MEANINGFUL PARTICIPATION OF CHILDREN AND YOUTH IN CHILD PROTECTION MEDIATION, PRACTICE GUIDELINES For Child Protection Mediators and Child Welfare Practitioners, April 2015

Considered” is mentioned 18 times in this document. I feel this statement from the article “Children and youth have identified that they want to participate in processes such as CPM where the decisions made profoundly affect their lives” is serious stuff. When tensions are high, the whole process can seriously and easily become traumatic for most children and families even in the best circumstances and especially when the role of parents or family dynamics are questioned/challenged. In my opinion, children’s views should be more than considered. I feel MCFD social workers need to start wearing body cams just like the police are starting to. Click here or on the pdf file to read the full article or an excerpt below.

Definitions:
CFCSA – CHILD, FAMILY AND COMMUNITY SERVICE ACT
CPM – Child Protection Mediation
UNCRC – The United Nations Convention on the Rights of the Child

 

Goals
These guidelines are a support to the practice of meaningful participation for children and youth in CPM and are set out to:
• Create a shared understanding of meaningful child and youth participation specific to the child
protection mediation context;
• Increase child and youth participation throughout the mediation process;
• Assist and support children and youth in upholding their right to participate as fully as they wish, to have their voices heard and their views considered in matters affecting them;
• Promote consistent, high quality child and youth participation practice;
• Create a pathway to support ongoing training opportunities for all program stakeholders to learn skills necessary to ensure meaningful child and youth participation; and
• Understand the roles and responsibilities of practitioners to promote and support child and youth rights under the UNCRC, CFCSA Section 70, and other relevant provincial legislation and policy (see Appendix 1 for the legal context).

Objectives
As well as providing context, these guidelines provide tools that facilitate the practice of
inclusion and meaningful participation for children and youth and set out to:
• Establish a framework that provides practitioners with a flexible continuum of child and youth participation options;
• Create an inclusive culture where there is a presumption that all children and youth will meaningfully participate, and alternative methods are considered only when barriers to participation cannot safely be addressed;
• Define and clarify the roles and responsibilities of mediators, child protection workers and other participants and the key considerations that need to be addressed when incorporating meaningful child and youth participation into CPM;
• Provide support and practical information to practitioners about how to balance social, emotional, behavioural and cultural considerations while ensuring participation by children and youth; and
• Define advocacy and create an understanding of the importance of advocacy in supporting the participation of children and youth in professional practice.

Guiding Principles
The meaningful participation of children and youth in CPM is guided by the following principles, as outlined in the General Comment, Article 12 United Nations Convention on the Rights of the Child (UNCRC). In order for the process to be considered meaningful it should be:
• Transparent and informative • Voluntary • Respectful
• Child friendly and enabling • Relevant • Inclusive
• Safe and sensitive to risk • Supported by training • Accountable
Please refer to the References page for a link to the UNCRC General Comment Article 12 for further descriptions of each of these principles.

The Child, Family and Community Service Act speaks to the guiding principle that “the child’s views should be taken into account when decisions relating to a child are made” (s.2(c)) and the child’s views must be considered in determining what is in their best interests (s.4 (f)). CFCSA Section 70 Rights of children in care specify the right “to be consulted and to express their views, according to their abilities, about significant decisions affecting them” (s.70(c)). In addition, children in care have the right “to be
informed about and to be assisted in contacting the representative under the Representative for Children and Youth Act, or the Ombudsperson” (s.70 (n)) and “to be informed of their rights, and the procedures available for enforcing their rights” (s.70 (o)) under the CFCSA.

Challenges to Meaningful Participation

There is an assumption that children and youth
do not want to participate, rather than a
presumption that they wish to be heard,
consulted and to participate
• Participants have varying levels of experience
and comfort working with children and youth
• Age, capacity, language and/or culture of the
child or youth may be, or perceived to be, a
barrier
• Children and youth may have difficulties
expressing their views (for a variety of reasons)
• The process is considered too complex with the
various parties already involved
• A participant holds the belief that children and
youth lack the skills, abilities and insights to be
able to participate
• Some adults hold the belief that children and
youth do not have the right to participate in the
process
• Not valuing the views of children and youth; not
believing that their views have a place in
decision making
• There is a perceived lack of time and resources
• While some CPM practices ensure the child or
youth’s views are sought and considered in
mediation sessions, many others focus the
parties on the child or youth themselves, rather
than on their views and personal interests

3.1 What is the role of the child protection mediator?
The role of the mediator is that of a process facilitator and neutral third party. Due to the complex nature of child protection mediation, the role of managing and facilitating the process and creating a safe environment is a significant responsibility. In managing the process, the mediator remains cognizant of the boundaries of their own role in order to safeguard the reality of and perceptions about their neutrality and impartiality.

The neutrality of the mediator is seen to be critical to the integrity and viability of the CPM program and a cornerstone to its success. Therefore the program maintains that mediators do not take on the specific roles of child interviewer, advocate, or representative of the views of children and youth. Instead, the mediator works with the participants to determine how the children or youth who are the subjects of the mediation will participate and how their voice will be heard. The mediator may facilitate
a pre-mediation orientation to prepare the child or youth, hear their views, and determine how these views will be advanced in the mediation. The mediator does not advance a particular set of interests, as this would challenge perceptions of their impartiality

PRACTICE TIP…
Introduce child and youth participation right at the start of the mediation
process; encourage parties to be thinking about how children and youth can
participate throughout the process.

The child or youth’s participation will vary on a case by case basis and the mediator plays a key role in working with children, youth and others to ensure they are well prepared and appropriately supported for participation. During the mediation, the mediator facilitates the expression and consideration of the views and interests of all parties, including those of the subject children and youth.

The mediator balances the various perspectives of the many participants, including children, youth and their advocates. Their role is to:
• Share information with participants about the benefits of child and youth participation;
• Speak with all potential participants (participants include the child or youth) in order to design a process where children and youth can safely and meaningfully participate;
• Explore with participants the ground rules that need to be in place to create an environment where they feel safe and able to participate;

• Discuss with all potential participants and decide (ideally with consensus) how the child or youth’s views are going to be represented in the decision-making and ensure the mediation process is adapted to fit with the child or youth’s method of communication;
• Speak with the child protection worker to ensure that the child or youth has been informed about confidentiality and information sharing, and confirm the necessary consents have been obtained;
• Ensure that the unique cultural values and backgrounds of each child or youth and their family have been considered and are reflected in the process;
• Prepare advocates or support persons by furthering their understanding of the mediation process and their role;
• Facilitate the mediation process (from pre-mediation orientation through completion of an agreement) with a child/youth-focused approach; whether a child/youth is physically present or not;
• Facilitate the mediation session so that safety is managed when a child or youth is in attendance at the mediation, and that his/her views are being heard and considered;
• Facilitate a discussion about how to include an explanation of how the child or youth’s views were considered in decision making when drafting the agreement;
• Ask questions of participants about how the agreement/plan will be shared with the child or youth if the young person is not present during the agreement phase; and
• Explain how the child or youth’s views were represented at the mediation and any barriers to child and youth participation when reporting back to the CPM Program via the case management form.

3.6 What is the role of an advocate?
An advocate or support person can be effective in assisting a child or youth through the mediation process and providing essential information to the mediator and other participants to help them understand what is important to this young person.
Advocates work collaboratively with the other members of the mediation process to make informed decisions that are in the best interests of the child or youth. Sometimes, child protection workers feel that the best interests of the child or youth must always override their wishes or feelings, which can then get unreasonably ignored. However, a child or youth’s views are an important piece of evidence that the decision-makers need to weigh in order to determine what the child or youth’s best interests are. An advocate can help to ensure that this happens as part of the mediation process. An advocate:

• Ensures that the process involves the affected parties in a meaningful way by asking for informed input before decision-making, as opposed to seeking a full consensus decision where everyone has to agree before a decision is made;
• Does not judge what is in the best interests of the child or youth and understands that this is the role of the decision-maker;
• Understands rights and entitlements as a foundational piece, as the framework within which process is developed and decisions are made;
• Supports self-advocacy wherever possible; provides help when a child or youth has difficulty speaking for themselves;
• Remains up to date about the subject matter and obtains and understands relevant information from all parties involved;
• Helps the child or youth identify their underlying interests and brings those forward (understands interest-based problem-solving);
• Ensures the child or youth’s views are heard and considered and does not make a judgment about whether or not they agree with the child or youth’s proposed solution;
• Provides the child or youth with important information about potential challenges with their position; and
• Finds and names common ground.

d) Capacity and decision-making
As discussed in a previous section, children and youth’s capacity to understand issues and participate in activities evolve with cognitive and emotional development and experience. Children and youth and their parents or legal guardians may feel that undue responsibility is being placed on young people to make decisions beyond their understanding, and adults may feel that their role in making decisions to protect children or youth is being undermined. It is important for everyone to understand that the children and youth are being asked to provide their views on issues important to their lives, but that does not mean they are the decision-makers.
• To what degree does the child or youth understand the issues being discussed in mediation?
• Many children or youth may not want full decision-making responsibility, but they do wish to be a part of the process and have their views heard and considered in the process;
Children and youth need to understand that they are not the ultimate decision-maker and will not always get exactly what they are requesting. This way their expectations may be managed. The final decision needs to be explained to children or youth in a way they can understand, and how their input was considered in the process and influenced the decision made;
The views of the child or youth can and should carry more weight as they get older, as their level of maturity changes with age and development. Their level of input should be in line with their evolving capacity to consider options and make decisions.

PRACTICE TIP…
Explain to the young person before the mediation that it is a process for working towards meeting everyone’s interests, however, not all interests can be met all of the time. Someone close to the child or youth should be assisting them with understanding that her/his opinions are important, and that although the decisions made may not be exactly what was wanted, their perspective was considered and they are given reasons why.

4.3 Consideration Two: Advocacy for children and youth
in Child Protection Mediation
There is a shared responsibility amongst the adults involved in the mediation process to ensure that effective advocacy is available to the child or youth. The following are some considerations:
• Adults should acknowledge and exercise their own role as an advocate for the child or youth and be aware when this becomes a conflict;
• When discussing the role an advocate can play in mediation, discuss the plan with the child or youth’s child protection worker first to explore options;
• Notify children and youth of their right to have and choose an advocate to help express their views;
• Help the young person to understand what the role of an advocate is and what they should look for in a good advocate;
• Be knowledgeable about the MCFD/RCY Advocacy Protocol and the child protection worker’s responsibility to inform young people about the RCY and advocacy services;
• Share (with the consent of the child or youth) with the advocate/s any information to be considered as part of the decision;
• Clarify that the role of the advocate is not to take sides, but to share the child or youth’s views about the situation and issues at hand; and
• Work collaboratively with the advocate and hear the voice of children and youth as presented through them.

4.4 Consideration Four: Determination of the capacity and readiness of adults
for child and youth participation
Just as capacity issues with respect to young people were discussed in the previous sections, there are similar factors related to the adults involved which may also impact the participation of children and youth in the mediation process. Adult participants may facilitate the participation of children and youth, or may pose challenges to the process of participation. This must be considered in determining effective participation of children and youth in mediation.

Aboriginal children, families and communities
In recent years, the Ministry of Children and Family Development – working in partnership with Aboriginal communities — has taken many important steps to enhance, improve and deliver programs and services in a more culturally appropriate manner. The Ministry has legislated responsibilities under the CFCSA specific to Aboriginal children and youth. These responsibilities, which relate to connectedness with and involvement of Aboriginal communities in decision making related to Aboriginal
children and youth, also apply to child protection mediation.

The use of Aboriginal community-based traditional decision making (TDM) processes is encouraged in all child welfare practices, including CPM. Collaborative processes with Aboriginal children and youth are conducted in traditional ways wherever possible, and some are informed through cultural protocols. These processes may involve people in traditional roles as problem-solvers, and are effective in reaching agreement on issues involving a child or youth.

There may be resources within the child or youth’s Aboriginal community and/or a local Aboriginal organisation to assist in assessing how culture should be considered with respect to the participation of each child or youth.

5.3 Pre-mediation preparation
Thorough preparation is the key to a successful mediation. The time spent speaking with potential participants, building relationships and trust, exploring views and possible dynamics between parties, will provide invaluable information in creating an environment in which everyone can feel safe. By exploring the potential conflicts and issues, the mediator can give thought to ground rules that can be used to address any challenges that may arise. The result will be a process that will flow more smoothly,
and participants will feel heard and supported throughout the mediation process.

The mediator has a unique opportunity to speak to all participants prior to the mediation session about the various important considerations and the benefits of participation in the decision-making process. The participation framework can be shared to encourage consensus about the most appropriate approach.

These conversations should begin at the point of referral. As participants are identified, the mediator should be asking the sorts of questions outlined in the considerations sections to gather information and begin to build consensus on how the child or youth will participate in a meaningful way.

Regardless of how a young person ends up participating in the mediation process, these tools help to facilitate decision making and help to create an environment which promotes the child or youth’s views being heard and considered right from the beginning of the pre-mediation process.

Conclusion
Children and youth have identified that they want to participate in processes such as CPM where the decisions made profoundly affect their lives. All practitioners involved in child welfare matters share the responsibility to create the opportunities for the meaningful participation of children and youth. This includes engaging them, seeking out their views, listening, encouraging, preparing and supporting children and youth to exercise their rights to be heard, to have their views considered and given due weight, and to actively participate in the process in accordance with their age and maturity. The extent to which practitioners are successful in this endeavour will be reflected in the quality of the decisions and plans made, the relationships that are mended or built and sustained, and in the positive progress and development of the children and youth.

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