A Charter for Children’s Rights Under the Family Law

The governments of the U.K., Canada and Australia ratified the U.N. Convention on the Rights of the Child in 1991, yet almost two decades later such rights have not been embodied in laws concerning children in their fullest sense and meaning. In consequence children are treated merely as possessions of parents within the family laws and Family Courts are required to intervene when there are disputes between parents concerning their rights over their child(ren). The Family Law determines where and with which parent a child must live after parents have separated and the amount of contact the non-resident parent will have with the child. There are a number of presumptions in the law that the non-resident parent will have contact and a meaningful relationship with the child, or not, if the parent so chooses. There is also provision in the law that the residency of the child can be `equally’ shared between the parents.

Such provisions are rebuttable if domestic violence or child abuse can be proven.

Although the law is ostensibly concerned about the `responsibilities’ of parents, the provisions can clearly be seen to be concerned with parental rights over children, as there are no reciprocal rights for children to have contact with a parent or to enforce a parent to have contact and a meaningful relationship with their child if they choose not to do so. It is reasonably estimated that there are over 120,000 children in Australia where a parent does not fulfill their responsibilities to provide financial maintenance for a child or to have contact with the child and fulfill their parental responsibilities.

Consequences

It is clear from the evidence of Court decisions and the experiences of children after such decisions are taken that many children are suffering extreme disruptions to their lives, they are suffering emotional, physical, and sexual abuse, and some have even died subsequent and consequent to the decisions of Courts.

Some children, for example, are being forced to spend one week alternately with each parent and are commonly referred to as ‘Ping Pong children’, others have been sent to live in areas which are completely strange to them in order to provide a parent who has chosen to live and work in such an area with contact, and other children have been forced into having contact and residency with a parent whom they’ve never previously known and who is a complete stranger to them.

In one case a small infant, who was born as a consequence of a rape of her mother, was forced to visit her father in prison where he was serving a long sentence. Such demands of absent parents usually arise when they are required to provide financial support for the child and having contact for a minimal number of hours provides a means of evading such financial responsibilities or when they wish to continue with the harassment and abuse of their former partner.

Consultation?

Although the law makes a passing reference for children to be consulted on decisions affecting their lives, as is required under the U.N. Convention on Children’s Rights, in practice such consultations are minimal, and the children’s views are rarely given directly to Courts. On the few occasions when they are, the Courts take little account if the child is opposed to contact or residency. They are therefore forced into situations which are not of their choosing and in which they are extremely unhappy.

It is clear that in its wording and in its implementation, the Family Law is not upholding the rights of children and in some instances is directly violating those internationally recognised rights.

Reforms Needed

In order to ensure that family laws are child-focused and child centred and which uphold, promote, and enforce the rights of children, the following reforms are recommended :

1. The family law should be titled The Family Law (Children’s Needs, Wishes, and Rights) Act.

2. The family law must give paramountcy and primacy to ensuring that :

a. children have the fullest opportunity to participate in decision-making processes and their expressed wishes and feelings are given primary weighting in those decisions;

b. children’s safety, welfare and wellbeing are fully protected;

c. any decision regarding the residency of the child, and contact with a parent is demonstrably and measurably to the benefit of the child.

3. In order to ensure that Courts have the fullest possible information on which to base decisions on whether, or not, to grant residency or contact to a parent the following information must be provided to the Court:

a. A thorough and detailed assessment must be made of the previous involvement of each parent in the child’s life and upbringing and any history of a parent having committed acts of child abuse, domestic violence, or other criminal behaviours and whether they have engaged in drug and alcohol abuse, or suffer from a recognised mental illness. Any allegations of child abuse or domestic violence must be referred to the appropriate statutory authorities for full investigation and a report obtained before any decisions are taken by a Court.

b. A similar detailed and through assessment must be made of each child’s current emotional bonds and attachments with each parent, their bonds and attachments with other relatives and close friends, their involvement and progress at schools, and their leisure and recreational interests.

If western countries care about their children and their safety and protection from serious harm and exploitation, then changes to the Family Law are urgently necessary.