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Four Girls Who Have an Opinion - a Child Rights Case?

By Yvette Vignando - 25th May 2012

This week the rights of a child are in the news in Australia. There were numerous news stories about four girls (aged 9, 10, 13 and 14) ‘on the run’, trying to avoid a court order that they return to Italy where their father lives (their mum is Australian). Without knowing the details of those four girls’ experiences and knowing nothing about the mother or father, it’s a mistake for any of us to pass judgement on where those girls should be living right now.  That’s a judgement for experts and the courts – but you know what, it’s also something about which each of those four children would have a strong view.

Today, High Court Justice Susan Kiefel, ruled that in August the Full High Court of Australia will decide the question of whether or not the four girls have a constitutional right to legal representation (and therefore a voice) in a Family Court  decision about their custody arrangements.  Barrister Tony Morris Q.C. who is representing the four girls, has been quoted as saying today that the August decision "will set in stone for all time the rights of children to be treated as human beings and not just the goods and chattels of their parents".  Once the High Court has made its ruling, the custody issue will be returned to the Family Court.

I’ll be watching this case with a keen interest – of course like all of us parents, I wish the very best outcome for those four girls – but on top of that, I am interested to see how the High Court considers the girls’ rights under the Australian constitution as well as under more general common law. “Common law” simply means legal rules that have been developed by courts that are not contained in written laws.  But most of all, I am interested to see how and if the High Court considers the rights of those four children by reference to the United Nations Convention on the Rights of a Child.

Australia became a signatory to the United Nations Convention on the Rights of a Child in 1990 – this means that Australia has international obligations about how it treats children – it also means that Australia made a promise to its people to implement the rights that are in the Convention (and usually this means to make laws.)

So what does the Convention say about a child’s right to be heard in court?  Here’s the most relevant part:

Article 12: (Respect for the Views of a Child):  When adults are making decisions that affect children, children have a right to say what they think should happen and their opinions taken into account.

And in in Article 4, the Convention states that governments have a responsibility to make sure that children’s rights are respected, protected and fulfilled.

But in Australia, if an international law, like this Convention on the Rights of a Child, is not included in a written domestic law, courts tend to only use those international laws as persuasive. So I am curious to see how the High Court decides  on the legal arguments being made by Tony Morris Q.C. about the four children’s constitutional rights - how persuasive will the High Court find the Convention?

I’ll update this post once the result is published. What are your views on how and whether children should express their views about custody issues before the courts? How could this be done in a way that is respectful and protective of children?  I am not asking about how things should proceed in this specific case.

P.S. And again not at all commenting on the case that will be before the High Court in August, but as adults we should all recognise that sometimes what a child wants will not always be in their best interests - that does not mean they should not be heard.

P.P.S. You should also know that our national Family Law Act does require the court to take into account as "paramount" the best interests of a child and the law does allow the Family Court to give a child legal representation if the court decides a child's interests "ought to be" represented by a lawyer. I do not know the details of what happened in the case I am mentioning here.

Update 3 October 2012

An August decision by the High Court of Australia stated that the four girls had not been denied procedural fairness when they were not allowed independent legal representation in the custody dispute - I understand that allowing this kind of independent representation is at the discretion of the judge hearing the matter - children are not allowed independent representation as a matter of course.

Today the matter was determined in the Family Court in Brisbane   - Justice Forrest held that the court was bound by the Hague Convention to return the four sisters to Italy as there were insufficient exceptional circumstances to allow them to remain in Australia. SBS news reports that the "judge said he would only make the order if the girls' father undertook not to pursue criminal charges against the mother if she returned to Italy with the children."

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