Representing Children consistently with the UN Convention on the Rights of the Child - Family Law

Representing Children consistently

with the UN Convention on the Rights of the Child - Family Law

The National
Inquiry into Children and the Legal Process
The child's
right to participate
Representation
in the Family Court - the separate representative
Alternative
models of representation
The Inquiry's
approach
Further information

The

National Inquiry into Children and the Legal Process

In 1997 the report

of a joint inquiry into children and the legal process undertaken at the

request of the then federal Attorney-General by the Australian Human Rights Commission (the Commission) and the Australian Law Reform Commission

(ALRC) was published. Titled Seen

and heard: priority for children in the legal process, the report

considers, among many other topics, how the representation of children

before Australian courts and tribunals could become more consistent with

the requirements of the UN Convention on the Rights of the Child.

This article briefly outlines the main findings and conclusions as they

particularly apply in Family Law matters.

The

child's right to participate

Article 12 of the

Convention sets out the child's right to participate in judicial and administrative

proceedings. It requires that a child capable of forming his or her own

views has the right to express those views freely in all matters affecting

the child and that they be given due weight in accordance with the child's

age and maturity. Furthermore, it requires that the child be provided

with the opportunity to be heard in any judicial and administrative proceedings

affecting the child - this being either directly or through a representative

or appropriate body.

The general rule

of advocacy is that the client sets the goals of representation. However,

in many cases involving children this general obligation of a representative

to act upon instructions is modified. The law presumes that a child cannot

assert rights or form a judgment. Therefore, children traditionally lack

the legal capacity to instruct. Article 12 speaks directly to the child's

legal representative as responsible for representing the best interests

of the child and being the voice of the child. To secure the child's right

to participate effectively the legal representative must

determine, in
the individual case, whether the child is capable of forming his or

her own views
ensure the child
is free and feels free to express those views and
take those views
into account - with the weight to be given them dependent on the age

and maturity of the child.

Representation

in the Family Court - the separate representative

Separate representatives

are required to advocate in accordance with their assessment of the child's

best interests and do not act upon the child's instruction or advocate

the child's wishes. The functions, rights, responsibilities, obligations

and duties of the separate representatives are derived from common law,

particularly from cases heard in the Family Court.

The Family Court

has established some general guidelines concerning the function of the

separate representative.¹ Another Full Family Court decision

listed the functions of the representative, including

1. Act in

an independent and unfettered way in the best interests of the child.

3. Inform the

Court by proper means of the children's wishes in relation to any matter

in the proceedings. In this regard, the separate representative is not

bound to make submissions on the instructions of a child or otherwise

but is bound to bring the child's expressed wishes to the attention

of the Court.

7. Minimise the

trauma to the child associated with the proceedings.²

A major criticism

of the separate representative model is that it denies competent children

the right to instruct their advocates. The separate representative must

tell the court what wishes the child has expressed³ but does

not have a duty to make submissions to the court which represent the wishes

of the child⁴ or to argue for an outcome in line with the wishes

of the child. The credibility and weight given to children's wishes are

matters for the court and will vary from case to case. In many cases involving

children the representative for a child may discount, editorialise or

reject the child's wishes and argue the case in accordance with his or

her own views of the child's best interests.

The Inquiry was told

that about 70% of children over about 12 with a separate representative

in Family Law matters express wishes as to the outcome of a matter.⁵

In most cases those wishes are sufficiently developed for them to form

the basis of submissions on the best interests of the child.⁶

A major role of the

separate representative is to keep the child informed of the progress

of the litigation.⁷ The representative also should act to minimise

the trauma to the child associated with the proceedings.⁸

The assumption that

children lack the judgment of adults is now being challenged. Many children

have the maturity and judgment to direct their lawyer just as many adults

have limited maturity and poor judgment but instruct legal representatives.

Children may better

accept decisions that they understand and have participated in making.

The inclusion in the Family Law Act of the wishes of the child as one

of the primary determining factors in deciding the best interests of that

child gives some voice to children in the process. There is evidence that

the increased sense of control by effective participation in these processes

is strongly related to the health, both psychological and physical, of

the child.

Submissions to the

Inquiry suggested that children feel marginalised by the best interest

advocacy. Children expressed a feeling of helplessness due to not being

listened to or believed. Some submissions maintained that many separate

representatives do not meet or interview the child but rely solely on

the assessment of their chosen social scientists to determine the best

interests of the child.⁹ One submission stated that '[o]ften

the separate representative for the child has never met the child let

alone attempted to understand the child's point of view'.¹⁰

Alternative

models of representation

The team approach

In the team approach,

the lawyer is not required to investigate directly and assess the best

interests of the child or to reach conclusions that he or she may not

be equipped to make. The representative takes instructions in the usual

manner from an appropriately trained and qualified social scientist who

is responsible for the assessment of the child's circumstances and the

determination of the child's best interests. In the team approach the

role confusion of the separate representative is reduced allowing the

representative to advocate according to the instructions or advice of

the social scientist. However the child still gets a bit lost in the process.

In fact what the team approach does is add an extra participant between

the child and the court as the decision-maker.

Direct representation

This model of representation

provides the child with a direct voice in the decision making process.

Direct legal representation avoids the role confusion associated with

best interests advocacy by establishing a lawyer-client relationship between

the representative and the child. It allows children to participate directly

in proceedings if they are able and willing to do so.

The

Inquiry's approach

The Inquiry wrestled

with the various modes of advocacy for children and was not convinced

that any one model is appropriate to all circumstances. The needs of children

differ to such an extent that there can be no single model appropriate

for all children. However, the basis of the representation and the roles

and functions of the representative should be clear to the court, the

representative and the child concerned. This requires clear ethical and

practical standards for all representatives to ensure that there is appropriate

participation of an engagement with the child.

The need for

standards

No detailed standards

have been developed by the legal profession for representation of children

in any Australian jurisdiction. The Federation of Community Legal Centres

noted an ad hoc approach to the representation of children. Furthermore

differences are emerging between jurisdictions in the roles and functions

of representatives. The Inquiry heard evidence of different advocacy approaches

in the various jurisdictions.

The legal profession

needs to determine the ethical basis and corresponding rules and standards

for the representation of children in the Family Law jurisdiction covering

both the situation when the child wishes to participate and that when

the child is not able or willing to participate.

The Inquiry recommended

that clear standards for the representation of children in all Family

Law proceedings should be developed. Among other matters, these standards

should require

In all cases where
a representative is appointed and the child is able and willing to express

views or provide instructions, the representative should allow the child

to direct the litigation as an adult client would. In determining the

basis of representation, the child's willingness to participate and

ability to communicate should guide the representative rather than any

assessment of the 'good judgment' or level of maturity of the child.
The representative
should meet the child as soon as possible and, in most instances, well

before the first hearing.
The representative
should meet with a verbal child at least before every substantive proceeding

or event at which important decisions are being made regarding the child

or which are relevant to the representation of the child.
Contact with the
child should occur where and when it is comfortable for the child not

merely where and when it is convenient for the representative.
Even where the
child is non-verbal, the representative should at least see the child,

preferably in the child's living environment.
The lawyer should
use language appropriate to the age and maturity of the child.
The representative
should employ appropriate listening techniques and provide non-judgmental

support.
Preference should
be given to face-to-face communication with the child rather than communication

by telephone or in writing.

The standards should

make the following additional provisions where the child is able to communicate

and expresses wishes about the direction of the litigation.

Sufficient time
should be devoted to each child to ensure that the child understands

the nature of the proceedings and that the representative has established

the child's directions.
The representative
should meet with the child often enough to maintain and develop the

lawyer-client relationship.
When discussing
the case with the child, the representative should use concrete examples

and provide the client with a 'road map' of the interview and the legal

process.
Younger children
who wish to direct the litigation may be clear about their views on

one or more issues to be decided but be unwilling to express a view

on other matters. In such cases, the representative should make procedural

decisions with a view to advancing the child's stated position and should

elicit whatever information and assistance the child is willing to provide.

Representatives should seek the assistance of appropriate social scientists

to assist them to ascertain the wishes and directions of younger children

where necessary.

The standards should

make the following additional provisions where the child is unable or

unwilling to provide direction on the litigation.

Where a child
is unable or unwilling to set the goals of the litigation, the representative

should ensure that the court is aware of the fact and understands that

the representation is to be on the basis of the best interests of the

child.
Under no circumstances
should the representative proceed if he or she is uncertain of the basis

of representing the child.
Standards should
specify functions of a representative acting in the best interests of

a child. They should include

to ensure that
all relevant evidence, including any evidence that may contradict

the assessment of the representative, is placed before the court

to investigate
all relevant facts, parties and people

to subpoena
all documents

to retain experts
as needed

to observe the
child in the caretaker's setting and formulate optional plans

to advocate
zealously for the legal rights of the child including safety, visitation

and sibling contact

to challenge
the basis for expert and agency conclusions to ensure accuracy

to ensure that
all relevant and material facts are put before the court.

Duties of disclosure

and confidentiality

In relation to duties

of disclosure and confidentiality the Inquiry recommended that relevant

legislation should ensure that legal professional privilege applies to

communications between the representative and the child in Family Law

matters even where the child is not the client of the representative.

This privilege should be subject to the obligation of the representative

to notify the court of matters

that may place
at risk the safety or best interests of the child
that the court
would otherwise not have access to and
that would be
likely materially to affect the court's deliberations.

The representative

has an obligation to the child to ensure that the child is aware of the

confidentiality of their discussions and of the limits to that confidentiality.

This should be discussed with the child at the first meeting. Where it

subsequently becomes clear that the representative will have to disclose

a communication with the child, the representative should meet with the

child and formulate a strategy for that disclosure.

Representation

of siblings

Siblings are often

represented by one advocate in private family law matters which will be

appropriate in many cases. However, there will be cases in which the children's

instructions or interests do not coincide. The Inquiry recommended that

in these cases the representative should carefully ascertain the views

and instructions of each child. Where any divergence in instructions amounts

to a conflict of interest for the representative, the representative should

not represent all the children.

Terminating

the appointment of the representative

As the child is at

present not the client of the separate representative, he or she is not

permitted to dismiss the representative. It is for the court to decide

whether to discharge the separate representative. In situations where

the child is willing and able to participate in the proceedings and has

lost confidence in the representative, this fact, in the absence of significant

arguments to the contrary, ought to constitute grounds for the court to

remove the representative. Further, the Inquiry recommended that where

it appears to the representative that the child is unwilling or unable

to express a view about the litigation and

the representative
considers that the best interests of the child do not require that evidence

be tested or adduced or
the representative
is merely confirming the submissions of one party and is calling no

independent evidence

the representative

should apply, as early in the proceedings as possible, to be discharged.

Skills and

training

Assessing a child's

competence, ensuring his or her views are freely expressed and judging

what weight to give them are all skills in which few lawyers are trained.

The Inquiry received a number of submissions stressing the need for training

for separate representatives especially in the Family Court. The representation

of children is a specialty area and it was pointed out that representatives

should receive specific and substantial training. Children's representatives

in all jurisdictions should receive appropriate training in children's

development and cognition and in interviewing children.

Among other proposals,

the Inquiry recommended that the practice of children's law in the Family

Court should be developed as an area of specialisation. Legal aid grants

should generally be restricted to lawyers accredited as qualified children's

representatives although exceptions for good reason should be permitted.

Further

information

This article is intended

only as a brief guide to the children's representation aspects of Seen

and heard: priority for children in the legal process. If you

would like more detailed information, please refer to the full report.

Footnotes

¹ See

Bennett and Bennett (1991) FLC 92-191, 78,258-78,259; P and

P (1995) FLC 92-625, 82,157.

² P and P (1995) FLC 92-625, 82,157.

³ Pagliarella and Pagliarella (1993) FLC 92-400, 80,108;

Re K (1994) 92-461, 80,770.

⁴ Pagliarella and Pagliarella (1993) FLC 92-400, 80,108;

Re K (1994) FLC 92-461, 80,770; Bennett and Bennett (1991) FLC

92-191, 78,259.

⁵ J Ryan, NSW Legal Aid Commission, Minutes of Meeting Sydney

11 November 1996.

⁶ Ibid. See also D Smith & J Rimmer, Minutes of Meeting Brisbane

2 August 1996.

⁷ K M Berck 'The role of the separate representative' in P

K Cooper (ed) Family Law: Children Blackstone Press, Sydney, 1993,

131.

⁸ P and P (1995) FLC 92-615, 82,157.

⁹ Geelong Rape Crisis Centre Submission 151. See also Youth

Advocacy Centre Submission 120; Royal Children's Hospital Brisbane,

Minutes of Meeting Brisbane 29 July 1996; Adelaide Focus Group 29 April

1996; Bendigo Practitioners' Forum 31 May 1996.

¹⁰ Anonymous Submission 180.

Last

updated 2 December 2001.

Representing Children consistently with the UN Convention on the Rights of the Child - Family Law