Voices of Children in the Legal Process

By Byrnes, Patricia | Journal of Family Studies, April 2011 | Go to article overview

Voices of Children in the Legal Process


Byrnes, Patricia, Journal of Family Studies


ABSTRACT

This paper looks, from the perspective of a practising family law barrister, at how the views of children are taken into account in family law legislation, case law, and the practice of the family courts. Recent Commonwealth Government reviews of the 2006 amendments to the Family Law Act 1975 released in 2010 are considered in this context. The role of international covenants in interpreting and applying the law relating to children's views is considered and the question is posed: Is sufficient weight given to the views of children in family law?

Key words: children's views; children's voices; family law; family law cases; international conventions; representing children

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Evaluation conducted by the Australian Institute of Family Studies (AIFS) of the 2006 Family Law Reforms (Kaspiew et al. 2009) found that the majority of separating parents are able to agree on arrangements for their children. The sample of 10,000 parents, who had separated after the 2006 family law reforms, reported that they had resolved issues related to future parenting arrangements with little or no use of formal family law or family court services. It was found that an average of 15 months after separation, 62% of these parents described their post-separation relationship as friendly or cooperative. No doubt for this group there was a need for give and take. However, without an in-depth understanding of the way the negotiations took place, one can only hope that the compromises that inevitably occurred were made with sufficient focus on the children's needs, perceptions, and attachments. Other parents from this sample give less reason for such hope: 19% of the AIFS sample said their relationship was distant at the 15-month mark, 14% reported that it was highly conflicted, and 5% said that they were fearful of their former partner. These are the parents who are likely to need more formal help. As the AIFS evaluation found, some of these parents progressed through mediation or family dispute resolution despite the conflict; some used a multitude of other family relationship services; many visited a lawyer; and a minority ended up in either the Family Court or Federal Magistrates Court--a proportion of whom would have found themselves in a barrister's chambers. The dispute among parents who get to this stage can be vitriolic and emotional, especially if the parents lose sight of their children and battle principally for supremacy over each other. The children are the potential victims of these attitudes and processes and the damage can be significant (McIntosh 2003; Weinstein 1997).

One way of ameliorating the impact of toxic attitudes and processes at this end of the family law spectrum is to find responsible ways of incorporating the voice of the child. There has been much debate since the family law system was established as to how the voice of children should be heard in the adjudication of such disputes. The present paper poses two questions from a practising family law barrister that flow from this question. The first question is more easily addressed than the second; the second question is one that provokes very different responses from different stakeholders:

1. How is the voice of children being heard in the family courts?

2. Should the views of children be given greater weight than has been the case to date in the family law jurisdiction?

Broadly, there are two ways in which the 'voice' of children can be taken into account when parents litigate. The first is to give paramount consideration to the best interests of the child in determining the issues in dispute in a parenting case. The second is to canvass the actual views or wishes of children whose best interests are in dispute and to take them into account in the legal process. The latter is the focus of this paper.

Although the paper is practically focused, it needs to be acknowledged at the outset that debate about the rights of a child generally and the rights of the child to have specific input into the litigation process also occurs at a theoretical and philosophical level. …

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