How Lawyers “See” Children in Child Representation

Dr Nicola Ross, Newcastle Law School, University of Newcastle

Recent Developments

• Hague Convention matter before the HCA in August 2012• Additional object of Family Law Act – s 60B(4) recognising CRC

included in CRC, commencing 2012• A-G : $500,000 to AIFS for research in relation to Independent

Children’s Lawyers; • Children’s Committee of Family Court examining research (and

recent survey) about children’s involvement in proceedings.

The complex role of the ICL

Guidance for ICLs: Family Law Act s 68LA; Legal Aid Commission Guidelines; Practice Guidelines; Representation Principles (NSW Law Society); 2 day national ICL training.

Aims of this ‘best interests’ role include:• Assisting the judge to determine the best interests of children• Protecting the child from harmful impacts of the proceedings• Assisting parties to resolve the dispute• Facilitating the child’s participation in the proceedings

Children’s right to be heard and ICL’s role • CRC embodies new concepts of children’s human rights: 60B(4)

• Article 12: General Comment 12 UN Committee, ‘The Right of the Child to be heard’ (2009).

• Growing recognition of children as active/competent (psychological/sociological theory)

• New visibility of children’s perspectives from research

Previous researchWhat do we know from research undertaken with children?• Smart, Wade and Neale (2001); Taylor (2006) Birnbaum, Bala and Cyr

(2011); Morag, Rivkin and Sorek (2012)

What do we know from research about lawyers’ approaches to children’s participation in legal proceedings?

• Cashmore and Bussey (1994)• Taylor, Gollop and Smith (New Zealand, 1999)• Masson and Winn Oakley (England and Wales, 1999)• Marshall, Tisdall, Cleland (Scotland, 2002) • Douglas, Murch, Miles and Scanlan (England, 2006)• Parkinson and Cashmore (Australia, 2008)

Empirical study

• Qualitative study• Interviews with 35 lawyers in NSW (Australia) 2006• Lawyers representing children in- Family law- Child protection - Criminal proceedings• 18 experienced ICLs

Overall research findings...

Factors influencing lawyers’ support for children’s participation:

• Nature and purpose of proceedings (parties; public / private)

• Dominant discourses affect direct/indirect participation• Legislative or implicit models of legal representation; and• Lawyer’s training, values, skills and orientation to their role.

Research findings: Relational and Responsible Lawyers

• Lawyers still have discretion in how they implement their roles• Parker & Evans Inside Legal Ethics (2007):• Responsible lawyers look mainly towards their role as an

officer of the court to inform their approach to practice• Relational lawyers (ethics of care approach) focus on

responsibility to clients, their relationships and community See lawyers’ comments...Some lawyers were primarily ‘responsible’; others combined a relational and responsible approach.

Wendy’s story....

Wendy found herself putting pressure on a “hugely hostile” 14 year old child to ‘participate’ in an interview in a short period of time so that she could fulfil the court’s agenda of considering the child’s views.

Anna’s story

Some lawyers showed that they were able to understand how children’s rights/need to be protected could be aligned with their rights/needs to participate in proceedings.

Anna supported a 15 year old girl to achieve her desire to move into her father’s care, when she was being physically assaulted by her mother and mother’s new partner for talking to the family consultant and was very fearful of further abuse...

Discourses: obstacles to ICLs forming professional relationships with children

Child development (participation for older children)Alan” I don’t think children should participate when they’re young, because I

don’t think they know what’s best for them”

Protective discourse (ICLs aware of dangers of participation).Warren: “ I explain I will only see them on limited occasions, because you are

always conscious of systems abuse”

Children’s rights discourse: nascent, but some ICLs said participation was “critical”; children were “stakeholders” and should not be treated as objects.

Lawyers’ beliefs about...Children’s views• Some recognised psychological benefit of participation• Concerns views not authentic as subject to parental influence.• Traditional legal conceptions of children’s competence evident.• Limited contact with children due to beliefs that- Children had nothing to contribute or - Relationships with lawyers might harm children. Defining Participation: no common understanding• Participation through ICLs?• Need for explanations about process?• The place of direct participation?

Training, selection and preparation for these roles

• Lawyers agree they needed good communication skills and particular personal attributes in this role, including:

• Training in interviewing , developing rapport and relationships • Mentoring and time to practise, under professional supervision,

skills required to facilitate relationships Glesner Fines suggests training should cover:- How communication is affected by children’s development;- Cultural competency; - Interpersonal communication skills.

ICLs and opportunities for children to participate• Varied practices in providing an appropriate environment • Varying approaches to providing information about court

process and how children could have a say. Some provided information only when children asked for it.

• ICLs evenly divided in response to vignette where 12 y o requested to speak to a judge, about whether they would pass on child’s request

• Some suggested ways to have positive contact with court;• Different emphasis on the value of developing a trusting

relationship with children.

Children, lawyers and best interests models

These roles align with new ideas about law and lawyers emanating from the comprehensive law and non-adversarial justice movement. Relational approaches that combine the recognition of children’s rights with a focus on their relationships, needs and interests may hold the key to helping lawyers start their advocacy with the individual child.

How do we close the gap between children’s aspirations and lawyers’ practice?

Change the Context...• Amend legislative and funding frameworks to value participation

and children’s perspectives on child representation;• Incorporate clear participation principles in best interests and

direct models (in legislation) of children’s representation• Encourage judicial officer’s support for participation • Develop feedback and accountability mechanisms starting with

lawyers themselves, and including judicial officers.

Closing the gap...

Develop common understanding among lawyers (and other professionals) of value of children’s perspectives, children’s participation and professional relationships with children

Select lawyers with the commitment and the skills to develop professional relationships with children for these roles.

Closing the gap...

Extend lawyers’ capacity to do this work: training about: - Underlying rationales for children’s participation; - Relational approaches;- Child development, family dynamics, cultural competency etc- Communication skills, supporting participation and protection• Explore the best way in which to deliver such training....• Explore new ways to resource lawyers using technology

(webinars, clearinghouses, e-bulletins a start)

My thanks to those lawyers who participated in this study and Legal Aid NSW.