competing constructions of childhood: children's rights and children's wishes in divorce

Journal of Social Welfare and Family Law 19(3) 1997: 291-305

Competing constructions of childhood: children’s rights and children’s wishes in divorce

Liz Trinder School of Social Work, University of East Anglia

Introduction

We are told that children’s rights have now come of age (Franklin, 1995: 3). Whilst there remain doubts about the extent to which rights have become entrenched in some areas, concern has shifted to areas of policy where the autonomy rights of children appear weaker or non-existent. A series of articles and books over the last few years has drawn an unfavourable comparison between the rights of children in public and private law cases (e.g. Jones, 1992; Houghton-James, 1994; Sawyer, 1995; Timms, 1995). The messages distilled from these is that the voice of ‘children of divorce’ is not being sought or being heard, and that the court welfare officer is an inferior substitute for enabling the voice of the child to be heard compared to a guardian ad liternfiegal representative. My intention in this article is not to rehearse the arguments for court welfare officers or for guardians ad lirem. Instead what I aim to do is to explore how (paradoxically) a range of adult professionals construct the very children whose voices they seek to represent.

Over the last few decades theorists have challenged the notion that there is anything natural or fixed about childhood (Aries, 1962; James and Prout, 1990; Qvortrup ef al., 1994; Cunningham, 1995). Children are biologically distinct from adults, but the age at which childhood ends and the ‘nature’ or meaning of childhood is located within specific cultural and historical contexts. Perceptions of children as dependent or vulnerable, or autonomous and competent, are based on normative assumptions about the proper role of children (Melton, 1983-84: 455). But these normative assumptions are continually contested and renegotiated within particular local and historical contexts. The concept, nature and pattern of control over childhood is constantly changing, with a whole range of interests (usually adults) competing to define its nature (Shamgar-Handelman, 1994: 2634).

What I set out to do in this paper, therefore, is to identify four current adult constructions of children and divorce decision-making. First I will produce outline sketches of two primarily legal constructions - the advocate’s child, and the mother’s child, drawing on a range of secondary sources. For the two less visible social work constructions - the parent’s child and the worker’s child, I will go into greater detail based on research interviews with court

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welfare officers. What is striking about the often heated adult professional debates over children’s participation in divorce decision-making is the very limited extent to which children themselves have been players in this ontological game. The paper therefore concludes by examining a more flexible and disjointed construction produced by children.

The legal context The childhood enshrined in the law has itself been subject to considerable change over the last century, moving from the high paternalism of the nineteenth century to a more fragmented construction evidenced in the Children Act 1989. The Act contains a range of competing principles, with a ’liberal’ mix of autonomy rights for children, welfare, parental responsibility and minimum state intervention in family life (Lyon and Parton, 1995). The Act requires courts to have regard to children’s wishes and feelings (subject to age and understanding) (s.1(3)), where an application to make, vary or discharge a section 8 order is opposed by any party to the proceedings. Children’s wishes and feelings are usually channelled through a court welfare officer’s report. In a small number of cases children who are deemed competent may, with the leave of the court, partjcipate more directly in court proceedings, by being joined as parties to proceedings or seeking their own section 8 orders (see Sawyer, 1995). In all decisions made by the courts, however, the paramount consideration will be the child’s welfare (s. 1).

Bell (1993) argues that the Children Act 1989 is a site of tension between apparently contradictory neo-liberal ideas of family autonomy and children’s autonomy. What is germane to this discussion is how this tension is played out differently in different parts of the child welfare system. Whilst there is a presumption that a guardian ad litem will be appointed for children in public law proceedings, for children in uncontested private law proceedings the nature and extent of any participation in decision-making is a private matter with their parents (Bainham, 1990). In terms of divorce the Children Act 1989 leans far more towards family rather than child autonomy than in child protection, where in the name of children’s autonomy and welfare, social work professionals and lawyers can enter the space vacated by parental ‘irresponsibility’. In contrast, the continuing location of ‘children of divorce’ within the (albeit fragmenting) private domain of the family, renders autonomy rights, and childhoods, far more contested.

Little resolution has been achieved by the Family Law Act 1996. The question remains as to where children fit within a system emphasizing parental responsibility and parental decision-making. Some concern has been expressed that the Act relies too heavily on parental agreement and decision- making and not enough on children’s welfare or children’s rights (see Piper, 1994; Richards, 1995; Douglas ef al., 1996).

The primary strategy deployed in the Family Law Act is for professionals to encourage parents to consider children’s wishes and feelings. This will occur at a number of stages: at the information meeting stage (s.8(9)(b)), in mediation (s.27(8)(a)) and in consultation with legal representatives

Competing constructions of childhood 293

(s.l2(2)a)). Some children will be given a direct role in the process, through direct consultation in mediation sessions (s.27(8)(b)), or through separate representation in proceedings (s.64). In the later case the numbers involved are likely to be small.

The advocate’s child The perceived inadequacies of the Children Act, particularly the limited autonomy rights given to children in private compared to public law proceedings (Freeman, 1995: 74) has generated intense debate. Building on earlier trailblazing work by Foster and Freed (1 972) and Justice ( l975), children’s rights lawyers and some guardians ad lirem have returned to the question of independent legal representation of the child in divorce cases. Rather than immature and incompetent objects of concern, here children become independent ‘speaking subjects’ (Sawyer, 1995), whose interests are independent of and possibly in conflict with those of their parents. Sawyer (1995: 191, 194), for example, links independent representation of children to liberal notions of natural justice and individual rights. Houghton-James (1994), argues strongly for the appointment of GALS in private law proceedings, on the basis that the balance of power in decision-making is in favour of parents who can use children as ‘political pawns’ in divorce, thereby disregarding their interests. This construction places (in theory) more emphasis on children’s autonomy (or at least participation) than welfare, or (in a weaker form, or in practice) on autonomy as a more central determinant of, or guide to, welfare.

There is a strong presumption of children’s competence to participate in decision-making, or at least to formulate their own independent views (Houghton-James, 1994). Furthermore, i t is argued, it is harmful to children to ignore these views, and beneficial to children to participate in decision- making. The solution to the damage caused to children by divorce comes from an articulation of the child’s interests and preferred solutions. Houghton-James argues that children’s abilities to formulate and express a view should not be underestimated, and that children should be allowed to make a mistake where the issues are not life-threatening (1994: 199). Sawyer argues for separate representation for some children on the grounds that the potentially damaging process for children of ‘selecting’ a parent could be outweighed by the cathartic nature of saying one’s piece and being heard even if one is ‘wrong’ (1994: 191). Similarly Timms argues that involving children in decision-making is a positive step, and enhances children’s self- esteem and sense of personal autonomy (1995: 441).

A common refrain is the inadequacy of court welfare officers in repre- senting children’s interests. Jones ( 1992) draws an unfavourable comparison between the advocacy role and sustained contact with children of the GAL and the work of court welfare officers (see also Houghton-James, 1994; Timms, 1995). This goes far beyond inter-professional rivalries, and relates much more to alternative conceptions of children. In this construction merely ascertaining wishes and feelings (consultation) does less than justice to


demands that children should have at least an equal right as adults (and children in public law cases) to be seen as separate legal personalities, as clients with equal rights to representation in court (CRDU 1994: 32). There is a strong emphasis on the impact of divorce on children, but with the solution to harm emerging from an articulation of the child’s interests and preferred solutions.

The mother’s child Swimming against the children’s rights tide, the feminist lawyer Martha Fineman provides a different account of childhood. She strongly criticizes the notion of child advocacy/independent representation, which she argues is based on a concept of children as separate independent rights-holders, and the family as a set of individuals with potentially conflicting rights (1989: 3 1-2). This, she contends, does little to help children, instead simply providing an opportunity for intervention by professionals. This factor in turn operates to empower fathers who benefit from professionally-defined gender-neutral interpretations of ‘best interests’ (1989: 30, 35). The alternative construct of the child explicitly offered by Fineman is one of vulnerability, where children are ‘unwilling or unable to choose’, and where the act of expressing a preference or view is harmful, even for older children (1991: 105). Implicitly, what Fineman seems to offer is a child whose interests are indivisible from its parents, or, to be more specific, whose interests are inseparable from its primary caretaker, i.e. the mother, in the great majority of cases.

Other feminists, writing in the context of domestic violence in the UK, are also wary of relying on children as decision-makers and also equate children’s interests with those of their mothers. Hester el af. (1994: 117) criticize lawyers and court welfare officers who interpret a child’s refusal of contact with fathers as due to maternal influence. Hame and Radford (1994: 79) are doubtful of children’s ability to form a true opinion in the context of socially structured unequal gender relations, giving examples of potential bribery and intimidation by fathers of children.

Social work constructions

The material for the following two social work constructions of children is drawn from fifteen in-depth interviews with officers from four different court welfare teams in England. One team was based in a multi-ethnic urban area, two were based in white rural areas, and one predominantly white urban area. All the interviewed officers were white. Officers were asked to describe and account for their general approach to working with children whilst preparing welfare reports for the court, and were asked to talk through one or two (anonymized) cases. Interviews were taped, transcribed and then analysed.

What became apparent was that there was a high degree of verbal agreement on certain key principles: that the burden of responsibility for making decisions should not be placed on the child, that what children said was not confidential, and that children’s comments were an important but not


the sole consideration. However, once officers started explaining their general approach to the work, and particularly when they talked about specific cases, the consensus quickly broke down into two very different approaches incorporating different constructions of childhood - the parent’s child an the worker’s child.

The parent’s child Two of the four teams (one rural, one urban), were working within a broadly systemic family therapy framework (see Howard and Shepherd, 1987). This systemic frame constructed children in a very different way from the two legal constructions. Children were seen as belonging to the junior ranks (the child sub-system), a part of the family unit, but separate from the aduldparent dyad (the parent sub-system). Team practice centred around enhancing as far as possible the ability of parents to make decisions on behalf of their children. The interest of the child was understood within the family context, rather than being a more individualized interest. What parents agree on i s what the child’s interest is:

I think if we go down that road [independent representation for children] we are getting into the area of almost encouraging the idea that the child is going to have a different idea about the proceedings, about their parents’ separation or divorce. Something about in their own right.

(Experienced male officer 4 Team B)

Children were accorded limited agency and rationality relative to adults. Children were seen as malleable, reacting to and reflecting inter-parental conflict. Thus what children have to say is understood and interpreted in the Iight of the family context, rather than being seen as an authentic or independent position, their ‘real wishes’:

In my experience children don’t have the understanding of an adult. They often have great insight. I can think of a child [S] who is highly intelligent . . . and she thinks she knows everything there is to know about her parents. But she doesn’t. She has given a very child-like logic to the situation, she doesn’t have a broad balanced understanding that an adult might have in that situation.

(Experienced female officer 3 Team A)

For both teams practice was driven by the desire to protect children from the perceived burdens of decision-making. Children were seen as highly vulnerable, but with the main threat to children coming not from the divorce, or, from their parents, but from an inappropriate involvement in adult issues, and having to deal with a potential aftermath of guilt and recriminations. The two teams chose two different means of shielding children. For Team A the emphasis was on trying not to see the child directly and placing great weight on information about the child acquired indirectly from parents and other adult sources; for Team B it meant working in a very indirect way with the child.

In Team A practice was shifting in relation to children. The team saw their role as working with parents to find a solution for the children, rather than involving all children directly. Children were seen on a case-by-case basis, depending on the circumstances. Children were most likely to be seen if there

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was a significant disagreement between the parents about what should happen, if they were older (about 10 upwards), and if one of the parents was insisting the child should be seen. However, the officers felt that they were subject to a range of pressures from the courts and Home Office which required them to see more children directly:

We see children more now than we did. When I asked for advice it was nearly always ‘What do you need to see the children for? It’s not about them, it is about the ability of the parents to resolve this.’ But National Standards have happened. And we are being encouraged by the courts more and more to see children.

(Inexperienced female officer 4 Team A)

Team practice was to interview the child once at the office, without the parents present, for about forty minutes. In all cases, but particularly where the child was not seen directly, information about the child and the child’s wishes and feelings was sought indirectly from parents and from a range of professionals (e.g. teachers):

In any interview I conduct I would say, ‘If your child was here now and was to express three wishes, what would those wishes be?’ So I don’t think you need to have the child physically in the room to have the child’s voice. Yes, the child’s voice should be heard. And it is. You don’t necessarily need the child there.

(Experienced male officer 1 Team A)

Team B, in contrast, tended to see almost all children face to face, but sought to shield children by eliciting a descriptive rather than an evaluative account of their wishes and feelings. The purpose of the interview was not for the child to disclose their ‘true’ or ‘hidden’ views, which would enable the officer to make the ‘correct’ recommendation. Instead seeing the child focused on the child’s past and current experiences of divorcdseparation:

We are not there to get the child to tell us what they think should happen, but to gain a broader understanding of the child’s emotional world, how they see things, how they feel about things in their family which is going through a process of separation.

(Experienced male officer 4 Team B) The interviews with children were therefore descriptive- and present-orientated. Thus some standard components of the court welfare officer’s toolkit, such as questions about crystal balls (what would you see in the future?) or magic wands (what would you wish for?) were seen as potentially straying into the evaluative, and used with caution.

The team generally saw the child alone once or twice at the team offices. But the preferred model was to interview the child with both parents present, dependent upon parental consent. The purpose of the family meeting was again to throw back decision-making into the parents’ court, to use the child’s testimony as leverage to work with the parents. Such a model of course contrasts strongly with the advocate’s child construction of a separate legal personality, and has been strongly criticized by Swann (1990: 24) as


amounting to treating the child as a possession. The family meeting model, however, is highly consistent with the team’s construction of the child as dependent, at risk from the process, and with interests synonymous with the family’s interest:

I t is very important that a child has a right to be a child and that it can expect its parents to make decisions on its behalf rather than fear that it’s got to do i t for them. That’s where you are asking too much of a child. So at the moment we’re looking more at children’s interests within the context of their own families rather than looking independently just at what the child wants.

(Experienced male officer 3 Team B) For both systemic teams ideas and practice about children’s involvement in decision-making were constructed within this framework. The emphasis on their child status, their lack of an independent interest, and their ‘childlike’ understanding means that children should not be involved in making decisions (though they can provide information on the situation). Parents should be making decisions, not courts or children. Furthermore, there is a strong presumption that divorcing or separating parents are responsible and competent. Except in extreme cases children’s welfare can be protected or upheld by their parents. Whilst children’s views might be more important in the public law arena, in private law it was argued that children’s interests could not be singled out, but had to be understood, and upheld, within the family context:

In the public law arena children obviously are represented by a guardian, and the court is seeking to understand the child’s view about those matters. But that type of work is guided very much by the principle of the child’s best interests. And in our work we are looking more broadly than just the child’s interests. We are looking at the child’s interests within the family, because they have got to still live within that family in one way or another, after the divorce or separation has come about.

(Experienced male officer 4 Team B)

It probably comes as no surprise that both teams had a strained relationship with their local courts. For Team A there was pressure from the courts to ascertain wishes and feelings by seeing children directly more than they thought appropriate, and officers from both teams thought that the courts, lawyers in particular, seized upon children’s answers as rational definitive statements, rather than viewing them like the team as ambiguous and contexted.

The worker’s child The other two teams (C and D) worked within a more traditional welfare monitoringhssessing model. Again children were constructed as vulnerable and dependent, but here the sources of damage being the impact of divorce/separation and their parents. Again, unlike the systemic teams, children’s interests were perceived as potentially distinct from their parents, thereby opening up a space for professional support, intervention and assessment. Crucially, however, the more significant participation of children

298 Journal of Social Welfare and Familv Law 19(3) 1997

within the process is mediated by an equivalent emphasis on their childlike status. Children, like parents, are unreliable sources of information. Thus although this position is distinct from the previous one in separating out a child’s interests from its parents, its emphasis on the immaturity of children as actors also distinguishes it from a children’s rights or advocate’s child perspective. Children are defined primarily by needs rather than rights.

Both teams considered that it was vitally important to see children directly in almost every case. Children had a far more significant or extended role, both temporally and functionally, than in the systemic teams. As a means to build up a (short) relationship the child was generally seen three times, with two intro- ductory meetings at each home, and a further separate meeting with the child at the office with no parent present (except with very young children). The purpose of seeing children had two inter-related aspects, to ensure the child’s welfare and, overlapping with that, to identify the child’s perspective. In terms of welfare, officers insisted on seeing the child in person, partly to see that they were all right, and partly to observe interactions with each parent. Interviewing the child was also identified as a means to give a potentially isolated and upset child some support. Children were also seen as a more accurate source of information on the situation than their less reliable parents:

I wouldn’t be happy to just rely on what the parents were saying. I think you get a truer picture of what’s gone on from the children . . . in all sorts of ways children help me to understand what their parents are really saying, and where the balance lies.

(Experienced female officer 2 Team C)

However, it was also seen to be important to see the child to elicit the child’s opinion about the issue. The motivations behind this were mixed, partly so that the officer made the ‘right’ decision, and partly to allow the child to let off steam. This position renders children more autonomous than the previous position, but is trumped by the welfare question far more than the children’s rights perspective. Thus the ‘advocacy’ role, portrayed by one officer, was anchored in the language of needs rather than rights:

The focus of my work is the children. I say to the parents you’ve got your advocates. . . . They are my clients - your children. We serve the courts to inform them of what the needs of the children are. We champion the needs of children in our reports.


Advocacy was directed at parents as well as the courts. The same officer sometimes, with the child’s permission, expounded the child’s frustrations and upset to the parents who were not listening to the child’s opinion:

Sometimes I ask does your muddad know this, and they say yes but he/she won’t listen. . . . And I say I am going to tell your mum and dad about this and if you would like to be there you can be there, or you don’t have to be. But a lot of the children say I do want to be there because it sounds as if they are going to listen. And, it’s a means for the children to ventilate what they feel and their need to be heard.


CornDetina constructions of childhood 299

In both teams the child’s wishes and feelings were directly and actively sought. As well as the usual indirect questions (three wishes etc.), children were asked directly if they had a view on the outcome of the dispute, and, if so, if they wanted to share it with the officer. Both teams also appeared to give more weight to the expressed views of the children:

And sometimes they just say I want to live with this parent. And if things are even stevens, they will get that.

(Experienced female officer 3 Team C )

I did a report recently which focused on the child. The child desperately wanted to live with dad, and he was only 5 . And 5 is not an age for anyone to be taking any notice. So I had to sell i t very heavily, that it was important to give more emphasis than was normal for even a much older child.

(Experienced female officer 2 Team D)

The emphasis on children’s views was mitigated, however, by an equivalent stress on the unreliability, or child-like status, of children. There was no carte blanche for children to determine outcomes. Officers did consider that children had their own opinions, and that i t was vital to identify these. But they also thought that in many instances it was extremely difficult to disen- tangle children’s views from the influence of particular parents. Children could be unreliable witnesses, with views often depending on the circumstances, and changing regularly:

And the boy changed his mind three times, and then finally he was sure he really wanted to Live with his dad. And the little girl was saying I want to stay with my mum.. . . When I first spoke to them they didn’t show any sign of being ambivalent. . . . It taught me how uncertain everything is.


Although the two teams often presented a sentimental view of children as the innocent victims of their parents’ divorce, they sometimes highlighted the danger of handing over power to children, transforming the innocent into little Hitlers. A number of officers told of children alleging abuse when, on the officer’s reading, they had just been told off. There were dangers in giving too much power to children:

It gives them licence to say and do what they like. (Experienced female officer I Team D)

The version of childhood constructed by the two teams, therefore, was one which acknowledged the child as a separate individual, with interests which did not necessarily overlap with hisher parents, and requiring a separate hearing. The key dangers to the child lie in the experience of divorce itself, and exclusion from the decision-making process, rather than the process itself. Ascertaining wishes and feelings is only partly about having a right to a say, and very much more about enabling a welfare professional to make the best possible assessment of the child’s needs and welfare.


The child’s child(ren)

Accessing children’s constructions of childhood is difficult. Although there is a considerable literature by adults on how children should be involved in decision-making, there has been very little research with children on how they see themselves and their role in decision-making. The few studies which indirectly address the question provide ambiguous answers.

A number of studies have concluded that many children would prefer to receive more information about divorce/separation than some parents seem able or willing to give (Murch, 1980; Walczak and Burns, 1984; Mitchell, 1985; Cockett and Tripp, 1994). But opinion appears mixed about extending involvement into giving rather than receiving information. In a wide-ranging poll for the magazine Childright, 90 per cent of 600 13-17-year-olds supported the idea that children should be able to decide for themselves which parent to live with and how much they saw the other parent if their parents split up (Childright 1989: 6). Children who have actually been through the process of divorce seem more ambivalent however. Only a fifth of Mitchell’s (1985) sample thought that children should be given the option where to live. Cockett and Tripp (1994: 45) report that three-quarters of the children in their sample felt they should have been involved by their parents in making contact arrangements, but a fifth of children were involved in making arrangements for contact by default when parents were unable to communicate, and this appears to have been more burdensome ( 1 994: 43).

The only study focusing directly on the experiences of children who have been involved in decision-making processes is an exploratory qualitative study conducted by Susan Meehan in the United States in 1982. Meehan’s study was based on in-depth interviews with fourteen children aged tetween 8 and 12 years who had been seen by court evaluators (a rough equivalent of British Family Court Welfare Officers). The evaluators worked on the basis that a child’s preference could be ascertained by indirect questioning, but were opposed to asking children to directly state a preference.

Although Meehan’s is a small study it provides some fascinating insights into children’s perceptions of themselves and their role in the process. The stories do not blend easily with the adult constructions of childhood identified above. Nor do they present an unitary alternative.

Meehan reported that a third of the children saw themselves as decision- makers and sought to influence the outcome; whilst two-thirds wanted to avoid any responsibility for the outcome of the case. Neither group found that the indirect approach adopted by the evaluators met their hopes. The children who had wanted to influence the outcome felt misrepresented, and were angry about being treated ‘merely’ as children (1982: 55) . The children who had wanted to avoid having to make a decision were angry about being manipulated by ‘trick’ questions, interpreting indirect methods of questioning as adult assumptions of children’s naivetk:

Oh, no, your opinion isn’t important. We just want to know what you think

Competing constructions of childhood 30 1

about this and that . . . who’d you go to McDonald’s with. . . . They must think you are just plain stupid.

(1982: 80)

Regardless of the children’s intentions all felt that they had indeed had an impact on the outcome of the case, a third considering that they had had more influence on their parents (1982: 88). Many of the children were shaken by the loss of parental authority evidenced through the process, particularly by the reversal of usual parentakhild decision-making roles - ‘It just was not right’, ‘it made me feel real strange’ (1982: 82, 83). Meehan argues that involving children exacerbated loyalty conflicts for children ( 1982: 93). with even indirect questioning interpreted as choosing/rejecting a parent. Some children subsequently felt guilty about their influence, some satisfied, and others worrying that they should or could have acted differently (1982: 56, 83). A quarter regretted having made any comments, with one child advising a hypothetical child:

Tell both of your parents that you love them both and that you don’t want to choose between them. Then just sit tight and don’t say any more. Everything that you say then is going to come up over and over again for the next ten years, so decide if you want to live with that. No one told me that. If they had I think I might not have said some things. At least I wish I hadn’t because now I really regret them.

( 1982: 86)

Conclusion

It seems a little paradoxical that children as ‘speaking subjects’ should be constructed by adults. As in other areas of the social, professional groups have discursively produced a subject (the ‘child of divorce’), having mapped the subject’s ontology (here, needs and rights), the professional group knows best how to respond (Foucault, 1975; Donzelot, 1979).

What is remarkable, and frustrating, is how the adult constructions had become ensnared in Bell’s simple familykhild autonomy dichotomy, where children are classified as either subjects or objects, competent or incompetent, reliable or unreliable, harmed by decision-making or harmed by exclusion, wanting to participate or wanting not to participate. The various adult perspectives on hearing ‘the child’s voice’ were based on idealized and stabilized conceptions of childhoods, with no distinction between ‘children’ as living beings and ‘childhood’ as a shifting set of ideas (Cunningham 1995: 1 ) . Thus practice was based (or proposed) on the basis of what are both unitary and normative conceptions of children. Practice then becomes founded upon certainties, the perfected (single) procedure, based on the single conception of the child.

It is difficult to see how each approach could meet the needs of all children. All court welfare officers, and the advocates of child representation state thar children will be invited, but not forced, to participate. But can the same


message be heard? The systemic approach runs the risk of excluding or stifling the voice of the child; the welfare-orientated and advocacy approaches may place undue pressure on the child to express an opinion. Where the assumption is that children are rational and entitled to have a say, the likelihood is that more children will ‘volunteer’ a view; where the assumption is that children are vulnerable and should be protected from decision-making, then it may be that only the more assertive will even get to articulate their view, let alone have it taken seriously. Some children may find a particular approach liberating, others may find it oppressive, while others may find it simply irrelevant. What emerged strongly from Susan Meehan’s research was that children did have agency. Whilst adults battled over the definition of childhood, children were also active in constituting themselves. The version of childhood (discursively) produced by those, children did have some points of overlap with each of the adult versions of childhood, but complete congruence with none.

Roche (1995) has argued strongly for a more differentiated or polyvocal concept of children’s rights, one which recognizes the diversity of childhoods, particularly in terms of ethnicity. But simply fragmenting a unitary category into white, black or Asian childhoods, even if overlaid with gender or class, risks reproducing more equally rigid constructions. Some of the court welfare officers made brief references in interviews to cultural differ- ences surrounding children’s participation in family decision-making. The paucity of these references underlined the difficulty of developing analyses of difference within existing unitary frameworks. Structurally-based childhoods (of ethnicity, class, gender) can become just as essentialist as a universal childhood:

It is really frowned upon for [Asian] children to have a view, or to be expected to say something which would in any way be different to what their parents had told them.

But what is normal for them is not normal for us. Or perhaps i t is?

There are two ways around this impasse. The first way around is to recognize that in many cases decisions made by the courts are merely symbolic, with as far-reaching decisions made by families (with or without children) long after the court has ceased to take an interest (King, 1987). On this reading at least as much emphasis should be placed on meeting basic substantive rights for children (including counselling and support services) as procedural rights.

The second way around the problem is to adopt Pozatek’s suggestion that professionals approach each case as in a position of uncertainty, respecting the complexity and ambiguity of a client’s life. This seems to be given some empirical support by Meehan’s research. Children’s desire to participate or not appeared to be highly individual, and could not simply be read off against any structural factor (i.e. age, or gender). Nor did the degree of agency or rationality associate easily with a desire to participate in the decision- making. Some children had very rational reasons for wanting to influence decisions, but others made a rational decision that they were better off acting


like children by not participating in an adult decision, or choosing non-participation. The ability to participate is different from the desire to participate.

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