Australia: Protecting the best interests of children – Should more focus be placed on professional competence than childrens competence?

'. if, in fact, that's what they're saying, then they don't get to say that. They're 12 and 14 years old. They're kids'.¹

In an ironic turn of events, this statement was made by Jack and Jennifer Edwards 'best interests representative', the Independent Children's Lawyer (ICL). On the afternoon of 5^th July 2018, Jack and Jennifer met a tragic end as their father fired 10 gunshots at the children whilst they hid under Jack's desk.² In the aftermath of their death, central to the scrutiny of the role of the ICL was if professionals give due weight to a child's views in establishing their best interests.

The best principles concept in an international and domestic sphere

The Convention on the Rights of the Child (1989) ('CRC'),³ has become the foundation for recognising the significance of a child's views. It establishes children as 'autonomous rightsholders'.⁴This is reflected in article 3 of the CRC, which highlights that the child's best interests are to be the 'primary consideration' in 'all actions concerning children'.⁵ Article 12 provides concrete protection for the right of children to participate in decision-making for all matters concerning them.⁶ The United Nations Committee on the Rights of the Child (UNCRC) has noted that this article is, '..connected to all other articles of the Convention, which cannot be fully implemented if the child is not respected as a subject with her or his own views on the rights enshrined in the respective articles and their implementation'.⁷ Essentially, it is a 'gateway' for other protections as it affects the effectiveness of subsequent rights. So, from an implementation perspective, article 12 must not be atomised in its functioning. Rather, the ideal of children as 'autonomous rightsholders' as envisaged by the Convention must be at the heart of domestic measures.⁸

Reflecting these international standards, the Family Law Act 1975 (Cth) was amended in 1995 to replace a child's 'welfare' with 'best interests'.⁹ This was to ensure that a child's needs in any matter would be given 'paramount consideration'.¹⁰ In Certain Children v Minister for families and children,¹¹ Justice Dixon highlighted best interests as a concept as impossible to assess 'without hearing from the child and giving due weight to his or her views'. However, certain provisions of the Act, such as those relating to the ICL, present a contradiction. It re-directs the prominence placed on a child's views, to a subjective assessment of 'best interests' done by a third-party. These can arguably be considered as safeguards to protect court process and privilege. But these legislative guidelines have rendered Australian courts unable to clearly define best interests. It is merely recognised as an element that must be given 'paramount consideration' depending on context.¹² With many professionals being the 'middle-person' between the child and the court, such wide discretion and the absence of clear guidelines to limit discretionary powers appear to undermine the value of children's views.

So why should more focus be placed on professional competence than children's competence?

During the coronial inquest, it was found that the ICL failed to consider objective evidence in which the Edwards children had voiced their father's violence, before addressing the court regarding the father's risk.¹³ Instead, the ICL attributed the behaviour to 'heavy-handed parenting', and informed the court that she does not have any concerns.¹⁴ Consequently, trusting her professional competency in her capacity as the ICL would mean that the court would also not be concerned. The magistrate found that the ICL did not consider the children as having 'independent decision-making capacity'. ¹⁵ Her biases about a child's (in)competence meant that the children's concerns went undetected, with no appropriate protections afforded to them against their father.

Whilst the professional competency issues raised in the case of the Edwards children are quite extreme, there still appears to be a trend in the reluctance of listening to children. Particularly, age is said to manifest biases relating to a child's thinking capacity.¹⁶ Instead, a new way of thinking by those involved in child protection is needed- children are likely aware of what is best for them through their lived experiences. To protect children's best interests is not to disregard professional competence and focus on children's competence, or vice versa. It requires a deep sense of empathy. It is likely that a child involved with the legal system has been maltreated. They are scared and unsure of what the future holds. They would like to not feel invisible. To feel heard. To be respected. Laws and guidelines can only do so much in making a child feel safe. For a child to feel as though an adult in power is finally listening and has their needs at the forefront, is what would truly help them feel safe.

Please contact Maithri Panagoda, Partner on 02 8226 7312, who can assist with your matter.

Footnotes

¹ Coroners Court of New South Wales, Inquest into the deaths of John, Jack and Jennifer Edwards (Report, 7 April 2021) 31 [134]-[135]. ('Coronial Inquest').

² Ibid 258 [1132]- [1133].

³ Convention on the Rights of the Child, opened for signature 20 November 1989, 1566 UNTS 3 (entered into force 2 September 1990) ('CRC').

⁴ Conor O' Mahony, 'Constitutional Protection of Children's Rights: Visibility, Agency and Enforceability' (2019) 19 Human Rights Law Review 401, 402.

⁵ CRC art 3.

⁶ Ibid art 12.

⁷ Committee on the Rights of the Child, General Comment No 12 (2009) on the Right of the Child to be Heard, 51^st sess (UN Doc CRC/C/GC/12, 20 July 2009) 17 [68] ('General Comment 12').

⁸ Conor O' Mahony (n 4) 405.

⁹ Family Law (Reform) Act 1995(Cth) s 31, part VII.

¹⁰ B v B (1997) FLC 92-755; Family Law Reform Act 1995 [1997] FamCA 33 [9.51].

¹¹ (2017) 52 VR 441, 523 [262].

¹² Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, 389.

¹³ Michael McGowan, 'Murders of Jack and Jennifer Edwards by estranged father 'were preventable', NSW Coroner rules', The Guardian (Web Page, 7 April 2021) <https://www.theguardian.com/australia-news/2021/apr/07/john-edwards-inquest-series-of-critical-errors-allowed-man-to-his-children-nsw-coroner-finds>.