Managing Contact Difficulties: A Child-Centred Approach

2003-FCY-5E

4.0 IN CHILDREN'S BEST INTERESTS

4.1 What Are the Implications for Achieving a Child-Centred Approach?

Chisholm (2001: 15) states that:

When families break down, the resulting bitterness can sometimes be so overwhelming that one or both parties find themselves preoccupied by the rights and wrongs of the situation between themselves. In such cases the needs of the children can be overlooked. The children can be ignored, or embroiled in the conflict, or used as a means of attacking the other parents. It is of course these cases that are least likely to be settled between the parents. These are the sort of cases that have to be determined by the Court.

4.1.1 Principles for Managing Contact Difficulties

Sturge and Glaser (2000) advocate for the adoption of two principles to guide a child-centred approach to resolving contact difficulties. First, the purpose of child-parent contact needs to be clearly articulated along with the benefits of contact for the child. Second, contact should be related to the child's specific needs. Key informants supported the development of contact arrangements that:

  • Allow children to develop successful post-divorce relationships with both parents;
  • Minimize the likelihood of parent conflict; and,
  • Contribute to the de-escalation of existing conflict.

In difficult contact cases:

... the law can be involved in different ways. For the fortunate 'easy' families, it may play a modest part, providing a background for agreed arrangements which may or may not ever have to be written down in agreements or consent orders. For them, the law can influence outcomes. Difficult families however require adjudication, and the law provides a set of rules to be applied by the court. For these families, the law determines outcome (Chisholm, 2001: 15).

Regardless of the conflict level between parents, achieving a successful outcome in contact arrangements requires an approach that reflects collaboration between the bench, the bar and mental health professionals (Steinberg et al., 2002).

Most key informants indicated that it was unrealistic to expect parents involved in entrenched disputes to work together because such an expectation assumes that parents can act rationally at this time in their lives. When one or both parents have a new partner, it may be even more difficult for them to cooperate on behalf of their child (Warshak, 2000b). In the more entrenched cases, key informants suggested the goal of intervention is to remove the potential for further polarization of the parents.

Holman and Irvine (2002) propose a framework for guiding assessment of contact difficulties in a number of areas including history, parent characteristics, child's perspective and destructive behaviours. Their framework is used in conjunction with a series of questions that help to identify patterns of behaviour. This type of information, they suggest, will assist in deciding what type of contact will most benefit children. Depending on the circumstances, the data will help to determine whether contact should be unsupervised, supervised (either transfers or time), indirect (letters, cards, e-mail), or interrupted to ensure children are protected (Wall et al., 2002).

There was great support among key informants for the use of parenting coordinators or special masters to resolve disputes between parents. While this idea is not yet widely used in Canada, American colleagues indicate that the use of a skilled parenting coordinator can be an effective and efficient way to make child-centred contact decisions. Several informants suggested that if alienating behaviours are present, courts should order supervised contact. The majority of key informants recommended that transferring through neutral environments, such as the school, daycare, or an extra-curricular activity, is helpful for children. When this is not possible, supervision of the transfer was considered to be of critical importance.

Many key informants expressed serious concern about one of the possible remedies that has engendered debate in the literature and the media—incarceration of either children who refuse contact or parents who engage in alienating behaviours. Our New Zealand colleagues informed us that their legislation permits children who refuse contact to be incarcerated. No one could recall a case where this particular remedy had been implemented. There was no support for this remedy. The incarceration of a parent was also viewed as problematic. Several informants raised questions about how children—especially young children—would understand such a solution.

Gardner argues that in severe cases of alienation, responsibility for the child as well as the child's residence should shift from the parent who engages in the alienating behaviour to the other parent. This remedy has been tried in some jurisdictions. Anecdotal evidence from key informants suggests when this remedy is applied to cases with children ten years or older, there is minimal likelihood of success. As one key informant noted, "Children vote with their feet. If they are old enough they run, usually back to the other parent's home."

When parents are unable to reach agreement, they often turn to the court. However, it is difficult for courts to find long-term solutions for contact difficulties that reflect children's best interests (Willbourne and Cull, 1997) because legal solutions only address part of the problem (Nicholson, 2002a). Johnston and Campbell (1988) indicated that for many high-conflict parents, mental health interventions coupled with the authority of the court, can be an effective strategy for building post-divorce relationships because:

Court proceedings often undermine healing and reinforce alienating parents' principal defenses: denial of painful feelings and the tendency to blame others for their problems. If they lose the court battle, alienating parents are even less likely to build insight and to heal; they will probably be outraged by the public humiliation and the failure of the system to acknowledge their point of view (Garrity and Baris, 1994: 83).

Consequently, early intervention[7] and case management within the legal system are essential (Johnston et al., 2001; Sullivan and Kelly, 2001). The more entrenched the parents' positions become, the more difficult it is to resolve contact difficulties (Garrity and Baris, 1994). However, as Gould (1998: 169) notes, "In an unfortunate irony, the process designed to protect the child—the deliberate, slow nature of the court system—may contribute significantly to the sturdiness of the child's belief about the target parent". This is a perspective that is receiving increasing attention (Stoltz and Ney, 2002; Ney and Blank, in preparation) because as Gould (1998: 167) remarks, "Time is the alienating parent's most powerful ally. The longer the alienating parent has direct control over the child, the greater will be the alienating influence". The longer alienating behaviours are in place, the more difficult reparative work becomes.

Many of our key informants suggested that parents often have unrealistic expectations of the legal system. Responsible non-adversarial representation would help parents to understand the limitations of the process and the probable outcomes of court hearings so that they can make informed decisions about dispute resolution options. Court orders can be useful for providing a context for therapeutic intervention and legal case management (Johnston, 2001; Johnston et al., 2001). To increase the likelihood of establishing contact arrangements in children's best interests, court orders need to provide clear and detailed expectations for parents (Nicholson, 2002a).

Blaikie (2001) argues that two groups of parents, in particular, require strong direction from the court: uncooperative and non-compliant parents, and never-married parents. In his experience, non-compliant parents require someone—usually the judge—to take charge of the situation. He reports that never-married parents appearing in his court, who had a short-term relationship or minimal relationship, may have disagreed about continuing the pregnancy. Many of the mothers in this group feel unsupported by the father during the pregnancy. In some situations, the ending of the relationship provokes an intense emotional reaction. In all of these scenarios, Blaikie argues, parents benefit from what he terms directive mediation. This process provides an opportunity to recognize the mother's fears and simultaneously allows the father to gain insight about the difficulties that led to the dispute. He cautions that in these situations, the paternal grandmother is often an unseen, but active participant in the dispute. While she may not have status in the court proceedings, she can be brought into the mediation process.

Johnston and Campbell (1988) described how professionals contribute to impasses between parents. Strict adherence to professional codes of conduct will help to ensure that disputes are avoided or resolved in a timely fashion (American Academy of Child and Adolescent Psychiatry, 1997; American Psychological Association, 1994; Association of Family and Conciliation Courts, 2000).

The implications for managing difficult contact cases and the responsibilities of professionals are significant. The Youth Consultations on the Divorce Act (Freeman and Freeman, 2001) underscored how powerless children feel when parents divorce (noted also by Smart, 2002). It is essential to create a safe way for children to have a voice in the process. Boshier (2001: 8) reminds us that the court has an important role to play in protecting vulnerable children. The resolution of contact difficulties helps to create a situation which raises "… a child's self esteem and sense of destiny. It is this empowerment which may well have been lacking in the child's home, and which the Court must seek to redress".

4.1.2 Strategies

There are a number of important strategies that will support the management of difficult contact cases including:

  • Providing ways for the child's voice to be heard;
  • Using neutral assessors who have clear authority and direction from the court;
  • Adopting family law rules and procedures that minimize the likelihood of delaying tactics in litigation;
  • Creating continuity for children and parents by minimizing delays between assessment and intervention;
  • Using the "authority of the court" to hold parents accountable for their behaviour and for ensuring schedules and transfers are respected; and,
  • Providing trained and skilled professionals to assist parents in developing, implementing and monitoring a contact plan, as well as resolving differences that arise.

(Boshier, 2001; Quigley, 2000; Sullivan and Kelly, 2001; Williams, 2001).

Confidentiality is a cornerstone of professional relationships with clients. Within the context of contact difficulties, the limits of confidentiality can make it more difficult to intervene effectively in ways that benefit children. For this reason, Gardner (1992) recommends a single therapist or case manager. He argues that this strategy avoids the need for information sharing. Sullivan and Kelly (2001) and Johnston (2001) take the position that successful intervention requires a team linked to the authority of the court. Regardless of which practice perspective one adopts, it is clear that the professionals involved need to be able to share information without concern about recrimination. A written contract needs to be established at the outset. It should clearly specify who will share information with whom and why. Children, parents and professionals need to accept and abide by the contract if intervention is to have a chance of success.

Collaboration among professionals is critical for the resolution of difficult contact cases. Successful resolution of these types of cases requires professionals who are willing to practice in different ways. As Howe (2002: 482) points out "collaborative practice means that attorneys will need to represent their clients interests—not their anger." A collaborative practice model helps to ensure that the child, as well as each parent, has an opportunity to express their perspective, feel heard and learn new strategies for resolving difficulties. It allows a child's progress to be monitored and discussed, and it provides a way to hold professionals accountable for their decisions. In these newer models of practice, the judiciary, mental health professionals and lawyers become a team that supports families to develop new behaviour patterns. Collaboration encourages "the most constructive and creative assistance of the courts, the lawyers and litigants" (Howe, 2002, 484).

Our clinical experience and data gathered during the Youth Consultation on the Divorce Act (Freeman and Freeman, 2001) point to the importance of providing children with emotional support in a neutral and psychologically safe environment. Many children benefit from talking about fears, concerns and loyalty dilemmas. Others require accurate unbiased information about their situation. Depending on the level of conflict, related circumstances, and the child's individual vulnerabilities, therapy might be indicated. Skilled practitioners will need to draw from a variety of strategies (Clark and Moss, 2001; Morrow, 1998; Quigley, 2000; Wade and Smart, 2002) for eliciting the child's views and experiences. This information provides the basis for structuring intervention within the context of a child-centred approach to contact difficulties.

4.1.3 Managing Allegations

As the conflict increases, one or both parents may make allegations of physical or sexual abuse. There was widespread support in the literature about the necessity for careful investigation of allegations. Key informants emphasized that the goal is to protect children and ensure that they "emerge from the ordeal with as little residual emotional damage as possible, and with more stability and security than he or she previously experienced" (Bresee et al., 1986: 569).

There are differences of opinion about guidelines for contact when an allegation has been made. For example, Mason (1999) argues that if there is clear evidence of spousal abuse and the allegation will be substantiated, there should be a presumption of sole decision-making. She also recommends that supervised contact be utilized if there is any evidence of child abuse. When there is an unsubstantiated allegation and children are reluctant to spend time with the alleged abuser, Mason argues that contact should not be forced.

On the other hand, Faller (2002) recommends that contact decisions be based on criteria set out in applicable statutes. Unsupervised contact can be considered, in her opinion, unless there has been significant turmoil surrounding the allegation. If this is the case, she recommends that shorter and perhaps supervised contact precede unsupervised contact, because gradually reintroducing contact is easier for the child and provides some protection against further allegations.

There is no consensus in the literature about the recommended contact plan when an allegation is substantiated (Faller, 2002; McGleughlin et al., 1999; Nicholson, 1998). Individualized case plans need to reflect the particular facts of the child's situation. The critical guiding principal for planning interventions and contact arrangements should be the child's best interests and ensuring their physical safety and psychological security. The complete severing of contact is rarely in the child's best interest, according to Faller. She outlines several reasons for continuing contact between a child and an abuser. First, there may be other aspects of the relationship that are worth preserving. Second, maintaining the relationship provides the child with an opportunity to work through feelings about the abuse. Third, continued contact provides the child with an opportunity to develop a realistic view of the abuser. No contact, in her opinion, would be appropriate when a parent is dangerous (i.e. high likelihood of physical or sexual abuse of the child, the other parent or the contact supervisor) or where contact is markedly traumatic for the child. Nevertheless, she also points out that there may be a time in the future when some contact is in the child's best interest and the issue may need to be reconsidered.

4.1.4 Need for Evidenced-Based Practice

One point of agreement in the literature and among key informants was the absence of research to guide interventions and decision-making in difficult contact cases. Bruch (2001: 551) cautions that "insights that are too new, or for which no established gold standard exists, may nonetheless be valuable, but their probity and limitations should be clearly understood". The literature, however, already influences judges and practitioners and is used to justify decisions.[8] Parents and their legal representatives often use an author or expert to support their point of view. Mullane (1998) reinforces Bruch's concern and reminds us to be cautious and to carefully review research findings.

There are a number of critical areas requiring research investigation, including:

  • The prevalence of contact difficulties;
  • The relative contribution of parent behaviour resulting in contact difficulties (refer to Section 2.4.5);
  • Influence of non-familial factors on children's resistance to alienation, such as supportive teachers or peers;
  • Detailed description of alienation as a continuum rather than as a singular phenomenon; and,
  • Outcome evaluation, with research designs that test different types of interventions and follow children and parents over longer periods of time to assess whether the intervention effects are maintained.

Research data will assist policy makers and service providers to understand the scope of the problem, define variables that predict contact difficulties, create evidence-based interventions and help to ensure that limited resources are used efficiently.

Research will enable us to increase our understanding of court-imposed arrangements. A majority of the key informants expressed concern about how little research is available to guide decisions in difficult contact cases. For example, how an adversarial process contributes to the development of contact difficulties (Stoltz and Ney, 2002),or how effective and long-lasting the more radical remedies are, such as incarceration, severing contact or switching a child's residence. Other questions for investigation relate to supervised transfers and contacts. Generally speaking, is it realistic for supervised contact to be a shorter-term arrangement? Do imposed contact plans stand the test of time? How satisfactory are such arrangements for the child? What supports do children and parents require to move from a supervised contact to an unsupervised contact? What protections are required for children?

4.2 Canada's Family Justice System: What Directions Can Be Taken?

4.2.1 Goals of a Child-Centred Response to Contact Difficulties

The complex nature of the divorce experience for children and parents is well documented in the literature (Freeman, 1995, 1998; Stahl, 1999; Wall et al., 2002). Reflecting on more than two decades of research, Hetherington (2002) concludes that children need competent caring parents who are able to focus on children's needs, and structured environments that provide children with predictability and security.

Different formulations for understanding contact difficulties are promoted in the literature (Gardner, 1992; Kelly and Johnston, 2001; Stoltz and Ney, 2002). New research (Berns, 2001; Johnston, in press; Peralta-Vaughn, 2001; Rhoades, in preparation; Trinder et al., in press; Wall et al., 2002) supports Nicholson's contention (2002a: 4) that "…contact is not a simple matter which can be solved by a single, simplistic or formulaic solution" (see also Wall et al., 2002; Waldron and Joanis, 1996). The American Bar Association (Ramsey, 2000) convened a meeting of researchers and clinicians with extensive experience in working with divorcing families and developed the following principles for working with contact difficulties:

  • Reduce parent conflict;
  • Assure children's physical security;
  • Provide adequate support services to reduce harm to children; and,
  • Assist families to manage their own affairs.

Using these principles to guide practice, a number of strategies can be implemented to help parents develop contact arrangements that reflect children's best interests. They are discussed below.

4.2.2 Public Education

Public education initiatives can play an important role in helping parents and children to understand the legal framework within which contact decisions are made. Section 16.2 of Bill C-22, An Act to amend the Divorce Act and related legislation (Government of Canada, 2002) outlines criteria to be considered in determining the best interests of the child related to contact orders. Most parents and their legal representatives do not have a background in child development. Parents often interpret these types of criteria according to their own frame of reference or to suit their personal agenda. Consequently, educating the public about children's needs in the post-divorce family is an important beginning for preventing and resolving emerging contact difficulties, as well as for achieving the family law goals recommended by the American Bar Association (Ramsey, 2000).

Parents would benefit from opportunities to learn more about variables that influence successful contact arrangements and parenting plans. Examples of such variables include effective parenting partnerships, parent communication and conflict resolution skills. Contact difficulties are often triggered by minor events or adult behaviours (Thayer and Zimmerman, 2001). National education initiatives would help to ensure that divorcing Canadian parents have access to information that could assist them to understand the nature of contact difficulties and to plan for and exercise their parenting responsibilities in a way that benefits children. Successful initiatives of this type have previously been undertaken in Canada to educate the public about a variety of health and justice issues, ranging from cancer and woman abuse to the child support guidelines. National educational initiatives would provide a foundation for programs and services administered by the provinces, territories and non-governmental organizations.

Public education initiatives also have the potential to impact people who play a significant role in the lives of children such as extended family, educators and physicians. Given the increasingly diverse nature of the population, a variety of techniques including print materials, videos, and websites, can provide an efficient and effective means of reaching a large number of Canadians who influence children's lives, regardless of where they live in the country. Materials should be available in different languages and formats as a way of addressing systemic barriers, such as language, affordability and accessibility, which traditionally limit parents' opportunities to benefit from research and professional expertise.

Federal, provincial and territorial governments and non-governmental agencies have already produced several highly-regarded and useful publications concerning divorce and children. Because Life Goes On is one of Health Canada's most frequently requested publications (Health Canada, personal communication). However, there are few up-to-date publications for Canadian children and youth. Some key informants indicated that it could be difficult to provide educational information to children and youth because parents often act as a filter. Strategies such as websites, videos and posters displayed in schools and community centres are convenient, effective, and user-friendly ways of reaching younger Canadians. The success of the Youth Consultation on the Divorce Act (Freeman and Freeman, 2001) and similar processes in Australia, New Zealand, the United States (Pruett and Pruett, 1999) and the United Kingdom (Dunn and Deater-Deckard, 2001; Smart, 2002; Lyon et al., 1998; Smart and Neal, 2000; Smith and Gollop, 2001; Wade and Smart, 2002) suggest that young people have important ideas to contribute to the development of content for educational materials, as well as to plans for their distribution.

4.2.3 Managing Contact Difficulties

Managing contact difficulties in children's best interests requires holding parents accountable for their behaviour, encouraging collaboration among professionals, and providing parents with interventions that teach skills for resolving conflict and managing difficulties. This goal is more likely to be achieved if:

  • Judges have specialized training to increase their understanding of contact difficulties and the variables that contribute to the escalation of difficulties;
  • Parents consistently appear before the same judge;
  • There is an independent unbiased strategy for soliciting the child's perspective;
  • The process for resolving contact difficulties is easily understood by parents;
  • Conflict resolution is actively promoted by all professionals;
  • Findings from methodologically sound research are utilized to support decisions about contact;[9]
  • Decisions about contact are tailored to the needs of the individual child;
  • Contact decisions are clear, pragmatic and understood by parents;
  • The child, the parents, the therapist, the court and a parenting coordinator (if utilized) agree on the goal for therapy;
  • The judge or a designate consistently monitors compliance with decisions about contact;
  • Contact difficulty matters are heard and decisions made in an expeditious fashion;
  • Abuse allegations are taken seriously, investigated and addressed; and,
  • Delay tactics are not tolerated.[10]

Although key informants agreed that "litigation breeds more litigation", highly entrenched situations were viewed as requiring the authority of the court in order to move forward. Delays and lengthy waits for court dates exacerbate contact difficulties.

Two current Canadian initiatives could be expanded to help ensure child-centered resolution of contact difficulties. First, the Unified Family Court concept (UFC), implemented in some jurisdictions, provides an important model for managing difficult contact cases. One key informant remarked that encountering a different judge every time parents' return to court is akin to switching doctors during treatment for a life-threatening illness. Predictability was viewed as critical for this group of families. Children and parents benefit from having someone such as a judge or parenting coordinator take charge of the situation. Community-based or court-connected ancillary services utilized by the UFCs provide a venue for conducting the type of assessment required in difficult contact cases. The specialized function of UFCs helps to encourage the collaboration that is essential to successful case management.

Key informants in Australia noted that when a conflict difficulty arises, their new legislation requires parents to attend a parent education program. Anecdotal evidence suggests that this form of intervention is proving to be a useful strategy in the resolution of difficulties.

Second, a program of child representation would provide a way for the child's perspective to be considered. Our New Zealand colleagues inform us that appointing counsel for the child is now automatic in contested cases. It is a well-regarded and useful addition to their system. The Office of the Children's Lawyer (OCL) is a unique program of child representation in Ontario. The OCL is court-appointed and its staff provides socio-legal interventions for children in divorcing families at no cost to children or parents, regardless of income. Youth consultation projects regarding family law issues in Canada (Freeman and Freeman, 2001), Australia (Smart and Neal, 2000), New Zealand (Smith and Gollop, 2001), the United States (Pruett and Pruett, 1999), and the United Kingdom (Lyon et al., 1998) indicate that children and youth want the opportunity to have a voice in decisions that affect them. Their insights and ideas are creative and thoughtful (Brown, 1996). "Allowing children and young people to speak through a variety of means such as oral and written communication, artwork and song, are all ways of allowing children to speak out, and to learn the importance of constructive participation in the social sense" (Boshier, 2001: 8). Unfortunately, neither UFCs nor child representation is uniformly available to divorcing Canadian families.

There was substantial support in the literature and among key informants for collaboration among professionals dealing with contact difficulties. Sullivan and Kelly (2001) recommend the following principles to guide collaboration:

  • Limiting the confidentiality traditionally associated with therapeutic relationships;
  • Designating roles for the professionals within a hierarchy of responsibility;
  • Stipulating a clear understanding of how communication between team members will occur;
  • Defining, updating and reaching consensus with respect to clinical goals; and,
  • Developing linkages to the authority of the court so that decisions and agreements can be codified within orders.

4.2.4 Allegations

When an allegation is made, a number of resources, including assessment, supervised access and the court, may be utilized. In our clinical experience, child welfare authorities are often reluctant to act or minimize allegations made in the context of contact disputes. Such allegations are often viewed as a delay tactic in the ongoing dispute or part of the legal strategy being employed by one parent. Under these circumstances, Bala (2002) queries whether it is possible for the justice system to adequately promote the welfare of children and whether it can be fair to parents. For example, he notes that sexual abuse allegations have tended to dominate best interest considerations, such as those outlined in the Children's Law Reform Act (Ontario, 1990). This is an important discussion that needs to continue in order to ensure that children's best interests are the paramount consideration in resolving contact difficulties. Input that can guide policy about the management of allegations should be sought from stakeholders, including the judiciary, the Bar, mental health practitioners, children and parents.

4.2.5 Support Services

The recently announced child-centred family justice strategy states that in addition to legislative change, "Canadians have clearly signaled that services for families are what is most needed—services like mediation, parent education and other court-related services" (Department of Justice, 2002: 1). Another important service that divorcing parents frequently request are family law information centres such as those recently established in Ontario by the Ministry of the Attorney General or the CLSCs in Quebec. The Dial-A-Law service formerly provided by the Law Society of Upper Canada was also highly regarded by parents. Through the service, parents could call 24 hours a day and listen to audiotapes that discussed a variety of issues such as separation, divorce, decision-making about children and child support. This type of service also has the potential to meet the needs of Canadians whose first language is not English or French. Regrettably, it is no longer available. Some of the information is now provided via the Law Society's website, however this creates a different kind of systemic barrier, since not everyone has Internet capability or access.

Services need to receive adequate financial support. All too frequently pilot projects are terminated for lack of ongoing funds. In many communities, there are no resources to train service providers or support program development. This results in well-intentioned, but misguided, interventions that can exacerbate parental conflict and increase the risk for children.

Most key informants agreed that parents' post-divorce behaviour, whether intended or not, can lead to contact difficulties. Consequently, a valuable first step in the management of contact difficulties is early assessment. Kelly (2000) recommends well-defined schedules for children implemented as early as possible in the separation process. For some parents, preventive interventions may be sufficient (Freeman, 1998). Ultimately it is more beneficial for children if the focus of intervention is on supporting adults to build successful post-divorce relationships (Kinnear, 2002). Trider et al. (2002) conclude that "lawyers are rarely able to improve their client's commitment to unwelcome contact arrangements and that applications for court orders tend to fuel conflict rather than resolve it" (2002: 1).

Parent education programs have been well received, even when the program is mandatory (Bacon and McKenzie, 2001; Freeman, 1995). Educational programs need to have clearly articulated goals that are attainable within the scope of the program. Content should be related to the goals and reflect the variables research has demonstrated influence child adjustment. Examples of important content include strategies for reducing parent conflict and understanding how children experience divorce. Programs should also provide parents with a basic understanding of how normal child development affects a child's behaviours and reactions. For example, one parent may suspect the other parent is engaging in alienating or obstructing behaviours, if a young child is reluctant to transfer or spend time with a non-residential parent. The child's response, however, may simply reflect age-appropriate separation anxiety. Specialized services, staffed by trained and experienced providers, help to ensure the resolution of contact difficulties and ongoing contact between children and parents.

Examples of other important services that are part of a child-centred approach to family justice are supervised transfers, contact centres, parenting coordinators and therapy for children and parents. Transferring children between parents' homes should not have to occur at the local police station. An in-depth assessment is required to determine whether a child is alienated, to understand the process of alienation and to develop an intervention plan (Lee and Olesen, 2001). When children have witnessed violence or contact has been interrupted, assessment is an important tool for determining how best to support the child as well as the child-parent contact. Highly skilled professionals are well-placed to assist parents to develop a contact plan that takes account of the child's age and stage of development.

Not all families require intensive resources to resolve contact difficulties. A tiered approach to intervention recognizes this reality. Providing parents with access to a knowledgeable professional who can help them make a preliminary assessment of the difficulties and perform a triage function means that families will be directed to an appropriate level of assistance within a hierarchy of services. It will also permit resources to be used more efficiently because they will be directed to the families who most require them (Freeman, 1998). A national clearinghouse drawing on local community information initiatives, and supporting and disseminating up-to-date research, is another potentially important support for practitioners and families. This is discussed in more detail in Section 4.2.7.

The prevailing theme in key informant interviews and the literature was the significant concern about the availability of high quality evidence-based services. Many communities have no access to specialized services. If they are available, there is usually a significant waiting period, which in turn exacerbates difficulties. Unresolved conflict continues to escalate. Often, the child is not able to see one parent during this period and reparative work is then required before the relationship can resume. National initiatives, such as the recently announced child-centred family justice strategy, have the potential to foster the development of urgently needed services that can be utilized at various stages of the divorce process. These services minimize the likelihood of contact difficulties as well as support the resolution of such difficulties (Freeman, 1995).

4.2.6 Training for Professionals

A frequent theme in the literature review and the consultation with key informants was the need for specialized interventions and professional training for judges, lawyers and mental health professionals working with divorcing families. Joint training events, conferences and professional publications provide ways of enhancing skills and simultaneously encouraging the collaborative practice necessary for addressing contact difficulties.

Inadequately trained professionals become part of the problem, not the solution. Research demonstrates that lawyers and psychologists do not have a clear understanding of each other's roles when parenting plan issues are in dispute (Jameson, 2001)—a concern also identified by the American Bar Association's Wingspread Conference (Ramsey, 2000). Stakeholders who participated in the Wingspread Conference also expressed concerns about the quality of representation in family law disputes and its impact on satisfactory outcomes. Training supports practitioners to understand the limitations of assessment reports and other factors that contribute to the development of impasses between parents and contact difficulties.

Children have drawn attention to the betrayal they feel when the limits of confidentiality are not adequately explained or confidentiality is not respected (Freeman and Freeman, 2001). Training about ways of explaining confidentiality to children is required. Professionals involved in managing contact difficulties would also benefit from an increased understanding of the dynamics inherent in contact difficulties, parent behaviours and successful intervention strategies.

4.2.7 Centre of Excellence

The Government of Canada has a longstanding commitment to the strategy of using Centres of Excellence to enhance our understanding of and response to issues of national significance. For example, in 1997 as part of the National Children's Agenda, five Centres of Excellence for Children's Well-Being were established by Health Canada. This strategy provides a way to link the expertise of parents, community groups, non-governmental organizations, service providers and researchers across the country. Creating a Centre of Excellence to support divorcing families would be an important adjunct to the newly announced child-centred family justice strategy (Government of Canada, 2001). Among other things, the centre could:

  • Collect, evaluate and disseminate new knowledge about divorce;
  • Act as a clearinghouse to ensure up-to-date information about practice issues is available for children, parents and professionals;
  • Conduct research on variables associated with successful family transition;
  • Develop model standards of practices for services such as parent education;
  • Provide policy advice to governments and child-serving agencies;
  • Develop and test intervention strategies and ensure the results are shared with children, parents and professionals;
  • Develop and provide training for professionals across the country; and,
  • Work to create local, national and international networks of individuals and groups to support research and the implementation of evidence-based interventions.

4.2.8 Multi-Disciplinary Expert Meetings

Key informants involved in this project expressed interest in knowing more about work in other jurisdictions as well as ways of collaborating to develop socio-legal strategies that benefit children and parents. Creating a forum series to launch this process would be an important first step in stimulating research, encouraging collaboration and discussing evidence-based strategies to assist children and parents.

Building on the consultation process undertaken for this report, the Government of Canada could take leadership in initiating this process. Canadian representatives in mental health and legal arenas would benefit from attending expert meetings that included invitees from the countries with which we have an existing family law relationship (i.e. Australia, New Zealand, the United Kingdom and the United States). The goal of the meetings would be to bring together knowledgeable experts from a variety of disciplines to discuss interventions and research that would encourage the resolution of contact difficulties and reflect children's best interests. The meetings would also provide an opportunity to develop a research agenda and begin collaborative efforts to address contact difficulties.

4.2.9 Unrepresented Litigants

Many of our key informants, as well as Berns (2001) and Nicholson (2002a), raised concerns about unrepresented litigants. Notwithstanding Johnston and Campbell's (1988) acknowledgement of the contribution that counsel or other professionals make to the development of an impasse between parents, legal counsel often play an important role in helping parents to be realistic and pragmatic about strategies that benefit children (Ward and Harvey, 1993). In part, the growing number of unrepresented litigants is a reflection of the significant reductions in legal aid available for family law cases in Canada (Cossman and Rogerson, 1997). At minimum, protocols for proceeding with litigation when one or both parents are unrepresented are necessary (Ramsey, 2000). However, what is really required is a range of affordable resolution processes.

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