Pathways for Children: a Review of Children S Representation in Family Law

Pathways for Children: A review of children’s representation in family law

FAMILY LAW COUNCIL

Pathways for Children

A review of children’s representation

in family law

August 2004

© Commonwealth of Australia 2004

This work is copyright. Apart from any use as permitted under the CopyrightAct1968, no part may be reproduced by any process without prior written permission from the Commonwealth available from the Department of Communications, Information Technology and the Arts. Requests and inquiries concerning reproduction and rights should be addressed to the Commonwealth Copyright Administration, Intellectual Property Branch, Department of Communications, Information Technology and the Arts, GPO Box 2154, Canberra ACT 2601 or posted at .

ISBN 0 642 21111 6

Family Law Council

The Family Law Council is a statutory authority that was established by section 115 of the Family Law Act 1975. The functions of Council are set out in sub-section 115(3) of the Family Law Act1975 which states:

It is the function of the Council to advise and make recommendations to the Attorney-General, either of its own motion or upon request made to it by the Attorney-General, concerning -

(a)the working of this Act and other legislation relating to family law;

(b)the working of legal aid in relation to family law; and

(c)any other matters relating to family law.

Members of the Family Law Councilat the time of production of this report were:

Professor John Dewar (Chairperson)

Ms Josephine Akee
Mr Kym Duggan
Ms Tara Gupta
Ms Susan Holmes
Ms Kate Hughes

Ms Christine Mead FM

The Hon. Justice Susan Morgan

Professor Patrick Parkinson

Child Representatives Committee

The members of Council’s Child Representatives Committee were:

Federal Magistrate Judy Ryan (Convenoruntil 21 August 2003)

Ms Lani Blackman(until 11 April 2003 and from January 2004

Ms Jennifer Cooke (Observer)

Mr Kym Duggan(Convenor) from 22 August 2003

Ms Kate Hughes

Ms Anne Rees(Observer until 21 August 2003)

Mr Matthew Osborne and Mr Chris Paul (Secretariat)

Contents

Executive Summary / 5
Recommendations / 9
1. Background / 12
2. The Role of the Child Representative / 23
3. Appointment of Child Representatives / 27
4. Models of Representation / 31
5. Who Should be the Child Representative? / 44
6. Confidentiality and Immunity / 57
Glossary / 63
Appendices
A. 1996 Report Recommendations—Council’s comments / 65
B. Relevant provisions of the Family Law Act 1975 / 68
C. Family Court’s Guidelines for child representatives / 74
Bibliography / 95

Pathways for Children: A review of children’s representation in family law

Executive Summary

The then Attorney-General,the Hon Daryl Williams AM QC MP requested that the Family Law Council respond to recommendation 21 of the report of the Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (Pathways Report).[1]In doing so Council was requested to review the role, and the basis of appointment, of child representatives, particularly in the light of Council’s 1996 report, Involving and Representing Children in Family Law.

Council has considered a range of matters relating to child representatives and concluded that while some reforms should be made, particularly in relation to the support provided to child representatives, there is no need for radical reform in this area.

Council has considered the views expressed in a number of important reports, reviews and papers and also has undertaken a small survey of judicial officers and court counsellors to gauge the need for reform. The views of those judicial officers and court counsellors highlighted the valuable assistance that child representatives, properly performing their role, provide in family law proceedings involving children.

Council particularly considered two major issues that remain key questions in this area. The first is whether or not child representatives should act as independent advocates for the best interests of the child or act on the instructions of the child in the direct representation mode. The second is whether child representatives should only be appointed from the legal profession.

In both cases Council concluded that there were sound reasons, supported by experience, why there should be no major change to the current system. It should be emphasised that the Committee that undertook this work consisted of both lawyers and social scientists and that it was unanimous in its recommendations.

Council was strongly of the view, however, that the role of the child representative can best be carried out by a lawyer with the assistance of a child and family counsellor with both professionals acting as a team.

Council also believes that initiatives like the release in 2003 of the Guidelines forchild representatives: Practice directions and guidelines by the Family Court of Australia will assist in overcoming at least some of the confusion about the role of the child representative that has been apparent in the past.

Council believes that more can be done to clarify the role. As a result, Council makes a range of recommendations designed to clarify and strengthen the role of the child representative.

The Role of the Child Representative

Council’s research, and in particular the results of the survey of judicial officers and court counsellors, highlighted the valuable role that child representatives can play in the family law system. Two distinct features of the role were noted: (a) to assist the court to make a decision in the best interests of the child; and (b) to provide a voice for the child in proceedings affecting them. Council’s considerations in completing this report were focused on ensuring that these valuable features of the current role would continue to be fulfilled and, if possible, enhanced.

Council was concerned about the minimal direction and guidance concerning the role of the child representative currently given by the Family Law Act1975 (Cth). The lack of clarity about the role has been a feature of numerous past reports and reviews. The child representative role has developed greatly since commencement of the Family Law Act, but Council believes the role has progressed to a point where it is time to place a basic outline of the role in legislation by including the elements of the role set out in the case of P and P[2]in the Family Law Act. Guidelines such as the Guidelines for child representatives, issued by the Family Court of Australia in 2003, will continue to play an important role in fleshing out the role and incorporating guidance that would not be appropriate for inclusion in legislation.

Appointment of Child Representatives

Council endorses the approach of the Full Court of the Family Court in the case of ReK[3] concerning the grounds of appointment of a child representative. Council does not believe that these grounds should be enacted into legislation at this point in time, as this may tend to restrict the flexibility of the current system to respond to new grounds that may emerge. Council does, however, recommend that research be undertaken to ascertain whether or not the Re K guidelines are applied consistently across registries of the Courts and to ascertain which of the Re K factors are most used to justify appointment. Depending upon the results of that research, the issue of inclusion in legislation of the grounds of appointment should be reconsidered.

Child Representatives as Best Interests Advocates

Council discusses the two main models for representation of children—bests interests representation and direct representation—and which model is the most appropriate for the child representative role in family law proceedings.

In considering the role of the child representative, Council noted the dearth of research on children’s experiences of being represented by a child representative.[4] As this kind of research is important to developing best practice for the child representative role, Council recommends that the Australian Institute of Family Studies should undertake research into the views of children in this context.

Overall, Council considered that it is appropriate that the child representative be a best interests representative. The feature of assisting the court while simultaneously allowing the child’s voice to be heard is best fulfilled in this way. In addition, many of the protective features of the role—such as not requiring children to participate, but providing opportunities for children to voice their wishes without having to, for instance, express a view about the issues if they chose not to—were considered appropriate in the family law context, where there may be competing pressures and influences and ongoing relationships to maintain. Council is of the opinion that there is a need to specifically state in the Family Law Act that child representatives are best interests advocates.

Facilitating Direct Representation for Competent Children

Council does consider it appropriate to have some mechanism within the family law system to facilitate direct representation of competent children in appropriate cases. It is noted that there is no need for legislative change to facilitate direct representation, but that practice needs to change. Council sets out the circumstances in which it should be considered appropriate to appoint a direct representative for the child, without the need for a case guardian or next friend. In recognition of the possible impact on legal aid funding, Council recommends that the appointment of direct representatives and the impact on legal aid be monitored.

The Title of the Child Representative

Council also believes that there should be a change of name for the child representative. Council believes that the lawyer representing the child’s best interests should be called the Independent Lawyer to make it clear to all, including the child, that the representative does not directly represent the child.

Qualifications of the Child Representative

There was vigorous debate about this issue within the Committee, with the Council concluding that the role of child representative should be carried out by a lawyer trained as a child representative.

Council is also of the view that the role is best carried out when the child representative has the assistance of a properly qualified family and child counsellor. Council recommends that the lawyer and the counsellor act as a team with a view to ensuring that avenues for primary dispute resolution for all the issues are taken, and that the most cogent evidence as to the best interests of the child are brought before the court.

Confidentiality of the Child Representative’s Relationship with the Child

The level of confidentiality surrounding the relationship between the child representative and the child continues to be the subject of concern and confusion for many child representatives. The best interests basis of the role suggests that there cannot be a confidential relationship with the child. In the absence of a confidential relationship and the protections offered by client legal privilege, child representatives fear being subpoenaed or called as a witness to the proceedings.

While Council notes that confidentiality cannot be guaranteed in a best interests situation, it is essential to enable a professional relationship to be established between the child representative and the child. Council therefore believes that statutory amendment is necessary to protect a child representative from being required by any party or the court to disclose information communicated to the child representative by the child.

A statutory amendment should also be made to clarify that the child representative may, where the child representative considers it is in the child’s best interests, disclose information provided by the child, even against the child’s wishes. Guidance for child representatives on how to explain the relationship to the child, and to identify and act where a disclosure situation arises, is contained in the Family Court of Australia’s Guidelines for child representatives, and should also be the subject of child representative training.

Statutory Immunity for Civil Suit

Council has been made aware that a number of child representatives have been the subject of formal complaints to professional bodies on the basis that those representatives made submissions to the court in support of orders that did not accord with the wishes of the child. There is a significant risk of a child representative being sued in his or her personal capacity in this regard. Council is of the view that this risk conflicts with the independence of the child representative, and is opposed to the public interest in finality of litigation. For these reasons Council considers that there should be statutory indemnity for child representatives similar to that for family and child counsellors operating under the Family Law Act. Child representatives would remain accountable as professional lawyers, and still be able to be the subject of a formal complaint.

Children’s Cases Program

Since March 2004, the Family Court has offered parties to disputes involving children the option of participating in the Children's Cases Program (the Program). The Program is being trialled in the Court's Sydney and Parramatta registries.

The Program represents a significant departure from the ordinary course of adversarial litigation. The Judge assumes responsibility for determining how the competing claims of the parties are presented. Depending upon whether the Program is ultimately evaluated as being successful in achieving its aims, there may be significant implications for the roles and responsibilities of family law practitioners and, in particular, child representatives. If this Program is adopted nationally then the role and functions of the child representative may need to be reviewed again.

Recommendations

Recommendation 1: [Page 26]

The basic elements of the role of the child representative, as set down by the Full Court in P and P, should be incorporated into the Family Law Act.

Recommendation 2: [Page 29]

The Commonwealth Attorney-General’s Department should commission research into how the discretion to appoint a child representative is exercised, including:

• the influence of the various grounds set out in Re K;
• whether or not the Re K grounds are applied consistently;
• whether alternative grounds influence the discretion to make an appointment;and
• whether or not the appointment of the child representative contributed positively to the outcome of the proceedings.

Recommendation 3: [Page 30]

The grounds for appointment of child representatives set out in Re K not be set out in legislation, but remain flexible and part of the common law, subject to the results of the research recommended by Council.

Recommendation 4: [Page 37]

The Australian Institute of Family Studies be commissioned to conduct research into the views of children about their experiences, expectations, and competence in family law proceedings and to evaluate children’s experiences of child representatives.

Recommendation 5: [Page 40]

The Attorney-General’s Department monitor the impact of different legal aid approaches relating to funding children’s direct representatives in order to assess appropriate legal aid funding.

Recommendation 6: [Page 43]

The Family Law Act should be amended to specifically state that child representatives are best interests advocates.

Recommendation 7: [Page 43]

The Family Law Act should be amended to change the name from the Child Representative to the Independent Lawyer.

Recommendation 8: [Page 56]:

The Commonwealth Attorney General’s Department, Courts exercising jurisdiction under the Family Law Act 1975, organisations specialising in counselling and mediation in family law matters and Legal Aid Commissions should:

a)endorse a team based approach to the representation of children, so that the appointed legally trained child representative is supported by a social scientist

b)develop a protocol for cooperation between lawyers acting as child representatives and family and child counsellors; and

c)provide sufficient funds to allow implementation of the protocol.

Recommendation 9: [Page 60]

The Family Law Actshould be amended to state that the child representative cannot be required, by any party or the court, to disclose information communicated to the child representative by the child. The Family Law Actshould also include a provision stating that the child representative may, where the child representative considers it is in the child’s best interests, disclose to the court or relevant authority, information provided by the child against the child’s wishes.

Recommendation 10: [Page 62]

The Family Law Actshould be amended to provide child representatives with a statutory immunity similar to that provided for family and child mediators and arbitrators by section 19M of the Family Law Act.

Terms of Reference

The Attorney-General endorsed the following terms of reference for this report:

That Council, as part of the Government response to recommendation 21 of the report of the Family Law Pathways Advisory Group, Out of the Maze,[5] review as a matter of urgency:

(i)the role of child representatives; and

(ii)the basis for appointing child representatives

in light of the Council's 1996 report Involving and Representing Children in Family Law.

2.That the review considerAustralian case-law and practice, reports, and research relating to the role of the child representative, following the publication of Council's 1996 report.

3.That the role of the child representative be examined from the perspective of the child’s rights and best interests taking into account, inter alia, the UN Convention on the Rights of the Child.

4.That the review take into account, where appropriate, any work concerning child representatives being undertaken concurrently by other bodies such as the Family Court of Australia.

5.That options for reform of the role, and means of appointment, of the child representative be identified including, but not restricted to:

(i)guidelines for the appointment and conduct of child representatives; and

(ii)options for required training.

1. Background

Purpose of this Review

1.1In 2001, the Family Law Pathways Advisory Group concluded its appraisal of the family law system with the release of the report Out of the Maze: Pathways to the Future for Families Experiencing Separation (Pathways Report). Recommendation 21 of the report stated:

That the development of clearly defined roles for, and responsibilities of, child representatives be given urgent priority, with adequate funding allocated to support implementation.

1.2Following from the Pathways Report, the Attorney-General has requested that the Family Law Council (the Council) review, as a matter of urgency, the role and the basis of appointment of child representatives.[6]