Is family dispute resolution facilitating the child's right to culture?

Abstract

The realisation that children are social agents affecting, as well as being affected by those around them, is a relatively new idea. However, it is central to the knowledge that prompted affirmative action by both international and domestic governing bodies to enact legislation recognising children as rights holders. The Family Law Act 1975 (Cth) (FLA) now gives effect to the child's rights to know and enjoy their culture, and to enjoy their culture with others from that culture. Studies into child development suggest that culture is acquired through intergenerational transmission and the socialisation of children by members of the child's family and social group. While not all cultural practices will benefit children, generally exposure to familial and community culture gives the child a sense of belonging, self-worth and personal value. Culture is thought to aid the emotional, psychological and social development and adjustment of the child. Research also indicates that children deprived of cultural connections can experience emotional, identity and adjustment difficulties. When parents separate and are conflicted, in grief or cannot agree on the post-separation care of their children, the cultural supports and connections provided by parents, grandparents and even the wider cultural community, may be compromised. This risk suggests that professionals assisting parents in conflict following separation ought to ensure that children's cultural connections are maintained. Family Dispute Resolution Practitioners (FDR practitioners) are one such group on whom this duty falls. Practitioners are also duty bound by legal responsibilities and ethical obligations to advise parents that any agreement they make should be in their children's best interests, which includes the child's right to enjoy their culture. Children's right to know and enjoy culture is a passive right, and its facilitation is dependent primarily on the practitioner's understanding and preparedness to facilitate discussion between parents at FDR about culture, and to include consideration of culture in post-separation parenting plans. Whether practitioners believe they should be giving effect to children's rights, especially the right to enjoy their culture, is uncertain. This thesis investigates whether and how FDR practitioners are facilitating children's right to culture in the FDR process. The research shows that FDR practitioners experience difficulty in understanding culture, but identify culture as an inherent right for children. However they find it difficult to facilitate children's cultural rights in FDR because of: confusion about their responsibility; lack of confidence in their capacity to do this; the limitations of the FDR process; and the added complexity that cultural dynamics bring to the FDR process. This thesis documents this understanding, and recommends changes that could enhance FDR practitioners' capacity to facilitate children's right to know and enjoy their culture in FDR.

Date of Award	2014
Original language	English