The rights of children in family-state interactions

3.10 This Inquiry does not propose to promote one philosophy of state intervention in families over any other philosophy. CROC itself seeks to balance the competing claims, views and interests, and recognises the child's right to care and protection, the position of the family as the primary social unit and the obligations of the state towards both parents and children. However, it is important to consider how children should be involved when the state does intervene in family life, purportedly for the benefit or control of these children. CROC provides children with a right that is fundamental: the right to express their views freely and to have those views given due weight in accordance with the age and maturity of the child.[15] In proceedings to separate a child from his or her parents, the child has the right to participate and be heard in the processes that make up this intervention.[16] This is not a new concept in Australia. Australia's ratification of CROC coincided with an increasing recognition of children's developing right to self-determination. This concept has been incorporated into Australian law through the decisions in Marion's case,[17] H v W[18] and other cases.

3.11 Participation can mean different things in different circumstances. Exactly what the participation of children involves in the context of various legal processes is a focus of this Report. Chapter 4 sets out an overview of the Inquiry's findings regarding the problems that children face in their attempts to participate in legal processes.

[15] art 12.

[16] art 9.

[17] Secretary, Department of Health and Community Services v JWB and another (1992) 175 CLR 215, 293.

[18] (1995) FLC ¶92–598.