Why children’s participation matters
The value of giving children the opportunity to express their views and to have those views taken into account in decision-making about their best interests is laid out in Article 12 of the United Nations Convention on the Rights of the Child (CRC). In simple (and child-friendly) terms, Article 12 provides that: ‘Children have the right to give their opinions freely on issues that affect them. Adults should listen and take children seriously.’
The benefits of children’s participation in family law proceedings have been well documented. They include:
- Improving children’s capacity to make decisions independently and helping them to feel empowered in the process;
- Producing well-informed, relevant decisions;
- Improving compliance with parenting orders; and
- Helping parents to resolve their disputes more effectively.
The importance of children’s right to participate is also emphasised in the National Framework for Protecting Australia’s Children 2021-2031. This is underpinned by the guiding principle, amongst others, of: ‘[L]istening and responding to the voices and views of children and young people… [who] have the right to participate in decisions that affect them.’
Law reform on the horizon
Australia has ratified the CRC, but this international convention has not been incorporated into domestic law at the federal level. That said, various principles in the CRC are incorporated into Part VII of the Family Law Act 1975 (Family Law Act), which deals with children’s matters. The Family Law Act establishes ‘the need to protect the rights of children and to promote their welfare’ as a principle to be applied by courts. It also expresses the commitment to make the CRC relevant to decision-making under Part VII, through an ‘additional object’, which is ‘to give effect to the Convention on the Rights of the Child’. However, this additional object only confirms that decision-makers can use the CRC to interpret the Family Law Act consistently with Australia’s international obligations.
When the court is determining what is in a child’s best interests in Part VII proceedings, ‘any views expressed by the child’ are the first ‘additional consideration’, taking into account any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The Family Law Act sets out how the court can be informed of the child’s views: by having regard to a family report; by making an order for independent legal representation of the child’s interests; or ‘by such other means as the court thinks appropriate’. But the Act also makes clear that nothing in Part VII ‘permits the court or any other person to require the child to express [their] views in relation to any matter’. Children cannot give evidence or be present in court during proceedings unless the court makes an order allowing them.
The Family Law Amendment Bill 2023, which is before federal Parliament, includes proposed changes to the Family Law Act to promote children’s participation in family law proceedings. These proposed changes include giving greater prominence to the CRC in the objects of Part VII; and expanding the duties of Independent Children’s Lawyers (ICLs) who are appointed to represent children’s best interests, by requiring that ICLs meet with children and give children an opportunity to express their views.
But there is a key stakeholder group missing in discussions about these proposed family law reforms, and in research about children’s participation in Australian family law more broadly: children and young people themselves.
We need to engage with children and young people, to better understand what meaningful, safe participation means and looks like for them in practice. Our project will address this need, by listening to and learning from children and young people as experts by experience.
Listening to and learning from children and young people with experience of the family law system
We will work with children and young people whose parents have separated and accessed Australia’s family law system, to co-design and produce a children’s participation toolkit. This toolkit will consist of various innovative resources for children and young people to raise awareness of their right under Article 12 of the CRC to participate in the family law system in different contexts, including litigation, mediation, and family dispute resolution. The toolkit will answer questions such as:
- What are my rights under Article 12 of the CRC?
- Who can help me to express my views and be heard?
- Who can keep me updated about what’s happening?
- What can I do if I think I haven’t been given an opportunity to express my views or I haven’t been heard?
The aims of our project are:
- To improve children’s experiences of participation in Australian family law decision-making;
- To contribute to the growing body of research and evidence about the value of respecting children’s right to participate in decision-making about matters that affect them; and
- To make an innovative contribution to the current policy and legislative priorities of the Australian Government to promote children’s participatory rights.
How we will do the research
Firstly, we will prepare a literature review, examining the right to participation under Article 12 of the CRC. We will look at how that principle is implemented in existing mechanisms for embedding children’s direct, unfiltered voices into decision-making processes, both within and beyond the Australian family law context.
Secondly, we will conduct online focus groups to co-design and test the children’s participation toolkit with children and young people whose parents have separated and accessed the Australian family law system. The first round of focus groups will be devoted to co-designing the toolkit. We will code and analyse the data from these focus groups to identify common themes in children and young people’s responses to, and ideas for, promoting their right to participation across family law decision-making processes. Once we have built the toolkit, the second round of focus groups will test it with children and young people, to assess its functionality and practical value.
We look forward to keeping you updated about our research journey, including how we secure ethics approval to work with children and young people, the findings of our literature review, and the co-design process for the children’s participation toolkit.
