Respecting Children's Participation in Family Law Proceedings
Taylor, Nicola; Tapp, Pauline; Henaghan, Mark
Ascertaining children’s wishes/views in family law proceedings is a well-established statutory principle in cases concerning their guardianship, day-to-day care and contact in New Zealand. However, the legal system has traditionally been uncomfortable with the prospect of dealing directly with children in such cases. Their views, when sought, have been interpreted and filtered via a range of different professionals, fairly late in the overall process after conciliation services have failed to help parents reach agreement. Furthermore, they have been easily discounted within the Family Court through the application of ‘age and maturity’ criteria, and prevailing assumptions about what adults think is in children’s welfare and best interests. The difficulty in operationalising the voice of the child has meant that–despite the child-oriented statutory rhetoric–children’s voice and participation has really taken whatever circumscribed form adults think convenient or proper (Atwool, 2001; Fortin, 1998; Smart, 2000; Smith, Taylor and Tapp, 2003). This stifling of children’s views has occurred because of the overwhelming dominance of adults’ preconceptions about children’s maturity and competence to contribute meaningfully to post-separation decision-making processes within the family and within the Court. Children have been shielded from the receipt of information and the opportunity to participate because of the burden of responsibility and compromised loyalties it is anticipated this would place upon them (Taylor, Smith and Tapp, 2001). However, this misdirected focus takes little account of children’s own desire to express their views, and the research evidence now linking children’s participation with their enhanced resilience (Pryor and Emery, 2004; Rayner, 2003). The UNCRC, and the theory and research valuing children as social agents, has recently led to a detectable shift in thinking and practice about the significance of children’s views and participation in family law proceedings. This paper traces these changes within the New Zealand legal context and highlights the importance of a multidisciplinary approach to best facilitate children’s engagement with the Family Court.
Rights Statement: Copyright © 2007, Brill
Keywords: children's participation; children's views; New Zealand Family Court; family law proceedings; parental separation
Research Type: Journal Article
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