Dear Ministry of Justice,
FRD MEDIATION OIA REQUEST
I wish to acknowledge all the progressive work that the Ministry has done over the last few years to establish new legislation and facilities for FDR.
There are some specific matters of policy, and practice as you see it, I want to clarify with you.
1. Does the Ministry agree that whilst the statutes and the UN Declaration prioritise the interests of the child, the procedures required, or used, in FDR mediation do not ensure or guarantee this is achieved?
This is because the decision-makers are the parents and there is no mandatory requirement for the views of children to be recorded, nor must it be stated in any report of the mediation how the views of the child were obtained, nor is there any requirement for the parents to say why they chose to deviate from the views expressed by their children. The mediator is not obliged to report on any of this to the Ministry. Thus, parents may, if they wish, simply ignore the preferences of mature, rational children, even though it might be argued that this is against the law. Are the reasons I suggest correct, according to the Ministry? Can you please provide me with any relevant policy or procedural guidelines about this matter?
2. Is it correct that FDR mediators may interview children for section 6 purposes? If so, is it at their discretion who is present in such interviews and what records are made?
3. As the decision-makers in FDR mediation are the parents (usually) do you consider them to be bound by the requirements for “decision-makers” in the Care of Children Act 2004, particularly, Section 5 “Principles relating to child’s welfare and best interests”. If not, why not? If so, what requirements are there that mediators ensure that each and every item in that section is addressed by the decision-makers and how must this be recorded and reported to your Ministry? What monitoring of does the Ministry undertake to ensure there is compliance with section 5 in FRD mediations?
4. International research and NZ research indicates that the children involved in FDR are "at risk". What mandatory provision is there for the violence, depression and suicide assessments to be conducted by a counsellor or psychologist who see these children? If there is no mandatory provision for such assessments, why not? If there is, what are the procedures for the counsellor and the mediator in such circumstances, and do you require recording of this in the mediation documentation (as opposed to the violence registers and responsibilities of counsellors outside of the FDR role). If mediators interview children are they obliged to conduct violence, depression or suicide assessments with them and report in accordance with the requirements for counsellors? Does the Ministry see any conflict with the confidentiality requirements for mediation in such situations and is there any policy guidance provided to mediators in relation to this?
5. The rights of the child to be heard in FDR relate to each individual child. Given the nature of family dynamics and the potential for selective reporting to parents after assessment interviews, is there a policy on the grouping of children to ascertain their views? If so, what is it, please? How do you provide for the resource implications that derive from each child having an individual right to be heard and a right to privacy? The five child family could require five interviews whilst the single child family requires just one.
6. In the financial and time allocation for each mediation, how much of the resource is mandated for work with children? This refers to both the ascertaining of their views and counselling to issues. How much assessment time and counselling time is each child entitled to in the process? For comparison, how much counselling time is the entitlement of each parent?
Yours faithfully,

Dr Robert Shaw