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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 Human Rights and Equal Opportunity Commission (HREOC) 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.

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