The Importance of Hearing Children's Voices in Court Proceedings Affecting Them

Children’s lives are profoundly affected by decisions made in court proceedings that determine their living arrangements, time-sharing schedules, and parental responsibilities. These decisions shape their emotional, psychological, and social development, often influencing their sense of stability, attachment, and overall well-being. Given that children’s lives are directly impacted, it is crucial that their voices are heard in such proceedings. Allowing children to express their views not only ensures that their rights are respected but also helps in making decisions that are truly in their best interests.

1. Recognising Children as Active Participants in Their Own Lives

At the core of hearing children’s voices is the recognition that children are not passive recipients of adult decisions but active participants in their own lives. From a developmental perspective, children have their own feelings, thoughts, and preferences about where and with whom they live. These preferences are influenced by their relationships, their emotional bonds, and their experiences with each parent. Ignoring their voice can undermine their sense of autonomy and agency, particularly when they are old enough to have developed a reasonable understanding of the situation.

Children, especially as they grow older, develop preferences based on their emotional needs and their relationship with each parent. By allowing them to share these preferences, courts ensure that their emotional realities are considered, which is essential for making decisions that will genuinely promote their well-being.

2. Supporting Emotional Well-being

Children often experience a range of emotions during family separation, including sadness, confusion, anger, or fear. These emotions can be exacerbated if they feel like they have no control over the decisions that affect them. If children are given the opportunity to voice their preferences in a safe and supportive environment, it can provide them with a sense of agency during a stressful time. This process validates their feelings, which is important for their emotional development. Feeling heard can help reduce feelings of helplessness and anxiety, promoting better emotional outcomes for the child in the long term.

In situations where children feel forced into a particular outcome due to parental influence or lack of involvement in the decision-making process, their emotional health may be compromised. Conversely, when children are able to contribute their views, they may experience a sense of relief and emotional validation, which can contribute positively to their overall well-being.

3. Promoting Long-Term Positive Outcomes

Allowing children to have a say in the decisions affecting their lives can lead to better long-term outcomes, both in terms of their relationships with parents and their overall mental health. When children feel that their voices are valued, they are more likely to cooperate with the resulting arrangements, leading to smoother transitions and better adjustments in the long run. Children who feel listened to and understood are more likely to develop positive relationships with both parents and experience fewer negative emotional consequences from the process.

In contrast, ignoring a child’s preferences or failing to involve them in decisions can create a sense of resentment or alienation from one or both parents. Over time, this can impact the child’s relationship with the parent they feel was disregarded, potentially creating long-lasting emotional challenges.

4. Respecting Children’s Rights

Children, like adults, have fundamental rights. In Australia, these rights are enshrined in both international and domestic legislation, ensuring that children have a voice in matters affecting them, particularly in legal proceedings like those involving family disputes.

Under Section 60CC of the Family Law Act 1975 (Cth), the court is required to consider the child's views when determining parenting arrangements. The Act specifies that the child's views should be given weight depending on their age, maturity, and understanding, recognising that children have the right to express their preferences and be heard in decisions that affect their lives. The Family Law Act makes it clear that the child’s safety, welfare, and best interests are paramount, but this includes taking into account their wishes wherever possible.

Additionally, the United Nations Convention on the Rights of the Child (UNCRC), to which Australia is a signatory, affirms in Article 12 that children have the right to express their views freely in all matters affecting them, and those views must be given due weight in accordance with their age and maturity. This international framework is incorporated into Australian law and guides the approach taken in legal proceedings involving children.

Moreover, the Children and Young People (Safety) Act 2017 (SA) in South Australia, like similar state and territory laws, provides that children’s voices must be considered in decisions that affect their welfare and safety, reinforcing the need to listen to children in all family and legal contexts.

Respecting children’s voices in legal proceedings, particularly in family law matters, is critical for their dignity and development. It also promotes a greater understanding of their needs and preferences, which are vital for making decisions that foster their emotional well-being and stability.

5. Enhancing the Effectiveness of Legal Decisions

Ultimately, the goal of any court proceeding affecting a child’s life is to make decisions that are truly in the best interests of the child. To achieve this, the court must understand the child’s perspective and the nuances of their emotional and relational needs. Listening to the child provides a more complete picture of the family dynamics and the child’s emotional state, which can lead to more informed and thoughtful decisions. When a child is given an opportunity to speak, the court can better understand any underlying issues such as attachment concerns, anxieties about parental conflict, or preferences based on practical factors, such as proximity to friends, school, or extended family.

By hearing from the child, the court can make decisions that align more closely with the child’s emotional and developmental needs. This ultimately leads to better outcomes for the child, as decisions are more likely to support their stability, happiness, and long-term well-being.

Conclusion

In family proceedings that have a lasting impact on a child’s life, it is essential that children are allowed to express their views. These proceedings are about more than just legal agreements or logistical arrangements; they are about protecting the emotional health, stability, and future of the child. By hearing the child’s voice, the court makes a stronger, more informed decision that considers the child’s emotional needs, values their input, and helps to ensure their long-term well-being. Ultimately, allowing children to have a say in matters that affect them is not just a legal obligation—it is a recognition of their dignity, their emotional needs, and their right to participate in decisions about their lives.

Authored by Prof Tanya Robinson, Family Assessment Centre, Adelaide, SA.