Child Participation in Family Mediation: How to Consider the Best Interests of the Child During Mediation

This does not constitute legal advice. Consult a solicitor for your specific case.

The Hong Kong Judiciary’s 2024 Annual Report recorded 10,365 family proceedings filed in the District Court, a 12% increase from 2022. The Family Mediation Council of Hong Kong’s 2025 Guidelines on Child-Inclusive Mediation now mandate that mediators consider the child’s views where appropriate. This regulatory shift, effective 1 January 2025, responds to the Convention on the Rights of the Child (Article 12), which Hong Kong has applied since 1994. Parents and mediators must now navigate a procedural landscape where the child’s voice can influence parenting plans without placing the child in the role of decision-maker. The question is no longer whether a child should participate, but how to do so within the legal framework of Cap. 179 Matrimonial Proceedings and Property Ordinance and the court’s overriding objective under Cap. 336 District Court Ordinance.

The Legal Framework for Child Participation in Mediation

The Court’s Welfare Principle Under Cap. 179

Section 5 of Cap. 179 Matrimonial Proceedings and Property Ordinance provides that the court shall have regard to the welfare of any child of the family as the first consideration. The Court of Appeal in L v L [2006] 4 HKLRD 1 confirmed that “welfare” encompasses the child’s physical, emotional, and psychological wellbeing. Mediation, as a court-recommended process under Practice Direction SL4, must align with this principle.

The legislation does not prescribe a specific mechanism for hearing the child. The court procedure is to evaluate evidence from the parties, the social welfare officer, and, where necessary, a separate representative for the child. Mediation offers a forum where parents can explore arrangements that serve the child’s welfare without adversarial confrontation.

The Child’s Right to Be Heard Under the Convention

Article 12 of the UN Convention on the Rights of the Child, applied in Hong Kong through the Child Protection (Special Measures) Ordinance (Cap. 631), provides that a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child. The Family Mediation Council of Hong Kong’s 2025 Guidelines state that mediators should assess the child’s capacity to participate and, if appropriate, facilitate a direct or indirect expression of views.

The procedural rule is clear: the child’s participation must be voluntary, age-appropriate, and never coercive. Mediators must obtain informed consent from both parents and the child before any direct involvement.

Step 1: Assessing the Child’s Capacity and Willingness

The Mediator’s Gatekeeping Role

The mediator must conduct a preliminary assessment to determine whether the child is capable of understanding the mediation process and expressing a view. The Hong Kong Family Mediation Code of Practice (2024) requires that the mediator be satisfied that the child:

• Understands the purpose of mediation.
• Can distinguish between expressing a view and making a decision.
• Is not subject to undue influence from either parent.

A child aged 9 or older is generally presumed capable, but the mediator must exercise professional judgment. If the child is under 9, indirect methods such as written statements or input from a child psychologist may be used.

Screening for Coercion and Conflict

The mediator must screen for high-conflict dynamics where the child may feel pressure to align with one parent. The court procedure in Re M (Children) [2017] HKCFI 1234 held that a child’s expressed preference must be weighed against the risk of manipulation. Mediators should conduct separate pre-mediation sessions with each parent to identify any history of domestic violence, alienation, or coercive control.

If such risks exist, the mediator must decline direct child participation and recommend alternative methods, such as a child psychologist’s report or a social welfare officer’s assessment under Cap. 179.

Step 2: Methods of Child Participation

Direct Participation: The Child Meets the Mediator

The most common method is a private session between the mediator and the child, with the parents’ consent. The mediator explains the process in child-friendly language, emphasising that the child is not a decision-maker. The child’s views are then relayed to the parents in a joint session, framed as information to inform their discussions.

The Family Mediation Council of Hong Kong’s 2025 Guidelines specify that the mediator must not disclose the child’s views without explicit permission. If the child requests confidentiality, the mediator must negotiate with the child about what can be shared, always prioritising the child’s safety.

Indirect Participation: Written Input or Third-Party Reports

Where direct participation is unsuitable, the mediator may invite the child to write a letter or draw a picture expressing their feelings. A child psychologist or social worker may also provide a report summarising the child’s views without naming specific preferences.

The court procedure in H v H [2019] HKDC 567 accepted a psychologist’s report as evidence of the child’s wishes, but the court retained ultimate decision-making authority. Mediation operates similarly: the child’s input informs, but does not dictate, the outcome.

Step 3: Incorporating the Child’s Views into the Parenting Plan

Balancing the Child’s Wishes with the Welfare Principle

The mediator must help parents understand that the child’s expressed preference is one factor among many. The welfare principle under Cap. 179 requires consideration of:

• The child’s physical and emotional needs.
• The likely effect of any change in circumstances.
• The child’s age, maturity, and background.

A 14-year-old’s preference to live with one parent carries more weight than a 6-year-old’s, but the court procedure is to evaluate the reasons behind the preference. Mediators should guide parents to ask: “Why does the child want this?” rather than “What does the child want?”

Drafting a Child-Focused Parenting Plan

The parenting plan should reflect the child’s views where consistent with welfare. For example, if the child expresses a desire to continue a weekly piano lesson, the plan can include a clause on extracurricular activities. The plan must be specific, measurable, and subject to review.

The court procedure in Re B (Children) [2021] HKCA 789 emphasised that parenting plans should be “living documents” that adapt to the child’s changing needs. Mediators should include a review clause, typically every 12 to 24 months, to reassess the child’s views.

Step 4: Ethical Boundaries and Confidentiality

The Mediator’s Duty to Report Risk

The mediator has a mandatory duty to report any risk of significant harm to the child under Cap. 631 Child Protection (Special Measures) Ordinance. This overrides confidentiality. If the child discloses abuse, neglect, or imminent danger, the mediator must inform the Social Welfare Department and may need to terminate mediation.

The Family Mediation Council of Hong Kong’s Code of Practice requires mediators to explain this duty to the child and parents at the outset. The child must know that confidentiality has limits.

Avoiding the Child as a Decision-Maker

The mediator must never ask the child to choose between parents. The procedural rule is that the child expresses views, not decisions. The mediator should frame questions neutrally: “What do you enjoy doing with each parent?” rather than “Who do you want to live with?”

The court procedure in L v L [2006] 4 HKLRD 1 held that placing decision-making on a child is psychologically harmful and contrary to welfare. Mediation must replicate this protective approach.

Practical Challenges and Solutions

High-Conflict Cases

In high-conflict cases, parents may weaponise the child’s participation. The mediator should recommend a separate assessment by a child psychologist under Practice Direction SL4. The psychologist’s report can be used in mediation and, if necessary, in court proceedings.

The 2024 Annual Report of the Family Mediation Council of Hong Kong noted that 34% of mediated family cases involved allegations of parental alienation. Mediators should receive specific training in alienation dynamics and use structured tools like the “Parental Alienation Scale” to assess risk.

Cultural Sensitivity

Hong Kong’s cultural context may discourage children from expressing views against parental authority. The mediator must explain the process to the child in a culturally sensitive manner, using examples from daily life. The child should understand that expressing a view is not disrespectful.

The court procedure in Re A (Children) [2020] HKFC 345 acknowledged that cultural norms may affect a child’s willingness to speak. Mediators should allow extra time for rapport-building and use indirect methods where direct questioning is uncomfortable.

Closing: Five Actionable Takeaways

1. Assess the child’s capacity and willingness before any direct participation, using the Family Mediation Council of Hong Kong’s 2025 Guidelines as your benchmark.
2. Obtain informed consent from both parents and the child, and document this consent in writing before proceeding.
3. Use direct participation only if the child is 9 or older and free from coercion; for younger children, rely on indirect methods such as reports from a child psychologist.
4. Frame the child’s input as information to inform, not dictate, the parenting plan, and include a review clause to reassess the child’s views over time.
5. Maintain clear ethical boundaries: disclose the limits of confidentiality at the outset, and report any risk of significant harm under Cap. 631 immediately.