Is FDR

facilitating children’s right to enjoy their culture?

Beth Dababneh &

Dr Susan Armstrong National Mediation Conference

Melbourne

11 September 2014

Acknowledging country

We pay respect to the Wurundjeri people

of the Kulin nation on whose beautiful land

we gather;

To their elders: past, present and future;

And to other Aboriginal people here today.

Context

• Cultural knowledge, language & connection with others who share culture are crucial to psychological, emotional & social development

• Child’s right to enjoy their culture with people who share it now part of best interests framework: s60C(2)(e), s60(3)

– FDR support this?

Research

• Does FDR facilitate child’s right to culture?

• Qualitative study

– 30 FDR practitioners

• Men & women, range of ages, professional & cultural backgrounds

• Mix of provider services, Legal Aid, community, private

– Open ended interviews, 2012

– Thematic analysis using NVIVO

Findings

Culture is important to children’s development

• emotional, social and psychological development

– Culture is central to identity formation

– Culture is socially transmitted

– Culture and language are inextricably linked

– When children lose cultural connections this can be harmful

Culture is Complex

• Challenging to identify and explain culture

• More aware of Indigenous children’s culture

– not often refer to children of minority cultural background, except in negative context

– culture highlighted by difference

• Culture and religion are difficult to distinguish

• Difficult to know all cultures

• Parent’s culture or child’s culture?

Culture has negative dimensions

• Culture not a universal good

– Sometimes associated culture with fundamentalism, lack of human rights, negative cultural (parenting) practices

– Parents sometimes used culture as a weapon against other parent

• Cultural (& religious) considerations sometimes meant more complex disputes: non-negotiable

• So FDRPS were committed to facilitating culture in FDR in principle,

– but tended to reify culture;

– were confused about its limits & implications;

– and felt poorly prepared to recognise and respond to culture.

FDRPs cautious about children’s cultural rights • Aware children had rights, & cultural right

– UNCRC & Family Law Act

• Unsure what right meant, especially in practice

• Unsure what their obligations were

• Children passive rights holders

– Difficult to conceive rights separate from parents

• Not all think culture should be a child’s right

Difficult to facilitate rights in best interest paradigm

• Rights seems to conflict with best interests, or it was not clear what the relationship is

• Culture not always promote best interests

• Right to enjoy culture translated to maintaining a meaningful relationship parents

• Safety more important than culture

• This would suggest FDRPs had an uneasy relationship with child’s right to enjoy culture

• May explain why they did not prioritise it in FDR, or that they found it difficult to facilitate

The FDR process didn’t facilitate children’s cultural rights • Intake/Assessment didn’t always provide

chance explore culture, or flag as an issue

• Difficult to identify ‘cultural’ issues or when it might be appropriate to discuss

• Child’s passive right to culture placed FDRP in role of advocate, or relying on parents to raise

• The time is so limited

Difficult to advocate children’s cultural rights in parent-centric process • Parents most effective people to facilitate child’s

rights, but often not capable if in dispute – Parent’s responsibility to introduce culture: right gave

parents authority to demand culture, use against

– By assisting parents to resolve dispute, FDRPs indirectly affording child’s rights to enjoy culture

• Could only guess what right to enjoy culture meant for each child – little opportunity children to be involved FDR, depended on maturity

Felt poorly equipped to facilitate children’s cultural rights • Not feel culturally competent

– Culture complex & different for everyone

– Reluctant to discuss culture with Aboriginal parents

– FDR with cultural issues often complex

• Ethical limitations: felt advocating children’s rights compromised impartiality/neutrality

• So committed in theory to facilitating children’s right to enjoy culture, but felt there were practical and ethical limitations of doing so

Implications

• FDR training to better incorporate culture

– Understanding of best interests/rights

• Ongoing professional development

– Conversations about culture

• Good practice guides

• Further research – small study

– Children from culturally diverse backgrounds

• Modify FDR model to prepare parents: CFDR?