Standards for representatives acting for children

Introduction

13.80 The Inquiry has wrestled with the various models of advocacy for children and is not convinced that any one model is appropriate to all circumstances. Ultimately the needs of children differ to such an extent that there can be no single model appropriate for all children. Children vary greatly in their capacities, maturity and desire for involvement in litigation concerning themselves and their families. A form of representation suitable for an articulate child of fourteen may not be appropriate for a younger or pre-verbal child. One writer has pointed out that representation of children ‘…requires thoughtful improvisation rather than adherence to a script’.^[182] The role of a child’s representative should remain fluid. The Inquiry agrees with the American Bar Association’s rejection of

…the concept that any disability must be globally determined. Rather, disability is contextual, incremental, and may be intermittent… [A] child may be able to determine some positions in the case but not others. Similarly, a child may be able to direct a lawyer with respect to a particular issue at one time but not at another.^[183]

13.81 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 and engagement with the child.

The need for standards

13.82 The best interests model of advocacy developed as a mechanism to assist the court and the role has largely been determined by the courts. Traditionally, the legal profession has been responsible for developing standards for practice. Many of the problems associated with the model of best interests advocacy^[184] arise from the fact that the legal profession has not determined the ethical and practical parameters of the representation of children in family law and care and protection proceedings. A US conference that developed practice standards for representatives of children noted that

[c]hildren’s lawyers confront ethical questions that are immediate, frequent and palpable. Such quandaries are not an academic matter…Where professional standards give clear guidance as to appropriate professional practices, lawyers will strive to uphold them even in the face of pressure to do otherwise.^[185]

13.83 No detailed standards have been developed by the profession for representation of children in Australian jurisdictions.^[186] The Federation of Community Legal Centres noted that ‘…there appears to be an ad hoc approach which…is not good enough and does not promote the best interests of the child.’^[187]

13.84 Differences are already emerging between jurisdictions in the roles and functions of representatives. They present many practical and logical concerns that must be addressed by the legal profession. The Inquiry heard evidence of different advocacy approaches in the various jurisdictions.

13.85 The legal profession needs to determine the ethical basis and corresponding rules and standards for the representation of children in the family law and care and protection jurisdictions. During 1996 a training program for child’s representatives in the Family Court was developed by the Law Council of Australia, National Legal Aid and the Family Court.^[188] It was the first step towards comprehensive standards for the representation of children directly developed by the legal profession.

13.86 The practice guidelines developed by the US Conference on Ethical Issues on the Legal Representation of Children^[189] and the American Bar Association’s 1996 Standards of Practice of Lawyers Who Represent Children in Abuse and Neglect Cases^[190] could provide a valuable starting point for the development of standards for Australian representatives. Decisions of the Family Court also provide some useful approaches for these standards.^[191]

13.87 The legal profession, particularly practitioners in the family law and care and protection jurisdictions but also legal representatives of children in other jurisdictions notably juvenile justice, should be centrally involved in the preparation of these guidelines. The perspectives of children, the judiciary and magistracy and social scientists must also be included in the development of the guidelines.

Standards to assist in determining the basis for representation

13.88 Much of the confusion arising from best interests advocacy lies in determining whether a particular child’s level of competence justifies giving the child direction of the litigation, particularly where the representative may not agree with that direction. Representatives should not be responsible for determining the competence of a child. To avoid this, the standards should provide that, wherever a child is willing and developmentally able to express a view as to the direction of the litigation, the representative should accept that direction and advocate for the child’s wishes. The first duty of the representative is to represent the child and the standard lawyer-client relationship should apply in those cases. This relationship allows for negotiation and discussion between the client and the representative to reach the most appropriate instructions. This negotiation process is discussed at para 13.3. All representatives in these cases also owe the general duty to the court referred to at para 13.3.^[192]

13.89 This approach of introducing the standard lawyer-client relationship wherever possible addresses the problems of best interests advocacy.^[193] Most importantly it ensures proper representation of children. As the US conference noted,

[a] lawyer appointed…to serve a child in legal proceedings should serve as the child’s lawyer. The lawyer should assume the obligations of a lawyer, regardless of how the lawyer’s role is labelled…^[194]

13.90 Where a representative appears for a child who is too young or not willing to present a view to the representative, the lawyer has additional responsibilities and many of the elements of best interests advocacy will apply.^[195]

Standards for all legal representatives of children

13.91 The ability to communicate effectively is an essential skill for all representatives of children. The child’s capacity to give instructions is greatly affected by the lawyer’s skill in communicating with him or her. Representatives should be aware of the need to communicate at a pace and level suitable for the particular child client and should use methods of communication with which the child is comfortable. Standards for lawyers should include guidelines to give effect to this obligation.^[196]

• Every child should be seen except in those rare instances where it is physically impossible for the representative to see the child. The representative should see 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 prior to any substantive proceeding or event at which important decisions are being made regarding the child or which are relevant to the lawyer’s representation of the child.

• Contact with the child should occur where and when it is comfortable for the child, not merely where and when 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 child’s age and maturity.

• 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.

Standards when the child wishes to participate

13.92 Where the child is able to communicate and expresses wishes about the direction of the litigation, legal representation of children should be comprehensive. A representative should assist the child to understand the proceedings and provide appropriate referrals to organisations for assistance to the child for non-legal problems.^[197]

• Where necessary representatives should seek the assistance of qualified professionals skilled in communicating with children to provide advice in determining the instructions of a younger child. However, this assistance should not supplant the lawyer’s obligation to communicate and interact with the child.

• 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 but be unwilling to express a view on other matters. In these 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.

Standards when children are not able or willing to participate

13.93 If a child is unable or unwilling to provide instructions or express an opinion, the lawyer should be clear about that fact and about the alternative basis for representation. In those cases, many of the elements of the best interests approach should be used, but with caution. The lawyer should seek expert advice and assistance and should ensure that the court is aware of the advocacy approach being taken by the representative.

13.94 Representatives acting for pre-verbal children should focus on specific, well defined tasks including the following.

(1)

To investigate all relevant facts, parties and people;

(2)

To subpoena all documents;

(3)

To retain experts as needed;

(4)

To observe the child in the caretaker’s setting and formulate optional plans;

(5)

To advocate zealously for the legal rights of the child including safety, visitation and sibling contact;

…

(11)

To challenge the basis for experts and agency conclusions in order to ensure accuracy;

(12)

To ensure that all relevant and material facts are put before the court…^[198]

13.95 Representatives for pre-verbal children should be able to reach a conclusion, where appropriate, about the preferred course of action in the best interests of the child. However, this should be done on the basis of all relevant evidence and the representative should be obliged to ensure that all relevant evidence is placed before the court.

Duties of disclosure and confidentiality

13.96 Some practitioners asserted that there is no legal professional privilege between the child and the best interests representative since the child is not the client of the representative. If this is the case representatives fear that they may be liable to cross-examination on discussions with the child.^[199] This was cited as the reason many practitioners do not meet with the children they represent.^[200]

13.97 All representatives, as officers of the court, have a duty to avoid misleading the court about any material fact. The Family Court has established that in cases relating to children a higher duty applies. In Re Bell; Ex parte Lees the High Court held that legal professional privilege between a lawyer and a party does not apply where the welfare of the child is affected.^[201] An interesting early case on this point is Clarkson v Clarkson in the Supreme Court of NSW which indicated that legal representatives for all parties have particular obligations in matters relating to responsibility for children.^[202] Selby J held that in those cases

[t]he task of counsel is a difficult one, for whilst owing a duty to his client…he must always remain aware that the child’s interests come before those of his client. It is therefore necessary to adduce all available evidence which might have a bearing on the matter.^[203]

13.98 The position of children’s representatives is slightly different. To develop trust between the representative and the child, the child must be assured that discussions will remain generally confidential. Legal professional privilege should apply to the communications between the child and the representative.^[204] However, representatives for all parties in children’s matters should be aware that privilege does not apply to communications where maintaining confidentiality may compromise the best interests of the child. The duty on children’s representatives to disclose information should be expressed in positive terms. It should require disclosure of information that the representative considers crucial to a determination of the child’s best interests. The DPP guidelines requiring fairness on the part of the prosecutor and disclosure of relevant information in criminal proceedings could apply in appropriately modified form to the representation of children in family law and care and protection matters.^[205]

13.99 This duty should not extend to requiring the representative to present all relevant evidence to the court where the representative is advocating for the stated wishes or at the direction of the child. In those cases, the representative is entitled to limit his or her investigations to the directions given by the child. However, disclosure is required where information comes to the attention of the representative during the course of those investigations that the court would otherwise not have access to and that would be likely to affect materially the court’s deliberations, for example where the child has disclosed abuse by a party. Where a report is being prepared the duty could be discharged by the representative bringing the concerns to the attention of the report writer.

13.100 This requirement may raise concerns about a breach of the confidentiality of the relationship between the child and the representative. One submission to the Inquiry asserted

…the correct course of action is to report those matters to the relevant community service department in that state. In the normal course of investigation an appropriate court will be called upon to determine the child’s placement…^[206]

This submission goes on to assert that a requirement to disclose ‘…will spawn a series of tactical ploys by mischievous parties. Many children may not trust their legal representatives…’^[207] However, the overriding duty of the representative as an officer of the court must be to ensure that the child’s long term best interests are served by the decision of the court. For children able and willing to participate in the decision making process, those interests in most cases are best served by allowing the child to participate in that process. However, participation should not be at the expense of the court’s ability to make a decision on the basis of all material facts. Participation should not result in a risk to the child’s safety.

13.101 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

13.102 Siblings are often represented by the one advocate in private family law matters. In many cases this is appropriate but there will be cases in which the children’s instructions or interests do not coincide. A submission to the Inquiry noted

…legal representatives give more emphasis to the wishes or directions of older siblings in the family, spending most time with the eldest child and little with younger, less verbal, children. This is particularly problematic when the children have differing views or needs.^[208]

13.103 Representatives for siblings should remain alert to divergence in instructions or interests of the children. They should ensure that appropriate steps are taken where the divergence constitutes a conflict of interests. In these cases, the representative should approach the court and seek the appointment of a second representative.

Terminating the appointment of the representative

13.104 As the child is not the client of the best interests representative, he or she is not permitted to dismiss the representative.^[209] This is justified by the requirement that the best interests representative should act in an unfettered manner and should not be compromised by the ability of the child to terminate the appointment.^[210] The Inquiry agrees that the court should decide whether to discharge a best interests representative. However, where a child is willing and able to participate in 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. The representative should generally be removed on such an application if the child can show that the representative has failed to consult.

13.105 In some cases in both family law and care and protection jurisdictions the representative makes little contribution to the resolution of the matter. This may be because the representative wholly supports the arguments of one of the parties and the child chooses not to express any wish or to participate in the process. The child may not need the assistance or support of a representative. In those cases, the representative adds little to the proceedings but may add to any marginalisation felt by the child and ill-feeling between the parties.

13.106 DRP 3 suggested that in those circumstances the representative for the child should approach the court and seek to be discharged.^[211] One submission noted that this recommendation is unrealistic as ‘…practitioners have rarely demonstrated a propensity to discharge themselves as being unnecessary’.^[212] Standards requiring representatives to seek to be discharged where they add nothing of substance to the resolution of the matter may assist to address this problem.^[213]