"Divorce, Separation and Changing Family Practices"
21-23 September 2001

"Rethinking assumptions about children's competence to participate in family decision-making after parental separation"
Anne B Smith, Nicola J. Taylor
(Children's Issues Centre)
Pauline Tapp
(University of Auckland)

Introduction

For several years we have been carrying out research designed to explore the meaning of parental separation for children and young people. The research has been motivated by the wish to highlight the visibility and voice of children about their everyday lives in separated families, in order to learn about what helped them to cope and to identify factors which were difficult for them. We wanted to discover what it was like to be a child in a separating family in Aotearoa/New Zealand today, so that we could suggest more child friendly practices and policies to support families during and after separation. Berry Mayall describes this process as "using children's understanding of childhood to help improve the conditions of childhood" (Mayall, 2000, p. 135).

Our research has also highlighted the way that adult perceptions and assumptions about childhood influence the roles, activities and relationships in which children are allowed to participate in our society. We have also explored how "family law reflects society's values and influences society's views of children" (Tapp & Henaghan, 2000, p. 91).

The main argument in this paper is that children are a great deal more competent than we have been led to believe by traditional child development theory. Children's resilience is promoted, we argue, when they are treated as competent and can engage in reciprocal interactions with the other people in their lives. Competence develops within supportive family, educational and legal contexts. With such support, children's capacity to be active partners in decision-making increases. We are not suggesting that children want to make decisions alone (although some do) but that they should be helped to formulate their views, express them, and have those views taken into account and acted on.

We challenge an implicit assumption within family law - that it is a burden of responsibility for children to be involved in decisions about their living arrangements after their parents separate. Our research does not necessarily support this general assumption, though it may be true in individual cases. We argue that generalised research findings are not necessarily applicable to the unique contexts and situations occupied by individual children and families.

Insights from the Sociology of Childhood

Sociologists of childhood (James & Prout, 1990; Mayall, 1994, 2000) have criticised the way that psychological explanations of child development dominate child study. Such psychological explanations emphasise that development is a progression on a pathway from immature, irrational, incompetent and asocial childhood, to rational, competent and autonomous adulthood in a predetermined sequence. Socialization is the process which moves children along that pathway. Children are merely in the process of becoming the future generation, rather than experiencing individuals now. Discourses and discursive practices embedded in our concepts, language and institutionalised practices (Foucault's "regimes of truth") enable these self-fulfilling prophecies to become reality (James & Prout, 1990).

Children, however, cannot be conceptualised as a homogeneous group (Oakley, 1994). There are important differences, including those related to gender, social class, culture and ethnicity, between children. Even two siblings in the same separated family have very different ideas and experiences, as has been found in studies carried out in Leeds (Neale & Smart, 2000; Neale 2001). Our own studies talking to children about their experiences in families have highlighted for us the uniqueness of each family situation and combination of circumstances, and the range of feelings they have about their experiences (Smith, Taylor & Gollop, 2000). Trinder (1997) also emphasises the importance of respecting and being sensitive to individual children perspectives, which differ greatly.

Richards (1996) criticises psychology and its basis in universal laws, which are supposed to hold good across all societies and in all historical times. He believes that much more emphasis on the contexts for development is needed. Mayall (2000, p. 127) argues that the "child development industry has cornered the market on knowledge about children" and that lawyers, doctors, social workers, and teachers depend on this knowledge for their work with children (p. 129). Many traditional text book accounts of development are based on studies carried out in European and North American contexts (Woodhead, 2000). Such accounts are based heavily on 'normal' intact European or North American families, where any deviation from this pattern is regarded as abnormal. These accounts of development are more likely to view childhood as a time of dependency, free from responsibility, and dominated by play and fantasy (Oakley, 1994). Typically children's roles in other aspects of their lives where they have autonomy, for example, as paid workers or decision-makers within the family or school, have been very little researched (Morrow, 1994). The danger in relying on the child development literature is that it enforces a view of childhood and family life incorporating particular meanings, such as children's vulnerability and dependency and the necessity of a nuclear family structure.

An increasingly important feature of the international legal landscape is the United Nations Convention on the Rights of the Child. Article 12, the linchpin of the Convention (Freeman, 1996), states that children should be able to have their views heard in matters affecting them and that these be given due weight. UNCROC provides a particularly relevant justification for an enhanced role for children in legal proceedings. Freeman (1998) shows that sociology of childhood and children's rights theories overlap in accepting that children are persons not property; subjects, not objects of social concern or control; participants in social processes not social problems; and that they should be treated as individuals not as a collective and undifferentiated class.

Piper (2000) says that assumptions based on 'science' and an abstract notion about childhood and the best interests of the child become incorporated into legal knowledge. Often the authority of these assumptions goes unchallenged, and is taken for granted as true without critical scrutiny.

Once assumptions are transferred to the discursive context of law it is difficult to change or adjust them in the light of changing ideas from new research or theory. The law has not yet evolved from a welfare oriented view, towards regarding children as citizens who should be involved in decision-making processes. Piper argues that professionals should "approach each case as in a position of uncertainty, respecting the complexity and ambiguity of a client's life" (p. 302). Kelly (1997) believes that it is important to continue to consider the best interests of the child, but suggests that although it is time-consuming it is important to look at each child's situation individually.

If a full-scale investigation of each child and family circumstance is not practicable it is especially important to be very cautious about incorporating generalized notions of what is appropriate for children into decision-making about individual children.

Insights from Sociocultural Theories of Development

A sociocultural approach views development as occurring through children's activities within their social contexts (especially relationships and interactions with other people). Hence, children's development is profoundly affected by other people, culture and the tools of culture (especially language), institutions and history. Rather than development taking place in orderly stages unfolding in a predictable fashion from infancy to adulthood, children gradually come to know and understand the world through their own activities in communication with others. A continual process of learning generates development. The greater the richness of the activities and interactions that children participate in, the greater will be their understanding and knowledge. This is not just a one-way process from adult to child, but a reciprocal partnership where adult and child jointly construct understanding and knowledge. As Holzman explains:

Child development in a Vygotskian perspective is the result of children's competence being challenged and extended with help (Vygotsky, 1978). The help is gradually withdrawn and the child gradually becomes able to perform more independently. Scaffolding is the guidance and interactional support which permits the child to do as much as she can by herself, while what she cannot do is filled in by another person. Children take an active inventive role and reconstruct tasks through their own understanding rather than passively absorbing the views of adults, even though they may be influenced by them. Hence children who are involved in activities before they are fully competent to carry them out on their own, acquire more competence in the process. If we expect that children have something worth saying, it often surprises people how sophisticated their views are. It is important that children's competence to contribute is recognised in family and legal situations after parental separation.

Children behave more competently in situations where they are given social support and guidance, and where they feel secure and comfortable with people. When support is gradually withdrawn, children are able to take on more responsibility for themselves. This model of learning is one where people serves as resources for each other, builds on the ideas of others, and take varying roles and responsibilities according to their understanding and expertise.

Children's Competence to be Involved in Family and Legal Decision Making

The assumption we explore in this paper concerns the competence of children to be involved in family and legal decision making. We challenge the view that children are unable to contribute meaningfully to discussions and decisions being made about custody and access matters.

The burden of responsibility has been frequently raised as a primary reason for keeping children out of a family dispute. Yet, encouraging children's participation in family and legal processes does not mean that the child's view would be determinative or that the child would be given responsibility for the decision. Children generally have some awareness of the problems facing their family and listening to what they have to say can allow any distress, anxiety or uncertainty to be properly voiced and sensitively dealt with in a reciprocal two-way process. Participation by children helps them to accept the decision made about them and facilitates their growth toward mature and responsible adulthood. However, it must be acknowledged that some children, although old or mature enough to understand and take part, may not wish to do so (Smart & Neale, 2000). Other children may be too young to participate formally, but their age should not necessarily prohibit communication with them or sensitive observation of their relationships with their family.

Children's points of view have often been ignored in the past. As well as assuming they lacked competence, it was often assumed that their perspective would simply be a reflection of what adults (usually parents) thought. It was also considered that involving children in family decisions would put them in a loyalty bind or impose unfair responsibility on them. Murch et al (1998) showed that asked judges, solicitors, and mediators differed in their views about whether they thought that children's views on issues about their parents' divorce should be ascertained. Judges were less likely than solicitors to think that children should be involved and many thought that children should not be involved at all because it would place pressure on the children, run the risk of disappointing them, and that children did not know what they wanted, or would attempt to manipulate their parents.

Smart & Neale (2000) think that while children's views are now being listened to more, there is too much of a tendency to assume that if they say things which the professionals do not like they are assumed to be being manipulated by a difficult parent. They caution against remaining deaf to what is regarded as unpalatable, and point out that not all children will give unconditional love to both parents. The views of children, however, suggest that they do not always want to take responsibility for decisions themselves. Smart & Neale's (2000) study showed that many of the children in post-divorce families they interviewed felt that they should have a voice in the family. The authors talk about a principle of "assymetrical reciprocity" where children's views are respected, but the more powerful adults take responsibility for difficult decisions.

However, Neale & Smart (2000) point out that children are more insistent that they should be able to make decisions themselves when their relationship with a parent is negative.

Children's Perspectives on Post-separation Family Life in New Zealand

The Children's Issues Centre has been conducting research on the issue of how children, of varying age and experiences, feel about the time they spend with their non-custodial parents (Smith & Gollop, 2001). One hundred and seven children (55 girls and 52 boys) in 73 families from six Family Court districts in New Zealand (3 in the North Island and 3 in the South Island) participated in the research. Their ages ranged from 7 years to 18 years, with a mean age of 13 years. Most of the children (86%) lived with their mothers, 8% lived with their fathers and a further 6% were in shared care.

Satisfaction with Contact: We asked children about their satisfaction with access and asked them to talk about positive and negative experiences during access. Children were generally very positive about the things they did when they were with their access parent. Almost half of the children (44%) liked access a lot, a further 41% liked access, whereas 13% gave a neutral rating (neither liked nor disliked activities). Only two children (2%) did not like access activities. Around 85% of children were positive about the things which they did on access visits. Just over half of the children (52%) thought that the frequency of contact with their access parent was just right. Most of the rest of the children would have liked to see their access parent more often (34.7%) or a lot more often (11%). Only two children (2%) wanted less frequent contact. Most children (61%) thought that the length of contact was just right. Most of the other children wanted access to be longer - 29% wanted longer contact and a further 8% wanted much more contact.

The most common dislike was that children did not have enough time with their access parent. Almost 44% of the children said that they did not like how little they saw of their access parent or wanted more time alone with them, indicating that access time was, on the whole, highly valued by the children.

Some of the themes which arose out of children's ideas included the importance of relationships, the value of quality time, inconsistencies between different homes, the inconvenience of moving between homes and difficulties with relationships with step-parents. Relationships are one key to satisfactory contact from children's perspectives.

Children who had a good relationship with their access parent generally were enthusiastic about access and enjoyed the contact that they had.

If non-resident parents were grumpy, in a bad mood, or uninterested in children, the children often reported not wishing to go on access.

Contact could be difficult when children were angry with their non-resident parent, either over the separation or about their parent's subsequent behaviour.

Resentment about the lack of input their non-resident parent had in their lives and feelings of rejection were also sources of anger and hurt.

Being let down or disappointed by their non-resident parent was another issue which had a negative effect on Children's enthusiasm about contact:

The lack of authoritative parenting within the context of everyday activities and the frantic pursuit of fun and entertainment activities sometimes experienced by children are illustrated by this quotation.

Only about a fifth of the children (21%) felt that conflict was a problem for them in relation to access and were unhappy about the conflict they witnessed between their parents. Their descriptions of how they felt about it, however, were vivid. Dean's mother did not want him to go on access visits because "she wants to keep me to herself". This made Dean feel bad.

For the majority of children their contact with their non-resident parent is a valued and important part of their lives, and most would have liked more frequent and longer contact. The good and bad things about access described by children, however, suggest that as well as providing them with important continuity of parenting, access can place children under some stress.

The relationships between non-resident parents and children are obviously a key theme which explains why many children wanted to be engaged in contact with their parents, and why a minority of children want to avoid it. Children value affection, emotional support, having their parent take an interest and be involved in their lives in a meaningful way. They avoid hostile, coercive, distant, or detached relationships. Even though conflict over access arrangements was a problem for a minority (about a fifth) of children, where it did occur it was clearly a source of pain and unhappiness. There were examples of conflicts over arrangements, or at changeover time, and parents "bad-mouthing" the other parent. The metaphors used by children of "an elastic band", "a tug of war", "the eye of a cyclone", and "being in the middle of World War Three" are evocative of how children can feel torn by their parents' ongoing conflict. Children talked of retreating from the conflict by strategies like going into their rooms and closing the door, or by watching television.

Consulting children about arrangements: In another recent paper (Gollop, Smith & Taylor, 2000) we focused on the data from our study which shows the degree to which children were consulted about, and involved in, custody and access arrangements. We asked children about whether they had been consulted about their initial custody and access arrangements, what type of involvement they had had with family decisions, and their views of and experiences of being consulted. Very few children, less than one-fifth (19%), reported being consulted about their initial custody arrangements. There were more children, over one-third (37%), who mentioned being consulted about their initial access arrangements. With the exception of those aged 13 years and over (when it was about the same at 43%), children were much more likely to be consulted about access than consulted about custody regardless of age. There was little difference related to age in the percentage of children who were consulted about custody, until they were teenagers, at which time they were more likely than other age groups to be consulted (as were just under half). Children aged under 5 and over 12 at the time of the separation were more likely than children aged 5 to 12 years to be consulted about access.

The access arrangements for just over a quarter of the children (28%) were fully determined by parents, while a further 24.3% of the participants had their access arrangements mostly determined by parents. Hence, just over half (52.3%) of the children had little input into access decisions. A relatively small percentage (almost 16%) of the children had their views prevail as the major determinant of their current access arrangements. Hence a minority of children were consulted about custody and a slightly larger minority were consulted about access.

There was a huge variation in the amount of involvement in family decisions that the children had and wanted. Some appreciated being given the choice of who to live with and not being forced to see a parent they did not want contact with, while others thought having to make such a choice would be difficult. The most common type of involvement was for the children to have some input into at least some of the decisions which affected them. While they may not have made the final decision about custody or access, the children nevertheless appreciated and valued having their views sought. They also liked having sufficient flexibility within their arrangements such that modifications could be made according to their changing needs. Even if the children were not initially consulted, just knowing there was the potential to instigate changes, and feeling reassured that their views would be listened to, appeared to be very important to them.

Advice children would give to parents: We have recently written up some data on the advice children gave to parents who were separating (Smith & Gollop, in press). The most common response given by half of the children who provided advice to parents, involved the importance of consulting children. This category included such comments as: listening to the child, giving the child the choice about their custody/access arrangements, letting the child make decisions about their living arrangements, letting children have their say and checking that arrangements made for children suited them. Comments about the relationship between parents were made by 24% of the children. These included advising parents not to fight or argue in front of the children, to avoid conflict and try to co-operate, and not to let conflict impact on children or get in the way of children having a relationship with both of their parents. There was a very strong message coming from the children that they wanted to be asked, given choices and that parents should check that arrangements suited them. Here are some examples:

Another strong message coming through was that children want to be informed about what is happening.

Our research suggests that children are indeed competent social actors who reflect and devise their own ideas and strategies for coping with family life after their parents separate, and that their views are worth listening to. It has often been assumed that children are not competent to participate in decisions, especially when they are younger. This assumption of children's incompetence has recently been widely challenged, and we believe that our research adds weight to the view that even quite young children have sensible ideas to offer. In the current climate where parents' (especially fathers') rights and well-being are such a dominant part of public and professional discourse, it is timely to consider the rights of children to have their views listened to and taken into account. While "the best interests of the child" have always been a consideration in the aftermath of divorce in legal contexts, these have almost always been strongly dominated by professional assumptions about what is good or bad for children. We question the assumption that children are overburdened by being consulted. Most of them want to be consulted, which we reiterate does not mean that they want to take all of the responsibility for decisions.

The New Zealand Legal Context - Adult Support and Respect for Children's Competence

New Zealand case law reveals numerous judgments that bear out the opinion of Bren Neale and Carol Smart that it is difficult to listen to children's interpretations with an open mind, when the legal climate has already defined the problem and the preferred outcome (Neale & Smart, 2000). Assumptions about competency as related to particular age levels and the burden upon children of stating their wishes, seem to carry a great deal of weight for professionals working with children. For example, in C v C (1995) 13 FRNZ 662 Elias J (as she then was) expressed the opinion that:

Many specialist report writers and social workers who had their views surveyed in a study examining the role of counsel for the child (1) (Gray & Martin, 1998) appear either not to have had confidence in the communication ability of counsel for the child or to believe that children should be protected from speaking for themselves to their lawyer in matters concerning them. Only 70% of the former and 46% of the latter felt that it was the role of counsel for the child to have direct contact with their child client.

The UNCROC statement in Article 12 (1) about children participating "in accordance with the age and maturity of the child", and the comparable provision in s23(2) of the Guardianship Act 1968, have been viewed as an escape clause for many professionals who vary in what age they are prepared to listen to children. Set expectations about what children can do at different ages, are not necessarily appropriate. Indeed when children are given the opportunity to participate and gradually given more opportunity for taking responsibility, their competence and capability of becoming social actors and actively coping with problems in their families is likely to increase.

In New Zealand the requirements of s23(2) of the Guardianship Act 1968 and the influence of the UNCROC are such that the Court of Appeal in M v Y [1994] 1 NZLR 527 held that it is a reviewable error for the trial court not to ascertain the views of the child. This results in some judges emphasising showing respect for the child. For example, Judge von Dadelszen in DGSW v R (1997) 16 FRNZ 357) and others paid regard to the actual life experiences of a child when determining the child's maturity and the weight to be given to the child's views.

Judge Doogue in H v C [2000] NZFLR 775 spoke with the 11-year-old boy who objected to being returned to Australia from where he had been abducted by his mother. Although the expert who had reported to the Family Court in Australia shortly prior to the abduction had expressed the opinion that the child did not know his own mind, Her Honour was quite satisfied that the child's firm and consistent objections were based on his own experiences while in the care of his father and with the court system in Australia which had resulted in his losing trust in the system. Her Honour commented:

Her Honour refused to make an order for return.

Similarly, Judge Strettell in M v Mc (above) refused to order contact against the wishes of a 9-year-old boy who had an entrenched fear of his father and had observed the mutual hostility between his parents.

In K v O (9 Oct 2000, FC Levin FP 031/106/97) Judge Carruthers gave effect to the firm wishes of children aged 7 and 5 years based on their experience of being parented separately by both parents to live with their mother.

In D v S (1998) 17 FRNZ 572 the Court rejected a father's application that an 8 year old boy use the father's name and made an order that the child was entitled to be known at school by his mother's name. His Honour said:

In an increasing number of cases judges are showing the child the respect of speaking with them and of ensuring that the decision is explained to them. An example is T v T (1998) 17 FRNZ 133, 134 in which Judge Boshier spoke with the children about the order he intended to make and listened to their views on it. Judges recognise that children caught in conflict between their parents may be forced into saying things which they believe will resolve the situation and, at times, take care to ensure that the court order is explained to the children to relieve them as to the responsibility they have undertaken. This occurred in K v O (above) in which Judge Carruthers said:

His Honour asked counsel for the children to explain the order to them.

In W v P (above) Judge MacCormick recognised that as a conflict avoidance technique children may say slightly different things to each parent. He asked the expert reporter to meet with the children to explain the court's decision to them in the presence of their parents. This would mean that both parents would know what the children were told and would endeavour to minimise the extent to which the children might receive different messages from each of their parents.

Section 23(2) Guardianship Act 1968

Section 23(2) of the Guardianship Act 1968 is a statutory provision which is well known to family law professionals. It requires that:

It is our view that the phraseology in this provision is outdated and unhelpful in the context of assisting families to resolve custody, access and other guardianship matters falling within the realm of the statute. In particular, we are concerned at the lack of fit between the current wording of this provision and recent developments in child development theory and children's rights. Three aspects are especially problematic.

1. The wishes of the child

Firstly, ascertaining the 'wishes of the child' entails asking the child to express a future-oriented aspiration or desire. It is not therefore necessarily grounded in the current reality of the child's circumstances. It is aligned to the idea of children as being in the process of 'becoming adults' rather than valuing their experiences and concerns in the here and now. Asking children about their 'wishes' also makes it easy for adults - whether they be parents, lawyers, specialist report writers or judges - to filter, discount or dismiss what they do indeed say. What is said is after-all only the fanciful, albeit genuine, yearnings of children in difficult family circumstances.

We frequently see, for example, reference to children's desire to have their parents reunite following separation or divorce. The research evidence is clear that this view is more commonly held by young children than older ones, and that even then many are realistic enough to understand that a resumption of their parents' relationship is unlikely. This was recognised by children interviewed as part of our initial study into access issues (Smith, Taylor, Gollop, Gaffney, Gold & Henaghan, 1997, p. 37).

Laura [aged 9]: I want Mum and Dad to get together again.

From an adult perspective the child's desire for reunification, while 'sweet' and understandable given the turmoil the separation has probably provoked, can nevertheless be used as a means of dismissing, or not even enquiring into, other valid questions and concerns the child may have.

We consider that rather than focus on the 'wishes' of a child, more careful attention should be given - both within families and within the family law system - to offering opportunities to children for explanations about the situation they are facing, asking questions, discussing likes and dislikes, reviewing options, clarifying views, and receiving feedback on the decisions reached. Ascertaining 'wishes' implies a short-term, almost one-off, enquiry. In contrast, we believe that consulting children and seeking their participation in family matters should be regarded as an ongoing process over time. Promoting the notion of family democracy or family citizenship optimises the likelihood of more productive outcomes for the child and family members in post-divorce family life, and where professionals are involved, facilitates the provision of higher quality information on which to base legal decisions.

2. If the child is able to express them

Secondly, the phrase 'if the child is able to express them' in s23(2) is inappropriate. All children, whatever their age, are generally able to express what is important to them. Even pre-verbal infants are not exempt:

The issue of children of any age expressing their views is not so much one of the child's ability to provide information, as it of the adult's competence to elicit it (or observe it) in the context of a trusting, supportive and reciprocal relationship.

One of the implications that emerges from the theory and research is that the support and respect of adults makes a big difference to children. Communication is the key to providing support and respect. Children need to understand why they are participating (in interviews for example) and that their perspectives are thought to be important. Children should be given adequate information about what is involved, so that they can decide whether or not they want to participate. Ethical procedures are particularly important. Confidentiality is a tricky issue, especially when children are talking about things they have never talked about to anyone before. We need to be able to assure children that others (such as parents and teachers) will not be told what they have said. Listening to children's views respectfully and seriously, letting them know about why things are happening to them, and providing them with effective, accessible and genuine avenues for complaint and access to advocacy, are crucial components of the process.

Developing an effective procedure for finding out children's perspectives is usually not an instant process. Time needs to be taken to establish a relationship with the child in which there is some trust and reciprocity. Rather than one-off interviews, it may be necessary to talk to the child several times or to talk while participating with children in their normal everyday activities. The child has to have some freedom to contribute and initiate ideas without being entirely constrained by the nature of the tasks (such as standardised interview formats). Reciprocal conversations are a much better way of getting to know children's views than a string of questions (Carr, 2000).

The children interviewed as part of the Children's Issues Centre's research into the role of counsel for the child (Taylor, Gollop, Smith & Tapp, 1999) confirmed the importance of establishing positive relationships with professionals before they could talk about important family matters. The children liked lawyers who were friendly, trusting, respectful and child-centred:

Children appreciated having a lawyer who made a conscious effort to listen to what they were saying and who made it easy for them to talk:

3. Having regard to the age and maturity of the child

Thirdly, the final phrase of s23(2) 'having regard to the age and maturity of the child' is also inappropriate. The early part of this paper discusses criticisms of the concept of universal predictable changes in children's development at particular ages and stages, regardless of context. The legal system actually recognised as far back as 1985 how illogical it was to link children's competence to age in the influential case of Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1985] 3 WLR 830 the House of Lords adopted an 'understanding based' approach to the issue of children's consent to medical treatment:

In our view, therefore, s23(2) should be amended to delete reference to the age of the child. The child's level of understanding and maturity are more salient criteria. But even then we believe an argument can be mounted for deleting these qualifications too. It is clear that the role of a Court is to assess the credibility of witnesses and to weigh the information offered as evidence by the parties. While children are not parties to legal proceedings concerning family disputes their 'wishes' or views' are often ascertained. This may be by a professional such as counsel for the child, a specialist report writer, or the judge him or herself who chooses to meet with the child in chambers. The views of children are also frequently presented in Court by one or both of their parents. Our review of family law cases (Taylor, Gollop, Tapp, Gaffney, Smith & Henaghan, 2000) showed that the weight given to children's views ranges, as one would expect, from none to quite a lot. Judges were particularly likely to place little weight on the views of pre-school children. For example:

Other times, where the child was older, held a consistently expressed point of view, was articulate and 'mature' then their expressed views may well be respected by the Court and given significant, but very rarely, determinative, weight:

We support the notion that in legal proceedings the child's views are not determinative. We prefer the approach often adopted by the judiciary of regarding the children's perspectives as:

This is entirely appropriate, as the children's views and feelings can only ever be part of the overall equation - both within family life and within the Court system. What we promote, however, is the concept of having children's views and involvement as a regular and commonplace feature of family and legal decision making. This is why we find the qualifying of children's views by age, understanding or maturity both intriguing and mystifying. If we accept in principle that children have a right to be consulted and to express their views then it is surely redundant and disrespectful to have a phrase taking "account of them to such extent as the Court thinks fit, having regard to the age and maturity of the child." We don't do this in respect of adults - they are more-or-less free to present whatever evidence they choose, and the judge weighs that within the overall picture presented to the Court by the parties and experts alike, and through his or her own assessment of each adult's credibility. A similar approach could be adopted in respect of children's views, albeit with the important acknowledgement that the judge is usually unable to assess their credibility directly. Nevertheless the expert evidence available should - and indeed does already - factor this into the decision making process.

The Need for a New Approach

These three problematic aspects inherent in s23(2) contribute to the misconceptions which abound about children's competence. They subdue children's voices and they deny or inhibit children's right to be taken seriously and to participate meaningfully in family and legal processes. There are sound theoretical and rights-based arguments for challenging the invisibility and voicelessness of children, and we hope that provisions like s23(2) are amended to reflect more recent thinking about children.

Taylor and Henaghan (1997) noted:

Concern at the prospect that children will be required to exercise a choice between their parents when professionals are ascertaining their views is well-founded. We endorse the approach which avoids children being asked directly which parent they would prefer to live with. Most children are connected to both their parents and forcing a choice would indeed place an undue burden on them. It also buys into the short-term and superficial exploration of children's views and understandings of which we are so critical.

We prefer the idea of an 'opt-out' rather than an 'opt-in' model. By this we mean that at the moment the child has to earn the right to participate and to express their views. We currently start with:

Thus, adults only let children opt-in when some subjective determination, according to mostly unstated criteria, is made that the child is old enough, or mature enough, or has sufficient understanding, to be able to effectively participate and to not be damaged by this experience. Yet in a democratic society this is the reverse of what adults expect and enjoy. A presumption of competence prevails for adults from the outset of any decision making process. And this can only be revoked through proof of mental or physical incapacity. Why don't we adopt a similar approach for children and young people? The research evidence shows both that this is what many of them want, and that their experience of respect for their rights, consultation and participation will help lead to their effectiveness as citizens and family members in later years. Having an opt-out model would rightly place the onus on adults to justify the overriding of the child's competence (e.g. because it is clearly not in the child's best interest, or where it would impinge on another's right, or where the child does not want, or is unable, to participate or voice an opinion). It would avoid the current approach whereby children who want to have a say have to fight to have their voice heard.

Summary and Conclusions

Recent theoretical perspectives and research suggest that it is important to re-think some strongly held assumptions about children, childhood and family life. A strongly held assumption is that there is harm to children in involving them in discussions and decisions about their living and contact arrangements after their parents separate. This may mean that children are kept ignorant of why things are happening in their families, and have no input into decisions, especially if they are younger. We argue that even young children need to be involved in some appropriate way, because children's understanding and ability to cope with situations is increased if they are active participants in family and legal processes, rather than invisible and voiceless vulnerable victims to be protected. Most children want their views to be heard when their parents separate, even though only a minority of them want to be the sole decision makers. Even if the decisions that are made do not please them, knowing the reasons for these decisions and having had their perspectives taken into account is likely to help them adjust to the situation. We emphasise how dangerous it is to have a rule or principle which is applied to all situations. Each individual child and family have a different experience, and as much as possible these need to be taken into account within legal processes. While there is plenty of opportunity for the adult participants to state their views, there is a great deal of room for improvement when it comes to involving children.

We consider that it is very important never to lose the focus on the child, and to take a respectful stance towards children's perspectives. There seems to be continuing problems with the children's perspectives being missing or ignored, and their views not being taken in to account when decisions are being formulated. For example, children may wish to retain connections with both parents or to cut/diminish some ties at some point in time.

The wording of New Zealand's Guardianship Act (and other Family Law legislation) suggests that children are incompetent and that their competence depends on age. In our view it is time to amend the legislation towards an assumption of competence, and a recognition that competence to formulate and express views depends opportunity to do so as well as a supportive context. Although some enlightened judges are becoming much respectful of children's views, these attitudes are not shared by other judges or by the variety of professionals who are influential in our Family Court. The growth of children's competence and agency is dependant on how they are treated both within their families and in the legal and social welfare systems. Accordingly, parents, together with our family law system and family support services, must rise to the challenge of reconceptualising post-separation family life.

Footnotes

(1) Counsel for the Child refers to a lawyer appointed to represent the child. Back

References

Carr, M. (2000). "Seeking Children's perspectives about their learning". In A.B. Smith, N.J. Taylor, & M.M. Gollop (Eds). Children's Voices: Research, Policy and Practice. Auckland: Pearson Education, pp. 37-55.

Freeman, M. (Dec. 1996). "The importance of a children's rights perspective in litigation." Butterworths Family Law Journal, pp. 84-90.

Freeman, M. (1998). "The sociology of childhood and children's rights." The International Journal of Children's Rights, 6, pp. 433-444.

Gollop, M., Smith, A.B. & Taylor, N.J. (2000). "Children's involvement in custody and access arrrangements." Child and Family Law Quarterly, 12 (4), pp. 396-399.

Gray, A. & Martin, P. (1999). The Role of Counsel for the Child: Research Report Wellington: Department for Courts.

Henaghan, M. (2000). "Relocation Cases - The Law." Wellington: NZLS.

Holzman, L. (1995). "Creating developmental Learning Environments." School Psychology International, 16, pp. 199-212.

James, A. & Prout, A. (Eds). (1990). Constructing and reconstructing childhood: Contemporary Issues in the Sociological study of childhood. London: The Falmer Press.

Julian, R. (1998). Fathers who care: Partners in parenting - Focus on fathers. Wellington: Office of the Commissioner for Children.

Kelly, J. (1997). The best interests of the child: A concept in search of meaning. Family and Conciliation Courts Review, 35 (4), pp. 377-387.

Lansdown, G. (1994). Children's Rights. In B. Mayall (Ed.), Children's childhoods observed and experienced, London: The Falmer Press, pp. 33-45.

Mayall, B. (1994). Children's Childhoods: Observed and Experienced. London: The Falmer Press.

Mayall, B. (2000). "The sociology of childhood: Children's autonomy and participation rights." In A.B. Smith, M. Gollop, K. Marshall & K. Nairn (Eds). Advocating for children: International perspectives on children's rights. Dunedin: University of Otago Press, pp. 126-140.

Morrow, V. (1994). Responsible children? Aspects of children's work and employment outside school in contemporary UK. In B. Mayall (Ed.) Children's Childhoods: Observed and Experienced. London: Falmer Press.

Murch, M., Douglas, G., Scanlan, L., Perry, A., Lisles, C., Bader, K. & Borkowski, M. (1998). Safeguarding children's welfare in uncontentious divorce: A study of s 41 of the Matrimonial Causes Act 1973. Report to the Lord Chancellor's Department. Cardiff: Cardiff Law School, Cardiff University.

Neale, B. & Smart, C. (2000). Good to talk: Conversations with children after divorce. Report for Nuffield Foundation, England.

Neale, B. (2001). Family values: Children's reflections on post divorce family life. Childrenz Issues, 5 (1), pp. 6-9.

Oakley, A. (1994). Women and children first and last: Parallels and differences between children's and women's studies. In B. Mayall (Ed). Children's childhoods: Observed and experienced, London: The Falmer Press, pp. 13-33.

Piper, C. (2000). "Assumptions about children's best interests." Journal of Social Welfare and Family Law, 22 (3), pp. 261-276.

Pugh, G., & Selleck, D. (1996). "Listening to and communicating with young children." In R. Davie, G. Upton & V. Varma, (Eds). The Voice of the Child: A Handbook for Profesionals, London: The Falmer Press, pp. 120-136.

Richards, M. (1996). The socio-legal support for divorcing parents and their children. In B. Bernstein & J. Brannen (Eds). Children: Research and policy, London: Taylor & Francis, pp. 185-206.

Smart, C. (2000). "Children and the transformation of Family Law." University of New Brunswick Law Journal, 49, pp. 137-156.

Smart, C. & Neale, B. (March 2000). 'It's my life too' - Children's perspectives on post-divorce parenting. Family Law, pp. 163-169.

Smith, L. (September 2000). "To see or not to see? Psychological perspectives on custody and access issues with children and parents who have been violent." Butterworths Family Law Journal, pp. 161-169.

Smith, A. & Gollop, M. (June 2001). "Children's perspectives on access visits." Butterworths Family Law Journal, pp. 259-266.

Smith, A. & Gollop, M. (In press). "What children think separating parents should know." New Zealand Journal of Psychology.

Smith, A.B., Taylor, N.J., Gollop, M., Gaffney, M., Gold, M., Henaghan, R.M. (1997). Access and Other Post-Separation Issues: A Qualitative Study of Children's, Parents' and Lawyers' Views. Dunedin: Children's Issues Centre, University of Otago.

Smith, A.B., Taylor, N.J. & Gollop M. (Eds), (2000), Children's Voices: Research, Policy and Practice, Auckland: Pearson Education.

Tapp, P. & Henaghan, P. (2000). "Family law: conceptions of childhood and children's voices - the implications of Article 12 of the United Nations Convention on the Rights of the Child." In A.B. Smith, N.J. Taylor and M.M. Gollop (Eds). Children's Voices: Research , Policy and Practice. Auckland: Pearson Education, pp. 91-109.

Taylor, N.J. & Henaghan, R.M. (1997). "Taking children's views seriously." Childrenz Issues, 1(1), pp. 11-16.

Taylor, N.J., Gollop, M., Smith, A.B. & Tapp, P.F. (April 1999). The Role of Counsel for the Child - Perspectives of Children, Young People and Their Lawyers: Research Report, Wellington: Department for Courts.

Taylor, N.J., Gollop, M., Tapp, P., Gaffney, M., Smith, A.B. & Henaghan, M. (July 2000). Children's Rights in New Zealand Family Law Judgments; Research Report. Dunedin: Children's Issues Centre, University of Otago.

Trinder, L. (1997). "Competing constructions of childhood: Children's rights and children's wishes in divorce." Journal of Social Welfare and Family Law, 19 (3), pp. 291-305.

Triseliotis, J. (1973). In Search of Origins: The Experience of Adopted People. London: Routledge and Kegan Paul.

Vygotsky, L.S. (1978). Mind in Society: the Development of Higher Mental Processes. Cambridge: Harvard University Press.

Woodhead, M. (2000). "Towards a global paradigm for research into early childhood." In H. Penn (Ed). Early childhood services: Theory, policy and practice. Buckingham: Open University Press, pp. 15-35.

Youth Forum. Fathering the Future (1998). Summary of the Youth Forum held at Christchurch College of Education, 27 March 1998.

Cases

B v L 9 October 1998, FC Hastings, FP 041/108/95

D v S (1998) 17 FRNZ 572

G v B FC Hastings, FP 020/420/95

H v C [2000] NZFLR 775

K v O 9 Oct 2000, FC Levin FP 031/106/97

M v Mc 26 May 2000, FC Christchurch FP009/477/91

T v T (1998) 17 FRNZ 133

W v P 10 November 2000, DC Waitakere FP364/93,

Y v W, 8 June 1998, FC Christchurch, FP 009/1640/88

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