Best Interests of the Marginalised Child: to be Seen and Heard Against Dominant Discourses
Background
As divorce and separation are on the increase, the process of family breakdown and disputes especially in relation to residence and contact issues can be disruptive and stressful for many Australian children (ALRC 16). Under Australian family law, the best interests of the child is paramount and the court has to consider the need to protect children’s rights and promote their welfare in all family law matters. The aim of family law is to ensure that children can fulfill their potential and that parents carry out their duties and responsibilities relating to the care, welfare and development of their children. It is discovered that the aim is not satisfied as parents, family law professionals and judges often are uncertain or have conflicting value judgments as to what best interests of the children consist of and yet do not directly consult children about their opinions on decisions directing affecting themselves (ALRC 16). Given children’s positions in the family law system and amongst societal attitudes, they rely on adults to a considerable extent to make decisions on their behalf and protect their rights. However, the extent to which these decisions directly take into account children’s opinions are found to be wanting.
This essay will explore the problem in a postmodernist way with multidirectional narratives, exploring discourses and realities, providing many frames of references rather than just one frame and that the multiple narratives indicate plural interpretations of children’s lived experiences. This is as opposed to a modernist scientific study that provides a unidirectional narrative, exploring discoveries within a single frame of reference.1 Children are often marginalised and are relatively powerless as adults including parents, family law professionals and judges often make significant decisions directly affecting children but without consulting their opinions or involving them in participations, or if opinions are sought, often ignored or made light of (ALRC 5). Many laws are protectionist and paternalistic, outdated in considering children as property or as objects of concern and as passive recipients of decisions made on behalf of them by adults of a higher power position. This has been described as “entrenched processes of domination” (Michael Freeman) and “benevolent authoritarianism” (Penelope Leach), being the “modern day manifestation of the old adage, children should be seen and not heard” (ALRC 5).
The Best Interests of the Child
The guidelines behind the principle of best interests in s 60CC of the Family Law Act are meant to provide assistance in determining the concept. However, the principle remains vague as it cannot be determined with certainty and relies heavily on adult discretion and values.2 The concept that the best interests of a child is paramount in family law decisions has been suggested to be paternalistic having an adultist nature.3 It is said that deciding the best interests of a child is a decision “no less ultimate than the purposes and values of life itself”.4 For instance, is the judge supposed to be primarily concerned with the child’s happiness or economic productivity or wellbeing and there is no ultimate consensus in society as to the optimal values and strategies of child-rearing.5 Determining best interests consists of diverse value judgments or even conflicting idiosyncratic opinions6 created from adult conceptions of children’s needs, relying on consensual knowledge between the speaker, the party making the statement and the audience, the party receiving it, which in both cases are adults such as policy makers, lawyers, judges, parents and professionals, making judgements with little to no reference to actual children involved.7 This suggests that adult decision-makers determine children’s best interests through a list of factors created by other adult decision-makers and it is not necessary let alone advisable to discuss with children their opinions about their interests.8 Thus, decisions are often made on the children’s behalf, taking away their ability and right to have direct contribution to decisions, resulting in the paternalistic power being maintained,9 with the best interests principle being an adult construction to support adults and not children’s agendas.10
One approach in determining a child’s best interests is that their interests are paramount and override all other interests. Children should have autonomy as individuals and the legal rights of parents should be subordinated in favour of children’s best interests.11 Another approach is that a child’s best interests are balanced against other interests like the interests of parents, societal norms and political goals.12 As such, considerations like the “relevance of enumerated statutory provisions” or “the legitimate interests and desires of the parents” may take precedence.13 Furthermore, in the Family Court’s submission to the 2003 Inquiry into Child Custody Arrangements, the judiciary has indicated that significant weight is placed on the “nature of the relationship between parents and children”, the possible effects of significant change on the children, capacity of parents to look after and attitudes towards the children amongst factors contained in s 60CC of the Family Law Act.14 The views of children under s 60CC(3)(a) relating to residence and contact was given significantly less weight by the judiciary. The judiciary focus on parent-child relationships and parental capacity and the comparatively minimal focus on children’s views indicates the court’s construction of children as being significantly dependent on parents and that children are incompetent to have autonomy in having a reasoned opinion in expressing their views.15 Furthermore, children’s views under the Act is further limited by the discretionary requirement to consider any factors such as the children’s maturity or level of understanding that the court deems relevant to determine the weight of the child’s wishes.16 In attempting to generate a criteria to determine the best interests of all children in Australia, s 60CC demonstrates adultist generalisations towards children, ignoring that individual children are different with different needs, experiences, levels of understanding, cultures and values.
The cultural specificity of the best interests principle has been criticised as although its determination is made according to social standards, it leads to queries about whose social standards are to be followed.17 For instance, it was a belief that Aboriginal children’s best interests are served by removing them from the traditional lives of their biological families. This belief is no longer held and the determination was made in relation to the dominant Western social standards at the time instead of the Indigenous social standards.18
Dominant Discourse and Postmodern Perspectives
Foucault argued that discourses are created by and through institutions and practices articulating rules, roles and procedures, regulating behaviours and producing hierarchies, describing culture and maintaining cultural expectations.19 Knowledge is power and family law institutions hold a monopoly on knowledge about children and use the knowledge to “control the social body”,20 regulating the discourses of the society.21 Dominant discourses in society shape children’s perceptions of themselves and often operate to construct children as the property of adults and are vulnerable, incomplete, in need of protection and lacking in competence to express a significant opinion.22 Children are then marginalised by dominant discourses and adults are then normalised and given power by the discourses.23 Children are seen as transitory24 ’human becomings’ who are passive recipients of adult nurturance25 rather than human beings or social actors who can act in a deliberate manner.26 The social constructivism narrative of children is the ultimate goal of becoming the rational, successful adult.27 This is further reinforced by Freud and Piaget who constructed developmental discourses with bio-scientific classification that children are different from adults and are cognitively incomplete, developing through biological and psychological stages towards adulthood.28 They further theorised that children as being “lower on the evolutionary scale than adults” and human development goes through a linear, biologically determined journey towards full adulthood and during this process, children do not have capacity to operate29 “for their own good”.30 These influential theories in turn have widely dominated our understanding of children due to their positions as objective truths and scientific givens31 and shaped the nature and extent of children’s participation in all matters, including family law matters, marginalising children from the society by positioning them as different from adults,32 legitimising the power held by adults.33 These theories have been criticised, for instance as Freud’s theories were developed without direct studies of children.34 Piaget has also concentrated on cognitive development without consideration of other areas of development, denying the multifaceted nature of children and generalising children as universally going through pre-determined stages.35 History indicates that children have demonstrated capabilities and talents incongruent with rigid development theories, for instance child prodigies as an example.36 Children having rights to participate in decisions that directly affect them violate the unwritten social contract implicit in dominant discourses that children lack competence and require adult control and guidance.37 Furthermore, adults have established the best interests principle without directly referencing children’s opinions on the principle.38
A postmodern perspective explains how children are “othered” by a hegemonic adult society where children are positioned as vulnerable and incomplete as they are “human becomings” on the way to adulthood,39 being repressed and subordinated, acting as “ghosts” in the shadows of the dominant discourses.40 Social-constructivism indicates that children’s sense of selves are built through interactions with others under dominant discourses in society and consequently construct their position within society,41 being subjugated to an adultist dominant discourse that children are different and incomplete.42 Language is central to discourse as it shapes experiences and provides meaning,43 contributing to children’s understandings of the social contexts and the power-knowledge relations under which they live.44 Language contains meaning and action, being a performative act45 that sustains adult power through “othering, marginalising and oppressing children”.46 For instance, relationships are described in possessory or ownership terms such as “my children”. Children’s rights have often been referred to as being “given” to by adults or institutions, indicating a power base that belongs to adults, holding authority to the distribution of rights to the “others” like children.47 In this way adults continue to occupy their positions as “keepers of discourse” and “builders of knowledge” and “holders of truth” for the “others”.48 However, under a postmodern analysis, knowledge and truth that were thought of as eternal could be replaced by different truths or rationalities and have changed over time to build different discourses.49 Indeed, children have occupied different positions throughout history which are not linearly or rationally connected but have resulted from different discourses and constructions of children in history.50
Under a postmodern perspective, discourses centering on children’s rights and studies into children’s participation and children’s interviews in research studies act as sites of resistance to the dominant discourses, challenging and potentially transforming the current power relations in the adult-child binary as there is a divide between the perceived social position of children and the children’s perceptions of themselves.51 Raising awareness of the counter-knowledges in relation to children can improve and transform dominant societal perceptions about them.52 Interviews with children in research studies have indicated that children are social actors in their own right.53 During separations, children have been observed to ‘parent the parents’ sometimes to help their parents in those stressful times, indicating that children play an integral role in shaping the outcomes of family breakdown and are not merely on the receiving end of adult decisions.54 An increasing body of literature has accumulated over more than twenty years arguing that children are more competent as individual social actors than which was constructed.55 Studies also affirmed that children’s representations of themselves are always politically situated with the children’s multiple selves showing through in the different contexts of issues under discussion.56 The children’s discussions have reflected the fluidity and indeterminacy of the adult-child binary as they constructed themselves as competent to participate in decisions directly affecting them at times while at other times, perceived themselves as not as able.57
While acknowledging the ‘natural order’ from a dominant development narrative of adults being responsible and economically and psychologically independent with adulthood as at the desired end goal of childhood and growth, positioning children as “becoming” rather than “being”,58 the children argued that they are capable of making decisions, voicing reasoned opinions and all children believe that they should be heard by adults with their opinions considered by adults in any decisions that directly affect them.59 Children should be treated as individual social actors who deserve respect just like adults rather than “citizens of a future age”.60 Children have said that while “the majority of decision comes from adults [sic]”, children “should be able to be heard, as equals”, “get some more respect from most people” and “have more say in things” and this is “something that’s not really happening much in the world at the moment” as “most people when they see people our age they just think children, they don’t know anything”61 and that children know what they want and can decide on issues that affect them”.62 The findings from many studies coincide and reflect the above findings.63 These alternative discourses in the children’s comments constructed children as integral to the familial institution, competent in expressing reasoned opinions and participating in decision-making, knowledgeable about their own needs and interests and are able to understand social issues.64 The adult-child binary is more nuanced as children have reflected that although adults can be more knowledgeable and decide on behalf of children about residence and contact issues, they make their own decision about whether they will visit the non-residence parent, reflecting the incongruity and fluidity of narratives revealing our partialities and pluralities.65 The binary is blurred as we construct ourselves in different ways depending upon the context and situation.66 There are three levels of contexts, being the personal level, sociostructural level and the institutionalisation level to which the self is positioned in relation to the relative influences of each level, with each level interacting with the decision-making process.67 Children assess their responses against the contexts to which they are required to respond, sometimes reflecting dominant discourses of children not competent to accept responsibility and sometimes constructing themselves as capable and responsible,68 reflecting the ability of children to be much more intelligent and perceptive than expected. The responses of children depend on the perceived social positions that the children are placed in in the context, highlighting the importance of family law in positioning children in a context that allows them to be heard and have more say in things as “children could help with decisions” relating to their residence and contact.69
Judicial systems are argued by Foucault to define its subjects i.e. children according to universal normal and that characterisation, classification and specialisation70 serve to discipline, normalise and universalise society with its subjects yielding to submission,71 imposing hegemonic Western, adultist agenda regardless of differences.72 The lack of children’s direct participation in family law proceedings or alternative dispute resolution methods stem from assumptions that children can be manipulated by parents or that they are often incompetent or can be traumatised from being involved.73 Some even argued that there is a difference between what a child wants and what she or he needs and participation may not be hers or his best interest.74 This further perpetuates the subordination of children to adults and the construction of children as incompetent and incomplete. Children’s direct participation in giving evidence for factual disputes should be avoided and is different from having the opportunity to express their views on matters.75 While children should not be obliged to participate, if they freely wish to do so, they should be allowed to participate to contribute to courts arriving at the optimal decision.76 The act of children delegating their participation or involvement in decision-making represents making a decision in their own right.77
Children sometimes participate in family reports that are prepared for trial with the family court counsellor consulting children in preparing reports. However as family court counsellors who prepared the reports may often be cross-examined in court and determine evidentiary issues, the children’s views are often marginalised.78 The counsellor then attends trial for cross-examination on the report. Experts may be appointed to give evidence on issues of facts or opinions from interviews conducted with children. Children may have representatives that advocate for them in court. Children may also be heard in trials by initiating proceedings themselves and awareness should be increase on their rights to start or join applications. However, children’s representatives are not bound to represent the children’s views to the court as they are bound to for adults.79
In alternatives to litigation like parenting plans and consent orders being written agreements between parents on family law matters including that relating to children, children do not have to be involved in it though they are the subject of the agreement, further indicating the lack of acknowledgment of children’s rights to participation.
The binary is blurred as we construct ourselves in different ways depending upon the context and situation as children positioned themselves on an age continuum with those younger than them less competent and those older, more competent, or even exceptions like an example given by a child of a 45-year-old man still living with his mother.80
Current assumptions that children cannot manage their emotions in the absence of significant adult support reflects the dominant discourse of children being vulnerable, ignoring research that children often discuss sensitive and distressing issues relating to family breakdown and parental conflict with peers long before they talk to an adult81 and can be more knowledgeable about their parents’ difficulties than they are perceived to be.82 Family breakdown and separation are periods of significant turmoil and are likened to the psychological process of grief. Parents may experience difficulty in making appropriate decisions about significant issues and children may undergo high stress levels.83 However, some children even argued that while family breakdown is a stressful situation, shielding children from discussions may cause even more harm.84 It is shown in a study that parents had little understanding about how their children are handling their separation and that if parents are more open to communication and listening to their children’s opinions, stress experienced by children will be minimised.85 Studies have shown that children are satisfied with communication levels between their mothers and themselves after separation expressed that their mothers have told them about the reasons behind the separation and requested for their opinions. Those who are dissatisfied suggested insufficient explanations about the separation and that their opinions are not heard or not sought.86
The arbitrariness of age barriers assumes that young people below the age barrier do not have the sufficient levels of competence and young people above that age automatically can independently make decisions on matters that directly affect them.87
Regardless of competence issues, children make decisions on a daily basis in family law matters although they are highly dependent on adult understandings of their rights and best interests as few provisions allow for their autonomous involvement in matters that directly affect them.88
Reform
Reform requires a change in adult assessments and opinions of children’s competence and social positions, requiring us to challenge the current dominant discourses about the status and competence of children.89 A paradigm shift is needed for adults to treat and perceive children differently from before. They should accommodate children in an adult world, providing avenues for them to express themselves and be listened to and re-evaluate the construction of children as incompetent and incomplete.90 During research studies, children’s interviews have at times reflected a social construction of them as incomplete and developing toward the ideal of a rational adult while at others, reflected a construction of competent and conscious of their expressing own.91 The children often demonstrated a fluid construction of their multiple selves in response to different contexts and circumstances, demonstrating partialities and pluralities.92
Children can be better constructed as social agents who can operate independently on their worlds and sometimes, rather than always, require assistance from adults for difficult matters. As argued by children, although children sometimes make mistakes, as adults also make mistakes, children should not be barred or protected from making decisions.93 This can create better cooperation between adult and children, improving communication, having the potential to alter adult perceptions that a top-down approach to communication positioning adults as decision-makers and children as passive recipients of decisions must be maintained.94 A new social construction of children as active participants in decision-making activities in family law matters will be explored, considering how adults can centralise children’s voices in decisions that affect them after parental separation.95 Effective ‘child inclusive practices’ that are sensitive and attuned to children’s needs will be suggested following pilot studies and research projects conducted.96
While ‘child inclusive practices’ are initiated, including children in therapy and discussions, it is suggested that children are not usually the customer as parents usually include children in participation to seek help to deal with their problematic behaviours,97 positioning children as needing to be protected and cured. In these positions, children may not feel able to participate and articulate their opinions. There is also a lack of guidance on child-inclusive practices in submissions and reports to government inquiries.98 Child-inclusive practices should offer children avenues for their opinions to be considered and to communicate with their parents and determine together the decisions directly affecting the children.99 Research, submissions and reports have overwhelmingly recommended that some of the most effective media100 to champion children’s direct participation is via family conferences and programs offered by community-based organisations including counselling, group work and mediation.101 Studies have indicated that most children involved in conciliation processes had benefited and indicated improvements in communication with their opinions are duly heard and receiving a positive image of their parents communicating and reaching agreements.102 However, the involvement of children in mediation is said to be “more the exception than the rule”103 and when they do participate, their participation is often controlled to a large extent by adults who advise them on the nature and period of their involvement.104 Participation involves more than adults deciding which process and approach to provide for children but rather children accessing the system and deciding which process to use and decisions to make via their own initiatives.105
Indeed, children in research studies and researchers have argued that direct consultation between them and their parents can offer clarity to the best interests principles in focusing on children’s needs, being able to talk to their parents about issues and concerns and their parents raising issues in return,106 with their opinions being considered and valued during decision-making. This is as opposed to simply ‘expressing a view’ and expecting their parents to follow through as the literal interpretation of s 60CC. It may be counter-productive or lead to significant stress for families as many children have suggested in their interviews, for children to simplistically express their views as it is a more nuanced process.107 Children have suggested confusion as to their views as while children may want to reside with one of their parents, almost all children expressed strong loyalty for both.108 Furthermore, the narrow requirement for courts to take into account of children’s views opens up to abuse as children can be coerced into expressing views in accordance with their parent’s opinions.109 Research has indicated that the requirement to obtain children’s views should be removed and replaced with an obligation for parents and family law professions to take into account children’s opinions and understandings following separation as this can benefit families in obtaining a more holistic view of children’s perceptions and allow parents to consider children’s best interests in consultation with them instead of perceiving children’s views as a win or lose situation.110 This can also remove potential for abuse and over-simplification of children’s views to occur.
Researchers have also argued for children to be involved in social and environmental planning and political activity to further position children as more equal and able parties in decision making, being able to participate directly in their own right and determine the level of support required from their parents and other adults.111
Steps have been made towards child-inclusive practices including a government inquiry into arrangements for children post-separation where members of the inquiry attended two focus groups where a small number of children’s opinions were heard and considered in a national forum.112 However, there is much more to achieve and those children’s voices are barely heard amongst the large number of adult submissions, having the potential to mute and marginalise those children’s opinions.113 The Australian Family Courts need to change the culture of the legal system and introduce non-lawyer child advocates who speak for children and increase the incidence of non-litigious processes such as conciliation and mediation. Separating parties should be required to undergo mediation before applying to the court. Currently, there is no requirement for mediators to involve children in the mediation process although they are ironically required to consider the best interests of children. Thus in mediation, children’s own views may be subjugated to adult perceptions of their ‘best interests’ just like court processes. All family law initiatives should build in opportunities for the appropriate inclusion of children in decisions that affect them. Although there is a need to protect some children especially those subject to or have witnessed abuse and violence, a blanket prohibition or lack of involvement of children in decisions that directly affect them could be more harmful than their non-involvement.114
Generalised criteria made under s 60CC serve to protect the best interests of all Australian children, blissfully ignorant of specific circumstances of each child and their families. To truly serve the best interests of a child in a family law matter, the universalistic list of factors must be abandoned to understand the particular merits of each case and specific circumstances of each child. Furthermore, when children provide their opinions in family law matters, their opinions must be accepted and respected for them to truly participate in the decision making process. This ideal is unlikely to be achieved under court procedures.115
The structure of courts, the judicial process and the focus on ascertaining the ‘truth’ behind children’s opinions, the cross-examination process and evidentiary rules for instance, that children are sufficiently competent to have reasoned opinions and if they are in accordance with parental views are significant limitations to appropriately involving children in the judicial process, denying children of their rights to have opinions that are valid in their own right for their best interests.116 Where children are not directly participating in proceedings as witnesses or as parties, the rule against hearsay must be relaxed to allow better admissibility of evidence of children’s views expressed in avenues such as family reports, counseling, mediation and conciliation.117 Thus, the s 60CC factor for children’s views to be taken into account is little more than paying lip service as there is little point in seeking children’s opinions and then to challenge them for their ‘truthfulness’.118 Although family judicial systems have gradually moved from a focus on litigation to negotiation,119 evolving from being adversarial to one that is relatively flexible in giving judges more scope to determine children’s best interests and are not limited to material produced by parties and can be more interventionist,120 the best interests principle is once again subject to value judgements that may be indicative of the dominant discourses subordinating children to adults. In postmodern language, courts reflect institutional discourses about the social order and norms of a culture and play a significant part in shaping how individuals and groups are socially constructed.121 The institutional and dominant discourses have to be challenged to empower children and for adults to adopt respect and acceptance of children’s opinions and see children as competent and equally deserving of respect as adults.122
While submissions and reports as much as more than two decades ago have rooted for courts to adapt to children’s needs, changes have not been substantial enough.123 Furthermore, policy makers appeared to have missed the point in recommending the establishment of a Families Tribunal to have the authority to determine parenting matters.124 In postmodern analysis, this would just create an additional tier of external decision making adding to institutional discourses without directly addressing the problem of children’s participation.125 Children in studies have responded negatively and overwhelmingly considered judicial courts and decisions as inappropriate ineffective in adjudicating family matters.126 Alternative dispute resolution methods like counselling and mediation are highly suggested as alternative to court adjudications until courts take into account child-friendly recommendations.
A reason that children’s participation has been insignificant is because of the lack of awareness of rights that have been ‘given’ to children.127 There is a need for children to be better informed about the institutions, processes and issues for their participation.
Australia has been a signatory to the United Nations Convention on the Rights of the Child (CROC) since 1990, requiring it to take into account children’s rights in all matters affecting them, including family law matters.128 It was negatively received and was criticised that this would provide children with an inappropriate extent of power and damage social and political structures in Australia, fracturing family units.129 However, this has not happened, fortunately or unfortunately as little practical action was taken in relation to CROC. Further to CROC, family law terms like ‘custody’, ‘guardianship’ and ‘access’ were changed to ‘residence’ and ‘contact’, attempting to improve social perceptions of children as parental property and that parents have possessory rights over children.130 However, it was revealed that little to no actual improvements result from that. More than two decades after CROC, a National Children’s Commissioner has been appointed by the government in 2013 and has advocated on behalf of children for courts to introduce better child welfare training and all parties in family law matters to improve and prioritise the rights of children to be heard and participate in decision making. However, few important changes have since occurred with continued advocacy.131