OPINION: While few families can relate to the extremity of the Tom Phillips tragedy, at its heart was a custody battle with damaging outcomes for children. As a researcher and experienced family mediator, Jill Goldson wants separating parents to know the value of mediated communication in which children's voices are heard, (and it's even funded).
The tragedy of Tom Phillips and his three children has shocked New Zealand. For four years the country has watched and worried and wondered as Phillips hid his children in the wilderness of western Waikato region.
The arguments and counter arguments which now swirl around this case in some way mimic the very essence of the parental rancour and confusion produced by these emotional and confusing situations. Inevitably speculation is rightly rife about just how these children came to be caught up in such a drama, and what sort of damage they will have sustained.
As a family mediator and expert in child participation in the out-of-court context, working in research and on the front line with separating families for over three decades, I was deeply shaken by this case – not only by its tragic conclusion, but by how familiar the roots of it appeared to be.
While the details of the Phillips family's custody situation are unreportable; we know that when Phillips disappeared with the children for the second time, in December 2021, he was in breach of a custody order – also known as a parenting order.
While this case is an extreme example, it nonetheless shines an unforgiving light on what can happen when parental/caregiving conflict goes unresolved and when children’s voices are silenced. Disputes about care arrangements, between parents, or between parents and state, can too easily become contests of control – and when adults are locked in entrenched battles, children bear the cost.
Although the vast majority of children do not endure the extreme drama and media attention of the Phillips children, the fact remains that for each child caught up in conflict about their care, there is every chance that serious damage to psychological development will be incurred.
Separation needn't be damaging to kids
Compelling and substantial research evidence suggests that it is not the parental separation process which is in itself damaging, but the ongoing conflict of the parents. Conservative estimates suggest that one in four children struggling to come to terms with conflicting care arrangements in a family court context will present with a formal psychiatric diagnosis. The cost to that child and to the community is incalculable.
While it bears repeating we don’t know the details of this intensely sad and tragic case, it is certain that these young children have had to manage their way through difficult parental dynamics, and with a heartbroken and potentially divided extended family watching on.
We know that parents in conflict are frankly trying to deal with one of the biggest crises of their life, and in the heat of the moment the raw emotions of fear, anger, guilt and grief make finding a solution focus all but impossible. Catapulted into crisis, even as adults, we regress to childlike responses: fight or flight seems to sum up the essence of this heartbreaking case.
Of course it would be trite and presumptuous to suggest that mediation could have “fixed” this specific case. This Phillips story involves complex dynamics, including secrecy, defiance of the law and armed confrontation. Yet the underlying lesson is clear: when families reach crisis points without safe, supported dialogue, outcomes escalate in ways that profoundly hurt children and communities.
The value of keeping children out of court
We simply can’t gloss over the profound differences of involving children in a collaborative, problem-solving environment, compared with the drawn out, hostile and adversarial environment of the family court. Children tell us unequivocally that they don’t want to air family issues to complete strangers, that they seek solutions with and within the context to which they are profoundly attached – their families.
In 2021, after decades of lobbying, The Family Court Supporting Children in Court Act was passed, and children subject to dispute about care arrangements are now to be given reasonable opportunities in the out-of-court mediation space to participate in the decisions affecting them.
This is a very necessary extension to the rights of a child to comment on matters affecting them which frames the existing Care of Children Act. In the latter, we are talking about the voice of the child represented by a lawyer for child. In practice, however, children’s voices are often filtered through adult agendas or ignored altogether.
In my extensive work I have witnessed over and over how children benefit when they are safely included in mediation – not to decide where they live, but to share feelings, worries and hopes derived from their lived experience and, almost without exception, a fervent wish that their parents understood their feelings.
Listening to children changes perspectives
When a trained child inclusive worker meets with a child and then helps parents hear what their child is experiencing, parents can shift from rigid positions to seeing what it is that really matters. Parents who arrive at mediation prepared to battle will often leave with softened positions when they hear their child’s feelings and words reflected back carefully and with a context of child wellbeing. Children in separation not only lose the comfort of family unity, but too often lose a sense of belonging to one side of their wider family altogether. The rupture is profound and these children frequently describe a loss of identity as well as relationship.
Child inclusive mediation is not a magic wand, but it is a proven way to reduce intractable conflict. It gives children agency and parents a chance to move past entrenched positions, and it gives families an opportunity to avoid extremes of either courtroom warfare or desperate escape.
This is why I describe ongoing child distress from parental conflict as a public health issue; we know that children’s interests are inarguably best protected by their parents’ ability to focus and plan more cooperatively about them. The children are included – and significantly, so are their parents.
A funded (partial) solution
The young children in the tragic Phillips case are physically safe and now their privacy and healing must be paramount. But as a nation, we also need to reflect on what this saga tells us about care of children disputes in New Zealand. We cannot dismiss this as a one off. While, thankfully, few cases reach such a dramatic endpoint, far too many families live with the daily trauma of unresolved separation conflict.
The good news is that we already have tools to do better. Family Dispute Resolution is child inclusive and is fully funded in New Zealand since July of this year.
Sadly, this information is not widely disseminated. The provision is not about giving children decision-making power but about ensuring they are heard in terms of their lived experience – because when children are heard parents tend to listen, and when parents listen, conflict tends to de-escalate.
It is a public health issue that we commit to finding ways to hear our children, and their parents, and to seek safe outcomes for families struggling – before silence and conflict push families to breaking point.
Jill Goldson is director of the Family Matters Centre in Auckland, and the author of Child Inclusion in Parenting Dispute Mediation: The key to keeping family separation out of court.
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