Legal status of childhood

Who is ‘a child’?

There are special laws about children at both state and Commonwealth levels. It may be surprising however that though it is often considered that a child is any person aged under 18-years-of-age, there is no single, over-arching law that states this to be the case. As a consequence, the 18-years threshold does not apply in many areas of the law. The age of transition to adulthood differs between areas of law, and between the states and territories.

Illegitimacy

For many years, and as a function of our inheritance of ancient English law, children not born to a married couple (ex-nuptial children) were considered to be illegitimate. This affected their rights in a number of key areas (eg under the law of wills). All states and territories passed legislation in the early 1970s abolishing the status of illegitimacy and banning discrimination against ex-nuptial children. Constitutional difficulties that prevented the Commonwealth from including ex-nuptial children in coverage under the Family Law Act were resolved in the 1980s. For further details see Parenting and property after separation.

In NSW, the Status of Children Act 1996 describes the right of ‘ex-nuptial’ children to be treated the same as children born within a marriage for all legal purposes, including in relation to the division of property after the death of a parent. By amendments to the Status of Children Act 1996 (NSW) in 2008 and the passing of the Surrogacy Act 2010 (NSW), the ex-nuptial children of same-sex parents are now similarly included.

Children who are parents

Any law that refers to parents applies equally to parents who are aged under 18 years.

Rights of children

In one of the few pieces of Australian legislation in which the rights of any person, or group of people, are defined, the Family Law Act defines the rights of children to include:

  • the right of children to know and be cared for by both of their parents;
  • to spend time and communicate on a regular basis with both of their parents and other people significant to them; and
  • to enjoy their culture and to enjoy it with others of their culture.

The court uses these principles to help it decide what parenting orders will be in the best interests of children.