In the Family Court, children say they want the process explained and their views heard. It's time we listened

Where will I live? Who will look after me? Can I stay at my school? Do I have to move house? Can I keep my dog?

When parents separate, children are full of burning questions.

In most cases, separating parents work out the arrangements for their children between themselves. But when parents cannot resolve their disputes they can end up in the Family Court or the Federal Circuit Court. Most cases are eventually settled, but about 7% of these cases have to be decided by a judge.

The children may or may not have any say in what happens. Among the issues under consideration in a review into the family law system presently underway at the Australian Law Reform Commission is how children can be better supported to participate in family dispute resolution processes.

Research provides some clues. Our study, undertaken by the Centre for Children and Young People at Southern Cross University for Legal Aid NSW, included a survey of 54 children and young people (aged 7–16 years) accessing the services of Legal Aid NSW. We focused on children’s understanding and experiences of family law processes.

We found children placed most emphasis on being able to:

• understand the role of the Independent Children’s Lawyer (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.

Good practice for Independent Children’s Lawyers

We’ve used these findings to develop a good practice guide for ICLs (Independent Children’s Lawyers) who are tasked with representing the views of children in the legal process.

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?)

A delicate balance

In the family law context, balancing children’s rights to protection while affording them their participation rights can be delicate.

It is now widely acknowledged that children have legitimate views and important things to say about what matters to them – for example, which school they attend, whether they can play sport on the weekend if their living arrangements change, how much time they spend with the parent’s new partner (whom they may not like).

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.

When disputes are ongoing, and involve serious conflict, allegations of family violence, abuse, and parental incapacity to provide safe care, children are likely to see a person appointed to write a family report for the court, and have an ICL appointed.

In these circumstances, children are likely to be unsure about talking to a lawyer and what they should and should not say. They may be concerned about the repercussions, and even their safety, if they go against a parent’s claims. This can mean that children may not share information that could help determine what would be in their best interests.

‘You realise they do care’

Respecting what matters to children is crucial. It can help determine how sustainable and workable the arrangements are, and whether children feel recognised. As one child told us:

I think it’s important they’ve asked us our opinion before they’ve made a decision. And they’ve made us feel like they actually do care about us, whereas before … when it first happened you felt like you were nothing … and then once they start involving you in it you realise that they do care, they want to know our opinion, they want to make sure that we’re okay with it before they do it.

We now have good evidence and promising practice that could help to make family law processes a more positive, inclusive experience for children. Best for Kids is also a great resource for children and families, with a video explaining what an ICL does, and also other age appropriate information for children under 10 and those who are older.

But legislative reform and policy change won’t make a difference while we carry assumptions that children can’t or shouldn’t contribute meaningfully to post-separation decisions.

This requires a different kind of change – one of mind and heart in the way we view and treat children, including how we support them to adjust to major change.