State parties (ie countries) that have signed the Convention on the Rights of the Child have committed to ensuring and respecting the rights of each child no matter their background or the background of their parent’s. The rights of children apply to all children and apply without discrimination of any kind, irrespective of their face, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability or other status.
Children in family law matters, in countries that have signed and ratified the convention (nearly 200 countries around the world), should experience the same rights without any discrimination.
For example, in Australia, with regards to the Family Law Act 1975 (Commonwealth) (“The Family Law Act”), pursuant to section 4, when interpreting the term child within the Act, a child is a person under the age of 18 including a person who is an adopted child. There is no discrimination between a child born of the parents or a child that was adopted by the parents.
There are specific principles that are to be applied by the Courts when exercising power under the Family Law Act. The Court is require to have regard to:
43(1)(c) the need to protect the rights of children and to promote their welfare;
The Court is also required to have regard to the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.
Objectives and Principles in Family Law Matters
Section 60B of the Family Law Act is concerned with the objects and principles underlying the relevant part of the Act concerning children. Specifically, an additional object of that Part of the Act is to give effect to the Convention on the Rights of the Child which was undertaken at New York on 20 November 1989 (section 60B(4)).
– The Objectives for matters involving Children in Family Separation matters
The objective of the relevant Part of the Family Law Act is to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.–
– The Principles for matters involving Children in Family Separation matters
The principles underlying the objects above are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal and Torres Strait Islander Children’s Rights
Aboriginal and Torres Strait Islander children have the right to maintain a connection with their culture and have the support, opportunity and encouragement necessary to explore that culture and develop a positive appreciation with that culture.
There are additional and specific paragraphs relating to Aboriginal child’s or Torres Strait Islander child’s rights.
Section 60B(3) of the Family Law Act provides:
60B(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Family Law Separation and Divorce Matters
Attention must be directed towards the rights of children generally, but also specifically when their parents or carers separation and decisions are being made for children in light of the separation.
Attention to to children’s rights is to be applied to all children, no matter their background or the background of their parents. Further, specific consideration should also be given to the rights of Aboriginal and Torres Strait Islander children who have rights to maintain a connection with their culture and be supported and encouraged to explore the culture and develop a positive appreciation of that culture.
You may wish to consider engaging an Independent Children’s Lawyer to act directly to consider the rights of the children and the best interests of the children.
If you are considering how to best meet the needs of your children for parenting arrangements, Claire Naidu & Co provides services for resolution of disputes including conflict coaching, mediation, arbitration, negotiation and collaboration. Click here for our contact details.
Our principal, Claire Naidu, is also an experienced Independent Children’s Lawyer and Child’s representative. She can be appointed to act on behalf of your child or children and can work with the parties to achieve an outcome and resolution that is in the best interests of the child or children.
Note: This blog does not constitute legal advice and Claire Naidu & Co is not responsible for any reliance upon its contents.
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