The Voice of a Child in Family Law Disputes

by Parkinson, Patrick; Cashmore, Judy

• ISBN13: 9780199237791
• ISBN10: 0199237794
• Format: Hardcover
• Copyright: 2009-02-15
• Publisher: Oxford University Press

Summary

When relationships break down, disputes commonly arise over the parenting arrangements for children, whose living arrangements have to be reorganized at a time of great conflict and turmoil. Most such disputes are resolved without a judicial determination through private agreement, negotiation between lawyers, mediation, or a combination of these methods. This book examines whether and how children should be involved in the process of resolving family law disputes. Although there is widespread acceptance in the Western world that the views of children should be taken into account, and that the weight given to those views should depend on children's age and maturity, there is much less agreement about how children's voices should be heard. There are many benefits to giving children a voice in decisions that affect their lives, and the UN Convention on the Rights of the Child identifies this as a right for children. However there are difficulties and dangers in seeking to hear from children, not least because they may be subject to pressure from each parent to express views that support his or her case. Courts dealing with family law issues are constantly faced with a dilemma. Is it better to keep children out of the conflict, or to give them a say so that the arrangements are as workable for them as possible? This book integrates examinations of these issues with empirical data from interviews which explore the views and experiences of children, parents, counselors, mediators, lawyers and judges involved in such disputes in Australia. Drawing on this research, the authors suggest ways that children can better be heard without placing them at the center of their parents' conflicts. They argue that the focus should not just be on how children are heard in legal proceedings, but on how they can be better heard in those families who resolve their conflicts without going to court.

Author Biography

Patrick Parkinson is Professor of Law at the University of Sydney, specializing in family law. He served from 2004-2007 as Chairperson of the Family Law Council, an advisory body to the Australian federal Attorney-General and is Editor of the Australian Journal of Family Law. Judy Cashmore is Associate Professor in the Faculty of Law at the University of Sydney. She has a PhD in developmental psychology and considerable research experience in relation to children's involvement in family law proceedings and when there are child protection issues. She is currently a member of the Judicial Commission of New South Wales.

Table of Contents

Preface	p. v
The Debate About Children's Voices	p. 1
The Protective Approach to Children	p. 2
Views on the Capacities of Children	p. 3
Children as Participants	p. 4
Understanding children as social actors	p. 7
Understanding children as citizens	p. 9
The Pitfalls of Listening to Children	p. 13
Children may be placed in the middle of their parents' conflicts	p. 14
The risk of undue influence	p. 15
Children may be given the decision-making authority that the parents need to exercise	p. 15
Children's voices may provide an excuse for adults to avoid hard decisions	p. 16
The risk that children's voices will be used to facilitate irresponsible adult decisions	p. 17
Different Levels and Forms of Participation	p. 19
The Purpose of this Book	p. 21
The Research	p. 23
The Importance of Multiple Perspectives	p. 24
The importance of children's and parents' views	p. 27
The importance of professionals' views judges, lawyers and welfare professionals	p. 28
Research Method	p. 29
The participants and the interviews	p. 30
Practical and Ethical Issues in Research with Children	p. 33
Consent for children's participation	p. 34
Confidentiality and privacy of children's responses	p. 36
Format of interviews with children	p. 37
The Different Ways of Hearing the Voice of the Child	p. 39
Legislative Principles for Participation	p. 41
Child-inclusive Mediation	p. 43
Family Reports	p. 47
Child Representatives	p. 49
Children as Parties to Proceedings	p. 53
Judicial Interviewing	p. 55
Evidence from Children	p. 59
The Filtering of Children's Voices	p. 60
Children's and Parents' Views of Children's Participation	p. 62
Preconditions for Children's Participation	p. 63
Children's Views	p. 64
Children's reasons for wanting to have a say	p. 67
Children's reasons for not wanting to have a say	p. 68
Children's actual and perceived involvement	p. 70
How much say did children want?	p. 73
Having a say and the fairness of the arrangements	p. 75
Parents' Views	p. 77
Should children have a say?	p. 77
Age, maturity and parental influence	p. 80
Parents' views on the benefits of children having a say	p. 85
Children's and Parents' Views Compared	p. 87
Similarities and differences in children's and parents' views	p. 87
Differences between those who had experienced contested proceedings and those who had not	p. 88
Voice and Choice in Children's Participation	p. 89
Professional Views of Children's Participation	p. 91
The Importance of Professional Perspectives	p. 91
Family Lawyers	p. 92
Age, maturity and parental influence	p. 93
Workability and children's happiness	p. 97
Protection from participation	p. 100
Children as decision-makers	p. 103
Children's participation as about choices between adult positions	p. 104
Changing the system	p. 105
Mediators and Counsellors	p. 106
Enlightenment	p. 107
Empowerment	p. 108
The involvement of children in mediation	p. 108
Workability	p. 109
Therapeutic benefits	p. 110
Concerns about pressure and manipulation	p. 110
Age, maturity and self-determination	p. 112
The risks of involving children in the litigation process	p. 114
Judges	p. 115
Children's voices in the context of all the evidence	p. 116
Evaluating children's wishes	p. 118
Lawyers v Welfare Professionals on Children's Participation	p. 119
Participation, Decision-making and Parental Influence	p. 120
Children's Involvement in The Litigation Process	p. 123
The Voice of the Child in Family Reports	p. 123
Entering the child's world	p. 124
Assessing the child's views	p. 125
Family reports and children's secrets	p. 128
Following up on outcomes	p. 131
The Role of Child Representatives	p. 132
Meeting with the child	p. 133
Ascertaining the views of the child	p. 134
Representing the child	p. 136
Respecting confidentiality	p. 137
Advising the child	p. 138
Counsellors, Lawyers and the Interpretation of Children's Voices	p. 139
Parents' Views	p. 141
What did parents think of the family report process?	p. 141
What did parents think of the children's lawyers?	p. 145
Children's Views	p. 148
What did children think of the family report process?	p. 149
What did children think of their legal representative?	p. 152
Filtering, Confidentiality and Feedback Mechanisms	p. 154
Judicial Conversations With Children	p. 158
The Views of the Children	p. 158
Who would be the best person to talk with?	p. 159
Specific questions on talking with judges in chambers	p. 160
Children's reasons for wanting to talk with the judge	p. 160
Children's reasons for not wanting to talk with the judge	p. 163
Parents' Views	p. 164
Parents' reasons for favouring judges talking with children	p. 165
Parents' reasons for not favouring judges talking with children	p. 167
The preferred process	p. 168
Professionals in the Family Law System	p. 169
Areas of agreement	p. 170
Objections to judicial conversations with children	p. 171
Judges' experiences of talking with children in parenting disputes	p. 177
The benefits of talking with children in chambers	p. 179
Truth, Justice and Due Process	p. 185
Towards a More Responsive Legal System	p. 189
The Consensus on Children's Participation	p. 189
The Benefits and Risks of Children's Participation	p. 190
Why listen to children?	p. 190
The risks of listening to children	p. 194
Paradoxes in views of children's participation	p. 196
Improving Children's Participation	p. 197
Distinguish between voice and choice	p. 198
Redefine the significance of age and maturity	p. 200
Explore children's perspectives, not their 'wishes'	p. 202
Distinguish between different kinds of decisions on which children's views may be invited	p. 205
Follow certain guidelines about judicial interviews	p. 210
Consider children's views with the aid of social-science expertise	p. 215
Move beyond the focus on hearing children in trials	p. 216
Conclusion	p. 219
References	p. 220
Index	p. 237
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