Children feeling 'stuck in the middle' is a real and difficult problem. The middle ground is a fought over space where children, and issues related to them, are often dragged forwards and backwards as one parent tries to have their rights upheld over the other. Sometimes parents' rights become conflated and confused with children's rights and we may ask whether children even have rights or a voice in a Family Court case?
Australia signed the United Nations Convention on the Rights of the Child in 1990. Article 3 states that the 'best interests of children' must be upheld in all Courts of Law, which is very much aligned to the Family Court Act which seeks to balance protecting children from harm, with having meaningful relationships with both parents. What constitutes the 'best interests of children' however, is highly contested, something that the Convention (Article 9) and the Family Court Act also recognise. Both point to children having a right have their views expressed, however how much weight these views are given can vary according to factors such as age, development, influence by adults, interference by adults and of course by the subjective experience of any professional involved in a case.
There is no magic age that a child can express their views with regards to family separation, with an expectation that the Court will listen. As professionals working in this area, I think we need to pay careful consideration to what children are saying and why. Family therapy may be appropriate, as it is helpful in understanding family dynamics and what may have impacted and informed a child or young person's point of view. I will often ask children what they would like the adults involved in their case (lawyers, magistrates, judges, therapists, parents) to know about them. They invariably say they want someone to listen and understand what they are going through.
The notion of shared care remains a contentious one, as many children tell me they do not want to spend half of their life in two homes, rather that they prefer one primary household. This may be understandable and acceptable to others when relations with one parent have been strained or reunification is in progress, but what about less complex situations? Debates over shared care often occur when children are very young and experiencing separation anxiety, or where older children hold firm views that they do not want two live in a 50/50 shared care situation. This is where battle lines are often drawn by parents, and sadly children can become casualties.
For parents, taking time to understand your child/ren is important. Placing blame on the other parent for influencing a child's views may only serve to push children further away. This might be a dynamic that is occurring, however it may also be your child's legitimate view, so consider allowing a professional to help assess this. It is important to refrain from allowing your child to hear your frustrations about the situation and/or the other parent, as children often react to this by wanting to avoid conflict by minimising contact.
For professionals, having an Independent Children's Lawyer and a family therapist involved, is often one of the most successful outcomes in gaining a better understanding family dynamics and hearing the voices of children. In terms of the best interests of the child, we need to turn up the volume in hearing children's experiences by engaging the right professionals to help facilitate the delicate balance between parental and child rights.