How Lawyers “See” Children in Child Representation

How Lawyers “See” Children in Child
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 research
What 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
Nature and purpose of proceedings (parties; public /
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
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
• 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.

similar documents