Should children have a voice in Family Law custody cases?

Over the last few weeks, people have perked up when they meet me and ask what I do.   Family Law in Australia is suddenly interesting (well - at least news or gossipworthy) and it seems everyone has an opinion.

Since the 'Italian sisters' gained a reprieve and are able to stay in Australia at least until the High Court sits in August, a new development has emerged...

A suggestion...an argument... that children should be able to have their voices heard in Court.

How are children's wishes currently heard in custody cases?

Currently our family law system operates so that children are interviewed by an experienced psychologist or social worker, in child appropriate languages and concepts to try to ascertain their level of maturity and any wishes they might express. 

This is then conveyed to the Court either directly or through an Independent Children's Lawyer, normally via what is referred to as a 'Family Report'.  In some custody cases a Child Consultant employed by the Court comes into Court and speaks to the Judge.

Dr Michelle Fernando (University of South Australia) surveyed Family Law Judges and Federal Magistrates and concluded very few meet children whose custody they are deciding.

Does this lead to children feeling "helpless, unheard and powerless"?

Article 12.2 of the United Nations Convention on the Rights of the Child states:

"the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body consistent with the procedural rules of national law."

I have never been involved in a custody case where a Judge or Federal Magistrate has met the children.

This is usually the role of the Independent Children's Lawyer (ICL) or a professional they appoint to meet with the children.  

Independent Children's Lawyers

The Family Court has set out guidelines for ICLs to follow.  Interestingly they note: 

"The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities."

Importantly:

"The ICL does not take instructions from the child but is required to ensure the Court is fully informed of the child's views, in an admissible form where possible."  (my emphasis)

Significantly the guidelines also state:

"Despite the inability to guarantee the child a confidential relationship, the ICL should, however, strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including:

       how the child can have a say and make his/her views known during the process;

       that where a child of sufficient maturity wishes to have a direct representative who will act on the child's instructions, the ICL should inform the child of the possibility of applying to become a party to the proceedings;" (my emphasis)

The guidelines also provide that:

"The ICL is to ensure that any views expressed by the child are fully put before the Court and so far as possible, are in admissible form. This includes views that the ICL may consider trivial but the child considers important.

The ICL is to also arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child's wishes."

However The ICL is permitted to make submissions contrary to the child's wishes "If the ICL considers that the evidence indicates that the best interests of the child will be promoted by orders which are contrary to the child's views."

The future

On 25 May 2012 the Federal Attorney-General announced a review into "whether Independent Children’s Lawyers are effective when representing children in family law cases". The timing cannot be purely coincidental...

Alternatives to custody battles

Custody does not have to be a war fought in the court system.  Not everyone can work out their parenting arrangements around the kitchen table.  But there are options to help people who want a civil, respectful resolution which protects their children and ensures that their voices are heard.

To find out more about collaborative law and other ways to work out custody and finances without going to court, contact me.