilling participatory experience. All of the children who had their own lawyer felt that they had had a say in decision-making. Furthermore, those who had been legally represented had positive views of the experience. The children believed that lawyers had provided them with a "vital channel" for expressing their views which may otherwise not have been available.

In some cases, to facilitate the expression of the child's views, the judge may ask to speak directly to the child. Views from the Your Shout! survey on public law proceedings in England and Wales showed that in some cases children are keen to have this opportunity. Drawing on evidence from family law, Cashmore notes:

'Some children are very keen to talk to the judge. Some clearly feel frustrated about not being heard or having their views 'filtered' and want to go straight to the decision-maker. Others are keen to get their views across without having their parents involved in the process.' (Cashmore, 2002:167)

The mechanisms in place to facilitate participation by children and young people in family law proceedings appear less than adequate as evidenced by the views expressed by children and young people in the studies discussed in this review. Whilst the evidence from children and young people does not provide a pre-prepared solution to this problem, there are a number of identifiable changes to the process that young people consider necessary for their effective participation.

First, children want to know what is going on. Marshall et al (2002), reviewing three research projects on children involved in divorce proceedings, found that the young people in all studies felt significantly ill-informed. They lacked both understanding of the legal process surrounding divorce and information about their personal family situation. It is clear that children and young people would like information on the process itself, the options that are available and how decisions are taken. Secondly, children want a say in decisions that directly affect them. We have already seen how a number of children and young people feel that they are not listened to in family law proceedings. As such, they express a wish to be consulted about their opinion and have their views taken into account in the decision-making process. Confidentiality is very important in ensuring the participation of children and was a high priority for many informants in the research considered here. In acknowledgement of the concerns over confidentiality in these proceedings, children and young people in Marshall et al's research offered a compromise. They stated that as long as clarity was offered on confidentiality and that children could form a trusting relationship, they may be comfortable with sensitive information being shared to facilitate decision-making.

Cashmore (2002) argues that the biggest barrier to children's participation in family law proceedings is the lack of follow-up mechanisms - a drawback that is related, in some part, to the lack of information and the lack of opportunity to have a say. Building in feedback mechanisms would allow children to correct misinterpretations and would provide accountability of adults to children. He suggests a number of feedback loops which could be introduced into the process:

• Mediators could ask parents whether they have talked with their children about available options.
• Allowing children to see the family report would be respectful of their right to be informed of how their information will be used.
• Separate legal representatives for children should explain what they will say in court, how they will say it and ask whether that is what the child expects them to say.
• A quality assurance process at the end of proceedings, asking children how satisfied they were with how their legal representative treated them and took account of their views.
• Children should be asked how they would feel if the court came to a conclusion different to their preferred option.
• Children should be made aware that the court's decision may be different to their preferred option and why, before and afterwards.

(Cashmore, 2002:169)

Family Group Conferences

One common approach to decision making in several welfare and justice systems is the use of Family Group Conferencing. This approach, originating in New Zealand, is shared by Australia, England & Wales and Canada. Family Group Conferences are decision making forums in which the young person, their family, extended family and community members as well as welfare and justice professionals have an opportunity to meet and reach a consensual decision, using their collective expertise, on support and action regarding the young person's welfare. The aim of the use of a Family Group Conference is to:

'… help the family and the family services department come to a protective solution for the child that avoids court involvement.' (Australian Law Reform Commission, 1997:17.44)

The conferences comprise a meeting, convened by an independent co-ordinator, where the child, family members, extended family members and relevant professionals will attend, discuss the child's situation and decide on a relevant course of action.

Family Group Conferences are facilitated and organised by an independent facilitator and can have different foci - child welfare, youth justice, and education decisions are some broad examples. The conferences are generally founded upon welfare principles with the attendant paramountcy of the 'best interests of the child'. The family focus of the conference strives for democratic decision making with the young person's participation.

Children's Involvement in Decision-Making

Research on the extent to which children participate in Family Group Conferences is scarce, especially studies where the views of children and young people have been collected. Research on Family Group Conferences in New Zealand raises concerns about the efficacy of participation by young people (Paterson and Harvey, 1991 cited in Dalrymple, 2002). The findings show that, unlike some of the public law and private law proceedings examined above, children were present in four out of five Family Group Conferences, but that adults interviewed in the same study thought that in fact children should be excluded from conferences. Findings from Clarkson and Frank's (2000) evaluative project in England, cited in Horan and Dalrymple (2002), suggest that, on the whole, young people do not feel that they are heard in the conference process. Further evidence from a University of Sheffield study (Beecher et al, 2000, cited in Horan and Dalrymple, 2002) showed that, although children and young people appear to be involved in the conference planning stage, they are not as likely to fully participate in the conference proceedings. Swain & Ban (1997), in their study of Family Group Conferences in Victoria, Australia, also question the quality of 'democracy' in the decisions made by families. Whilst they ascertain that "the majority of families do make responsible, caring decisions for the well-being of their children" they stress that family decisions can be made with "little regard to the rights of some of its members" (Swain & Ban, 1997:46).

Barriers to Participation

Dalrymple (2002) lists some of the barriers which affect young people's participation in Family Group Conferences. In some cases, it is clear that children and young people are often inhibited by the presence of other family members and do not wish to talk in front of them. This problem is related to the unequal power dynamics that often exist in families, a barrier also acknowledged in the Seen and Heard report. It is also acknowledged in the literature that some children may lack the confidence and the support to clearly articulate their views within the conference. The Seen and Heard report notes that those children with "poor verbal skills or no family support" are most likely to be excluded from effective participation. There is an indication, as in other types of proceedings, that children do not understand the language being used and, crucially, feel that adults are not listening to them.

Concern is also raised by research on Family Group Conferences in New Zealand and Australia that the wishes of the family were prioritised over the needs of the child. Some commentators argue that not only are children 'disempowered' by the adult-orientated decision-making forum that is the Family Group Conference, but also that by empowering the family to reach a democratic decision, conferences disempower the child making it difficult for him/her participate effectively (Dalrymple, 2002).

Mechanisms for Participation

In an effort to overcome these conflicts of interests and power inequalities, some countries have incorporated advocacy into the planning of their Family Group Conferences. For example, conference co-ordinators in Newfoundland and Labrador in Canada ensure that each child or young person who has been abused is accompanied by a support person, an "individual whom they can trust and who can serve as their spokesperson throughout the conference as needed" (Pennell & Burford, 1994:80 cited in Dalrymple, 2002). The support person can be either a relative, guidance counsellor or foster parent. Such mechanisms can be described as 'natural' advocacy. This is a concept of advocacy which focuses on providing a support person from the child or young person's family or community. This is built on the premise that young people in trouble often find it easier to talk to someone they know and trust. Such a system has also been developed elsewhere in Canada. The Office of the Child, Youth and Family Advocate provides training and recognition for individuals whom children and young people identify as a suitable support person (Dalrymple, 2002b).

The concept of individual advocacy has also been applied to assist children and young people to participate in Family Group Conferences. A current example of such provision can be found in Barnardo's Family Group Conference project in Wiltshire. A significant number of the children involved in this project saw the advantage of having an independent advocate, with 51 of the 79 children choosing to use an independent advocate (Horan and Dalrymple, 2002).

Research on Family Group Conferences in a number of jurisdictions recognises a need for advocacy in the form of a representative who may speak for the young person and/or help them speak for themselves to facilitate their effective participation. However, in practice it appears that advocacy is not being utilised. For example, research in Sweden reports that within the period of the study children only took part in 50% of Family Group Conferences and advocates were only appointed in a few cases ( SWALA, 1997).

Comparison of the literature on Family Group Conferencing in New Zealand, Australia, USA, Canada, England and Sweden suggests that there are common difficulties in ensuring young peoples' participation in the decision-making process, and a difficult balance between the promotion of the young person's 'best interests' and their effective participation. There are also similar barriers to children's participation to those experienced in other systems such as the Children's Hearings System, mainly related to conflicts of interests and power inequalities between the child and their family. Independent advocates/representatives for children in Family Group Conference proceedings have been shown to be successful ensuring children's participation and influence on decision-making in a number of studies. However, this is not the norm, and despite post UNCRC rights based legislation in many countries, a strong culture of youth participation practice is not widespread.