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.
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:
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.
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