Young people participation and child rights

Reframing the participation vs. protection debate in Australian family law: children’s voices and children’s rights

Authors: Dr Georgina Dimopolous

Australian family law views the child as a vulnerable, passive ‘object of concern’ and in need of protective adult intervention. In this paper, Dr Georgina Dimopolous reconceptualises children as active legal subjects with distinct rights and interests.

She argues that children themselves can, and should, play a meaningful role in decision-making about their own best interests.

Key questions

• How can we more fully embrace children’s right to express their views and to be heard in family law proceedings?
• How can we ensure that children get a bigger voice, more often in Australian family law proceedings?

The Family Law Act does embed ideas about children’s rights into the framework of Part VII of the Act. It reflects an express legislative commitment to make the United Nations Convention on the Rights of the Child (UNCRC) relevant to judicial decision-making in Australian family law. While this is heartening, the provisions of the UNCRC are not enshrined as operative principles of law in Australia. Another barrier is that the legal profession still has concerns that involving children in proceedings exposes them to conflict and harm, particularly in the context of parental separation.

The paper addresses the following issues:

• Children’s best interests and children’s rights under the Family Law Act
• Children’s right to express their views and to be heard
• Children’s participation in Part VII proceedings
• Reconceptualising the child, reframing the debate
• Children as ‘active shapers of their own lives’

The challenge lies in reconceptualising children as active legal subjects with distinct rights and interests, and so re-thinking the role that children themselves can, and should, play in making decisions about their best interests.

Relevant United Nations Convention on the Rights of the Child Article

Article 12: Children have the right to express their views freely in all matters affecting them.

Read the full article (PDF, 1.1MB)