Eje de acción: Residuos Sólidos

As discussed in Chapter Two, by ratifying the UNCRC, Australia has recognised that children have a right, pursuant to Article 12 of that convention, to be heard and have their views taken into account in any proceedings affecting them.90 Giving children the opportunity to meet with the judge who is to make decisions about their future care, upholds that right.

Article 12 is somewhat ambiguous, in that it does not specify whether children have a right to be heard directly, or whether the right is still respected where children are heard ‘through a representative or an appropriate body’. Meeting directly with a judge allows a child to participate directly in the proceedings. In Chapter Two it was argued that, in order to uphold a child’s right under Article 12, they must be given the choice about whether they express their views directly, or through a third party, or not at all.91 Therefore, it is important that children are given the option to meet directly with a judge. Whether a child wishes to pursue that option is a matter for them to decide. Birnbaum and Bala agreed, stating, in relation to judicial meetings with children:

It is… our view that all children should be regarded as having the right to decide whether they want to meet with the person who may be making very important decisions about their future (emphasis in original).92

Noting that the court has a statutory obligation to take into account any views expressed by a child in making a decision for their post-separation parenting arrangements, it follows that any court procedure that promotes the child’s right to express their views upholds Article 12 of the UNCRC, and also complies with the court’s obligation to take children’s views into account. Therefore, the practice of judges meeting with children demonstrates Australia’s compliance with an important international obligation and, significantly, demonstrates to children that they have a right to be involved. Parkinson et al wrote:

90 _{Confirmed by Nicholson CJ in ZN and YH and Child Representative (2002) FLC 93-101, [112].} 91 _{See discussion in Chapter Two; United Nations Committee on the Rights of the Child, General}

Comment No. 12: The Right of the Child to be Heard, CRC/C/GC/12 (2009), [35] <http://www2.ohchr.org/english/bodies/crc/comments.htm> at 12 February 2010.

92 _{R Birnbaum and N Bala, ‘Judicial Interviews with Children in Custody and Access Cases:} Comparing Experiences in Ontario and Ohio’, (2010) 24 International Journal of Law, Policy and the Family 300, 330.

Working through the issues involved in [judicial meetings with children] may yield many benefits in ensuring that the decision-making process allows children not only to be heard, but to know that they have been heard.93

Many judges have explicitly recognised that allowing a child to meet with a judge upholds the child’s right to be heard pursuant to the UNCRC. Comments to that effect were made by Nicholson CJ in ZN v YH and Child Representative94 and by Baroness Hale of Richmond, a United Kingdom judge, who wrote that ‘even if it was of no benefit to me in making the decision, I would still think it is the child’s right to be heard if that is what she wants’.95

In N and N96 Mullane J said that his practice of explaining his orders and reasoning to

children directly (discussed further below) was in specific acknowledgment of children’s rights under the UNCRC and the legitimate expectation that the Family Court will exercise its inherent powers in conformity with that treaty.97 In this particular case, Mullane J said his meeting with an 11 year old boy was ‘intended to inform the person whose interests are most affected by the proceedings of the outcome and the reasons in a way that is more beneficial to him and more respectful of him’.98

In an article written by United Kingdom District Judge Crichton, his Honour reported on a meeting with a 12 year old girl who was the subject of a welfare matter.99 The girl, Shanika, requested to meet with the judge and he agreed. Her views had already been set out in detail in an expert report. His Honour met with Shanika and they ‘chatted’ for 10-15 minutes. When the matter resumed in court, Shanika was allowed to remain. She chose to sit in the judge’s chair.100 There was no significant dispute in

93 _{Parkinson, Cashmore and Single, ‘Parents’ and Children’s Views on Talking to Judges’, above} n68, 105.

94_{ZN and YH and Child Representative (2002) FLC 93-101, [112].} 95 _{Hale, above n15, 125-126.}

96_{N and N (2000) FLC 93-059.} 97 _{Ibid, [18], citing}

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. However, note that his Honour’s practice was to speak with children after his decision had been made. Although his Honour acknowledged children’s right to be ‘involved’ in proceedings, his practice did not allow children to participate directly in the decision-making. Further, note the discussion in Chapter Two regarding the effectiveness of the ‘legitimate expectation’ doctrine, which has been placed in doubt.

98

N and N (2000) FLC 93-059, [19]

99 _{District Judge N Crichton, ‘Listening to Children’ (2006) 36 Family Law 849, 849.} 100 _Ibid.

the hearing, and a temporary arrangement was agreed, with the matter to come back to court in six weeks. His Honour detailed what happened at the next court event and his reasoning for agreeing to meet with Shanika and involve her in the process:

[Shanika] came in smiling, and unhesitatingly and confidently walked towards the bench to sit in my chair. I had already arranged an extra chair for me to sit beside her. The hearing did not take long and I made a final care order. It was Shanika’s birthday the following day. A short informal party followed, with cards and presents. What was the value of all this? The guardian had already filed a comprehensive report including an accurate account of Shanika’s wishes and feelings. Shanika’s presence did not add to my knowledge of her case nor did it assist in a decision which was agreed in any event. However, … I hope and believe that when she looks back on the awful events which changed the course of her life she will feel that she was acknowledged and respected by the family justice system.101