SSRN Research Paper Series

Current Issue

• Children and the Law - June 2016

This edition of the SSRN Journal on Children and the Law highlights the breadth of scholarship in UTS:Law. The works collected here cover indigenous children and self-determination, the figure of the Aboriginal child in law and literature, illegitimate children in colonial legal history, children with challenging behaviour in disability discrimination law and the rights of students to participate in decision-making.

Honni van Rijswijk and Terri Libesman’s articles consider the continuity of colonial violence experienced by Aboriginal children, families and communities. Both are concerned with the ways in which colonial power denies the authority and experience of Indigenous laws. Honni suggests that we need to interrogate law’s imaginary as a way of challenging its claim to authority and jurisdiction. She draws on Alexis Wright’s novels as an exemplary counter imaginary with their relational understanding of harm grounded in Aboriginal land and law.

Terri Libesman reflects on why after almost 20 years the contemporary child welfare recommendations from Bringing them home (BTH) have not been implemented. She argues that while there have been deep set difficulties with implementing human rights which are pluralised and political in a liberal legal environment, the neo-liberal political and social values which have ascended post the National Inquiry are incompatible with and directly undercut the human rights framework recommended by BTH.

Turning to human rights practice in the school context, Sally Varnham, Maxine Evers, Tracey Booth and Costa Avgoustinos report on their findings from a qualitative study of student participation in decision-making in Australian schools. Focusing on the child’s right to express their views and to have their voices heard, the authors examine how this right is implemented through democratic processes of student decision-making in a number of NSW schools. Their research demonstrates the overall positive effect that more democratic student processes have on school cultures.

Also focusing on children’s rights, this time under Australian discrimination law, Karen O’Connell examines an emerging brain-based approach to children with challenging behaviour, arguing that while this medical approach appears neutral and seems to permit the child greater protection under discrimination laws, it also allows for new forms of stigma to emerge, as some children with disabilities are viewed as less remediable than others.

Finally, Alecia Simmonds returns us to Australia’s colonial past to consider the lives of children under the law in a very different context to Honni and Terri’s work. She writes on the action for breach of promise of marriage in colonial Australia, analysing a series of cases to show its impact on children born outside of marriage, as unmarried mothers used the claim as a means of supplementing maintenance. While a woman’s lack of chastity was a complete defence to the action, Alecia shows that suits involving children were both common, making up almost half of court cases, and often successful, holding men to account for children born out of wedlock.

This scholarship collectively is concerned with ways in which laws address and reproduce power disparities. It is founded in an optimism with respect to the potential for greater equality, justice and integrity in legal relations which engage historically and contemporarily with respect to relations with, between and about children.

• Towards a Literary Jurisprudence of Harm: Re-Writing the Aboriginal Child in Law's Imaginary of Violence
  • Honni van Rijswijk and Terri Libesman
• Indigenous Child Welfare Post Bringing Them Home: From Aspirations for Self-Determination to Neo-Liberal Assimilation
  • Terri Libesman
• Valuing Their Voices: Student Participation in Decision Making in Australian Schools
  • Sally Varnham, Maxine Evers, Tracey Booth and Costa Avgoustinos
• Unequal Brains: Disability Discrimination Laws and Children with Challenging Behaviour
  • Karen O'Connell
• Gay Lotharios and Innocent Eves: Child Maintenance, Masculinities and the Action for Breach of Promise of Marriage in Colonial Australia
  • Alecia Simmonds

Previous Issues 

• Refugee Status Determination – September 2013 
• Criminal Law – December 2013
• Environmental Law - March 2014
• Law & Culture – June 2014
• China Law - September 2014
• Law & History - November 2014
• Feminist Legal Research – March 2015
• Legal Education - July 2015
• Indigenous Peoples and the Law - March 2016

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