The four core principles of the United Nations Convention on the Rights of the Child (CRC) are:
Every right spelt out in the CRC is inherent to the human dignity and harmonious development of every child.
The respect for the views of the child have been incorporated into the Australian Family Law Act and the Act sets out what factors must be considered in assessing what is in the best interests of a child. These include the views of children. However, in many cases, it is not possible to ascertain the child’s views or wishes or for these to be taken into consideration by the court.
The Law
It is often difficult to hear the views of the child because the child is too young to articulate them. But, where a child does express views, the court must consider and give weight to them.
Parties to parenting matters often think that there is a magic age at which a child can make their own decision about where to live. In reality is that the views of children are taken into account increasingly as they grow and mature and depending on the circumstances of the case but will never be the only factor to determine the outcome.
Children like and appreciate having their voice heard in important matters that affect them. However, listening and considering a child’s views is very different from letting the child decide. As previously stated, children want their views heard, but they do want the grown-ups to make the decisions. Putting important decisions into the hands of a child is unfair to the child and burdens them with decisions that they do not need to be making. It’s up to the parents to be the grown-ups and make the decisions.
Children and their Best Interest
Some parents might say that the children don’t want to spend time with the other parent, so they are not going to make them go. Children don’t always know what is in their best interest. It is up to parents to make the decisions that are in the child’s best interest. The Family Court takes a dim view of parents that do not facilitate a child having a meaningful relationship with the other parent. Or if a parent restricts the children’s time with the other parent to punish that parent for perceived wrongs they have done.
For parents in a post separation parenting arrangement, the test for any decision is; would you do what you are thinking of doing if you and the other parent were not separated?
In PhD Lorri A. Yasenik’s dissertation on ‘Including the Voices of Children of Separation and Divorce in the Legal System’ she recounts Jennifer’s Story;
Jennifer, a 10-year-old girl sat down in front of the sand-play shelves where hundreds of symbols were lined up. She reached over and picked up a mesh-looking item and began to give it shape. She pulled its edges until she created a round sphere and placed it in the sand-tray.
She then pulled out a small figure of a girl and placed it inside the sphere. There, she said, “That is me and I am trapped in this cage and can’t breathe because they cannot stop arguing over me.” She then chose two cats and placed them close by, looking in. “These are my cats and they are just watching what is happening. They are my friends and they know what is going on.”
Jennifer later placed characters around the cage and identified them as her mother, father, and stepmother. She said, pointing at the two female figures, “If I had one wish, I wish these two could be friends.” Jennifer later noted that she wished she could spend more time at her father’s home, but her mother hated her stepmother.
Bring Peace to a Child’s World
Children want peace in their world, they want their parents to get along, they don’t want to make decisions or get caught up in having to support one parent in their battles with the other.
Children have a right to be children and enjoy their childhood. It is the foundation of their life, disruptions to this foundation will have a profound impact on the rest of their life.
MAGENTA 4 MEDIATORS