The New Divorce Legislation in the Republic Of Croatia under the Influence of Psychology, Sociology, and International Law

The New Divorce Legislation in the Republic Of Croatia under the Influence of Psychology,... Abstract Recent scientific interdisciplinary findings in the area of divorce and international law relating to children’s rights have had considerable influence on the current reform of divorce in Croatia. The first aim of the Croatian legislator was to help parents reach an agreement in all matters related to their children, believing this approach could help reduce parental conflict and improve the exercise of joint parental responsibility, contact with the child, and child maintenance compliance. The second aim of the Croatian legislator was to strengthening children’s procedural rights in divorce proceedings. This article is aimed at presenting the interdisciplinary trends that have influenced the Croatian legislator when introducing changes to the divorce scheme and new legal instruments: mandatory counselling, mandatory family mediation, parenting plan, neutral legal terminology, and highlighting the importance of cooperation and communication between parents. These novelties represent a new approach to divorce, putting the focus on the autonomy and responsibility of parents in the organization of family life after divorce. If the agreement on parental responsibility fails, parents will have to face court proceeding which have become more complex due to the response of the Croatian legislator to recent international requirements and guidelines aimed at effective legal protection of children’s procedural rights. The child is explicitly recognized as a party in divorce proceeding, the exercise of the right of the child to be heard is clearly regulated and the child is accompanied with a special guardian who is obliged to represent child’s interests in divorce proceedings. I. INTRODUCTION The rising divorce rates in Europe are no longer regarded as a novelty.1 Similar statistical indicators characterize Croatia, although its divorce rate is lower.2 Taking into account relevant statistical data and global divorce trends, most sociologists are agreed that today we can speak about a decline in marriage that can be attributed, they claim, to the so-called secondary demographic transition, linking such changes in society with their economic development.3 As sociologists study the rising divorce rates, and psychologists deal with the psychosocial consequences of divorce, jurists mostly investigate changes in divorce legal regimes. Divorce used to be prohibited, then the principle of fault was introduced and after some time abandoned, and finally, in the second half of the 20th century, the irretrievable breakdown of marriage emerged as the main legal basis for divorce (Antoloskaia, 2006: 313–66; for the Croatian context, see Alinčić, 2002: 1159–79). In terms of family law, it is the rising divorce rate on one hand and protection of children’s rights on the other that have captured the growing attention of both international experts and national legislators. The 2004–2012 data from the reports of Croatian ombuds(wo)men for children demonstrate that violation of the right of the child to parental responsibility by both parents after divorce, violation of a child’s right to contact with the non-resident parent, as well as violation of the right of the child to be heard in divorce proceedings, together with protracted judicial proceedings, represented the most frequent reasons for referrals to her office.4 The above reports triggered the reform of Croatian family legislation in the field of divorce with a special emphasis on divorce involving minor children.5 In recent years international law and other scientific disciplines, such as psychology, sociology, or economics, have had a strong influence on national systems and Croatian family law has been no exception (Schwenzer and Aeschlimann, 2005: 178–85; Lowe and Douglas, 2015: 14). Indeed, scientific findings in the area of divorce psychology and international law have been a major influence on the new divorce regulation in Croatia. This article is aimed at presenting the interdisciplinary trends that have influenced the Croatian legislator when introducing changes to the Croatian divorce scheme. Section II of the article sets out research findings on the psychosocial consequences of divorce with respect to spouses and their children. Section III sets out the structure of the new Croatian divorce law, together with the way it is implemented, including some of its detailed provisions concerning parenting plans and mediation. Section IV considers the Croatian legislator’s response to its international obligations concerning children’s rights in divorce procedures, and Section V offers some conclusions. II. RESEARCH ON THE PSYCHOSOCIAL CONSEQUENCES OF DIVORCE Because of the large number of divorce proceedings, the psychosocial consequences of divorce have attracted the interest of various experts: psychologists, marital therapists, and psychiatrists. Based on a large quantity of scientific research, the literature dealing with divorce describes the short-term and long-term reactions of spouses to divorce as well as the life phase, which spouses go through during the divorce process. One of the acknowledged theories of spouses’ reactions to divorce was constructed by Amato in 2000 (Amato, 2000). He suggested that the key indicators of the spouses’ reaction to their divorce are as follows: (i) divorce as the main source of stress; (ii) other sources of stress, which follow it; and (iii) factors that protect spouses in the divorce process from stress or mitigate it. According to this broadly accepted theory, divorce as the basic source of stress has effect on both sexes, particularly on the abandoned spouse, whereas other sources of stress are built on the elementary stress (Amato, 2000; Čudina-Obradović and Obradović, 2006: 554–55; Amato et al, 2011: 514). Other sources of stress originating from divorce can be classified in three groups: social causes (termination of joint life with children, termination of joint friendships, conflict with the ex-spouse, failure at school, worse job performance and others); psychological causes (anxiety, mood swings from feelings of happiness resulting from the achieved independence to anxiety and depression owing to the fear of uncertainty) and various forms of behaviour (initial lack of organization in the family, parental and business affairs which used to be performed together by spouses). All the above stress sources are regarded as a short-term reaction to divorce and their average duration is up to a year while handling the stress depends on protective factors such as a spouse’s gender and age, duration of marriage, and a new partner (Čudina-Obradović and Obradović, 2006: 555–7). As far as long-term reactions to divorce are concerned, research shows that their duration can exceed several years and examples include weaker physical fitness, depression, a low level of social inclusion, weakening economic power, and low life satisfaction, general welfare and happiness. The factors of long-term reactions to divorce are believed to be interconnected and one person does not necessarily have to go through all the above consequences of divorce (Čudina-Obradović and Obradović, 2006: 555–7, Amato, 2000; Amato, 2014: 10–12). In almost every divorce process, in whatever jurisdiction, spouses experience great stress and complex emotions such as anger, sorrow, rage, guilt, and fear. Some can handle them well and some are not so successful (Emery, 2012: 39–61). Couples without children can obtain a court decision on divorce rapidly and both can move on with their life, focus on themselves, and terminate contact with their partners. However, spouses with children are not so fortunate. Parents going through divorce face many difficult challenges. Combating their own stress and devastating emotions, they are forced to deal with the legal consequences of divorce, regulate their property relations, and parental responsibility and cooperate with each other, avoiding conflict for the sake of protection of the well-being of their children (Emery, 2004: 6). Early research on the psychosocial consequences of divorce revealed that children of divorced parents were less likely to become highly educated and more likely to suffer from behavioural problems and depressive moods as well as to experience divorce themselves later in life, although most children, due to their stamina and adaptability, are not at such high risk when it comes to divorce (Peterson and Zill, 1986: 295–307; Amato and Keith, 1991: 26–46; Emery, 2004: 64–65;, according to Douglas, 2006: 12). Unlike the previous studies, which were focused exclusively on the psychosocial consequences of divorce, later research took into account the family history of the subjects. It emerged that a significant number of the problems affecting children after divorce had emerged at the time when their parents lived together. This later research confirmed the thesis that it is not the divorce that is the cause of the psychosocial problems of children but the conflict of their parents, which has direct impact on the children’s psychological state and the quality of the parent–child relationships (Emery, 2004: 64–69; Cummings and Davies, 2010; Amato et al, 2011: 514; Emery and Emery, 2014: 155; Emery, 2016: 35–40). However, in either case, the conflict between the parents has turned out to be the key cause of the child’s psychosocial issues. Regarding the factors which may reduce psychosocial risks for children of divorced parents, those researchers point to the way parents handle their own psychosocial problems caused by divorce, a positive parenting style and cooperation between parents with respect to the child. On this view, the most important factors for reducing the psychosocial risks for children after divorce are (i) absence of conflict between parents concerning their child; (ii) contact with the child and (iii) a regular child maintenance settlement (Amato et al, 2011: 514; Amato, 2014: 15–16; Emery, 2016: 35–40). These findings have led contemporary legislators and policymakers to recognize the advantages of alternative methods for resolving family disputes. Among those advantages is mitigation of the spouses’ stress as a direct consequence of divorce. In contrast, divorce court proceedings enhance conflict and prolong the condition of stress (Schepard, 2004: 62–3; Emery, 2004: 150–1; Amato et al, 2011: 52; Parkinson, 2011: 8–9; Emery, 2012: 209). Divorce court proceedings generate additional stress by adding to the basic stress caused by divorce itself: put simply, it adds fuel to the fire. III. THE NEW CROATIAN DIVORCE PROCEDURE 1. General structure and implementation Based on such studies, the 2015 Croatian Family Act (hereinafter FA 2015) requires spouses with minor children to make two mandatory steps before initiating divorce court proceedings: participation in mandatory counselling at social welfare centres; and participation in a first information meeting with a family mediator.6 Mandatory counselling is conducted by a team of experts working in social welfare centres (social worker, psychologist, and lawyer). It requires the expert team to perform initial screening of partner and family relationships. This is particularly important when there is suspicion of child vulnerability or domestic violence. The FA 2015 envisages a wide range of measures which can be undertaken in the mandatory counselling procedure, depending on the case: (i) advising spouses to undergo marital therapy, (ii) providing spouses with assistance in reaching an agreement on parental responsibility, (iii) referring spouses to family mediation, (iv) referring spouses to court proceedings in cases of high conflict divorce, (v) undertaking measures for child protection, or (vi) protecting the victims of domestic violence. This enables multidisciplinary assessment of partner and family relationships in this initial procedural stage of divorce. Divorcing parents attend sessions together or individually. The child is allowed to express its views already in the mandatory counselling procedure.7 The Mandatory Counselling Ordinance8 thoroughly regulates the length and procedure of mandatory counselling as well as the duties of the expert team. First of all, a social worker or psychologist advises the spouses, if deemed beneficial to them, to undergo marital therapy. The further task is to educate spouses about the psychosocial consequences of divorce for them and for their children, the developmental characteristics of children, the stages of divorces, and the process of adaptation to divorce, the phases of conflict and the phases of reducing the conflict between the partners. The social worker or psychologist is expected to assess the child’s vulnerability or the potential presence of domestic violence if it is suspected. Their duties also include undertaking appropriate measures for protecting the child or the victim of domestic violence. Last, but not least, they are assigned the duty to provide spouses with assistance in reaching an agreement on parental responsibility. If such an agreement cannot be reached in a short period of time (three sessions) and if it is deemed that equal participation in family mediation can be achieved, then the couple should be referred to family mediation. Each of the three mandatory counselling sessions in the social welfare centre can last several hours.9 If there is no agreement on parental responsibility, a further goal of mandatory counselling is informing parents on the subsequent divorce procedure by the lawyer. Parents are thus informed of the duty of attending the first information meeting with a family mediator and on the divorce proceedings at court where the child is an independent party who has the right to an independent representative, as well as the right to express its wishes. If the spouses have not reached an agreement on parental responsibility within the mandatory counselling, they must attend the first meeting with a family mediator at which they are informed about the procedure and benefits of family mediation and the advantages of amicable regulation of family relationships with an emphasis on the best interests of the child. Family mediation is a procedure in which parties attempt to amicably resolve a family dispute with the assistance of one or more family mediators.10 Mandatory counselling is free of charge for all couples without a financial test. Family mediation is also free if it is provided within the system of social services. If it is conducted by private family mediators, then it incurs certain charges.11 There are 63 registered family mediators in Croatia, out of which there are only six private family mediators.12 Generally, spouses opt for the mediation organized by social services. Mandatory counselling provides spouses with information on the legal framework and aid in reaching an agreement whereas family mediation offers assistance in reaching an agreement. The first research on the system was conducted by journalist Kristina Turčin who compared the number of divorces by mutual consent including an agreement on parental responsibility with divorce petitions filed at court (divorce without agreement) over the same period of 8 months. When the former FA 2003 was in force, agreements on parental responsibility and child maintenance were reached in 34.6 per cent of divorces compared to 65.4 per cent of divorce petitions without such an agreement. This ratio has been changed in favour of agreements since the entry into force of the FA 2015. Now parents manage to reach an agreement (parenting plan) in 69.9 per cent of divorce cases, while divorce petitions without agreement are lodged in 30.1 per cent of divorces.13 An agreement is mostly reached within mandatory counselling. 2. Parenting plans and neutral terminology As part of the new divorce process, with which the Croatian legislator intended to regulate the procedures for mitigating the conflict between parents and to encourage parents to cooperate in the exercise their parental responsibility, new mechanisms were introduced: parenting plans and neutral legal terminology. The FA 2015 prescribes a new form of a temporary and flexible instrument, a parenting plan, as a written agreement between parents on the manner of the exercise of their parental responsibility after divorce.14 The possibility of an agreement between parents is not a novelty in Croatian family law. However, what is new is the terminology that focuses on planning the child’s family life after divorce. Also, there are new legal duties on which parents should agree if they wish to exercise joint parental responsibility. One of the new legal duties entails agreeing on the way information about the child is to be exchanged, modes of communication and how possible disputes relating to parental responsibility are to be resolved.15 The FA 2015 specifies the age and maturity of the child as developmental elements, which are intended to constitute the core of the parenting plan. Indeed, in view of the developmental phases in the child’s life, from infancy, through the pre-school and school period to puberty and adolescence, the parenting plan should be adapted to the child’s developmental needs at the time of divorce. Further, it would be useful to revise it as the child grows up or to adjust it to the changes in the parents’ life.16 In that way, developmental psychology has influenced the introduction of a parenting plan and hence played an important role in shaping the new divorce procedure in Croatia. The legislator’s desire to mitigate further the conflict between parents in the divorce process is shown by the introduction of non-traditional legal terminology. In contrast to traditional legal terminology, according to which ‘the child lives with one parent and contacts the other’, a parenting plan foresees the duty of making an ‘arrangement of time which the child is to spend with each parent’ as well as the duty to ‘exchange information about the child’. It is clear that amendment of legal terminology may not in itself modify the parents’ perception of parental responsibility after divorce, change their personality, or influence their attitudes. Nevertheless, appropriate legal terminology may contribute to a neutral and clearer definition of parental responsibility and appear as a response to classical issues such as a residence order or right to contact with the child. 17 Parental cooperation is a crucial prerequisite for reaching a parenting plan and appears to be one of the elements, which is considered very important by the court when it is invited to decide on parental responsibility. The mandatory counselling procedure concludes with a report which, among other things, needs to contain information on the willingness of each parent to enter into an agreement on parental responsibility, their cooperation, and their willingness to take part in family mediation.18 If, despite mandatory counselling and family mediation, they do not come to an agreement, the court is invited to decide on parental responsibility. One of the arguments which may be used by the court when deciding on sole parental responsibility is the willingness of a parent to cooperate, including his or her willingness to enable and encourage contact between the child and the other parent.19 Another factor that reduces the psychosocial risks of divorce for children is regular payment of child maintenance. Indeed, divorce leads to a fall in the economic standard of the whole family, which generally results from splitting one household into two and losing economies of scale. However, in that case, the mother’s and children’s economic standard declines after divorce while the father’s economic standard increases (Amato et al, 2011: 514; Amato, 2014: 10; Emery, 2012: 125–6) .20 One of the factors that may reduce the psychosocial risks of divorce for children is avoiding a sharp fall in the economic standard of the child. One of the roles in this context is played by regular settlement of child maintenance. Regular settlement of child maintenance also plays a major role in regard to regular contact with the child and participation of both parents in the child’s life. The existence of a direct link between the settlement of child maintenance and contact with the child has been disclosed by recent American research, which comprised data on the fathers’ attitude towards child maintenance and contact with the child in the circumstances of separate life in the period from 1970 to 2000 (Amato et al, 2009: 43).21 This research has actually confirmed the results of a number of previous studies demonstrating a firm bond between the settlement of child maintenance and the realization of the contact between children and non-resident fathers (Skinner, 2013:250; Nepomnyaschy, 2007: 93; Koball and Principe, 2002:2). 22 Pursuant to all the previous studies as well as to this research, fathers paying child maintenance see their children more often. Yet, the causal connection between these two factors remains vague. It might be that fathers seeing their children regularly have a better insight into the child’s needs and that fathers settling their child maintenance on time think that they have ‘earned’ the right to contact with their children while mothers receiving child maintenance feel the duty to encourage the contact between the child and its father. Notwithstanding the above conclusions, one cannot exclude the third sociological factor influencing regular settlement of child maintenance and contact with the child after divorce, and that is the change of social norms in the 21st century, which point to the importance of the economic and social role of fathers in their children’s lives (Amato et al, 2009: 43; Skinner, 2013: 250–51). The aim of the Croatian legislator was to help parents reach an agreement in all matters related to their children: joint exercise of parental responsibility, contact concerning children and child maintenance, believing this approach could help reduce parental conflict, improve child maintenance compliance and contact with the child. 3. The role of family mediation Family mediation has been provided to parents for some 40 years and is becoming more common in most European states23 and its development goes beyond national boundaries.24 The promotion and development of family mediation throughout contemporary legal systems is based on many studies conducted in many states over the last 30 years. Most of those studies have indicated the benefits of family mediation compared to court proceedings, particularly the fact that it brings about improvement in partner relationships, reduces conflicts and facilitates communication between parents, enhances satisfaction for the agreement reached, and reduces the time and costs of divorce (Beck and Sales, 2000: 1020; Kelly, 2004: 3, 28–9; Parkinson, 2011: 342–3). They do not however show that these results necessarily follow when mediation is compared with agreement reached by other means, for example, negotiation between lawyers. Unless there is high parental conflict, contact between parent and the child has been seen as the most significant factor in protection from the psychosocial risks of divorce with respect to children. A longitudinal study comprising 71 families who were surveyed for 12 years after they split compared the influence of intensive family mediation on family relationships with that of court proceedings. The study demonstrated that parents tend to keep contact with their children more after reaching agreement within the family mediation procedure than parents who opted for a court decision (Emery, 2012: 197–9). What seems to be paradoxical here is the fact that the number of conflicts between parents who have reached an agreement on parental responsibility did not grow despite more frequent contacts with the child and a higher level of involvement in its upbringing and nurture, which opens up more space and time for conflicts and misunderstandings than in case of parents whose parental responsibility is regulated in judicial proceedings. Yet we should not neglect the fact that in spite of many acknowledged benefits of family mediation and agreements, some parents can only resolve or mitigate their conflicts at court (Emery, 2012: 213; Emery and Emery, 2014: 157–8). Much other research has concluded that contact with the child and co-operation between parents is much more effective when parental responsibility is regulated by an agreement rather than imposed by a court. However, here it is vital to stress that the quality of the non-resident parent–child relationship is much more important than the amount of time they spend together (Douglas, 2006: 27; Trinder, 2003: 404–405). Saposnek (2004) holds that the type of family mediation typical for the 1970s and 1980s is not appropriate for modern families with more serious and multiple problems, who use a plethora of public agencies (child protective services, criminal court, welfare services, etc.). Therefore, Saposnek emphasizes the need for preventing family disputes and participation in divorce education classes prior to beginning mediation, which may exercise positive influence on conflict reduction and the preparation of parents for mediation. Saposnek’s further proposal relates to the screening methods that have proved empirically to predict success or failure in mediation, bearing in mind the fact that families with complex problems should not all be treated in the same way, or all directed to mandatory family mediation. He singles out the paradox that complex cases requiring more flexibility, intensive aid and a therapeutic approach (high conflict parents and cases involving domestic violence) are usually directed to court since a limited single model of mediation is not appropriate for them. He concludes that family mediation has proved to be a sound, dynamic, effective, and well-liked process, but further empirical research is needed to validate, direct, and facilitate its future growth (Saposnek, 2004: 37–50). Similarly, Salem (2009) claims that times have changed dramatically since mediation was introduced in the 1970s, adding that mediation is no longer the only alternative to the adversarial litigation process and litigation is no longer so adversarial. The number of available services has grown and includes traditional evaluation and conciliation, such as conflict resolution conferences, non-confidential dispute resolution and assessment, early neutral evaluations, special programmes for high-conflict families, collaborative law, cooperative negotiation agreements and parenting coordination. However, mediation still represents the core of family dispute resolution. Salem believes that because of the development of hybrid alternative models for the resolution of disputes between parents as well as the changing nature of the litigation process, it seems difficult to insist that mediation should be required of every family. Therefore, he advocates a triage system, which could be used to match families to the most appropriate services rather than simply referring them to mediation. Through early screening courts could provide a more holistic response to the needs of families than is currently available (Salem, 2009:384, 380–5). In spite of concerns expressed regarding family mediation, its benefits attested by studies conducted over the past 30 years have persuaded the Croatian legislator to reform the divorce procedure as well as obliged parents try family mediation. Further, no matter how many complex problems parents and children face nowadays, from the perspective of law two things are of primary need: (i) clear legal guidelines for new family life after divorce and (ii) prompt protection of their rights. These legal demands do not diminish the importance of the new education and therapeutic aid provided to parents and children. What matters in this context is time flow. Children involved in divorce cannot wait for a therapeutic remedy for the psychosocial problems of their parents, for resolution of problems with mental health and for therapeutic effects on high conflict relations and domestic violence The new divorce procedure in Croatia is in fact a combination of the long-standing national tradition of mandatory conciliation that goes back to 1978,25 widely accepted family mediation and the elements of a contemporary triage system in which different types of parents are directed towards different services. One of those services is court proceedings in which children, influenced by international law, have a new role, described in Section III. Not every couple who has failed to reach agreement on parental responsibility is referred to family mediation but only those for whom this could be beneficial. Whenever there is suspicion of domestic violence, the spouses are not referred to family mediation. The difference between mandatory counselling and family mediation is reflected in their goals. The goals of mandatory counselling are manifold, including (i) initial screening of partner and parent–child relationships; (ii) education about the psychosocial and legal consequences of divorce; (iii) education about the stages of divorce and the process of adaptation to divorce and the phases of reducing the conflict between partners; (iv) protection of children and partners from domestic violence and (v) assistance in reaching an agreement on parental responsibility. On the other hand, family mediation is exclusively aimed at reaching an agreement on divorce, which may refer to parental responsibility, property relations, and maintenance. What mandatory counselling and family mediation have in common is providing assistance in reaching an agreement on parental responsibility. Unlike social workers and psychologists working in social welfare centres, a family mediator has enough time and knowledge to assist spouses in reaching an agreement not only on parental responsibility but also on complex issues in their relationship.26 Pursuant to research evidence on the negative psychosocial consequences of divorce for spouses and their children, the Croatian legislator has introduced mandatory pre-judicial divorce procedures aimed at protecting spouses and their children from divorce stress and conflict or, at least, at their mitigation. Besides, introducing the duty of informing spouses about the judicial divorce procedure and the right of the child to express his or her views, the legislator wished to achieve transparency and predictability of procedures. It wished to enable parents independently to assess, on the basis of information, whether to accept the benefits provided by the state in reaching an agreement or initiate expensive and complex divorce proceedings with an uncertain outcome regarding post-divorce parental responsibility. This way the legislator wished to diminish conflict between spouses and guide them towards settling the consequences of divorce by agreement whereas court proceedings should be the last solution in this regard. IV. THE INFLUENCE OF INTERNATIONAL LAW ON THE PROCEDURAL STATUS OF THE CHILD IN DIVORCE PROCEEDINGS Croatia’s international obligations and the efforts of the United Nations,27 the Council of Europe,28 and the European Union29 have pushed the Croatian legislator into sounder regulation of the protection of children’s procedural rights in divorce proceedings with the aim to achieve their full protection in practice.30 The UN, the Council of Europe, and the European Union have done much to enhance children’s procedural rights, which are reflected in the preparation and publication of guidelines, handbooks, evaluations, and recommendations for more efficient and concrete exercise of children’s rights in the judicial practice.31 The strengthening of the children’s procedural rights in divorce proceedings has also been influenced by recent judgements of the European Court of Human Rights in this field.32 Thus, the child has been provided with the status of a party in divorce proceedings, with the right to directly or indirectly express its views in all extrajudicial and judicial proceedings and, at the expense of the state, with a special guardian in contentious divorce proceedings, whose duties are clearly prescribed by the law. Hence, contentious divorce proceedings involving minor children have become more complex before Croatian courts but also more focused on the protection of the best interest of the child. 1. The child in divorce proceedings The new FA 2015 explicitly recognizes the child as a party in divorce proceedings, whether its parents have drawn up a parenting plan or the court is to decide on their parental responsibility. In proceedings in which the court verifies the parenting plan, the child is represented by its parents whereas in contentious proceedings dealing with divorce and parental responsibility, the child is represented by a special guardian.33 Children over 14 years of age have specific procedural capacity based on which they have the right, in divorce proceedings deciding on their rights and interests, to bring out facts, produce evidence, submit legal remedies, and undertake other action if permitted by the court and under the condition that they are capable of understanding the meaning and consequences of such action. If the child does not empower an attorney for its representation, the court shall ex officio appoint a child’s special guardian who is obliged to represent the child in the proceedings. The costs of a special guardian are borne by the state.34 The UN Committee on the Rights of the Child lays down the need for implementation and exercise of the rights of the child, above all within its family and then in family proceedings. When it comes to the family environment within which child-relevant decisions are made, the Committee acknowledges a certain limitation in evaluating the exercise of the right of the child to express its views within its family. Therefore, it stresses the duty of Member States to promote parent education on a positive approach considering child involvement in making family decisions.35 The response of the Croatian legislation to this request of the UN Committee on the Rights of the Child is reflected in the legal duty of parents to introduce their child to the content of the parenting plan, to enable it to express its opinion and to respect this opinion in compliance with the child’s well-being.36 Concerns have been expressed about the attention paid to children’s interests in mediation and the opportunities for children to express their views in mediation (McIntosh et al, 2004; Ryrstedt, 2012; Bell et al, 2013; Maclean and Eekelaar 2016: 87–91). Therefore, within the mandatory counselling procedure, expert teams are obliged to inform parents on the duty of respecting the child’s right to express its opinion relating to the organization of family life after divorce. Besides, the child may express its opinion both in the mandatory counselling and in the family mediation procedure.37 The UN Committee on the Rights of the Child insists on interdisciplinary education of experts who communicate with the child. These may be judges or child’s representatives. Concerning children's representatives, their key task is to faithfully convey the child’s opinion to the court while all the participants in the judicial proceedings should be aware of the fact that the exercise of the right of the child to be heard is an integral stage of the court proceedings and decision-making and an integral element of the best interest of the child.38 In regard to all contentious divorce proceedings, the Croatian legislator has obliged the court to provide the child with the possibility of expressing its opinion in a convenient place and accompanied by an expert. Regarding children over 14 years of age, judges may talk to them directly while with respect to younger children, they need to be accompanied by a special guardian or expert.39 The court must dedicate part of its reasoning to the child’s opinion, no matter whether it has taken the opinion into consideration or has not required it at all, which has to be supported by an explanation.40 2. The child’s special guardian in divorce proceedings In 2010, Croatia committed itself before the Council of Europe to provide the child with an independent guardian in all divorce proceedings relating to parental responsibility and childcare.41 Accordingly, the Croatian legislator has set forth the duty of the court to appoint a child’s special guardian who is supposed to represent the child’s interest in the proceedings deciding on the post-divorce parental responsibility.42 A licensed lawyer working in a newly established institution can be appointed as a special guardian.43 The law explicitly governs the duties of a special guardian prior to and after the court proceedings in compliance with the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.44 The duties of a special guardian are as follows: represent the child, inform it about the subject matter, course and outcome of the case in a way appropriate to its age and maturity, talk to the child’s parents and, if need be, to other people who have a close relationship with the child.45 The basic duty of a special guardian is to provide the child with the possibility to be heard and express its views before the court, and after pronouncing the decision, to inform the child of the content thereof and the appertaining right to appeal.46 The UN Committee on the Rights of the Child points out the necessity of interdisciplinary education of all experts communicating with children and persons representing children in court proceedings.47 Although in Croatia there is no legal duty to attend training for communicating with children, special guardians have completed university education containing elements of developmental psychology, medicine, communication practice, children’s rights, and judicial procedures.48 The FA 2015 precisely regulates children’s procedural rights in divorce proceedings. The child is explicitly recognized as a party therein, the liabilities of participants in the procedure relating to the right of the child to be heard are clearly regulated and the child is accompanied by a person who is expected to represent its interest in divorce proceedings. The depicted regulation of children’s procedural rights is the response of the Croatian legislator to the accepted international liabilities, recent international requirements and guidelines aimed at concretization of the legal protection of children’s procedural rights and achievement of the best interest of the child standard in all proceedings dealing with children’s rights. V. CONCLUSION: ‘THE GOOD DIVORCE’ UNDER THE NEW CROATIAN FAMILY ACT Taking account of the results of a number of scientific studies on the psychosocial consequences of divorce, the Croatian legislator has attempted, by means of a number of legal interventions in the divorce procedure, to develop procedures which might mitigate the conflict between parents, encourage regular contact with the child and avoid a sharp drop in the economic standard of parents and their children. In fact, introducing new legal mechanisms, such as mandatory counselling, mandatory family mediation, a parenting plan, neutral legal terminology, and highlighting the importance of cooperation and communication between parents have shaped a new approach to divorce, putting the focus on the autonomy and responsibility of parents in the organization of family life after divorce. If agreement on parental responsibility fails, parents will have to face divorce court proceedings which have become more complex under the new FA 2015. Croatia’s international obligations and the efforts of the UN, the Council of Europe, and the European Union have persuaded the Croatian legislation to precisely regulate the protection of children’s procedural rights in divorce proceedings. New regulation of children’s procedural rights represents the response of the Croatian legislator to recent international requirements and guidelines aimed at concretization of the legal protection of children’s procedural rights and achievement of the best interest of the child standard in all proceedings dealing with children’s rights. Paul Amato, one of the leading world authorities when it comes to the psychosocial consequences of divorce for parents and their children, has drawn the conclusion that every mechanism helping parents improve their cooperation on post-divorce childcare and maintain a high-quality relationship with the child undoubtedly contributes to the so-called ‘good divorce’. Accordingly, the key recommendation to family policy creators includes introduction of mandatory parent education, mandatory family mediation and marital counselling for spouses who are not sure about whether to divorce or not.49 Robert Emery, one of the leading figures dealing with the influence of divorce on children, after 25 years of clinical practice and research into the role of a family mediator, concluded that parents naively assume that judges, psychologists, and social workers can make the best decision about the divorce and the child. He strongly suggests that despite the fact that professionals can assist parents in making a decision relating to their children, parents are still the best experts on their children. In that sense, family mediation should surely be their first choice.50 The Croatian legislator has considered these interdisciplinary recommendations, although it is clear that family mediation cannot be ‘a remedy for all kinds of divorces’. Thus, the current divorce procedure in Croatia responds to new complex divorces with a combination of the national tradition of mandatory conciliation, worldwide proven family mediation and the elements of the contemporary triage system in which different types of parents are directed towards different services. To sum up, the number of complex families with multiple problems is growing. However, a legal system cannot regulate an individual approach to every single family as in unhappy families, ‘everyone is unhappy in their own way’. But it can respect interdisciplinary research evidence as well as meet the fundamental requirement of all legal systems – the principle of predictability!51 Footnotes 1 According to EUROSTAT data, since 1965 the divorce rates in the 28 EU Member States have increased on average from 0.8 per 1,000 inhabitants in 1965 to 2.0 in 2011) http://ec.europa.eu/eurostat/statistics explained/index.php/Marriage-and-divorce-statistics (visited on 3 May 2016). 2 As far as the divorce increase in the Republic of Croatia is concerned, there were 1.2 divorces per 1,000 inhabitants in 1960 and 1.3 in 2013. With regard to divorce rates, Ireland was characterized by the lowest divorce rate in the period from 2011 to 2013. Ireland was followed by Slovenia (1.1) and a few Mediterranean countries, Malta (0.8), Italy (0.9), and Greece (1.3). During the same period of time, in northern Europe divorce was much more popular: Latvia (3.5), Lithuania and Denmark (both 3.4) http://ec.europa.eu/eurostat/statisticsexplained/index.php/Marriage-and-divorce-statistics (visited on 3 May 2016). Rešetar and Berdica (2013: 573–4). 3 Demographic transition originally denotes changes in respective population caused by economic development. Secondary demographic transition refers to changes in a traditional family influenced by Western culture (the rise of individualism, freedom regarding the pursuit of happiness, personal accomplishment beyond traditional values and social norms). See Amato (2014: 8–10). 4 http://www.dijete.hr/websites/dijete.hr/index.php/hr/izvjemainmenu-93/izvjeo-radu-pravobranitelja-za-djecu-main menu-94.html, (visited on 10 November 2016) and http://www.dijete.hr/websites/dijete.hr/attachments/718-drugo%20 izvjesce%20eng.pdf, (visited on 10 November 2016). 5 http://www.sabor.hr/prijedlog-obiteljskog-zakona-prvo-citanje-pze-br-8, (visited on 10 November 2016). 6 California was the first state (1 January 1981) to oblige parents to attend family mediation before initiating judicial proceedings related to parental responsibility (CAL.FAM.CODE § 3170 West 2013). This early 1980s experiment turned out to be very successful. Numerous studies on the successfulness of family mediation have revealed similar results: success in achieving an agreement on parental responsibility ranges from 50 to 85 per cent, depending on a legal system. In fact, after the introduction of the mediation obligation, one judge adjudicating at the Supreme Court of San Francisco stated that the number of his cases relating to parental responsibility dramatically dropped from 15 a day to five in the whole year! (Emery and Emery, 2014: 155–7). Since 1 September, a family law judge in Germany may oblige parties to attend a first information meeting with a family mediator: Parkinson, 2011: 348. 7 Articles 321, 325, and 327 of the FA 2015. According to Article 325 paragraph 1 item 1 and Article 328 of the FA 2015 Mandatory counselling also applies prior to any court proceedings concerning a dispute over parental responsibility, children family rights and contact concerning child. 8 Official Gazette no. 106/2014. 9 Articles 3 and 4 of the Ordinance on Mandatory Counselling. Article 325 paragraph 3 of the FA 2015, Rešetar and Berdica (2013: 575–6). 10 Articles 331–343 of the FA 2015. 11 Article 343 of the FA 2015. 12 http://www.mdomsp.hr/UserDocsImages/Registri%20i%20evidencije/Registar%20obiteljskih%20medijatora%202017-01-17.pdf (visited on 28 September 2017). 13 http://www.jutarnji.hr/vijesti/hrvatska/analiza-jutarnjeg-prosla-je-prva-godina-primjene-obiteljskog-zakona-koji-je-donijela-kukuriku-vlada-je-li-uistinu-doslo-do-pada-sudskih-razvoda/5339203/ (visited on 28 September 2017). 14 Article106 of the FA 2015. The term of parenting plan was originally coined by the American Law Institute which in 2003, after the decade-long interdisciplinary work of its experts, practitioners, and theoreticians, published the Principles of the Law of Family Dissolution: Analysis and Recommendations. Kisthardt (2005:223–5). A parenting plan has also been introduced to the Dutch legal systems, Jeppesen de Boer (2008: 57). 15 Article 106 paragraph 2 items 3 and 5 of the FA 2015. 16 Article 107 paragraph 2 of the FA 2015. On the child’s development as a vital element when planning post-divorce parental responsibility, see in detail in: Kelly (2004: 241–5), Emery (2016: 89–265) and McWiliams (2011: 33–34). 17 http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1038&context=djglp (visited on 6 October 2016), pp. 6–7; Kelly (2005: 253–4) and McWiliams (2011: xxvi). 18 Article 324 of the FA 2015. 19 Article 416 of the FA 2015. 20 http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/ecds-cfds.html (visited on 28 September 2017). 21 Amato et al (2009: 41–53). The authors pooled data from four national surveys: the National Survey of Children (1976), the National Survey of Families and Households (1987–1988), the National Longitudinal Survey of Youth (1996), and the National Survey of America’s Families (2002). 22 Koball and Principe (2002) used data from the 1997 and 1999 National Survey of America’s Families to examine whether the frequency of contact between fathers and children changed as child support enforcement increased. The findings show that fathers who pay child maintenance are more likely to visit their children. Nepomnyaschy (2007) has also found a strong, positive reciprocal relationship between the likelihood and frequency of fathers – child contact and the likelihood and amount of child maintenance, with slightly stronger and more consistent effects of contact on payments than of payments and contact. 23 Austria, Denmark, France, Germany, Italy, The Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Russia, Parkinson (2011: 346–54). 24 E.g. Council of Europe’s Recommendation on family mediation No (98)1, European Convention on the Exercise of Children’s Rights, Council of Europe’s Recommendation on family mediation and gender equality 1639 (2003), European Directive on mediation (2008/52/EC), the Hague Conventions dealing with child welfare and child protection (the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Convention, and the Intercountry Adoption Convention 2002. Accordingly, the Hague Conference also set up a Working Party to promote the development of mediation structures to help resolve cross-border disputes concerning custody of or contact with children (Parkinson, 2011: 358–9). 25 After more than 30 years, mandatory conciliation was abandoned for being rather inefficient. The successfulness of the conciliation procedure amounted to about 10 per cent in the first years of its application while in 2004, this figure was only 2 per cent (Alinčić, 1992: 859–61; Korać, 2005: 77; Majstorović , 2007: 414, 447; Mitrović, 2009: 177). 26 The multi-session mediation process is conducted in the event of a complex conflict in which its emotional aspects prevent its resolution in one mediation session when the mediator has to deal with multiple issues. Such mediation consists of a minimum of two and a maximum of five sessions held within the period of several weeks with intervals of 2 weeks or shorter if need be. One mediation session can last up to 120 minutes, depending on the complexity of a dispute. Article 5 of the Ordinance on Family Mediation (Official Gazette no. 106/2014). 27 UN Convention on the Rights of the Child, Official Gazette of the Socialist Federal Republic of Yugoslavia, no. 14/1990, Official Gazette – International Treaties, no. 12/1993, 20/1997. 28 European Convention on the Exercise of Children’s Rights, Official Gazette – International Treaties, no. 1/2010, came into force in the Republic of Croatia on 1 July 2010. 29 Regulation (EC) No 2201/2003 – jurisdiction, recognition, and enforcement of matrimonial and parental judgments applies since Croatia has become Member State. 30 The largest research on the exercise of the right of the child to be heard in divorce proceedings in Croatia has revealed disappointing results. At the biggest Croatian court (Municipal Civil Court of Zagreb), only 3.5% of children were given a chance to express its views in divorce proceedings in the period 2003/2004. Rešetar and Emery (2008: 71–2). 31 General Comment of Committee on the Rights of the Child, No. 12 (2009). The right of the child to be heard. http://www.refworld.org/publisher,CRC,GENERAL, 4ae562c52,0.html (visited on 14 November 2016). Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice (visited on 17 November 2010); https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804b2cf3 (visited on 14 November 2016). Child-friendly justice – perspectives and experiences of professionals, EU Fundamental Rights Agency, 5/2015. http://fra.europa.eu/sites/default/files/fra-2015-child-friendly-justice-professionals-summary-hr.pdf (visited on 14 November 2016). 32 In M. and M. v. Croatia (judgment of 3 September 2015, application no. 10161/13), the court confirmed violation of the fundamental human rights of a girl whose opinion was not heard by the authorities when deciding on the existence of domestic violence and parental responsibility. The standpoints of the European Court of Human Rights have had direct effect on the modification of case law in regard to the appointment of a child’s special guardian beyond the social welfare system (lawyers), though both judgments related to the appointment of an adult’s special guardian (Ivinović v. Croatia, judgment of 18 September 2014, application no. 13006/13 and M. S. v. Croatia (judgement of 25 April 2013, application no. 36337/10). In Adžić v Croatia (judgement of 12 March 2015, application no. 22643/14), the concurring opinion regarded the importance of taking the child’s opinion in accordance with its age as an important element in making a decision on returning or keeping the abducted child in the country of his current residence. 33 Articles 358 and 461 paragraph 2 of the FA 2015. 34 Article 359 paragraphs 1 and 2 of the FA 2015. Prior to making a decision on permitting the child to undertake procedural action in judicial proceedings, the court is obliged to ask for a respective opinion of the social welfare centre. Aras Kramar (2015), pp. 258–9. 35 http://www.refworld.org/publisher-CRC-GENERAL-4ae562c520.html (visited on 14 November 2016.), pp. 18–19; Parkes (2013), pp. 252–5. 36 Article 106 paragraph 4 of the FA 2015. A parenting plan template contains a section revealing whether the parents have provided the child with the possibility to express its opinion. 37 Article 325 paragraph 3 and Article 339 paragraph 2 of the FA 2015. 38 Parkes (2013), pp. 252–5. 39 Article 360 of the FA 2015. Who are persons qualified for interviewing the child and which place is considered a convenient one is regulated in detail in the Ordinance on the Manner of Obtaining the Child’s Views, Official Gazette no. 106/2014. 40 Article 360 paragraph 4 of the FA 2015. Aras Kramar (2015: 264). 41 Declaration mentioned in Article 1 paragraph 4 of the European Convention on the Exercise of Children’s Rights. 42 Article 240 paragraph 1, Article 414 paragraph 2 of the FA 2015. 43 The Centre for Special Guardianship is a public institution dealing with the legal representation of children and persons with disabilities in judicial proceedings laid down in the FA 2015. Article 240 paragraph 3 of the FA 2015. 44 Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice https://rm.coe.int/16804b2cf3 (visited on 17 November 2016) pp. 3–4., see also Recommendation CM/Rec(2012)2 of the Committee of Ministers to Member States on the participation of children and young people under the age of 18 https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/Rec(2012)2&Language=lanEnglish&Ver=original&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864&direct=true (visited on 13 June 2017). 45 Article 240 paragraph 2 of the FA 2015. 46 Articles 360 and 361 of the FA 2015. Aras Kramar (2015: 258–60). 47 Parkes (2013: 260–1). 48 http://law.pravos.hr/katedra-obiteljsko-pravnih-znanosti/komunikacija-s-djetetom-u-pravosudu (visited on 15 November 2015). 49 Amato et al (2011: 521–2). 50 Emery (2004: 10–13). 51 The new Croatian divorce is recommended as promising practice by EU FRA. See http://fra.europa.eu/sites/default/files/fra_uploads/fra-ecthr-2016-handbook-on-access-to-justice-en.pdf (visited on 19 November 2016) at 51. REFERENCES Alinčić M. ( 1992) ‘Institut mirenja bračnih drugova’, Zbornik Pravnog fakulteta u Zagrebu  42 ( 5–6), 855– 70. Alinčić M. ( 2002) ‘Rastava i razvod u 20. stoljeću’, Zbornik Pravnog fakulteta u Zagrebu  52 ( 6), 1159– 81. Amato, P. R., and Keith, B. (1991) ‘Parental divorce and the well-being of children: a meta-analysis’, Psychol Bull. 110 (1), 26–46. Amato P. R. ( 2000) ‘ The consequences of divorce for adults and children’, Journal of Marriage and the Family  62, 1269– 87. Amato P. R., Meyers C. E., Emery R. E. ( 2009) ‘ Changes in non-resident father-child contact from 1976 to 2002’, Family Relations  58, 41– 53. Amato P. R., Kane J. B., James S. ( 2011). ‘ Reconsidering the “Good Divorce”’, Family Relations  60, 511– 24. Amato P. R. ( 2014) ‘The Consequences of Divorce for Adults and Children: an Update’, Social Research  23 ( 1), 5– 24. Antoloskaia M. ( 2006) Harmonisation of Family Law in Europe: A Historical Perspective , Antwerpen/Cambridge: Intersentia. Aras Kramar S. ( 2015) ‘Novi pristup uređenju postupka razvoda braka u Hrvatskoj”, in Rijavec V. et al.   (eds), Zbornik radova s međunarodnog savjetovanja Aktualnosti građanskog procesnog prava – nacionalna i usporedna pravnoteorijska i praktična dostignuća , Pravni fakultet Sveučilišta u Splitu, 235– 67. Beck, C. J. A., and Sales, B. D. (2000) ‘A critical reappraisal of divorce mediation research and policy, Psychology’, Public Policy and Law, 5 (1), 989–1056. Bell F., Cashmore J., Parkinson P., Single J. ( 2013) ‘Outcomes of child-inclusive mediation’, International Journal of Law, Policy and the Family  27( 1), 116– 42. Cummings E. M., Davies P. ( 2010) Marital Conflict and Children: An Emotional Security Perspective , New York, London: Guilford. Douglas E.M. ( 2006) Mending Broken Families , Lanham-Boulder-New York-Toronto-Oxford: Rowman & Littlefield Publishers, Inc. Čudina-Obradović M., Obradović J. ( 2006) Psihologija braka i obitelji , Zagreb: Golden marketing – Tehnička knjiga. Emery R. E. ( 2004) The Truth about Children and Divorce , New York: Penguin Books Ltd. Emery R. E. ( 2012) Renegotiating Family Relationships , 2nd edn, New York: Guilford Press. Emery K. C., Emery R. E. ( 2014) ‘Who Knows What is Best for Children: Honoring Agreements and Contracts between Parents Who Live Apart’, Law and Contemporary Problems  77, 151– 76. Emery R. E. ( 2016) Two Homes, One Childhood , New York: Penguin Random House LLC. Jeppesen de Boer C. G. ( 2008) Joint Parental Authority , Antwerpen/Cambridge: Intersentia. Koball H., Principe D. ( 2002) Child support visit their children more? New Federalism National Survey of America’s Families, Series B, No 44, The Urban Institute. Kelly J. B. ( 2005) ‘Developing beneficial parenting plan models for children following separation and divorce’, Journal of American Academy of Matrimonial Lawyers  19, 237– 54. Kelly J. B. ( 2004) ‘ Family mediation research: is there empirical support for the field?’, Conflict Resolution Quarterly  22 ( 1-2), 3– 35. Kisthardt M. K. ( 2005) ‘The AAML model for a parenting plan’, Journal of the American Academy of Matrimonial Lawyers  19, 223– 36. Korać A. ( 2005) ‘Obiteljsko posredovanje – Prilog alternativnom rješavanju obiteljskih sporova’, Hrvatska pravna revija , 5, 73– 84. Lowe V. N., Douglas G. ( 2015) Bromley's Family Law , 11th edn, Oxford: Oxford University Press. Google Scholar CrossRef Search ADS   Majstorović I. ( 2007) ‘Posredovanje prije razvoda braka: hrvatsko pravo i europska rješenja’ Zbornik Pravnog fakulteta u Zagrebu  57( 2), 405– 56. McIntosh J., Long C., Moloney L. ( 2004) ‘ Child –focused and child-inclusive mediation: a comparative study of outcomes’, Journal of Family Studies  10 ( 1), 87– 95. McWilliams J. H. ( 2011) Parenting Plans for Families After Divorce , Denver: McWilliams Mediation Group Ltd. Maclean M., Eekelaar J. ( 2016) Lawyers and Mediators The Brave New World of Services for Separating Families , Oxford: Hart Publishing. Mitrović M. ( 2009). ‘Mandatory mediation in divorce disputes: An obsolete legal practice, critical overview of the Croatian divorce system’ in Uzelac A., Van Rhee C. H. (eds), Access to Justice and the Judiciary; Towards New European Standards of Affordability, Quality and Efficiency of Civil Adjudication , Cambridge: Intersentia. Nepomnyaschy L. ( 2007) ‘ Child support and father – child contact: testing reciprocal pathways’, Demography  44 ( 1), 93– 112. Parkes A. ( 2013) Children and International Human Rights Law: The Right of the Child to be Heard , 1st edn, New York: Routledge. Parkinson L. ( 2011) Family Mediation - Appropriate Dispute Resolution in a New Family Justice System , Bristol: Jordan Publishing Limited. Peterson, N. L., and Zill, N. (1986) ‘Marital Disruption, Parent-Child Relationships, and Behavior Problems in Children’, Journal of Marriage and Family 48 (2), 295–307. Rešetar B., Berdica J. ( 2013) ‘ Divorce in Croatia: Mandatory Education, for Divorcing Parents, Voluntary Family Mediation, and Enabling Children to Participate in Judicial Proceedings’, Family Court Review  51( 4), 568– 77. Rešetar B., Emery R. E. ( 2008) ‘ Children's Rights in European Legal Proceedings: Why are Family Practices so Different from Legal Theories?’, Family Court Review  46 ( 1), 65– 77. Ryrstedt E. ( 2012) ‘ Mediation regarding children – Is the result always in the best interests of the child? A view from Sweden’, International Journal of Law, Policy and the Family  26( 2), 220– 41. Salem P. ( 2009) ‘ The emergence of triage in family court services: the beginning of the end for mandatory mediation?’, Family Court Review  47( 3), 371– 88. Schepard A. I. ( 2004) Children, Courts and Custody , Cambridge: Cambridge University Press. Schwenzer I., Aeschlimann S. ( 2005) Towards a New Academic Discipline of Family Sciences, International Law FORUM du droit international 7 , Leiden: Koninklijke Brill N. V. 178– 85. Saposnek, D. (2005) ‘The future of the history of family mediation research’, American Journal of Family Law 18 (4). Skinner C. ( 2013) ‘ Child maintenance reforms: Understanding fathers’ expressive agency and the power of reciprocity’, International Journal of Law, Policy and the Family  27( 2), 242– 65. Trinder L. ( 2003) ‘Working and not working contact after divorce’ in Bainham A., Lindley B., Richards M., Trinder L. (eds), Children and Their Families; Contact, Rights and Welfare , Oxford: Hart Publishing. http://ec.europa.eu/eurostat/statisticsexplained/index.php/Marriage-and-divorce-statistics. http://fra.europa.eu/sites/default/files/fra-uploads/fra-ecthr-2016-handbook-on-access-to-justice-en.pdf. http://www.sabor.hr/prijedlog-obiteljskog-zakona-prvo-citanje-pze-br-8. http://www.mdomsp.hr/UserDocsImages/Registri%20i%20evidencije/Registar%20obiteljskih%20medijatora%202017-01-17.pdf. https://www.jutarnji.hr/vijesti/hrvatska/analiza-jutarnjeg-prosla-je-prva-godina-primjene-obiteljskog-zakona-koji-je-donijela-kukuriku-vlada-je-li-uistinu-doslo-do-pada-sudskih-razvoda/5339203/ https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1038&context=djglp. http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/ecds-cfds.html. http://law.pravos.hr/katedra-obiteljsko-pravnih-znanosti/komunikacija-s-djetetom-u-pravosudu. https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/Rec(2012)2&Language=lanEnglish&Ver=original&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864&direct=true. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Law, Policy and the Family Oxford University Press

The New Divorce Legislation in the Republic Of Croatia under the Influence of Psychology, Sociology, and International Law

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Abstract

Abstract Recent scientific interdisciplinary findings in the area of divorce and international law relating to children’s rights have had considerable influence on the current reform of divorce in Croatia. The first aim of the Croatian legislator was to help parents reach an agreement in all matters related to their children, believing this approach could help reduce parental conflict and improve the exercise of joint parental responsibility, contact with the child, and child maintenance compliance. The second aim of the Croatian legislator was to strengthening children’s procedural rights in divorce proceedings. This article is aimed at presenting the interdisciplinary trends that have influenced the Croatian legislator when introducing changes to the divorce scheme and new legal instruments: mandatory counselling, mandatory family mediation, parenting plan, neutral legal terminology, and highlighting the importance of cooperation and communication between parents. These novelties represent a new approach to divorce, putting the focus on the autonomy and responsibility of parents in the organization of family life after divorce. If the agreement on parental responsibility fails, parents will have to face court proceeding which have become more complex due to the response of the Croatian legislator to recent international requirements and guidelines aimed at effective legal protection of children’s procedural rights. The child is explicitly recognized as a party in divorce proceeding, the exercise of the right of the child to be heard is clearly regulated and the child is accompanied with a special guardian who is obliged to represent child’s interests in divorce proceedings. I. INTRODUCTION The rising divorce rates in Europe are no longer regarded as a novelty.1 Similar statistical indicators characterize Croatia, although its divorce rate is lower.2 Taking into account relevant statistical data and global divorce trends, most sociologists are agreed that today we can speak about a decline in marriage that can be attributed, they claim, to the so-called secondary demographic transition, linking such changes in society with their economic development.3 As sociologists study the rising divorce rates, and psychologists deal with the psychosocial consequences of divorce, jurists mostly investigate changes in divorce legal regimes. Divorce used to be prohibited, then the principle of fault was introduced and after some time abandoned, and finally, in the second half of the 20th century, the irretrievable breakdown of marriage emerged as the main legal basis for divorce (Antoloskaia, 2006: 313–66; for the Croatian context, see Alinčić, 2002: 1159–79). In terms of family law, it is the rising divorce rate on one hand and protection of children’s rights on the other that have captured the growing attention of both international experts and national legislators. The 2004–2012 data from the reports of Croatian ombuds(wo)men for children demonstrate that violation of the right of the child to parental responsibility by both parents after divorce, violation of a child’s right to contact with the non-resident parent, as well as violation of the right of the child to be heard in divorce proceedings, together with protracted judicial proceedings, represented the most frequent reasons for referrals to her office.4 The above reports triggered the reform of Croatian family legislation in the field of divorce with a special emphasis on divorce involving minor children.5 In recent years international law and other scientific disciplines, such as psychology, sociology, or economics, have had a strong influence on national systems and Croatian family law has been no exception (Schwenzer and Aeschlimann, 2005: 178–85; Lowe and Douglas, 2015: 14). Indeed, scientific findings in the area of divorce psychology and international law have been a major influence on the new divorce regulation in Croatia. This article is aimed at presenting the interdisciplinary trends that have influenced the Croatian legislator when introducing changes to the Croatian divorce scheme. Section II of the article sets out research findings on the psychosocial consequences of divorce with respect to spouses and their children. Section III sets out the structure of the new Croatian divorce law, together with the way it is implemented, including some of its detailed provisions concerning parenting plans and mediation. Section IV considers the Croatian legislator’s response to its international obligations concerning children’s rights in divorce procedures, and Section V offers some conclusions. II. RESEARCH ON THE PSYCHOSOCIAL CONSEQUENCES OF DIVORCE Because of the large number of divorce proceedings, the psychosocial consequences of divorce have attracted the interest of various experts: psychologists, marital therapists, and psychiatrists. Based on a large quantity of scientific research, the literature dealing with divorce describes the short-term and long-term reactions of spouses to divorce as well as the life phase, which spouses go through during the divorce process. One of the acknowledged theories of spouses’ reactions to divorce was constructed by Amato in 2000 (Amato, 2000). He suggested that the key indicators of the spouses’ reaction to their divorce are as follows: (i) divorce as the main source of stress; (ii) other sources of stress, which follow it; and (iii) factors that protect spouses in the divorce process from stress or mitigate it. According to this broadly accepted theory, divorce as the basic source of stress has effect on both sexes, particularly on the abandoned spouse, whereas other sources of stress are built on the elementary stress (Amato, 2000; Čudina-Obradović and Obradović, 2006: 554–55; Amato et al, 2011: 514). Other sources of stress originating from divorce can be classified in three groups: social causes (termination of joint life with children, termination of joint friendships, conflict with the ex-spouse, failure at school, worse job performance and others); psychological causes (anxiety, mood swings from feelings of happiness resulting from the achieved independence to anxiety and depression owing to the fear of uncertainty) and various forms of behaviour (initial lack of organization in the family, parental and business affairs which used to be performed together by spouses). All the above stress sources are regarded as a short-term reaction to divorce and their average duration is up to a year while handling the stress depends on protective factors such as a spouse’s gender and age, duration of marriage, and a new partner (Čudina-Obradović and Obradović, 2006: 555–7). As far as long-term reactions to divorce are concerned, research shows that their duration can exceed several years and examples include weaker physical fitness, depression, a low level of social inclusion, weakening economic power, and low life satisfaction, general welfare and happiness. The factors of long-term reactions to divorce are believed to be interconnected and one person does not necessarily have to go through all the above consequences of divorce (Čudina-Obradović and Obradović, 2006: 555–7, Amato, 2000; Amato, 2014: 10–12). In almost every divorce process, in whatever jurisdiction, spouses experience great stress and complex emotions such as anger, sorrow, rage, guilt, and fear. Some can handle them well and some are not so successful (Emery, 2012: 39–61). Couples without children can obtain a court decision on divorce rapidly and both can move on with their life, focus on themselves, and terminate contact with their partners. However, spouses with children are not so fortunate. Parents going through divorce face many difficult challenges. Combating their own stress and devastating emotions, they are forced to deal with the legal consequences of divorce, regulate their property relations, and parental responsibility and cooperate with each other, avoiding conflict for the sake of protection of the well-being of their children (Emery, 2004: 6). Early research on the psychosocial consequences of divorce revealed that children of divorced parents were less likely to become highly educated and more likely to suffer from behavioural problems and depressive moods as well as to experience divorce themselves later in life, although most children, due to their stamina and adaptability, are not at such high risk when it comes to divorce (Peterson and Zill, 1986: 295–307; Amato and Keith, 1991: 26–46; Emery, 2004: 64–65;, according to Douglas, 2006: 12). Unlike the previous studies, which were focused exclusively on the psychosocial consequences of divorce, later research took into account the family history of the subjects. It emerged that a significant number of the problems affecting children after divorce had emerged at the time when their parents lived together. This later research confirmed the thesis that it is not the divorce that is the cause of the psychosocial problems of children but the conflict of their parents, which has direct impact on the children’s psychological state and the quality of the parent–child relationships (Emery, 2004: 64–69; Cummings and Davies, 2010; Amato et al, 2011: 514; Emery and Emery, 2014: 155; Emery, 2016: 35–40). However, in either case, the conflict between the parents has turned out to be the key cause of the child’s psychosocial issues. Regarding the factors which may reduce psychosocial risks for children of divorced parents, those researchers point to the way parents handle their own psychosocial problems caused by divorce, a positive parenting style and cooperation between parents with respect to the child. On this view, the most important factors for reducing the psychosocial risks for children after divorce are (i) absence of conflict between parents concerning their child; (ii) contact with the child and (iii) a regular child maintenance settlement (Amato et al, 2011: 514; Amato, 2014: 15–16; Emery, 2016: 35–40). These findings have led contemporary legislators and policymakers to recognize the advantages of alternative methods for resolving family disputes. Among those advantages is mitigation of the spouses’ stress as a direct consequence of divorce. In contrast, divorce court proceedings enhance conflict and prolong the condition of stress (Schepard, 2004: 62–3; Emery, 2004: 150–1; Amato et al, 2011: 52; Parkinson, 2011: 8–9; Emery, 2012: 209). Divorce court proceedings generate additional stress by adding to the basic stress caused by divorce itself: put simply, it adds fuel to the fire. III. THE NEW CROATIAN DIVORCE PROCEDURE 1. General structure and implementation Based on such studies, the 2015 Croatian Family Act (hereinafter FA 2015) requires spouses with minor children to make two mandatory steps before initiating divorce court proceedings: participation in mandatory counselling at social welfare centres; and participation in a first information meeting with a family mediator.6 Mandatory counselling is conducted by a team of experts working in social welfare centres (social worker, psychologist, and lawyer). It requires the expert team to perform initial screening of partner and family relationships. This is particularly important when there is suspicion of child vulnerability or domestic violence. The FA 2015 envisages a wide range of measures which can be undertaken in the mandatory counselling procedure, depending on the case: (i) advising spouses to undergo marital therapy, (ii) providing spouses with assistance in reaching an agreement on parental responsibility, (iii) referring spouses to family mediation, (iv) referring spouses to court proceedings in cases of high conflict divorce, (v) undertaking measures for child protection, or (vi) protecting the victims of domestic violence. This enables multidisciplinary assessment of partner and family relationships in this initial procedural stage of divorce. Divorcing parents attend sessions together or individually. The child is allowed to express its views already in the mandatory counselling procedure.7 The Mandatory Counselling Ordinance8 thoroughly regulates the length and procedure of mandatory counselling as well as the duties of the expert team. First of all, a social worker or psychologist advises the spouses, if deemed beneficial to them, to undergo marital therapy. The further task is to educate spouses about the psychosocial consequences of divorce for them and for their children, the developmental characteristics of children, the stages of divorces, and the process of adaptation to divorce, the phases of conflict and the phases of reducing the conflict between the partners. The social worker or psychologist is expected to assess the child’s vulnerability or the potential presence of domestic violence if it is suspected. Their duties also include undertaking appropriate measures for protecting the child or the victim of domestic violence. Last, but not least, they are assigned the duty to provide spouses with assistance in reaching an agreement on parental responsibility. If such an agreement cannot be reached in a short period of time (three sessions) and if it is deemed that equal participation in family mediation can be achieved, then the couple should be referred to family mediation. Each of the three mandatory counselling sessions in the social welfare centre can last several hours.9 If there is no agreement on parental responsibility, a further goal of mandatory counselling is informing parents on the subsequent divorce procedure by the lawyer. Parents are thus informed of the duty of attending the first information meeting with a family mediator and on the divorce proceedings at court where the child is an independent party who has the right to an independent representative, as well as the right to express its wishes. If the spouses have not reached an agreement on parental responsibility within the mandatory counselling, they must attend the first meeting with a family mediator at which they are informed about the procedure and benefits of family mediation and the advantages of amicable regulation of family relationships with an emphasis on the best interests of the child. Family mediation is a procedure in which parties attempt to amicably resolve a family dispute with the assistance of one or more family mediators.10 Mandatory counselling is free of charge for all couples without a financial test. Family mediation is also free if it is provided within the system of social services. If it is conducted by private family mediators, then it incurs certain charges.11 There are 63 registered family mediators in Croatia, out of which there are only six private family mediators.12 Generally, spouses opt for the mediation organized by social services. Mandatory counselling provides spouses with information on the legal framework and aid in reaching an agreement whereas family mediation offers assistance in reaching an agreement. The first research on the system was conducted by journalist Kristina Turčin who compared the number of divorces by mutual consent including an agreement on parental responsibility with divorce petitions filed at court (divorce without agreement) over the same period of 8 months. When the former FA 2003 was in force, agreements on parental responsibility and child maintenance were reached in 34.6 per cent of divorces compared to 65.4 per cent of divorce petitions without such an agreement. This ratio has been changed in favour of agreements since the entry into force of the FA 2015. Now parents manage to reach an agreement (parenting plan) in 69.9 per cent of divorce cases, while divorce petitions without agreement are lodged in 30.1 per cent of divorces.13 An agreement is mostly reached within mandatory counselling. 2. Parenting plans and neutral terminology As part of the new divorce process, with which the Croatian legislator intended to regulate the procedures for mitigating the conflict between parents and to encourage parents to cooperate in the exercise their parental responsibility, new mechanisms were introduced: parenting plans and neutral legal terminology. The FA 2015 prescribes a new form of a temporary and flexible instrument, a parenting plan, as a written agreement between parents on the manner of the exercise of their parental responsibility after divorce.14 The possibility of an agreement between parents is not a novelty in Croatian family law. However, what is new is the terminology that focuses on planning the child’s family life after divorce. Also, there are new legal duties on which parents should agree if they wish to exercise joint parental responsibility. One of the new legal duties entails agreeing on the way information about the child is to be exchanged, modes of communication and how possible disputes relating to parental responsibility are to be resolved.15 The FA 2015 specifies the age and maturity of the child as developmental elements, which are intended to constitute the core of the parenting plan. Indeed, in view of the developmental phases in the child’s life, from infancy, through the pre-school and school period to puberty and adolescence, the parenting plan should be adapted to the child’s developmental needs at the time of divorce. Further, it would be useful to revise it as the child grows up or to adjust it to the changes in the parents’ life.16 In that way, developmental psychology has influenced the introduction of a parenting plan and hence played an important role in shaping the new divorce procedure in Croatia. The legislator’s desire to mitigate further the conflict between parents in the divorce process is shown by the introduction of non-traditional legal terminology. In contrast to traditional legal terminology, according to which ‘the child lives with one parent and contacts the other’, a parenting plan foresees the duty of making an ‘arrangement of time which the child is to spend with each parent’ as well as the duty to ‘exchange information about the child’. It is clear that amendment of legal terminology may not in itself modify the parents’ perception of parental responsibility after divorce, change their personality, or influence their attitudes. Nevertheless, appropriate legal terminology may contribute to a neutral and clearer definition of parental responsibility and appear as a response to classical issues such as a residence order or right to contact with the child. 17 Parental cooperation is a crucial prerequisite for reaching a parenting plan and appears to be one of the elements, which is considered very important by the court when it is invited to decide on parental responsibility. The mandatory counselling procedure concludes with a report which, among other things, needs to contain information on the willingness of each parent to enter into an agreement on parental responsibility, their cooperation, and their willingness to take part in family mediation.18 If, despite mandatory counselling and family mediation, they do not come to an agreement, the court is invited to decide on parental responsibility. One of the arguments which may be used by the court when deciding on sole parental responsibility is the willingness of a parent to cooperate, including his or her willingness to enable and encourage contact between the child and the other parent.19 Another factor that reduces the psychosocial risks of divorce for children is regular payment of child maintenance. Indeed, divorce leads to a fall in the economic standard of the whole family, which generally results from splitting one household into two and losing economies of scale. However, in that case, the mother’s and children’s economic standard declines after divorce while the father’s economic standard increases (Amato et al, 2011: 514; Amato, 2014: 10; Emery, 2012: 125–6) .20 One of the factors that may reduce the psychosocial risks of divorce for children is avoiding a sharp fall in the economic standard of the child. One of the roles in this context is played by regular settlement of child maintenance. Regular settlement of child maintenance also plays a major role in regard to regular contact with the child and participation of both parents in the child’s life. The existence of a direct link between the settlement of child maintenance and contact with the child has been disclosed by recent American research, which comprised data on the fathers’ attitude towards child maintenance and contact with the child in the circumstances of separate life in the period from 1970 to 2000 (Amato et al, 2009: 43).21 This research has actually confirmed the results of a number of previous studies demonstrating a firm bond between the settlement of child maintenance and the realization of the contact between children and non-resident fathers (Skinner, 2013:250; Nepomnyaschy, 2007: 93; Koball and Principe, 2002:2). 22 Pursuant to all the previous studies as well as to this research, fathers paying child maintenance see their children more often. Yet, the causal connection between these two factors remains vague. It might be that fathers seeing their children regularly have a better insight into the child’s needs and that fathers settling their child maintenance on time think that they have ‘earned’ the right to contact with their children while mothers receiving child maintenance feel the duty to encourage the contact between the child and its father. Notwithstanding the above conclusions, one cannot exclude the third sociological factor influencing regular settlement of child maintenance and contact with the child after divorce, and that is the change of social norms in the 21st century, which point to the importance of the economic and social role of fathers in their children’s lives (Amato et al, 2009: 43; Skinner, 2013: 250–51). The aim of the Croatian legislator was to help parents reach an agreement in all matters related to their children: joint exercise of parental responsibility, contact concerning children and child maintenance, believing this approach could help reduce parental conflict, improve child maintenance compliance and contact with the child. 3. The role of family mediation Family mediation has been provided to parents for some 40 years and is becoming more common in most European states23 and its development goes beyond national boundaries.24 The promotion and development of family mediation throughout contemporary legal systems is based on many studies conducted in many states over the last 30 years. Most of those studies have indicated the benefits of family mediation compared to court proceedings, particularly the fact that it brings about improvement in partner relationships, reduces conflicts and facilitates communication between parents, enhances satisfaction for the agreement reached, and reduces the time and costs of divorce (Beck and Sales, 2000: 1020; Kelly, 2004: 3, 28–9; Parkinson, 2011: 342–3). They do not however show that these results necessarily follow when mediation is compared with agreement reached by other means, for example, negotiation between lawyers. Unless there is high parental conflict, contact between parent and the child has been seen as the most significant factor in protection from the psychosocial risks of divorce with respect to children. A longitudinal study comprising 71 families who were surveyed for 12 years after they split compared the influence of intensive family mediation on family relationships with that of court proceedings. The study demonstrated that parents tend to keep contact with their children more after reaching agreement within the family mediation procedure than parents who opted for a court decision (Emery, 2012: 197–9). What seems to be paradoxical here is the fact that the number of conflicts between parents who have reached an agreement on parental responsibility did not grow despite more frequent contacts with the child and a higher level of involvement in its upbringing and nurture, which opens up more space and time for conflicts and misunderstandings than in case of parents whose parental responsibility is regulated in judicial proceedings. Yet we should not neglect the fact that in spite of many acknowledged benefits of family mediation and agreements, some parents can only resolve or mitigate their conflicts at court (Emery, 2012: 213; Emery and Emery, 2014: 157–8). Much other research has concluded that contact with the child and co-operation between parents is much more effective when parental responsibility is regulated by an agreement rather than imposed by a court. However, here it is vital to stress that the quality of the non-resident parent–child relationship is much more important than the amount of time they spend together (Douglas, 2006: 27; Trinder, 2003: 404–405). Saposnek (2004) holds that the type of family mediation typical for the 1970s and 1980s is not appropriate for modern families with more serious and multiple problems, who use a plethora of public agencies (child protective services, criminal court, welfare services, etc.). Therefore, Saposnek emphasizes the need for preventing family disputes and participation in divorce education classes prior to beginning mediation, which may exercise positive influence on conflict reduction and the preparation of parents for mediation. Saposnek’s further proposal relates to the screening methods that have proved empirically to predict success or failure in mediation, bearing in mind the fact that families with complex problems should not all be treated in the same way, or all directed to mandatory family mediation. He singles out the paradox that complex cases requiring more flexibility, intensive aid and a therapeutic approach (high conflict parents and cases involving domestic violence) are usually directed to court since a limited single model of mediation is not appropriate for them. He concludes that family mediation has proved to be a sound, dynamic, effective, and well-liked process, but further empirical research is needed to validate, direct, and facilitate its future growth (Saposnek, 2004: 37–50). Similarly, Salem (2009) claims that times have changed dramatically since mediation was introduced in the 1970s, adding that mediation is no longer the only alternative to the adversarial litigation process and litigation is no longer so adversarial. The number of available services has grown and includes traditional evaluation and conciliation, such as conflict resolution conferences, non-confidential dispute resolution and assessment, early neutral evaluations, special programmes for high-conflict families, collaborative law, cooperative negotiation agreements and parenting coordination. However, mediation still represents the core of family dispute resolution. Salem believes that because of the development of hybrid alternative models for the resolution of disputes between parents as well as the changing nature of the litigation process, it seems difficult to insist that mediation should be required of every family. Therefore, he advocates a triage system, which could be used to match families to the most appropriate services rather than simply referring them to mediation. Through early screening courts could provide a more holistic response to the needs of families than is currently available (Salem, 2009:384, 380–5). In spite of concerns expressed regarding family mediation, its benefits attested by studies conducted over the past 30 years have persuaded the Croatian legislator to reform the divorce procedure as well as obliged parents try family mediation. Further, no matter how many complex problems parents and children face nowadays, from the perspective of law two things are of primary need: (i) clear legal guidelines for new family life after divorce and (ii) prompt protection of their rights. These legal demands do not diminish the importance of the new education and therapeutic aid provided to parents and children. What matters in this context is time flow. Children involved in divorce cannot wait for a therapeutic remedy for the psychosocial problems of their parents, for resolution of problems with mental health and for therapeutic effects on high conflict relations and domestic violence The new divorce procedure in Croatia is in fact a combination of the long-standing national tradition of mandatory conciliation that goes back to 1978,25 widely accepted family mediation and the elements of a contemporary triage system in which different types of parents are directed towards different services. One of those services is court proceedings in which children, influenced by international law, have a new role, described in Section III. Not every couple who has failed to reach agreement on parental responsibility is referred to family mediation but only those for whom this could be beneficial. Whenever there is suspicion of domestic violence, the spouses are not referred to family mediation. The difference between mandatory counselling and family mediation is reflected in their goals. The goals of mandatory counselling are manifold, including (i) initial screening of partner and parent–child relationships; (ii) education about the psychosocial and legal consequences of divorce; (iii) education about the stages of divorce and the process of adaptation to divorce and the phases of reducing the conflict between partners; (iv) protection of children and partners from domestic violence and (v) assistance in reaching an agreement on parental responsibility. On the other hand, family mediation is exclusively aimed at reaching an agreement on divorce, which may refer to parental responsibility, property relations, and maintenance. What mandatory counselling and family mediation have in common is providing assistance in reaching an agreement on parental responsibility. Unlike social workers and psychologists working in social welfare centres, a family mediator has enough time and knowledge to assist spouses in reaching an agreement not only on parental responsibility but also on complex issues in their relationship.26 Pursuant to research evidence on the negative psychosocial consequences of divorce for spouses and their children, the Croatian legislator has introduced mandatory pre-judicial divorce procedures aimed at protecting spouses and their children from divorce stress and conflict or, at least, at their mitigation. Besides, introducing the duty of informing spouses about the judicial divorce procedure and the right of the child to express his or her views, the legislator wished to achieve transparency and predictability of procedures. It wished to enable parents independently to assess, on the basis of information, whether to accept the benefits provided by the state in reaching an agreement or initiate expensive and complex divorce proceedings with an uncertain outcome regarding post-divorce parental responsibility. This way the legislator wished to diminish conflict between spouses and guide them towards settling the consequences of divorce by agreement whereas court proceedings should be the last solution in this regard. IV. THE INFLUENCE OF INTERNATIONAL LAW ON THE PROCEDURAL STATUS OF THE CHILD IN DIVORCE PROCEEDINGS Croatia’s international obligations and the efforts of the United Nations,27 the Council of Europe,28 and the European Union29 have pushed the Croatian legislator into sounder regulation of the protection of children’s procedural rights in divorce proceedings with the aim to achieve their full protection in practice.30 The UN, the Council of Europe, and the European Union have done much to enhance children’s procedural rights, which are reflected in the preparation and publication of guidelines, handbooks, evaluations, and recommendations for more efficient and concrete exercise of children’s rights in the judicial practice.31 The strengthening of the children’s procedural rights in divorce proceedings has also been influenced by recent judgements of the European Court of Human Rights in this field.32 Thus, the child has been provided with the status of a party in divorce proceedings, with the right to directly or indirectly express its views in all extrajudicial and judicial proceedings and, at the expense of the state, with a special guardian in contentious divorce proceedings, whose duties are clearly prescribed by the law. Hence, contentious divorce proceedings involving minor children have become more complex before Croatian courts but also more focused on the protection of the best interest of the child. 1. The child in divorce proceedings The new FA 2015 explicitly recognizes the child as a party in divorce proceedings, whether its parents have drawn up a parenting plan or the court is to decide on their parental responsibility. In proceedings in which the court verifies the parenting plan, the child is represented by its parents whereas in contentious proceedings dealing with divorce and parental responsibility, the child is represented by a special guardian.33 Children over 14 years of age have specific procedural capacity based on which they have the right, in divorce proceedings deciding on their rights and interests, to bring out facts, produce evidence, submit legal remedies, and undertake other action if permitted by the court and under the condition that they are capable of understanding the meaning and consequences of such action. If the child does not empower an attorney for its representation, the court shall ex officio appoint a child’s special guardian who is obliged to represent the child in the proceedings. The costs of a special guardian are borne by the state.34 The UN Committee on the Rights of the Child lays down the need for implementation and exercise of the rights of the child, above all within its family and then in family proceedings. When it comes to the family environment within which child-relevant decisions are made, the Committee acknowledges a certain limitation in evaluating the exercise of the right of the child to express its views within its family. Therefore, it stresses the duty of Member States to promote parent education on a positive approach considering child involvement in making family decisions.35 The response of the Croatian legislation to this request of the UN Committee on the Rights of the Child is reflected in the legal duty of parents to introduce their child to the content of the parenting plan, to enable it to express its opinion and to respect this opinion in compliance with the child’s well-being.36 Concerns have been expressed about the attention paid to children’s interests in mediation and the opportunities for children to express their views in mediation (McIntosh et al, 2004; Ryrstedt, 2012; Bell et al, 2013; Maclean and Eekelaar 2016: 87–91). Therefore, within the mandatory counselling procedure, expert teams are obliged to inform parents on the duty of respecting the child’s right to express its opinion relating to the organization of family life after divorce. Besides, the child may express its opinion both in the mandatory counselling and in the family mediation procedure.37 The UN Committee on the Rights of the Child insists on interdisciplinary education of experts who communicate with the child. These may be judges or child’s representatives. Concerning children's representatives, their key task is to faithfully convey the child’s opinion to the court while all the participants in the judicial proceedings should be aware of the fact that the exercise of the right of the child to be heard is an integral stage of the court proceedings and decision-making and an integral element of the best interest of the child.38 In regard to all contentious divorce proceedings, the Croatian legislator has obliged the court to provide the child with the possibility of expressing its opinion in a convenient place and accompanied by an expert. Regarding children over 14 years of age, judges may talk to them directly while with respect to younger children, they need to be accompanied by a special guardian or expert.39 The court must dedicate part of its reasoning to the child’s opinion, no matter whether it has taken the opinion into consideration or has not required it at all, which has to be supported by an explanation.40 2. The child’s special guardian in divorce proceedings In 2010, Croatia committed itself before the Council of Europe to provide the child with an independent guardian in all divorce proceedings relating to parental responsibility and childcare.41 Accordingly, the Croatian legislator has set forth the duty of the court to appoint a child’s special guardian who is supposed to represent the child’s interest in the proceedings deciding on the post-divorce parental responsibility.42 A licensed lawyer working in a newly established institution can be appointed as a special guardian.43 The law explicitly governs the duties of a special guardian prior to and after the court proceedings in compliance with the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.44 The duties of a special guardian are as follows: represent the child, inform it about the subject matter, course and outcome of the case in a way appropriate to its age and maturity, talk to the child’s parents and, if need be, to other people who have a close relationship with the child.45 The basic duty of a special guardian is to provide the child with the possibility to be heard and express its views before the court, and after pronouncing the decision, to inform the child of the content thereof and the appertaining right to appeal.46 The UN Committee on the Rights of the Child points out the necessity of interdisciplinary education of all experts communicating with children and persons representing children in court proceedings.47 Although in Croatia there is no legal duty to attend training for communicating with children, special guardians have completed university education containing elements of developmental psychology, medicine, communication practice, children’s rights, and judicial procedures.48 The FA 2015 precisely regulates children’s procedural rights in divorce proceedings. The child is explicitly recognized as a party therein, the liabilities of participants in the procedure relating to the right of the child to be heard are clearly regulated and the child is accompanied by a person who is expected to represent its interest in divorce proceedings. The depicted regulation of children’s procedural rights is the response of the Croatian legislator to the accepted international liabilities, recent international requirements and guidelines aimed at concretization of the legal protection of children’s procedural rights and achievement of the best interest of the child standard in all proceedings dealing with children’s rights. V. CONCLUSION: ‘THE GOOD DIVORCE’ UNDER THE NEW CROATIAN FAMILY ACT Taking account of the results of a number of scientific studies on the psychosocial consequences of divorce, the Croatian legislator has attempted, by means of a number of legal interventions in the divorce procedure, to develop procedures which might mitigate the conflict between parents, encourage regular contact with the child and avoid a sharp drop in the economic standard of parents and their children. In fact, introducing new legal mechanisms, such as mandatory counselling, mandatory family mediation, a parenting plan, neutral legal terminology, and highlighting the importance of cooperation and communication between parents have shaped a new approach to divorce, putting the focus on the autonomy and responsibility of parents in the organization of family life after divorce. If agreement on parental responsibility fails, parents will have to face divorce court proceedings which have become more complex under the new FA 2015. Croatia’s international obligations and the efforts of the UN, the Council of Europe, and the European Union have persuaded the Croatian legislation to precisely regulate the protection of children’s procedural rights in divorce proceedings. New regulation of children’s procedural rights represents the response of the Croatian legislator to recent international requirements and guidelines aimed at concretization of the legal protection of children’s procedural rights and achievement of the best interest of the child standard in all proceedings dealing with children’s rights. Paul Amato, one of the leading world authorities when it comes to the psychosocial consequences of divorce for parents and their children, has drawn the conclusion that every mechanism helping parents improve their cooperation on post-divorce childcare and maintain a high-quality relationship with the child undoubtedly contributes to the so-called ‘good divorce’. Accordingly, the key recommendation to family policy creators includes introduction of mandatory parent education, mandatory family mediation and marital counselling for spouses who are not sure about whether to divorce or not.49 Robert Emery, one of the leading figures dealing with the influence of divorce on children, after 25 years of clinical practice and research into the role of a family mediator, concluded that parents naively assume that judges, psychologists, and social workers can make the best decision about the divorce and the child. He strongly suggests that despite the fact that professionals can assist parents in making a decision relating to their children, parents are still the best experts on their children. In that sense, family mediation should surely be their first choice.50 The Croatian legislator has considered these interdisciplinary recommendations, although it is clear that family mediation cannot be ‘a remedy for all kinds of divorces’. Thus, the current divorce procedure in Croatia responds to new complex divorces with a combination of the national tradition of mandatory conciliation, worldwide proven family mediation and the elements of the contemporary triage system in which different types of parents are directed towards different services. To sum up, the number of complex families with multiple problems is growing. However, a legal system cannot regulate an individual approach to every single family as in unhappy families, ‘everyone is unhappy in their own way’. But it can respect interdisciplinary research evidence as well as meet the fundamental requirement of all legal systems – the principle of predictability!51 Footnotes 1 According to EUROSTAT data, since 1965 the divorce rates in the 28 EU Member States have increased on average from 0.8 per 1,000 inhabitants in 1965 to 2.0 in 2011) http://ec.europa.eu/eurostat/statistics explained/index.php/Marriage-and-divorce-statistics (visited on 3 May 2016). 2 As far as the divorce increase in the Republic of Croatia is concerned, there were 1.2 divorces per 1,000 inhabitants in 1960 and 1.3 in 2013. With regard to divorce rates, Ireland was characterized by the lowest divorce rate in the period from 2011 to 2013. Ireland was followed by Slovenia (1.1) and a few Mediterranean countries, Malta (0.8), Italy (0.9), and Greece (1.3). During the same period of time, in northern Europe divorce was much more popular: Latvia (3.5), Lithuania and Denmark (both 3.4) http://ec.europa.eu/eurostat/statisticsexplained/index.php/Marriage-and-divorce-statistics (visited on 3 May 2016). Rešetar and Berdica (2013: 573–4). 3 Demographic transition originally denotes changes in respective population caused by economic development. Secondary demographic transition refers to changes in a traditional family influenced by Western culture (the rise of individualism, freedom regarding the pursuit of happiness, personal accomplishment beyond traditional values and social norms). See Amato (2014: 8–10). 4 http://www.dijete.hr/websites/dijete.hr/index.php/hr/izvjemainmenu-93/izvjeo-radu-pravobranitelja-za-djecu-main menu-94.html, (visited on 10 November 2016) and http://www.dijete.hr/websites/dijete.hr/attachments/718-drugo%20 izvjesce%20eng.pdf, (visited on 10 November 2016). 5 http://www.sabor.hr/prijedlog-obiteljskog-zakona-prvo-citanje-pze-br-8, (visited on 10 November 2016). 6 California was the first state (1 January 1981) to oblige parents to attend family mediation before initiating judicial proceedings related to parental responsibility (CAL.FAM.CODE § 3170 West 2013). This early 1980s experiment turned out to be very successful. Numerous studies on the successfulness of family mediation have revealed similar results: success in achieving an agreement on parental responsibility ranges from 50 to 85 per cent, depending on a legal system. In fact, after the introduction of the mediation obligation, one judge adjudicating at the Supreme Court of San Francisco stated that the number of his cases relating to parental responsibility dramatically dropped from 15 a day to five in the whole year! (Emery and Emery, 2014: 155–7). Since 1 September, a family law judge in Germany may oblige parties to attend a first information meeting with a family mediator: Parkinson, 2011: 348. 7 Articles 321, 325, and 327 of the FA 2015. According to Article 325 paragraph 1 item 1 and Article 328 of the FA 2015 Mandatory counselling also applies prior to any court proceedings concerning a dispute over parental responsibility, children family rights and contact concerning child. 8 Official Gazette no. 106/2014. 9 Articles 3 and 4 of the Ordinance on Mandatory Counselling. Article 325 paragraph 3 of the FA 2015, Rešetar and Berdica (2013: 575–6). 10 Articles 331–343 of the FA 2015. 11 Article 343 of the FA 2015. 12 http://www.mdomsp.hr/UserDocsImages/Registri%20i%20evidencije/Registar%20obiteljskih%20medijatora%202017-01-17.pdf (visited on 28 September 2017). 13 http://www.jutarnji.hr/vijesti/hrvatska/analiza-jutarnjeg-prosla-je-prva-godina-primjene-obiteljskog-zakona-koji-je-donijela-kukuriku-vlada-je-li-uistinu-doslo-do-pada-sudskih-razvoda/5339203/ (visited on 28 September 2017). 14 Article106 of the FA 2015. The term of parenting plan was originally coined by the American Law Institute which in 2003, after the decade-long interdisciplinary work of its experts, practitioners, and theoreticians, published the Principles of the Law of Family Dissolution: Analysis and Recommendations. Kisthardt (2005:223–5). A parenting plan has also been introduced to the Dutch legal systems, Jeppesen de Boer (2008: 57). 15 Article 106 paragraph 2 items 3 and 5 of the FA 2015. 16 Article 107 paragraph 2 of the FA 2015. On the child’s development as a vital element when planning post-divorce parental responsibility, see in detail in: Kelly (2004: 241–5), Emery (2016: 89–265) and McWiliams (2011: 33–34). 17 http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1038&context=djglp (visited on 6 October 2016), pp. 6–7; Kelly (2005: 253–4) and McWiliams (2011: xxvi). 18 Article 324 of the FA 2015. 19 Article 416 of the FA 2015. 20 http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/ecds-cfds.html (visited on 28 September 2017). 21 Amato et al (2009: 41–53). The authors pooled data from four national surveys: the National Survey of Children (1976), the National Survey of Families and Households (1987–1988), the National Longitudinal Survey of Youth (1996), and the National Survey of America’s Families (2002). 22 Koball and Principe (2002) used data from the 1997 and 1999 National Survey of America’s Families to examine whether the frequency of contact between fathers and children changed as child support enforcement increased. The findings show that fathers who pay child maintenance are more likely to visit their children. Nepomnyaschy (2007) has also found a strong, positive reciprocal relationship between the likelihood and frequency of fathers – child contact and the likelihood and amount of child maintenance, with slightly stronger and more consistent effects of contact on payments than of payments and contact. 23 Austria, Denmark, France, Germany, Italy, The Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Russia, Parkinson (2011: 346–54). 24 E.g. Council of Europe’s Recommendation on family mediation No (98)1, European Convention on the Exercise of Children’s Rights, Council of Europe’s Recommendation on family mediation and gender equality 1639 (2003), European Directive on mediation (2008/52/EC), the Hague Conventions dealing with child welfare and child protection (the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Convention, and the Intercountry Adoption Convention 2002. Accordingly, the Hague Conference also set up a Working Party to promote the development of mediation structures to help resolve cross-border disputes concerning custody of or contact with children (Parkinson, 2011: 358–9). 25 After more than 30 years, mandatory conciliation was abandoned for being rather inefficient. The successfulness of the conciliation procedure amounted to about 10 per cent in the first years of its application while in 2004, this figure was only 2 per cent (Alinčić, 1992: 859–61; Korać, 2005: 77; Majstorović , 2007: 414, 447; Mitrović, 2009: 177). 26 The multi-session mediation process is conducted in the event of a complex conflict in which its emotional aspects prevent its resolution in one mediation session when the mediator has to deal with multiple issues. Such mediation consists of a minimum of two and a maximum of five sessions held within the period of several weeks with intervals of 2 weeks or shorter if need be. One mediation session can last up to 120 minutes, depending on the complexity of a dispute. Article 5 of the Ordinance on Family Mediation (Official Gazette no. 106/2014). 27 UN Convention on the Rights of the Child, Official Gazette of the Socialist Federal Republic of Yugoslavia, no. 14/1990, Official Gazette – International Treaties, no. 12/1993, 20/1997. 28 European Convention on the Exercise of Children’s Rights, Official Gazette – International Treaties, no. 1/2010, came into force in the Republic of Croatia on 1 July 2010. 29 Regulation (EC) No 2201/2003 – jurisdiction, recognition, and enforcement of matrimonial and parental judgments applies since Croatia has become Member State. 30 The largest research on the exercise of the right of the child to be heard in divorce proceedings in Croatia has revealed disappointing results. At the biggest Croatian court (Municipal Civil Court of Zagreb), only 3.5% of children were given a chance to express its views in divorce proceedings in the period 2003/2004. Rešetar and Emery (2008: 71–2). 31 General Comment of Committee on the Rights of the Child, No. 12 (2009). The right of the child to be heard. http://www.refworld.org/publisher,CRC,GENERAL, 4ae562c52,0.html (visited on 14 November 2016). Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice (visited on 17 November 2010); https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804b2cf3 (visited on 14 November 2016). Child-friendly justice – perspectives and experiences of professionals, EU Fundamental Rights Agency, 5/2015. http://fra.europa.eu/sites/default/files/fra-2015-child-friendly-justice-professionals-summary-hr.pdf (visited on 14 November 2016). 32 In M. and M. v. Croatia (judgment of 3 September 2015, application no. 10161/13), the court confirmed violation of the fundamental human rights of a girl whose opinion was not heard by the authorities when deciding on the existence of domestic violence and parental responsibility. The standpoints of the European Court of Human Rights have had direct effect on the modification of case law in regard to the appointment of a child’s special guardian beyond the social welfare system (lawyers), though both judgments related to the appointment of an adult’s special guardian (Ivinović v. Croatia, judgment of 18 September 2014, application no. 13006/13 and M. S. v. Croatia (judgement of 25 April 2013, application no. 36337/10). In Adžić v Croatia (judgement of 12 March 2015, application no. 22643/14), the concurring opinion regarded the importance of taking the child’s opinion in accordance with its age as an important element in making a decision on returning or keeping the abducted child in the country of his current residence. 33 Articles 358 and 461 paragraph 2 of the FA 2015. 34 Article 359 paragraphs 1 and 2 of the FA 2015. Prior to making a decision on permitting the child to undertake procedural action in judicial proceedings, the court is obliged to ask for a respective opinion of the social welfare centre. Aras Kramar (2015), pp. 258–9. 35 http://www.refworld.org/publisher-CRC-GENERAL-4ae562c520.html (visited on 14 November 2016.), pp. 18–19; Parkes (2013), pp. 252–5. 36 Article 106 paragraph 4 of the FA 2015. A parenting plan template contains a section revealing whether the parents have provided the child with the possibility to express its opinion. 37 Article 325 paragraph 3 and Article 339 paragraph 2 of the FA 2015. 38 Parkes (2013), pp. 252–5. 39 Article 360 of the FA 2015. Who are persons qualified for interviewing the child and which place is considered a convenient one is regulated in detail in the Ordinance on the Manner of Obtaining the Child’s Views, Official Gazette no. 106/2014. 40 Article 360 paragraph 4 of the FA 2015. Aras Kramar (2015: 264). 41 Declaration mentioned in Article 1 paragraph 4 of the European Convention on the Exercise of Children’s Rights. 42 Article 240 paragraph 1, Article 414 paragraph 2 of the FA 2015. 43 The Centre for Special Guardianship is a public institution dealing with the legal representation of children and persons with disabilities in judicial proceedings laid down in the FA 2015. Article 240 paragraph 3 of the FA 2015. 44 Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice https://rm.coe.int/16804b2cf3 (visited on 17 November 2016) pp. 3–4., see also Recommendation CM/Rec(2012)2 of the Committee of Ministers to Member States on the participation of children and young people under the age of 18 https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/Rec(2012)2&Language=lanEnglish&Ver=original&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864&direct=true (visited on 13 June 2017). 45 Article 240 paragraph 2 of the FA 2015. 46 Articles 360 and 361 of the FA 2015. Aras Kramar (2015: 258–60). 47 Parkes (2013: 260–1). 48 http://law.pravos.hr/katedra-obiteljsko-pravnih-znanosti/komunikacija-s-djetetom-u-pravosudu (visited on 15 November 2015). 49 Amato et al (2011: 521–2). 50 Emery (2004: 10–13). 51 The new Croatian divorce is recommended as promising practice by EU FRA. 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Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com

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