The UNCRC grants a wide range of rights18 to all children under the age of 18 years in ratifying countries.19 Lansdown argued that the principles contained in UNCRC can be broken down into three main categories: provision, protection and participation: He wrote:
The provision Articles recognize (sic) the social rights of children to minimum standards of health, education, social security, physical care, family life, play, recreation, culture and leisure.
The protection Articles identify the rights of children to be safe from discrimination, physical and sexual abuse, exploitation, substance abuse, injustice and conflict. The participation Articles are to do with civil and political rights. They acknowledge the rights of children to a name and identity, to be consulted and to be taken account of, to physical integrity, to access to information, to freedom of speech and opinion, and to challenge decisions made on their behalf.20
Several articles of the UNCRC have significance for children whose parents have separated and who are the subject of contested hearings under Part VII of the FLA. These include the articles which govern relationships between children and their parents. Many of the principles embedded in those articles have been implemented, or were already present, in the FLA. For example, section 60CA of the FLA requires the court to regard the best interests of the child as the paramount consideration (Article 3.1). The ‘objects and principles’ in section 60B(1) and ‘primary considerations’ in section 60CC(2) (which emphasise the benefit to children of having a meaningful relationship with both parents and the need to protect children from physical or psychological harm) are reflective of Articles 9.3 and 19.1 respectively. Article 18.1 is reflected in the acknowledgement in section 61C that each parent of a
17 These are USA and Somalia. Statistics updated 5 December 2008 (Office of the United Nations High Commissioner for Human Rights website
<http://www2.ohchr.org/english/bodies/ratification/11.htm> at 13 January 2009). 18 Otlowski and Tsamenyi, above n7, 140.
19 Ibid, 141; UNCRC Art 1.
20 G Lansdown, ‘Children’s Rights’ in B Mayall (ed), Children’s Childhoods: Observed and Experienced (1994) 36.
child has parental responsibility for that child, and the requirement in section 60CC(3)(a) for the court to take account of any views expressed by a child is somewhat reflective of Article 12. Some amendments introduced by the Family Law
Reform Act 1995, such as the inclusion of the ‘objects and principles’ section,21 were
made to directly implement principles of the UNCRC.22
2.2.3 Tension between children’s right to participate, the ‘best
interests’ principle and protection rights
A child’s right to express their views and be heard pursuant to Article 12 of the UNCRC cannot be exercised in an unfettered manner. There is an apparent tension between the ‘participation’ rights, such as that in Article 12, and the ‘protection’ rights, such as the right to be protected from harm (Article 19.1). In a situation where a child would like to participate in a decision but to do so would put them in a situation of harm, the two sets of rights will conflict. The extent to which children are granted a voice and have their views taken seriously depends on how the court prioritises these potentially conflicting rights.23
Adding to the complexity, Article 3.1 - the ‘best interests’ principle - states that in all actions concerning children, the best interests of the child shall be a primary consideration. This article ‘clearly locates adults as having responsibility for the welfare of children’.24 It appears, then, that a child’s right to participate is qualified by the ‘best interests’ principle, meaning that children are granted a right to participate only in situations where adults believe it is in their best interests to do so. This can lead to the potential erosion of children’s ‘participation’ rights. As Lansdown explained:
21 FLA s60B.
22 A first draft of the Family Law Reform Bill contained explicit reference to articles of the UNCRC. Those references were removed in subsequent drafts, apparently responding to concern that the legislation would otherwise incorporate certain UNCRC articles into domestic law (M Harrison and R Graycar, ‘The Family Law Reform Act: Metamorphosis or More of the Same?’ (1997) 11
Australian Journal of Family Law 327, fn14). See discussion below at 2.2.6 about the High Court’s decision in Teoh and the government’s reaction to it.
23 B Neale and C Smart, ‘Agents or Dependants? Struggling to Listen to Children in Family Law and Family Research’ (Working Paper 3, Centre for Research on Family, Kinship and Childhood, University of Leeds, 1998) 1.
[T]he operation of the best interests principle should not be seen as inherently beneficial to children. It can be, on the contrary, a powerful tool in the hands of adults, which can be used to justify any of their actions and to overrule the wishes and feelings of children.25
The granting of participatory rights for children empowers them in a way that many adults find problematic.26 Allowing a child to participate may require adults to relinquish their ‘power’ and control over children, and may result in over-burdening children with responsibility for decision-making.27 Many adults perceive children as lacking the competence and autonomy presumed by the idea of a right and think they must therefore be protected in the exercise of the rights granted to them.28 Adults justify interfering with a child’s right to participate on the grounds that to do so would not be in their ‘best interests’. However, granting participation rights to children does not mean they should be treated like adults. As will be explored in this chapter, children who want to have a say in decision-making may not necessarily want to make decisions themselves.29 Further, as Morrow wrote:
[C]hildren don’t tend to use the language of ‘rights’, not surprisingly; rather, they use a language of participation and inclusion, encapsulated by the phrase used by many of them, the desire to ‘have a say’ in decisions that affect them.30
Children ‘are asking for inclusion and participation and are aware of their exclusion and lack of participation’.31
Therefore, adults must ensure that if children’s participation rights are to be interfered with, they are truly acting in the child’s best interests and not out of concern that children are incapable of exercising their rights. This involves careful deliberation about how to determine what is in a child’s ‘best interests’. Lansdown argued that determining ‘best interests’ is not a purely subjective task, but must occur with full recognition that children have basic civil rights, including the right to be listened to
25 Ibid, 41.
26 Neale and Smart, above n23, 1.
27 V Morrow, ‘We Are People Too: Children’s and Young People’s Perspectives on Children’s Rights and Decision-Making in England’ (1999) 7 International Journal of Children’s Rights 149, 150.
28 Ibid, 150; Note Neale and Smart’s discussion of the conceptualisation of children as active moral and social agents and/or dependants in need of protection, and the perceived tension between the two (Neale and Smart, ‘Agents or Dependants?’, above n23, 1-2).
29 There is a wealth of research on this issue, which is discussed in detail later in this chapter. 30 Morrow, ‘We Are People Too’, above n27, 167.
(Article 12), the right to freedom of expression (Article 13) and the right to freedom of conscience (Article 14). Lansdown wrote:
If one accepts these principles as given, then they form the principled framework against which the concept of best interests can be tested. Without it, the rights of the child can be subjugated to personal prejudice, an unwillingness to resolve conflict, lack of any consideration of the child’s perspective or simply a battle for power in which the adult is invariably the stronger.32
Children must be allowed to participate in decision-making in accordance with Article 12 unless it is determined, in full acknowledgment and respect for children’s rights,33 that to do so would not be in the child’s best interests.