chapter  10
19 Pages

Children’s participation in family law matters

ByJudy Cashmore

There has been considerable debate in the psychological and legal literature over several decades about the role that children’s preferences or wishes should play in the determination of residence and contact arrangements following their parents’ separation and divorce. More recently, that debate has included recognition of children’s right to be heard in matters that affect them, outlined in Article 12 of the UN Convention on the Rights of the Child. This recognition is also reflected in both the language and focus of legislation in Australia and in other common law countries (see e.g. the Children Act 1989 in England and Wales, and the Family Law Reform Act 1995 in Australia). It has also been the subject of significant discussion and recommendations of various government reports in Australia, Canada and the UK (Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, 1997; Family Law Council, 1996; Family Law Pathways Advisory Group, 2001; Thorpe and Clarke, 2000), and a view expressed by eminent judges. For example, in Re P (A Minor) (Education) (1992), Butler-Sloss lj said:

The courts, over the last few years, have become increasingly aware of the importance of listening to the views of older children and taking into account what children say, not necessarily agreeing with what they want nor, indeed, doing what they want, but paying proper respect to older children who are of an age and the maturity to make their minds up as to what they think is best for them . . .