"They Thought It Was Safe - But It Wasn't": Recognising Children's Rights as a Means of Securing Children's Safety in Australia's Family Law System

In matters before the Federal Circuit and Family Court of Australia, and Family Court of Western Australia, children are often victims of domestic abuse and are directly affected by the separation of their parents. Yet children report their encounters with family law actors—including lawyers, family report writers, and contact supervisors—can be intimidating, insensitive, age-inappropriate, and hostile (Carson, et al. 2019). Studies also demonstrate that the adversarial culture of the court and associated legal institutions work to marginalise children, and can profoundly silence them, including when children express safety concerns (Nelson and Lumby, 2021). This report makes policy recommendations designed to enhance children's safety by bringing the family law system into alignment with children's rights. It illustrates its case for reform with the findings of a multiple case study project comprising seven in depth interviews with adult survivors of family violence whose parents went to court when they were children. These reflective accounts of childhood experiences illustrate the diverse ways in which children attempt to use whatever agency they have to negotiate a hostile legal terrain. Sometimes the child's resort to agency can improve their situation. At other times, the child's resort to agency for the purpose of self-protection can lead to adverse outcomes because adult actors do not respond in the way the child anticipated. The common theme in every instance is the hostile situation in which adult actors do not offer a safe space in which children can freely speak, do not listen carefully when children attempt to speak, frequently limit children's access to important information that affects their circumstances, or else ignore, discredit, or silence children. These adult recollections of childhood encounters demonstrate that children are not a homogenous group, but they also share common experiences. These include feelings of powerlessness, trauma around the execution of court orders, distress associated with being disbelieved, ignored, or "kept in the dark," the ongoing social, emotional, and financial impacts of Family Law litigation, and the ways in which trauma associated with family court encounters resurfaced in children's adult lives, profoundly affecting their wellbeing. The descriptions of family court encounters included in this paper date from the 1990s to 2010. Worryingly, similar themes emerge in Rachel Carson's 2019 report for the Australian Institute of Family Studies, based on interviews with 61 children between the ages of 10 and 17 about legal matters that were mostly finalised between 2016 and 2017 (Carson et al., 2019). This persistence of themes across time—dating both before and after the 1995, 2006 and 2012 family law reforms—suggests that the silencing of children is deeply embedded in the adversarial and paternalistic ideologies of legal traditions and institutional culture. Finally, the paper presents a series of recommendations designed to minimise harm to children by bringing the practices of the family courts into alignment with the National Principles for Child Safe Organisations (Australian Human Rights Commission, 2018). Underpinned by a children's rights approach and based on the child-safe standards recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, these child-safe standards were designed to create institutional conditions that reduce harm to children and young people, increase the likelihood of identifying harm, and better respond to children's concerns and disclosures when harm is reported. The recommendations in this paper draw attention to the need for greater institutional transparency and accountability, including the need to inform children and young people about their rights, the need to adopt measures to support children and young people's active participation in decision-making that affects their rights, and the need to provide a child-safe institutional environment in which it is possible for children and young people to speak freely about their concerns, and be taken seriously