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Children and family court: start making sense, say kids

By May 16, 2018October 26th, 2021No Comments

The contested cases involving children in the family court demand resolution in the “best interests of the child” involved, but how can the family court system be improved so that the actual processes of family law, not just the desired outcomes, are truly child-centred?

With generally the most complex parenting conflicts comprising the 7% of matters that proceed all the way to trial, issues of family violence and parental capacity are often at the forefront of the cases involving children and family court. In these matters, children are likely to have an Independent Children’s Lawyer (ICL) appointed to them or see an expert tasked with writing a family report.

The experience of children who fall into this category is increasingly on the radar of policymakers and practitioners of family law in an effort to make family law processes more a “positive, inclusive” experience for kids. 

For example, the experience of children and family court is one of the issues being considered by the Australian Law Reform Commission during the current review of the family law system. (Although the deadline for public submissions in relation to the ALRC Issues Paper has now passed, you can still view the discussion of the issues around children’s participation.)

Now, the results of new research undertaken by the Centre for Children and Young People at Southern Cross University, funded by Legal Aid NSW, have been revealed. The research focused on children’s understanding and experiences of family law processes with the methodology being a survey of 54 children and young people (age 7 to 16) who accessed the services of Legal Aid NSW.

The study was conducted by Anne Graham (professor and director of the Centre for Children & Young People, Southern Cross University) and Judy Cashmore (professor of Socio-Legal Research and Policy, University of Sydney).

Professors Graham and Cashmore found that surveyed children placed the most importance on being able to:

  • understand the role of the ICL, a representative that the court may appoint to represent their best interests and ensure the court hears the child’s views (if that’s what the child wants). 
  • trust the ICL
  • have clear explanations about who will know what they tell the ICL
  • be listened to and be heard
  • check with the ICL about what’s OK for them to say in court
  • be able to talk to the ICL when they need to.

The researchers say children want the process and the roles of key players explained. However:

While they want their views to be taken into account, most children do not want responsibility for decisions, and they do not want to upset their parents.

The study’s findings have led the authors to develop a “Good practice guide for ICLs” regarding children and family court.  As they note:

It’s important that ICLs:

  • Consider logistics of the meetings they have with children (How easy is it for the child to get to? Will the parent wait outside the door?)
  • Take time to build rapport with children
  • Explain the legal process and key players in terms the child can understand, with analogies
  • Explain the limits of confidentiality – that the ICL can keep some things to him/herself, but not all
  • Address common concerns of children (Will I have to go to court? Will the ICL tell my parents what I have said? Who is making the decision? When will all of this be over?)

The importance of children being able to confide in practitioners can’t be understated, given that determining their best interests requires that children share information without being concerned over potential repercussions.

You can read our blog on Independent Children’s Lawyers here.

You may also like to read our blog regarding at what age children’s views are taken into account by the family court.

Source: The Conversation

Do you have an ICL appointed to your matter, or are interested in having one appointed?  Please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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