Over the years the prevailing view on this question and what is in the best interests of the children has shifted from saying that the children should be heard, to keeping them away from the court and the parental dispute, leaving it to the court and the parents to decide what is in their best interests.
The United Nations Convention on the Rights of the Child 1989 provides that children should be given the opportunity to be heard where they are capable of forming a view. Opinion has and does vary as to the age at which the child’s view should be taken into account. The European Convention on Human Rights gives similar rights.
With the agreement of the parents children can be consulted in the mediation process where the parents consider this would be of help. Research in Australia has found that this can have significant beneficial outcomes for the children and the family.
In November 2014 the Government set up the Child Dispute Resolution Advisory Group to consider these matters. The Group published its Final Report in March 2015. It concluded that children should have the opportunity to be heard during processes to resolve disputes and that this should be the normal starting point for family mediators. The emphasis from the Group was strongly on the child’s rights. It recommended there be a non-legal presumption that all children aged 10 and above should be offered the opportunity to be heard during any dispute resolution processes, including mediation. The right to be heard is about including the child in the process, taking note of what the child has to say and listening to those views.