Enhancing child participation in family disputes through child inclusive mediation in Kenya

Despite the fact that children are directly affected by the outcome of family disputes, they are rarely given the opportunity to express their views. When an opportunity arises, children’s voices are manipulated by parents due to the adversarial litigation system that turns parents against each other. Consequently, the child’s best interests are not adequately considered during and post-divorce. In view of the increasing case backlog and promoting the best interests of the child, this paper advocates child inclusive mediation by demonstrating how it can be entrenched in the resolution of family disputes. The paper argues that this form of mediation enables children to participate in the decisions affecting their future. Secondly, involving children to voice their wishes helps in refocusing on the children’s needs. Using the Office of Family Advocate in South Africa as a case study, the paper illustrates how Kenya can enhance child participation in family mediation through the newly created Office of Secretary of Children’s Services under Section 37 and 38 of the Children Act of 2022.


Introduction
Family disputes are one of the ways in which children come into contact with the law. 1 Such disputes usually concern property disputes, financial support, child maintenance, child custody, and child visitation disputes, among others. 2Notably, litigation has been the dominant method of resolving family disputes.While litigation is the prevailing dispute resolution mechanism, it has more demerits than benefits where children are involved. 3For instance, children may find it difficult to communicate their views owing to the adversarial nature of litigation, which agitates tensions between parents. 4 As a result, children may fear giving their views leading to emotional and psychological harm which impairs their growth and development. 5r parents, litigation worsens the psychological and mental stress of separating couples because of its winner-loser attribute. 6Likewise, divorce proceedings take a long time to conclude due to delays and case backlog. 7In most cases, the excessive emphasis on the individual interests of parents disregards the interests of children yet they are the most affected by the separation. 8To a child, the divorce is a dreadful life-changing event which impacts various aspects of a child's life. 9or example, where the child will live, which parent will take custody, schooling, contact between the child and the non-custodial parent, and the choice of religious upbringing of the child. 10It follows that divorce has a life-long impact on children. 11e drawbacks of litigation have provided opportunities for family mediation as a preferred avenue of resolving family disputes. 12Family mediation involves an independent neutral third party who facilitates negotiations between separating parties to reach a mutually satisfactory settlement. 13It enables parties to have a broader perspective of the dispute including other people likely to be affected by their dispute, for instance, children. 14Family mediation has the potential to restore relationships between the separating parties. 15In addition, it is flexible and affords parties a greater autonomy in determining the outcomes of their divorce. 16Further, family mediation is confidential and privatethis protects parties from public embarrassment arising from disclosure of their private intimate details as well as expressions of their emotions. 17n family mediation, there are opportunities to allow children to participate in the mediation process. 18To begin, they may be included at the end of the final session to be informed about what their parents have agreed. 19Alternatively, children may be consulted by the mediator and parents after agreements have been reached to give their views about the agreement. 20In other circumstances, children may be interviewed by the mediator in the early stages of the mediation to gather their views, concerns, and feelings.Then, the mediator shares this information with the parents as they negotiate. 21Children may also occasionally attend the mediation sessions whenever an issue concerning them arises. 22Lastly, children, especially adolescents may be present throughout the mediation process and participate in decision making as an equal party to the proceedings. 23ild participation is a crucial principle of children's rights outlined in the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).24 It is interrelated with the principle of the best interests of the child, which is also guaranteed under the Constitution of Kenya 2010.The Constitution recognises that in every matter concerning the child, a child's best interests should be of paramount importance.25 To 18 Amanda E Boniface, 'Resolving disputes with regards to child participation in divorce mediation' 1 Speculum Juris (2013) 143.Convention on the Rights of the Child (CRC), 20 November 1989, 1577 UNTS 3, Article 12. See the African Charter on the Rights and Welfare of the Child (ACRWC), 1 July 1990, CAB/LEG/24.9/49 were Article 4 provides that 'in all actions concerning the child undertaken by any person or authority, the best interests of the child shall be the primary consideration.In all proceedings affecting a child who is capable of communicating their own views, an opportunity shall be provided for the views of the child either directly or indirectly through a representative as a party to the proceedings.Those views shall be taken into consideration by the relevant authority'.
give effect to the Constitution, the Children Act of 2022 was enacted on 6 July 2022 and commenced on 27 July 2022. 26It repealed the Children Act of 2001, which was deficient in promoting children's rights in conformity with the Constitution and international instruments. 27The 2022 Act enshrines children's rights and makes provision for parental responsibility, care and protection, alternative care, and children in conflict with the law. 28In addition, it establishes the office of the Secretary of Children Services whose roles include promoting family reconciliation and mediating family disputes involving children and parents with parental responsibility.
Following this introductory part, this paper is divided into six parts.Part Two conceptualises child participation highlighting the levels of participation, and the connection between child participation and the best interests of the child principle.In Part Three, the paper discusses child inclusive mediation and evaluates its advantages and disadvantages.In addition, it highlights instances where it may not be suitable for children to participate in family mediation.Part Four focuses on the functions of the Office of the Secretary of Children's Services (OSCS), specifically, promoting family reconciliation by mediating disputes where children and parents are involved.The paper argues that this function is vague and inadequate in promoting the best interests of the child in family mediations.Using a case study of the Office of Family Advocate (OFA) in South Africa in Part Five, the paper highlights how child-inclusive mediation can be promoted better by the OSCS.Part Six makes recommendations while Part Seven concludes the paper.

Conceptualising child participation
Generally, the term participation is a process of sharing views and ideas on decisions which impact one's life. 29In terms of children, participation can mean 'to speak, to participate, and to have the child's views taken into account'. 30As a right, every child is free to take part, express their views, and be informed in matters concerning them. 31hild participation is one of the four core principles of the CRC. 32cording to the CRC, state parties are obligated to ensure that children who are capable of forming their own views are allowed to express them freely, and that such views are given due weight while considering the age and maturity of the child. 33In this regard, free expression means that children have a choice to share their views or not.They should not be coerced or subjected to any manipulation. 34 order for children to participate, they should be equipped with all the necessary information needed to give an informed view that aligns with their best interests. 35Children also need to be informed about the conditions under which they will be asked to express their views. 36Furthermore, child participation requires that where it is not possible to act in accordance with the child's wishes, the child must be given an explanation as to the consideration given to their views and the justification for non-implantation. 37 expounding on giving due weight to the views of the child considering the child's age and maturity, the Committee on the Rights of the Child (Committee) observed that this clause relates to the capacity of the child.This capacity must be assessed in order to give due account to children's views as well as explaining to them their view's influence on the outcome of the process.Remarkably, simply listening to the child is not enough; the children's views must be seriously considered especially when the child is capable of forming their views.
The Committee has also been categorical that biological age alone cannot be used to determine the significance of a child's views. 38Instead, age should be considered alongside maturity of the child which refers to the ability to understand and assess the implications of a particular act. 39In such considerations, non-verbal forms of communication such as play, facial expressions, gestures, mannerisms and drawing must be recognised and respected because very young children demonstrate understanding, choices, and preferences through such forms. 40From the foregoing, children must be heard by decision-makers during the mediation process in family disputes. 41r child participation to be successful, it requires a form of partnership between children and adults in order to ensure that these views are considered. 42On the one hand, adults should be willing to listen and learn from the child, readjust their attitudes towards them, and consider solutions which address the child's concerns.On the other hand, children should be willing to respect, listen, and learn from the adults to ensure effective engagement between the two parents. 43nyan courts have recognised the importance of child participation.The High Court in JO v SAO held that the court must consider the wishes of the child while making custody orders. 44While showing the connection between the child's best interests and child participation in custody disputes, the court in BK v EJH held that the test for the best interests of the child in custody disputes should be objective, rather than subjective to the selfish whims of the child.If a child's wishes to stay with a particular parent is not in their best interests in the long run, the court may disregard those wishes. 45cently, the Supreme Court has expounded on the parameters of promoting the best interests of the child against the parental rights and responsibilities.These considerations include: the existence of a parental responsibility agreement between the parties; past performance of each parent; each parent's presence and ability to guide the child and care for their wellbeing; the ascertainable wishes of the child who is capable of expressing their opinion; financial status of each parent; individual needs of each child; quality of the available home environment; the need to preserve personal relations and direct contact with the child by both parents unless it is not in the best interests of the child; ensuring children are not placed in alternative care unnecessarily; mental health of the parents and the totality of the circumstances. 46In the apex court's view, the listed guidelines must be considered by courts while making a decision affecting a child.

Hart's ladder of child participation
Apart from the guidance by the CRC and General Comment No 12, Hart's Ladder of Child Participation has been the most influential model in shaping the discourse on child participation. 47Hart presents eight steps of the ladder ranking from the lowest to the highest degree of measuring participation. 48These are manipulation, decoration, tokenism, assigned but informed, consulted and informed, adult initiated-shared decisions with children, child initiated and directed, and child-initiated, shared decisions with adults. 49According to him, the first three steps are collectively named levels of non-participation.They demonstrate how adults can easily manipulate children's participation for their own benefit. 50Contrastingly, the last five steps constitute the genuine forms of participation.

Levels of non-participation
According to Hart, manipulation is the lowest form of participation.In this level, the child involved does not understand the matter at hand and therefore they do not understand their actions. 51Children are asked their views, some of which may be taken into account by adults.However, children are not told about the influence of their views on the final decision. 52In other instances, children share their views, but they are not listened to.
Manipulation can arise in divorce proceedings where the opinion of a child who is too immature or uninformed to form an opinion is used in favour of a specific parent. 53The second step is decoration where children are only used to further a cause in an indirect way.In the context of divorce, a parent informs the decision maker of the child's view, but only for the purpose of furthering their own interest in the matter. 54e third step is tokenism where children are asked to say what they think about an issue but they have little or no choice about the way to express those views or the scope of the ideas they can express. 55okenism is also apparent in instances where children are sometimes used on conference panels. 56To illustrate, expressive and charming children may be selected by adults to sit on a panel with little or no substantive preparation on the subject and no consultation with their peers who, it is implied, they represent. 57

Genuine levels of participation
In the fourth rung of the ladder is assigned but informed, which is the first level of genuine participation.In this level of participation, there are four requirements to be considered for a project to be truly participatory.These are: first, the children understand the intentions of the project; second, they know who made the decisions concerning their involvement and why; third, they have a meaningful (rather than 'decorative') role and fourth, they volunteer for the project after the project was made clear to them. 58In the context of divorce, children are assigned but informed when their parents ask them questions after they are provided with the necessary information to answer the questions. 59Under the fifth step, children are consulted and informed.Here, the project is designed and run by adults, but children understand the process and their opinions are treated seriously. 60Principally, children's views are considered more critically than in the fourth step of the ladder, but they do not make any decisions.
The sixth step is adult-initiated, shared decisions with children.This level is regarded as true participation.At this level, the process is designed and run by adults, however, the views of children are considered, and they participate in the decision-making. 61ild-initiated and directed is the seventh step.Under this level, children have the initial idea and decode how the project is to be carried out; adults are available, but they do not take charge. 62Realistically, this level of participation would be difficult to reach in divorce proceedings since the process is ultimately directed by parents, advocates, judges, and professionals such as mental health providers notwithstanding cases where the children's views are completely considered and implemented. 63e last step of the ladder is child-initiated, shared decisions with adults.The process is initiated by children and the decision-making is shared between adults and children. 64Just like the previous step, this level of participation seems impossible to reach in divorce proceedings.This is because it is the adults who initiate divorce and come up with the ideas and process. 65

Factors limiting child participation
In most cases, adults fail to recognise children's abilities because they assess children from an adult perspective. 66Their acceptance of generalised conceptions of children and what is in their best interests, fails to consider how important it is for the wellbeing of a child to have their views listened to and be taken seriously. 67This is attributable to religious and cultural practices coupled with the strong parental control over children. 68 many African settings, children are involved for the sake of being 'seen' as opposed to being 'heard'. 69In addition, adults make assumptions about children's participation, such as: that it will make children disrespectful towards adults; and that it may burden children with responsibility. 70As a result, parents fail to acknowledge the evolving capacities of children as capable of participating in the decision-making. 71ck of access to information is another barrier to child participation.Being able to access appropriate information can reduce children's anxiety and fears. 72This in turn boosts their confidence to participate.Inversely, a lack of information can impede children's sense of control in mediations since they are unaware of their rights in relation to their participation. 73It follows that children need to be informed about the possible changes in their living arrangements, school, and other activities. 74Notably, parents should take great care in how they disclose the cause of the divorce to the children. 75They must consider the age and maturity of the child as well as the sensitivity of the case because an insensitive way of informing the child may change their perception of the either parent. 76

Link between the principle of best interests of the child and the child's right to be heard
The Committee has observed that the principle of best interests and child participation play a complementary role. 77The child's best interests principle establishes the objective of achieving the best interests of the child.Child participation provides the methodology for reaching the goal of hearing the child or children. 78In the Committee's view, there can be no correct application of the child's best interest principle where the components of child participation in Article 12 of the CRC are not respected. 79Similarly, the best interest principle in Article 3 reinforces the functionality of Article 12 by facilitating the essential role of children in all decisions affecting their lives. 80

Child inclusive mediation
The child-inclusive approach to family mediation originated from two pilot studies conducted by Jennifer McIntosh in Darwin and Melbourne, Australia. 81In this approach, the main aim is to embrace 74 Gillon, Children's views and experiences of their participation injustice, 6. all aspects of children's concerns and interests. 82This is achieved by ensuring that the voice of the child is heard directly; children are consulted about their experiences of the family separation and dispute in a supportive way, taking into account their level of maturity. 83As a result, children have more autonomy and direct input on the decisionmaking process. 84e main objectives of child-inclusive mediation are: first, to learn about the child including something about their friends, hobbies, sports and interests; second, to afford the child an opportunity to talk about their feelings; third, to encourage the child to take an independent role, for example by giving ideas for a solution or a partial solution to the problem; fourth, to carefully support the child's chance to restore contact to the absent parent in circumstances where contact was interrupted for a long time; fifth, to validate children's experiences and provide basic information to assist their present and future coping.
Sixth, to form a strategic therapeutic conversation with the children's parents, supporting them to reflect on their children's experiences and needs.In turn, motivating the parents to reconsider their behaviour, attitudes, and the goals of the mediation in light of those needs; to ensure that the ongoing mediation agenda and the agreements reached reflect the psycho-developmental needs of each child; and lastly, to release the child from feeling co-responsible for what is going on between their parents -this is the sole responsibility of the parents. 85

The process of child-inclusive mediation
In child-inclusive mediation, a specialist in children matters (child consultant), mediator, parents, and children are involved.There are four stages of child-inclusive mediation. 86The first stage is early focusing of parents on children's needs.In the first session, the mediator advises the parents to focus on and identify the needs of their children as well as the likely impact of decisions on them. 87Where the parents and mediators appraise the situation as appropriate for consultation with the children, parents can be asked to discuss this possibility with their children. 88e second stage is consulting directly with children, which occurs during the first or second session.Before the child consultant talks to the children, both parents must give consent, and at least one child should be of school-going age. 89The content of the discussions will vary from child to child and family to family, but the objective of child-inclusive mediation is not solely to ascertain the 'wishes' of the children. 90Rather, it is to explore broadly their perspectives and experiences of the current living and visiting arrangements, parental conflict, and their hopes for the future. 91Through play, drawings, and discussion, the child consultant then explores the child's response to the family's situation as well as their fears and wishes. 92During the discussion, the child consultant asks the child whether there is any specific information or questions that they may want to be conveyed to the parents. 93e third stage is communicating the child's needs and views to the parents.In this stage, the child consultant meets with the mediator and parents to give them feedback from the children's session. 94They share their general assessment of the impact of the separation on the children. 95This is coupled with any specific concerns or questions that the child had wanted to be raised. 96At this stage, the child consultant is also readily available to support the parents' ability to provide a secure emotional base for their children. 97They provide a supportive space for parents to reflect on their conflict through their child's eyes, and to consider how best the child's unique needs can be addressed in a parenting agreement. 98e last stage is integrating the child's view and needs into the negotiations between the parents.In this part, the child consultant may excuse the parties and the mediator to continue with the mediation, incorporating the child's agenda into it. 99Alternatively, the child consultant may stay on for the remainder of the sessions to advocate the best wishes of the child. 100Where agreements are reached between the parents, the resulting plan should lay out the needs of the child and the manner in which the parents have agreed to address them. 101

Distinguishing child-inclusive mediation from child-focused mediation
Another form of mediation that emerged in Australia alongside child-inclusive mediation is child-focused mediation.In child-focused mediation, the divorce mediation is modified to focus on the needs of children. 102The aim is to help parents reach agreements that reflect those needs, but the children are not directly involved.In essence, the child consultant does not meet with the children. 103Instead during the mediation, parents are informed by the mediator about common concerns of children in divorcing families and the impact of parental conflict on children. 104In this form of mediation, the mediator asks parents about the likes and dislikes of the child, requests them to bring in pictures of the child, or makes questionnaires touching on children matters for the parents to fill. 105Whenever it is considered relevant, the mediators encourage the parents to take into account the children's needs and developmental stages when making parenting agreements. 106 2006, McIntosh and Long conducted a study involving 257 parents, 364 children, 193 of which were aged between 5-16 years.The study compared the effectiveness of child-inclusive mediation and childfocused mediation.In the child-focused process, the psychological and relational elements of parents' separation were prioritised.Parenting arrangements that would best support the developmental needs of the children were also made.107 The children were not directly involved in the mediation.On average, the mediator spent about 5.1 hours with the parents.108 Concerning the child-inclusive process, there was a direct assessment of children's wishes and their experiences about the separation as well as their relationships with each parent.109 The children's details were meticulously formulated and considered by parents while incorporating their key concerns into the negotiations.The average duration of the process with parents, including intake and feedback of the children's material, was 6.2 hours and an additional 1.5 hours with children.110 Both processes reduced interparental dissonance and child distress about parent strife.111 Similarly, both processes improved the child's mental health.However, over the years, following the mediation, children that took part in child-inclusive mediation experienced better outcomes.112 For instance: greater stability of care and contact patterns; greater child satisfaction with care and contact arrangements and less propensity desiring to change them; children's reports of improved emotional availability of their fathers and better intimacy with them; greater satisfaction of fathers with care and contact arrangements of their children; and significantly more durable and workable agreements over a year, as rated by mothers and fathers.113 However, child-focused mediation appeared to be more preferable for toddlers below 2 years of age as they may not have been able to express themselves in ways that would help adults consider their views.

Advantages of involving children in family mediation
Child-inclusive mediation provides a forum where children's needs are addressed formally rather than casually. 114This can be a source of empowerment for children and gives them a greater sense of control over their lives thus reducing anxiety. 115It also enhances their communication and negotiation skills with their family, especially adolescents. 116econd, where children are involved in the mediation process, it presents an opportunity for them to be referred to a therapist in appropriate situations.It is therapeutic for children to talk to someone about how they are feeling which improves their emotional wellbeing after parental separation. 117ird, involving children in family mediation improves their coping skills. 118This is because they are able to understand what their parents are going through.As a result, there is easier adaptation by the child to post-divorce conditions. 119urth, involving children can improve child-parent communication which often suffers during divorce and after separation.If children are present during their parents' mediation, it can help them appreciate that love and concern for the child are the primary motivations for their parents' participation in mediation.This opens up more channels of communication between children and their parents. 120Besides, focusing on the needs of children early in the process of parental conflict can reduce both the intensity and duration of the conflict.This enhances conciliation between the parents to communicate more effectively on behalf of their children. 121

Potential drawbacks of involving children in mediation
The first is loyalty conflicts, where each parent seeks to win the attention of the child in most cases.Children may therefore be exposed to continued volatile and negative dynamics between the parents. 122onsequently, children may not express their true feelings due to fear that their parents' may get angry at their disclosure causing loyalty conflicts. 123cond, a child's view can sometimes be used as a 'trump card' by one or both parents which then marks the end of the consensual decision-making process. 124To illustrate, either parent may claim that the child is being 'traumatised' in the mediation and use this as a tactic against the other parent.Such situations can arise because children often frankly express their feelings, and a mediator may lack the skills or willingness to respond to these emotions.125Furthermore, once a child has been asked to express their views, they may be disappointed when their views are not determinative of the outcome.This can lead to feelings of anger and hurt. 126e third setback is parents' unwillingness to allow, accept, and respect children's views.Direct involvement of children is only possible where parents demonstrate some intent to consider their children's interests. 127In addition, child-inclusive mediation can only thrive where the parents are able (at least in part and with support) to consider and respect the needs of children, as distinct from their own.Also, where the child has suffered abuse, child-inclusive mediation is unsuitable. 128This is because of the already existing fear in the child to speak freely. 129ourth, divorce involves high conflict levels which are likely to negatively affect children.This weakens their relationships with one or both parents and may force children to grow up too quickly which could impact their adjustment and resilience. 130Also, delegating too much authority to children instead of helping them develop coping strategies during times of parental separation may burden them with too much power. 131Likewise, it is difficult and unfair to expect children, at a time of crisis, to make informed judgements about what is in their own best interests. 132stly, there is uncertainty as to the appropriate age of participation.Generally, only children who are capable to form well-informed views about separation should be included. 133This raises concerns about the suitable age for a child to participate in mediation proceedings.Some scholars opine that seven years is the most suitable age by which children should be able to formulate opinions about issues affecting their lives. 134The rationale is that children under the age of seven generally comply with the joint decisions of their parents and seldom need to be included in the mediation process. 135As for adolescents, there is consensus that they should be interviewed because of their cognitive ability to formulate abstract plans and the relative independence of their lives. 136The downside of setting seven years as the minimum age of participation is that it may fail to recognise other forms of expression by children below that age.Sometimes children express themselves through silence, drawings, emotions, and facial expressions.
While the drawbacks of involving children in mediation exist, they cannot be used as justifications for denying children opportunities to share their views and opinions.Instead, parents and mediators should aim at providing a conducive environment for children to express themselves and address the barriers that limit child participation.
The next section focuses on the function of the Office of the Secretary of Children's Services (OSCS) in Kenya, specifically, to promote family reconciliation by mediating disputes where children and parents are involved.The paper argues that this function is too vague and inadequate to achieve the demands of child-inclusive family mediations.

Office of the Secretary of Children's Services (OSCS)
The OSCS is a public office established by the Children Act of 2022. 137or one to qualify for appointment as the Secretary of Children's Services (Secretary) by the Public Services Commission (PSC), they must possess the following qualities: they must be a citizen of Kenya; they must hold a relevant bachelor's or master's degree in social sciences; they must possess a minimum of ten years' experience in social work, education, administration, and management, public administration, and human resource or finance management; and they must meet the requirements of Chapter Six of the Constitution. 138e Secretary is mandated with among other functions to inquire, investigate, assess, and prepare reports as may be directed by a court. 139n addition, they are tasked with regulating, coordinating, managing, 137 Children Act (No 29 of 2022) Section 37(1). 138Children Act (No 29 of 2022) Section 37(3). 139Children Act (No 29 of 2022) Section 38(g).See also Section 150, which provides that a court before which any child in need of care and protection can require an authorised officer to give a report or professional advice on any aspect relating to the manner in which the child should be dealt.
and supervising children officers in the delivery of the welfare and administration of children services. 140Furthermore, the Secretary is obligated to provide assistance for a child during a proceeding in court. 141n fact, they can institute proceedings in respect of any contravention relating to child maintenance, child neglect, and abuse. 142Most relevant, the Secretary is required to promote family reconciliation by mediating disputes involving children, parents, guardians, or persons with parental responsibility.
In fulfilling the above duties, the Secretary is assisted by chief officers appointed by the PSC. 143The Secretary is also a member of the National Council for Children Service, established by the 2022 Act. 144Among other functions, the Council is mandated to facilitate, monitor, and evaluate the enforcement of international obligations on children's rights by Kenya. 145It is also tasked with monitoring and evaluating the implementation of public education programmes on the rights and welfare of children. 146Lastly, the Council is obligated to establish, regulate, and manage the activities of County Children Advisory Committees to advise on matters relating to the rights and welfare of children. 147

Comparison between the 2022 Act and repealed 2001 Act in relation to mediation
While the Children Act of 2022 has been commended for introducing new changes, the repealed Children Act of 2001 created the Office of Director of Children's Services, whose Director played similar roles to 140 Children Act (No 29 of 2022) Section 38(a). 141Children Act (No 29 of 2022) Section 38(p). 142Children Act (No 29 of 2022) Section 39(2). 143Children Act (No 29 of 2022) Section 40. 144Children Act (No 29 of 2022) Section 43(g). 145Children Act (No 29 of 2022) Section 42(d). 146Children Act (No 29 of 2022) Section 42(f). 147Children Act (No 29 of 2022) Section 42(r).
those of the Secretary. 148To highlight a few, the Director was generally obligated to safeguard the welfare of children by assisting in the establishment, promotion, and supervision of services designed to advance the wellbeing of children. 149This was to be achieved through making as such enquiries, investigations, and assessments as may be required by court. 150The Director was also obligated with safeguarding the welfare of any child or children placed under care. 151cond, the Director was in charge of supervising children's officers and regulating their work in the provision of children's welfare services. 152Similar to the Secretary, the Director was obligated to promote family reconciliation by mediating family disputes involving children and their parents, guardians or other persons with parental responsibility in respect of the children. 153Therefore, despite the difference in name, both the Secretary in 2022 Act and Director in the repealed 2001 Act play a similar role in mediating family disputes involving children.Furthermore, they are all housed in the Department of Children's Services, a division in the Office of the Attorney General.The Department has offices in 47 counties and 283 sub counties. 154

Absence of child-inclusive mediation
While the repealed and 2022 Children Act call for mediating family disputes involving children and their parents, guardians, or persons with parental responsibilities, they both lack clear guidance on the nature of such mediation and how it can be conducted to cater for the best interests of children.In addition, there is no express provision requiring the Secretary to look out for the best interests of the child during such mediations.They are presented as a 'neutral' mediator to mediate disputes between parents or guardians involving children.
Be that as it may, it is implicit that in view of the best interest principle outlined in the 2022 Act, the Secretary would be obligated to hear the voices and opinions of children in such disputes. 155Besides, in any matter affecting a child, the 2022 Act states that the child must be accorded an opportunity to express their opinion. 156In addition, that opinion should be taken into account in appropriate cases having regard to the child's age and degree of maturity. 157It follows that children must be given an opportunity to express their opinions in family mediations.The next section, using a case study of the Office of Family Advocate (OFA) in South Africa highlights how child-inclusive mediation can be promoted better by the OSCS.

The OFA in South Africa
The Mediation in Certain Divorce Matters Act 1987 established the OFA to protect the rights of children in situations where their parents could not be together. 158In order to ensure a holistic and qualitative approach to serve the best interests of the child, the office provides family mediation through multidisciplinary teams comprising lawyers and social workers. 159Family advocates are appointed for each division of the Supreme Court by the responsible Minister. 160r one to qualify for appointment, they must possess experience in the adjudication and settlement of family matters. 161Family counsellors are appointed in accordance with Section 3 of the statute to assist family advocates. 162Although the statute is ambiguous about the qualifications of family counsellors, in practice, only professionals with specialised knowledge and experience in children and family matters are qualified for appointment. 163 assist in getting the child's perspective on what they envision before and after divorce, the family advocate and counsellors may hire additional professionals such as mental health specialists, retired ministers, and religious leaders on a part time basis as required by circumstances. 164Additionally, Annexure A of the Regulations to the Act provides a template of the information the family advocate must obtain from the parties on the care of an contact of and contact with their child.This aims to ensure that the mediation is centred on the child's best interests rather than being parent centred. 165e family advocate may institute an enquiry into divorce matters where welfare of children is at stake. 166An enquiry may be instituted in any of the following ways: first, request by either party involved in the proceedings to institute proceedings; second, request by the judge or magistrate responsible for the case through a court order requesting the family advocate to intervene in the matter, and third, request by the family advocate that an enquiry be instituted if the arrangements made for the children of divorce do not seem to be in their best interests. 167urthermore, if there are any allegations of abuse or neglect of the children, the family advocate may request the court to institute an enquiry into the matter.
Once an enquiry is instituted, a written notice is placed on the court file.The parties cannot proceed with the divorce until the matter has been investigated and the office submits a written report. 168All the parties are notified in writing of the date and details of the enquiry unless an urgent investigation is required.When an interested party, a judge or a family advocate has requested an enquiry at the OFA, the parents are requested to attend the enquiry together with their children. 169 the day of the enquiry, the family advocate and the counsellor explain their role to the parties, which is to safeguard the best interest of the child. 170Likewise, the purpose of the investigation and the roles played by each participant are disclosed to the participants.Then they are given the opportunity to express their views.The family advocate and counsellor interview the child to obtain their opinions and feelings. 171itially, the work of the family advocate was based on divorce proceedings or applications to vary, rescind, or suspend orders made under the Divorce Act of 1979 that related to the custody, guardianship, or access to a child. 172In Terblanche v Terblanche, it was held that Section 4 of the Divorce Act should be interpreted to include applications pending trial for interdicts, for interim custody, access, or for payment of maintenance.
The services at the time of the establishment of the office were available to few privileged South Africans who could afford to litigate in the High Courts as prescribed in terms of the Divorce Act of 1979. 173Only children born of parents who were parties in the divorce proceedings before the first four High Courts of the then Republic of South Africa were the beneficiaries of the services. 174n 2008, the mandate of the office was expanded by the implementation of various legislations including the Children's Act, 2005. 175These modifications resulted in entitling all children involved in judicial and administrative actions to the office's services regardless of their parents' marital status. 176Importantly, Section 21 of the Children's Act, 2005 extends the role of the family advocate to mediations in disputes on parental rights of fathers of children born out of wedlock. 177The introduction of Section 21 has also made the services of the family advocate more accessible, as the parents of children born out of wedlock are no longer compelled to undertake costly litigation to resolve their disputes. 178In addition, the restriction of the services of the family advocates to children whose parents were married under Section 4 of the Mediation in Certain Divorce Matters Act was rendered unconstitutional as will be discussed later in the paper. 179rthermore, where parents, with shared custody in respect of a child, are experiencing conflicts, they must first agree on a parenting plan determining the exercise of the respective responsibilities before seeking the intervention of courts. 180In preparing the contents of the parenting plan, the parties must seek the assistance of a family advocate, social worker, or psychologist through mediation. 181The mediator is required to submit a certificate of non-attendance where the parties refuse to participate in the mediation process or frustrate it. 182e Children's Act also empowers the Children's Court to order a lay-forum hearing before deciding on a matter.A lay-forum hearing may include 'mediation' by a family advocate, social worker, social service professional, or mediation by an elder. 183However, the use of mediation is subject to considerations like the vulnerability of the child, the ability of the child to participate in the proceedings, the power relations within the family, and the nature of any allegations made by the parties in that matter. 184In addition, lay-forums may not be used for matters that involve abuse or sexual abuse of the child.185

Recent developments and criticism about the functions of the OFA
As seen in the previous sections, only married couples in the process of divorcing or those previously divorced would benefit from the services of the OFA.They would sign Annexure B of the Regulations to the Act, and serve it on the other party, and OFA.On the other hand, unmarried parties were unable to use the services of the OFA without a court order directing the office to prepare a report about the best interests of the child involved.
The High Court of South Africa in ST v BN & Others declared Section 4(1)(a) and (b) unconstitutional for several reasons. 186First of all, it unfairly discriminated between married and unmarried parents in accessing the services of the family advocate. 187Second, the Court found that there was no rational connection to any legitimate purpose of placing an unfair burden on unmarried parents to obtain a court order. 188hird, the distinction violated the children's rights to have their best interests of paramount importance since it treated children of married and unmarried parents unfairly. 189he High Court referred the declaration of invalidity to the Constitutional Court of South Africa. 190It also suspended the declaration of invalidity for a period of 24 months from the date of confirmation by the Constitutional Court to enable Parliament to take steps to cure the constitutional defects identified in the judgement. 191As a temporary measure and pending the decision of the Constitutional Court on the validity of the Act, the court rightly reworded Section 4 of the Mediation in Certain Divorce Matters Act to the effect that both married and unmarried parents can equally use the services of the family advocate. 192onsequently, children were subjected to less protracted court battles.
The OFA has been criticised for not being in line with the function of the traditional mediator. 193To demonstrate, mediation by the family advocate is to some extent, not voluntarily submitted to by both parties. 194n addition, in developing a report based on facts and information, parties may not be too open to reveal much information for fear that it will be recorded in the report and may be used against them in court.
Furthermore, it has been argued that since counsellors and advocates mediate a matter to determine and report on the child's best interests, this disqualifies them from being mediators and should be regarded as children advocates. 195Notwithstanding the above valid criticisms, it is justified that family advocates look out for children's best because they merit special attention due to the child's dependency, vulnerability, and need assistance necessary for their positive growth and development.196

Benefits of the OFA
There are some benefits that have been realised through the services provided by the OFA.The first one is promotion of access to justice.By providing all parents with free mediation services, the OFA's services benefit the underprivileged members of society thus relieving them of the financial burden of litigation costs. 197In addition, using family advocates reduces case backlog in the courts and less time is spent in the resolution of family disputes involving children. 198cond, the OFA preserves family relations and integrity through the provision of mediation services at an early stage of the dispute. 199This can lead to settlement based on the family advocate's recommendations prior to the trial hearing in court. 200Therefore, by settling matters before trial, parties are spared the emotional turmoil of trials. 201ird, assisting parents by drawing parenting plans.The family advocates facilitate negotiations between parents and assist them with drawing up of parental plans that stipulate parental rights and responsibilities. 202As a result, parental plans create certainty as to what is expected of each parent in terms of fostering the children's best interests.
Lastly, the family advocate promotes the child's best interests and amplifies their voices.This is possible because the OFA approaches the participation of children in mediation and trials through a multidisciplinary angle. 203The family advocate in collaboration with the family counsellor conduct an enquiry into the best interests of the children. 204After conducting investigations into the psycho-social functioning of families, they put together a report containing recommendations as to the best interests of children. 205

Challenges faced by the OFA
Staff shortages are the most prominent challenge facing the family advocate. 206As of 2022, there were only 26 sub-offices of the OFA servicing over 700 courts including the Maintenance Courts, Divorce Courts and Domestic Violence Courts. 207In addition, there were about 96 family advocates, 46 family law assistants and 126 family counsellors who provide both the litigation and non-litigation services of the office. 208he shortage persists despite the growing demand for the services. 209other main challenge facing the OFA is limited accessibility.People have to travel long distances to obtain the services.Additionally, increased court adjournments have also been a challenge leading to delays in obtaining reports or the availability of family advocates to appear in court.Such delays compromise the welfare of the child.
The family advocate is also affected by a significant workload.Since the establishment of the OFA, there has been a steady and increasing rate of workload coupled with increased urgency of the work since the lives of children are involved. 210Moreover, in cases where an inquiry is pending, the parties cannot proceed with the matter without the family advocate's report. 211Thus, increasing the family advocates' workload.
Third, there is also a difference in mediation approaches.It is arguable that the family mediation conducted by the family advocate mirrors the child-inclusive mediation as discussed in the previous section.This is because the child is directly involved in the process and their views and wishes are sought by the family counsellor.In Kenya, it appears that children are occasionally involved in the mediation process.While child participation is guaranteed under Section 8(3) of the Children Act, it is still not yet fully realised because of the cultural attitudes towards children as being incapable of properly sharing their views.As a result, the dominant model of family mediation seems to be child focused mediation where children are not directly involved, but parents are educated about the best interests of children and encouraged to make decisions that best reflect children's interests.

Recommendations
In light of the above discussions, the authors make the following recommendations that will help to enhance child-inclusive mediation in Kenya.
First, there is a need for robust campaigns through mass media such as televisions, radios, and newspapers about family mediation and the benefits of involving children in such processes.This is because there has been a low uptake of alternative dispute resolution mechanisms among Kenyans owing to ignorance about their existence.This is coupled with a widespread litigation mindset that pits parties against each other.
Notably, the awareness should also be extended to rigid cultural values that place limitations on the expression of opinions by children.People should be educated about child participation to distinguish between genuine forms of participation and manipulation.Consequently, children will be empowered to speak up in discussions that affect their welfare.
Second, awareness campaigns for children's self-expression should be developed.Children should be taught how to express themselves with the help of psychologists and psychotherapists.This will give them courage to speak up and share their opinions in family mediation disputes affecting them.The sensitisation can be through poems, plays, and songs, and the Children's Assembly.The Judiciary and government should collaborate more closely with other stakeholders such as Mtoto News and Cradle to actualise the empowerment of children.
Closely related to the above recommendation, there is a need to train and retrain parents, social workers, lawyers, family mediators, and judges in child-inclusive mediation. 217Parents should be sensitised about resolving their custody as well as childcare disputes through mediation.They can be trained in topics such as child participation, best interests of the child, and child-inclusive mediation principles.
Similarly, parents should be sensitised about dealing with grief and pain during divorce.In most mediations, mediators tend to discourage and downplay emotions such as grief experienced by parents who are often told to control their emotions. 218Yet, effective mediation would require that the parents' emotions be recognised.Family mediators should therefore be trained in emotional and interpersonal issues to enable them to understand the dynamics of family conflicts. 219Such training can focus on various aspects such as family and child development, impact of family conflict on parents and children, and interviewing skills with special focus on the unique language and thinking patterns of children. 220As a result, there is a need for the development of regulations and manuals on child-inclusive mediation.
Third, in order to address the challenge of inadequate staffing, the Secretary of Children Services and the PSC should recruit more children's officers on an ad hoc basis to facilitate child inclusive mediations.Such officers should be professionals trained in family law, children matters, and social sciences such as psychology.The Judiciary, the PSC, and the Secretary of Children's services should consider recruiting some of the qualified professionals accredited by the Mediation Accredited Committee under the court-annexed mediation.The ad hoc system would ensure that enough mediators and counsellors are appointed to assist the Secretary of Children Services in administering child-inclusive mediation across the country.
Fourth, the National Council of Children Services and the Secretary of Children's Services should be adequately funded.This will also facilitate the expansion of awareness programs about child-inclusive mediation.Additionally, it would ensure prompt payment of mediators, social workers, and counsellors.It would also facilitate the provision of support services such as child psychotherapy to children.
Fifth, to strengthen and implement child-inclusive mediation, there is a need for the Secretary of Children Services and National Council of Children Services to benchmark with offices in other countries about the institutionalisation of child-inclusive mediation.The Secretary can borrow lessons from the OFA in South Africa as their roles are similar in terms of looking out for the best interests of children in family disputes affecting them.

Conclusion
There is wisdom in the truism 'love is blind'.Love makes people see what they want to see and believe what they hope is true. 221In a divorce and separation, the blinders of love are ripped off.This causes feelings of betrayal, disappointment, grief, hurt, jealousy, and anger, among others. 222Divorce not only traumatises parents but also negatively impacts the innocent children who are caught in the middle of their parents' conflict.They are rarely given the chance to express their opinions, feelings, and wishes regarding their parents' separation. 221Robert, Renegotiating family relationships divorce, child custody, and mediation, 5. 222 Robert, Renegotiating family relationships divorce, child custody, and mediation, 15.

~ 105 Ñjane
and Sebayiga: Enhancing child participation in family disputes When an opportunity for children to be heard presents itself, their participation is manipulated or suppressed as they are deemed too young to engage in 'adult stuff'.The paper has extensively discussed the levels of participation of children in family mediation.It recognises the enactment of the Children Act 2022 as a new dawn for children's rights.The OSCS is required to mediate family disputes involving children and parents.Although this function is welcome, it is vague and insufficient to protect the best interests of children in family mediations.
As a result, the authors have advocated child-inclusive mediation as a better approach for resolving family disputes while ensuring that children are positively and genuinely heard.The new, innovative, and promising approach of resolving family disputes involving children is already happening in South Africa.Similar to the OSCS, the OFA conducts family mediation in disputes involving children and parents.However, its primary duty is to protect the children's best interests in such disputes which is achieved by interviewing children to obtain their views, feelings, and wishes about their parental conflict.Consequently, the paper has offered some suggestions on enhancing child participation in the resolution of family disputes through mediation in Kenya.

19
Donald Saposnek, 'The voice of children in mediation: A cross-cultural perspective' 8(4) Mediation Quarterly (1991) 329.20 Saposnek, 'The voice of children in mediation: A cross-cultural perspective' 329.21 Saposnek, 'The voice of children in mediation: A cross-cultural perspective' 330.22 Saposnek, 'The voice of children in mediation: A cross-cultural perspective' 330.23 Saposnek, 'The voice of children in mediation: A cross-cultural perspective' 330.24

75Gillon,
Children's views and experiences of their participation injustice, 6. 76 Gillon, Children's views and experiences of their participation injustice, 6. 77 Committee, General Comment No 12, para 74.78 Committee, General Comment No 12, para 74.79 Committee, General Comment No 12, para 74.80 Committee, General Comment No 12, para 74.81 Brunilda Pali and Sandra Voet, Family mediation in international family conflicts: The European context, Institute of Criminology, Katholieke Universiteit Leuven, 2012, 40.

82
Pali and Voet, Family mediation in international family conflicts, 40.83 Hewlett Bill, 'Accessing the parental mind through the heart: a case study in childinclusive mediation' 13(1) Journal of Family Studies (2007) 94. 84 Pali and Voet, 'Family mediation in international family conflicts', 40.85 Pali and Voet, 'Family mediation in international family conflicts', 41. ~ 83 Ñjane and Sebayiga: Enhancing child participation in family disputes