Family Law Proceedings and the Child's Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada

• Date: 01 January 2014
• Published date: 01 January 2014
• DOI: http://doi.org/10.1111/fcre.12069
• Author: Michelle Fernando

FAMILY LAW PROCEEDINGS AND THE CHILD’S RIGHT

TO BE HEARD IN AUSTRALIA, THE UNITED KINGDOM,

NEW ZEALAND, AND CANADA

Michelle Fernando

This article examines the child’s right to be heard in family law proceedings in four international jurisdictions, comparing laws,

practices, and attitudes relating to children’s participation. It critiques the methods by which children’s views are heard and

discusses the signif‌icant variations in each country’s approach to listening to children. The article discusses each system’s

strengths and weaknesses in promoting children’s right to be heard, reviewinginter national literature and highlighting recent

initiatives to promote children’s participation, such as the 2010 United Kingdom guidelines for judges meeting with children.

The article concludes that there is little consistency in how children’s voices are heard in family law matters internationally.

One possible explanation is that each jurisdiction differs in its culture of and attitude toward children’s rights.

Keypoints

• Children’s views in family law matters

• Comparative analysis of law and practice inAustralia, the United Kingdom, New Zealand, and Canada

• Child’s right to be heard

Keywords: Article 12;Australia;Canada;Children;Children’sViews;Family Law;New Zealand;Participation;Right to Be

Heard;United Kingdom;and United Nations Convention on the Rights of the Child.

INTRODUCTION

This article compares the ways children are heard in family law proceedings in Australia, New

Zealand, the United Kingdom (specif‌ically England, Wales, and Scotland) and the Canadian province

of Ontario,1the country’s most populous province. It discusses each jurisdiction’s compliance with

Article 12 of the United Nations Convention on the Rights of the Child (“UNCRC”), which gives

children the right to express their views freely in any proceedings affecting them.

The four jurisdictions are comparable because of similarities in culture, legal systems, and general

approach to contested disputes involving children. All employ an adversarial mode of trial for family

law matters. All hold the welfare or best interests of the child as paramount in family law decision-

making and compel the court to take into account the views of children who are the subject of

proceedings. Despite the similarities, there are signif‌icant differences in the various jurisdictions’

approaches to listening to children.

This article discusses the meaning of Article 12 of the UNCRC and to what extent, if any, each

jurisdiction has recognised the child’s right to be heard in its family law system. How children’s

voices are heard in each jurisdiction is then examined in turn. This article concludes with an analysis

of the strengths and weaknesses of the family law system in each jurisdiction to promote children’s

right to be heard.

The article focuses on three common and generally accepted methods of hearing children’s views

in family law proceedings. These are accounts of a child’s views through a report provided by an

expert, representation of the child by a lawyer, and meetings between a judge and a child. Discussion

is conf‌ined to proceedings where a judicial off‌icer makes orders for the living and care arrangements

for a child upon parental separation. It does not extend to child protection proceedings.2

Correspondence: michelle.fernando@unisa.edu.au

FAMILY COURT REVIEW, Vol. 52 No. 1, January 2014 46–59

© 2014 Association of Familyand Conciliation Cour ts