By Danielle Abel, Paralegal
There has been an increase in acceptance in Australian law and policy that children should have the opportunity to express their views in matters that affect them. However, how much weight is given to a child’s views?
Australian Law considerations
The Court will always have significant regard to what is in a child’s best interests when making any decision relating to the child. What the court determines to be in a child’s best interests are based on two primary considerations outlined in Section 60CC of the Family Law Act 1975 (Cth):
- The benefit to the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence
An additional consideration for the court to consider when determining what is in a child’s best interests includes, amongst a raft of other factors that the court must have regard for, is “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.”
International Law considerations
The right for a child to be heard is enshrined in the United Nations Convention on the Rights of the Child, adopted in 1989, which Australia ratified in 1999. Article 12 requires that “a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child and that they be given due weight in accordance with the child’s age and maturity.” Furthermore, Article 12 stipulates that the child must “be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” This reinforces the importance of the Court facilitating a way a child’s views can be expressed in proceedings pertaining to them, as the Convention emphasises that the right for a child to be heard is foundational to Court proceedings.
The Role of an Independent Children’s Lawyer
An independent children’s lawyer (ICL) can be appointed in parenting proceedings to represent the child’s best interests. However, the ICL is to advance their perspective about what is in the child’s bests interests, based on the available evidence, rather than act as a direct voice for the child.
In order to come to a conclusion about what is in the child’s best interests, the ICL may:
- Meet with the child if age appropriate
- Speak to people in the child’s support network, such as teachers, counsellors, GPs etc
- Speak to the child’s family
- Examine documents from schools, medical documents, child welfare authorities and/or the police
Before a child reaches the age of being able to consent to medical treatment, a child can be found to be lawfully competent to consent to some procedures. This requires a determination by the Court that the child is a ‘mature minor’ under the Gillick test, also commonly referred to as the child being ‘Gillick competent’. This test means that the child “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. In a special medical procedure case, the role of the ICL is to present expert evidence to the Court to assist the Judge with determining whether the child is ‘Gillick competent’.
Barriers to participation
There are individual and systemic barriers that impact a child’s participation in court proceedings. A child may not be old enough or have the capacity to understand and engage with court proceedings. However, just because a child is young, or has a different level of understanding, does not mean they cannot express an opinion about their wants and needs. Therefore, a Family Law professional will assess the child’s capability on a case-by-case basis and assist in overcoming individual barriers through the appointment of an ICL.
There is also a focus on protection of a child from exposure to adversarial proceedings. A long, and stressful court process can have a negative impact on the well-being of all parties involved, especially children who exposed to an acrimonious separation of their parents.
Parental coaching is also concerning to the Court, where a parent may manipulate the child to benefit their case. Family Law professionals must be able to recognise when this is occurring and attempt to engage with the child and their network to overcome this.
The Court is also mindful that the disclosure of a child’s medical records could impact the child’s therapeutic relationship with their counsellor or psychiatrist. A child may become concerned about their ability to trust and seek further assistance from their counsellor if they are afraid that their records will be shown to their parents or used in proceedings. Before a subpoena is issued by an ICL or a party in the proceedings, this issue needs to be considered carefully.
What we can do
Our Family Law Team is highly skilled in representing parties in parenting proceedings. We also work closely with the ICL to ensure the appropriate evidence is before the Court in relation to a child’s wishes.
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