15 May 2015
This year is the first year in Western Australia when around half of our Year 12 school students will become adults before they sit their final exams, and it seems that the stark legal reality of this significant change has snuck up on us to some extent.  From now on any child born on or after 1 July in any given year will turn 18 during their final year of school.   
When the change to the intake age for kindergarten students in WA was implemented back in 2001, the legal consequences of the decision were probably not fully considered.  There was concern at the time that Year 12 students may be distracted by their sudden ability to buy alcohol, however other potentially more disruptive consequences are now coming sharply into focus.  Are parents still entitled to receive the final school report?  Are fees payable for an adult student who decides to drop out late in the year?  Can police or another authority help me to get my kid back to school to finish their exams?
Although rebellion is nothing new, this year is the first year that a significant number of students can legitimately refuse to finish Year 12 without committing to some other appropriate training course or employment.  Second semester in year 12 is a bad time for kids to have the sudden realisation that they don’t have to do anything their teachers or parents say anymore.
The Legal Reality of Adults in High School
In accordance with the School Education Act 1999 (the Act) compulsory education ends on a student’s 18th birthday.  The Act also defines “parents” as guardians of a “child” and doesn’t contemplate parents as being in any way responsible for or even interested in students over the age of 18 years of age.
The minute a student hits the magic number of 18 years old they are entirely responsible for themselves – and if they want to – they can walk out of school and/or exclude their parents from any further decisions in relation to their education.  In addition, parents could legally wash their hands of their children once they turn 18, and without careful planning child support payments may suddenly cease.
The impending impact of half of our State’s year 12s becoming legally independent sometime after July 1 this year has not yet resulted in a formal policy from the Government about how it recommends individual schools, parents and students handle the significant change.  However, the WA Education Department has for sometime now wisely adopted a “consensus” approach to issues surrounding the education and training of students in their later years of high school. This practical approach seeks to manage teenagers through their compulsory education and put high school students, teachers, and parents all on the same page and heading in the same direction. 
Capacity Is Crucial
Psychological studies, international human rights law and the everyday realities of Australia’s legal expectations of children all support the idea of empowering children whenever they are ready to be empowered, and without reference to any particular birthday.  
In Australia, children are given legal rights and responsibilities in accordance with their capacity to comprehend those rights and responsibilities.  This legal principle of assessing capacity may provide the basis for avoiding confrontation and transitioning high school students slowly into adulthood via supported decision making.
Article 12(1) of The United Nations Convention on the Rights of the Child 1989 (which Australia has signed) provides: 
‘the child who is capable of forming his or her own views’ should have the right to express those views, and that the views should be ‘given due weight in accordance with the age and maturity of the child’.
While historically the law has generally assumed that children do not have the capacity to participate in legal processes on their own behalf, more recent psychological studies have provided a greater understanding of children’s cognitive abilities and prompted a re-evaluation of rules regarding children’s capacity.  
In Australian Courts legal capacity cuts both ways for kids.  A child’s particular interest in, or ability to comprehend legal rights and responsibilities will determine both the degree to which they are given rights and how accountable they will be held to be for the decisions they make.  An assessment of capacity will determine whether a child is criminally responsible for their actions as well as whether a parent is responsible for paying child support for their offspring beyond their 18th birthday.
For schools, teachers and parents these legal realities, human rights principles and supporting psychological science may hold the key to effectively managing the transition of dependent children into independent adults.  
In a practical sense preparing students and parents for the inevitable legal coming of age well before second semester in Year 12 should assist in avoiding dramatic rebellion just before final exams.  
Legal Tips for Schools
For private schools there will be a contractual relationship between itself and the fee payer (usually the parent). That contractual relationship will survive the student becoming legally responsible for themselves, however it would be worth noting in the contract whether fees will be payable if an 18 year old student decides they will no longer attend school. 
For both public and private schools it will be important to clearly inform students and parents about privacy rights.  Technically parents can only demand access to their children’s records (i.e. offspring under 18 years old).  The privacy rights of children should be considered wherever a child is capable of understanding those rights and may seek to protect them.
Asking students to sign an authority to share their school reports and other information with their parents in the early years of high school could assist in empowering children, identify those who are seeking independence and ensure that before they are given total control of their education they demonstrate they have the capacity to understand that with legal rights come legal responsibilities.

This is only general information and does not constitute specific legal advice.  If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.


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