Legal reforms not enough to keep children safe

Another concerning issue is that children have only rarely been allowed to speak and give their views directly to the Courts. 

Recent research titled “What Do Australian Family Law Judges Think about Meeting with Children?” by University of South Australia family law lecturer, Dr Michelle Fernando, has shown that Australian Family Court judges and magistrates rarely meet the children whose fate they are deciding and many don’t think they should do so. Dr Fernando believes the failure of the judges to hear from children directly may contravene Australia's obligations under the United Nations Convention on the Rights of the Child for children to be heard and the NCCPS and NCPA strongly support this view.

The benefits of including children and young people in Court proceedings is widely known as it is an opportunity for them to disclose information that might not otherwise be available and judges being better able to focus on their needs. In addition it is an opportunity for judges to receive information from the child that is unfiltered, unbiased and not subject to interpretation by a third party. In almost every other court in Australia, all parties are given an opportunity to speak directly to the person making the decision. Why is it that children in the Family Court are not allowed to be heard directly? Children as young as six have been known to ask their parents why they can’t speak to the judge who is making a decision about their future. 

However, judges’ refusal to meet with the children is no longer tolerable as it denies children a fundamental human right and conflicts with the spirit and intent of the recent amendments to the Family Law and the U.N. Convention and the Rights of the child. Children should be given an audience with a judge who has been trained in child protection and that should take place in the judge’s chambers or other nominated area that shields the child from any pressure from their parents. In a court where a child has no control over decisions made for them, it is emotionally empowering for them to feel they are being heard.

The ‘friendly parent’ provision was an unnecessary inclusion in the Family Law Act and was used very punitively in Family Court proceedings. Without discernible benefit to the children involved, this provision, on occasion, was directly harmful to children, when it resulted in a change of their primary caregiver and denial of further contact with that primary caregiver and in some cases placing the child solely with the abusive parent.

In all Family Law cases, children must be given the opportunity to speak directly to the Court, investigations of child abuse allegations must be competently investigated, and in Hague Convention cases, a thorough assessment must be made of the social background into which the children are being returned.