Safeguarding the best interest of children in the resolution of custody and maintenance disputes - a case for child inclusive mediation

Abstract

“There can be no keener revelation of a society’s soul than the way it treats its children.”- Nelson Mandela. This quote highlights the fundamental principle that children's well-being and rights reflect a nation’s values and commitment to justice. Children are often the most affected yet the least heard participants in custody and maintenance disputes. While mediation is increasingly recognized as an effective alternative to litigation in resolving family conflicts, traditional approaches often fail to actively involve children in the decision-making process, neglecting their perspectives and opinions. This study explores the concept of child-inclusive mediation, which seeks to ensure that children’s perspectives are heard and considered in a structured and developmentally appropriate manner. The study aims to demonstrate that child-inclusive mediation enhances fairness, improves dispute resolution outcomes and ensures that decisions truly reflect the needs and welfare of the children involved. It evaluates Kenya’s legislative, policy, and institutional frameworks, identifying the gaps that hinder effective child participation in mediation. Through a comparative analysis with Australia, where structured child-inclusive mediation is more established, the study highlights the benefits of giving children a voice in matters that directly affect them. It also examines the potential challenges and considers how Kenya can develop a more inclusive, child-centered approach to custody and maintenance mediation. Ultimately, this research advocates for a more child-centered mediation process that not only resolves disputes effectively but also ensures that children’s rights and well-being remain at the heart of the proceedings.