Fitzgerald, RM 2009, 'Children having a say: a study on children's participation in family law decision making', PhD thesis, Southern Cross University, Lismore, NSW.
Copyright RM Fitzgerald 2009
The idea that children should be heard and their views respected in decision-making has become an important principle of family law in recent years. No longer considered objects of concern, children are now understood as entitled to ‘have a say’ in the decision making that determines post separation residence and contact arrangements. At the same time, though, concerns are being voiced that the rhetoric of children’s participation does not readily translate into practice in the complex reality of family law settings. Significantly, children themselves report that they are unheard in family law decision-making processes and their views are not taken seriously. This study explores the ambiguous and contested nature of children’s participation. It draws on the narratives of thirteen children interviewed in relation to their views and experiences of having a say in family law decision making, specifically within the context of supervised contact. Utilising a critical hermeneutic approach, the findings suggest a number of important and inextricable links between children’s participation, their recognition, and the ways in which adults engage in and interpret dialogue with children. The children’s narratives further reveal the complex power practices at work which act to facilitate as well as to resist and prevent the dialogue which is integral to the recognition of children. The study argues that children’s participation demands ongoing scrutiny in terms of its enactment in family law processes. Such scrutiny must extend to the social and political power practices that enable, constrain and/or silence the dialogue that supports and facilitates children’s participation in family law decision-making. The thesis concludes by exploring some of the implications for researchers and practitioners when dialogue and recognition are assigned a central role in the conceptualisation and practice of participation.