This paper examined the nature and scope of
Article 12 (the right of the child to be heard/participate) of the UN Convention on the Rights of the Child
1989 (CRC) and in particular, its overall contribution to the protection of
children under Family Law since the CRC entered into force in 1990. Children
are a vulnerable group in society, in respect of whom decisions are made on a
daily basis in family law proceedings. It is submitted that, in order to ensure
that fully informed decisions can be made in relation to children, their views
must be taken into consideration. Models of best practice will be explored
where the right of the child to participate directly and indirectly in family
law proceedings is effectively ensured and facilitated in a systematic manner
in accordance with Article 12(2). Indeed, the challenges that the
implementation of Article 12 continues to pose to countries all over the world,
including Ireland, in the context of such proceedings will be highlighted. In
particular, common barriers to child participation in family law proceedings
will be identified including the adoption of age limits in areas such as
custody and access, adoption as well as medical decision-making. Furthermore,
the suitability of the adversarial approach to family law proceedings will be
addressed, identifying models of best practice which have adopted alternative
approaches in this respect. Finally, taking on board the General Comment on
Article 12 which was adopted by the UN Committee on the Rights of the Child in
July 2009, this paper will conclude with suggestions for the way forward where
children are both seen and heard in family law proceedings which concern them.