Transcript: Independent Children’s Lawyers: Multiple perspectives on expectations and experience of practice

AIFS seminar: Independent Children’s Lawyers: Multiple perspectives on expectations and experience of practice - Tuesday 18 February 2014

Transcript (edited)

The following audio presentation is brought to you by the Australian Institute of Family Studies as part of our monthly seminar series in which we showcase national and international research related to the family. The seminars are designed to promote a forum for discussion and debate. They are open to the public and free of charge.

Seminar facilitated & speaker introduced by Professor Alan Hayes AM

Dr Rae Kaspiew

Thanks very much for that kind introduction Alan. Before I start to talk substantively about Independent Children's Lawyers today, I just want to acknowledge and honour the life of Luke Batty and to let his mother and family members know that our thoughts and deep sympathy are with them.

So today I'm going to be sharing the findings from our research on independent children's lawyers. These are specialised legal practitioners who are appointed in around a third of cases that are heard in the family law courts involving children. They are appointed as best interests representatives so that means that they represent the best interests of children rather than acting for children or acting on children and young people's instructions. I'm just going to let you know as we usually do that the views that I'm expressing today are the views of the research team as researchers, they're not an official government view and they're not an official institute view. I also just want to draw to your attention my co-authors on this research, Rachel Carson, Sharnee Moore, John De Maio, Julie Deblaquiere and Briony Horsfall some of whom are here today. And also just to say thank you to our colleague Melissa Coulson who assisted with this presentation.

Today I'm giving you quite a broad level overview of the research findings from this project. It's a very detailed project, it's a very complex area, there are many kind of nuances and complexities in our findings and in practice and I can't talk in depth about all of those today so I'm really telling you what the main points are from the research. So first I'll explain to you what the methodology was that we applied for this project, I'll then give you an overview of some of the main findings, I'll then talk in a little bit more depth about ICL functions and the context in which they're discharged so the kinds of cases that ICLs are involved in. I'll then share some of the reflections from the research on supporting participation, that is the participation of children and young people in family law proceedings and the way that ICLs discharge that function and then I'll discuss the views of parents and children who were involved in our research.

For this research it was very important to apply a mixed method approach that allowed us to engage with all of the different kinds of stakeholders who are affected by the practice of independent children's lawyers. So we did online surveys involving judges, also with ICLs, non ICL lawyers, so they're family law practitioners who have the opportunity to observe the range of ICL practice as people who are involved not only in litigation with ICLs but also have the opportunity to observe ICL practice in negotiations as well. That's quite significant because a significant proportion of the matters that ICLs are involved in do settle without going to court. So we have the perspectives of judges who very much have a court based view, their observations from the Bench. We have non ICL lawyers who have a greater range of experience and we also engaged with non legal professionals, so they are people like family consultants who work with ICLs in the court based context, family dispute resolution practitioners, practitioners in family relationship centres and so forth.

From that perspective we were able to get a very kind of well-rounded multifaceted view of ICLs and how they practice. We also supplemented this very importantly with in depth interviews with independent children's lawyers and crucially we involved the families who had been engaged with ICLs in court proceedings in our research to get their views as well. So we talked with 24 parents or carers of children or young people who had been involved in litigation with an ICL, and we also spoke with 10 children and young people who have had their best interests represented by an ICL.

We also obtained information from Legal Aid Commissions and Child Protection Department personnel. This was very important since Legal Aid Commissions are the organisations that administer the pool of ICLs and administer ICL funding. ICLs are funded through Legal Aid Commissions by the Attorney General's Department, which also funded this research. So from talking to Legal Aid Commissions we were able to get a policy perspective and a practice perspective from an organisational viewpoint and we were also able to understand the interface between ICLs and Child Protection Departments from talking to Child Protection Department personnel.

I should also point out that ICLs can practise either from Legal Aid Commissions, so they're employed by Legal Aid Commissions or there are also panels administered by Legal Aid Commissions whereby private practitioners are appointed to the panel as an ICL and then funded to make appearances and to conduct proceedings as ICLs. So there are two aspects to the pool of ICLs, they're private or they're Legal Aid based.

The high level research question that we were looking at for this project was to what extent does having an ICL involved in family law proceedings improve the outcomes for children. This is a complex question and there are many different issues that impinge on the way it's answered. We formulated a description of the ICL role based on our data and the guidelines and statutory provisions that govern ICL practice and so basically there are three aspects to the ICL role. There's the aspect that is involved with facilitating the participation of the child or the young person in proceedings. So that involves three levels of engagement, we identified a level based on familiarisation of the child and the ICL, a level based on explanation whereby the ICL explains to the child what is going on in the proceedings, maybe what's happened in the proceedings, and how they can engage with the proceedings. Then there's also an aspect of that participation role that's based around consultation, so ascertaining the child's views where a child wishes to express views, and perhaps consulting them on aspects of how the litigation might be run depending on how the particular ICL in the particular case decides to discharge that function.

There's also an evidence gathering aspect to the ICL role which involves gathering the material, issuing subpoenas, getting reports from doctors and all sorts of other professionals, school reports perhaps, to ensure that the court has a full picture of what is going on in this child's life. There's also what's called a litigation management role or it's often referred to as an honest broker role where ICLs discharge a function, which is kind of around ameliorating the tendency for litigation in family law matters to be parent focused and adversarial. And so there's all sorts of issues that are tied up in this particular aspect of the ICL role including managing the case, keeping it on track and engaging in settlement negotiations.

Initially the ICL role was known as the separate representative and then as the child representative and then in 2006 when the role was formally recognised in the Family Law Act it became known as the independent children's lawyer. Initially the role was defined mainly by the Family Court of Australia in case law but as part of the 2006 amendments, the case law provisions were basically codified into s.68LA of the Family Law Act which sets out the expectations and the functions of independent children's lawyers including the expectation that they are a best interests' representative. There are also the Guidelines for Independent Children's Lawyers, which are formulated by the Legal Aid Commissions in consultation with the family law courts; they're another layer of definition and articulation of the ICL role and expectations. Less directly we also have the where signatory Australia is signatory to the United Nations Convention on the Rights of the Child and that's a further source of influence but there's lots of kind of nuance and argument about the role of international instruments.

So basically our research findings, the main messages that come out of this project are that overall ICLs play a very valuable role. Their capacity and what they do is valued especially by judges, OK, so most judges consider that the ICL role is an extremely important one. We also found that of those three aspects of the ICL role, that participation support is the least valued or sorry the least emphasised by professionals especially ICLs. We found that parents and children were disappointed in how the participation functions were discharged, we also found that all of the stakeholders we engaged with expressed concerns about the competence of some practitioners. Now we also are very aware and it was very clear from our data that there are very, very many dedicated ICLs who do an extremely good job often in their own time on a pro bono basis because of the funding restrictions. So there are extremely well regarded high performing competent ICLs there but there also are quite significant concerns about competence.

Now I'm just gong to start by providing a little bit of a snapshot of some of the higher level findings on the higher level research questions that we examined and one of the interesting things that I want you to be aware of in this graph is the pattern of relativities in answers as between the different groups. So we'll see that the blue bar is ICLs so that that bar represents the ICL pattern of responses. The reddish bar represents judges, the greenish bar represents non-ICL lawyers and the purple bar represents non-legal professionals. So you will see this interesting pattern of relativities where the judges in most areas are up here in terms of positive responses. ICLs are often just slightly below them, and there are some places in which this pattern varies but it's a fairly consistent pattern. ICLs are often just below them, non-ICL lawyers are often the least positive of all of those groups and sometimes they're quite significantly negative. So it's interesting to observe in these data where those patterns occur.

So having just kind of alerted you to those patterns you'll see that a majority of professionals do agree, OK, so they've said they agree or they strongly agree that children and young people's views are adequately considered in family law proceedings. Most positive are judges and least positive are non-ICL lawyers but it is a majority of non-ICL lawyers. A similar pattern is observable in relation to the question about whether family law system processes allow adequate priority to be placed on children and young people's best interests. So from a professionals' perspective the news in relation to those questions is mostly good.

Turning now to the question of the ICL model and the way it's configured. We find slightly lower levels of agreement but nonetheless majority positive responses in relation to the proposition that the model of ICLs provide sufficient opportunities for children and young people's views to be heard and considered in family law matters. It is interesting to note though that it is lower and for non-ICL lawyers it falls almost to 50 per cent level of agreement. And we see lower still levels of agreement in relation to a proposition about UNCROC and the extent to which Australia is meeting its obligations under UNCROC and we find that just over half of judges agree with that proposition and less than half of non ICL lawyers agree with that proposition.

Turning now to another very broad level question, the question that relates sort of directly to the overarching research question. We do find that non-ICL professionals, majorities of them did agree that ICL involvement improves outcomes for children and young people. We only asked this question of judges, non ICL lawyers and non legal professionals but what's interesting to observe about those patterns is that while judges were mostly very positive, we had only 61 per cent of decisively positive responses from non ICL lawyers. We had nearly a fifth of sort of non-committal responses from non-ICL lawyers and we had just over 10 per cent actually disagreeing. So there are some interesting patterns in those data.

Now I just want to turn to considering the context in which ICL functions are discharged, so that's the kinds of cases that ICLs are mostly involved in. It's quite clear from these data that matters involving family violence and child abuse are the core business of ICLs. I think we've been aware for quite some time now that they're the core business of the family law courts, some aspects of the wider family support system, but we also do understand quite clearly that they are the core business of ICLs. The ICL, the case law Re K, the case that articulates the kinds of matters in which ICLs might be appointed mentions a range of other kinds of circumstances such as when siblings might be separated or where there's a proposal to have arrangements that might diminish significantly contact with one parent. There's a whole range of criteria that might lead to in theory to the appointment of an ICL but really what we do understand is that the bulk of their caseload is cases involving allegations of child abuse or neglect and also family violence.

So thinking about this case load I'm now going to run through some findings on the views that professionals including ICLs have on the capacity of ICLs to discharge some aspects of their functions in relation to specific issues that arise in cases involving family violence and/or child abuse or neglect. So looking at the question of ICL capacity to identify issues of family violence and child abuse or neglect, we find that a majority of ICLs are quite confident, they rate their ability to identify these issues quite highly, 83 per cent of them nominated good or excellent. Interestingly this is one area where this pattern, judges deviate in this pattern and there's slightly lower agreement rate amongst judges but nonetheless a majority. We find that 60 per cent of non-ICL lawyers agree that their capacity is good or excellent and a slightly higher proportion of non-legal professionals agreed.

Turning now to - and I do understand that there are some subtle nuances in these questions and they were asked in the way they we asked for particular reasons because there are distinctions in the implications of the way that each of these particular aspects of practice might be discharged. So turning now to the next step beyond identifying, assessing allegations of family violence and child abuse or neglect. We find that ICLs again three-quarters of them assess their own capacity as good or excellent, sorry 80 per cent of ICLs, we find three-quarters of judges are very positive. We find only half of non-ICL lawyers are positive and we find just marginally fewer non-legal professionals are positive.

Turning now to the question of detecting and responding to safety issues for children and young people. We find still lower levels of confidence among most of the professional groups. What I - just for the sake of time what I might particularly draw your attention to is the 40 per cent confidence rate of non ICL lawyers which is particularly low for this item. Just over half of non-legal professionals said that the ability in this regard was good or excellent. So it's interesting these discrepancies in views as you drill further down into more specific aspects of dealing with these issues.

In terms of detecting and responding to safety issues for parents, one of the interesting aspects of these findings is the fact that ICLs themselves had less level of positive agreement than judges, so that's an interesting pattern there. We also find that confidence levels among non-ICL lawyers and non-legal professionals fall to 30 per cent or just over 30 per cent. Thinking about the more specific question of identifying circumstances where children, parents or caregivers may be suicidal or at immediate risk of self harm we find sort of the lowest - among the lowest levels of agreement positive views in relation to this question with only half of ICLs rating their own capacity in that regard as good or excellent and 63 per cent of judges, all time low really among non ICL lawyers. And there's more confidence in terms of assessing those issues for children and young people perhaps reflecting the fact that ICLs have direct contact with children and young people in some circumstances, not all circumstances, but probably the difference between this item and the previous one probably reflects the relationships involved there.

But again it's interesting to note the patterns here with less than 50 per cent of non-ICL lawyers having confidence in that regard. And I should just say that with this series of findings that I've just presented, one of the things that I think influences the patterns in the data is the way that different professionals in the family law system conceive their own role, conceive the role of others and conceive whether they have a legal role or a role that is a part legal and part social science role. So you might actually - as a lawyer you might actually think well I'm not trained to do risk assessment. I should also say that these findings pertain to the environment prior to the 2012 family violence amendments to the Family Law Act. They also perhaps don't reflect things like the rollout of the AVERT Family Violence Training Package and the DOORS Risk Assessment Package. So it's quite possible that as we speak practice is evolving and changing.

I just want to turn now to the relative importance that the different professional groups placed on those three functions of ICLs that I outlined earlier. So those functions you might remember were a participation function, an evidence gathering function, a litigation management function and a function that was closely related part of the honest broker kind of role of facilitating agreement. What's interesting I think about these data, these pattern of responses, is that all professionals put a lower relative rating on participation as compared with the other three functions. And interestingly ICLs themselves were the lowest of all in emphasising that function. We also find that evidence gathering and facilitating agreement are of great significance to all stakeholders.

So you might remember that kind of towards the beginning about 15 minutes ago or something I talked about participation and the fact that there's basically kind of three interlinked, interlocking, overlapping aspects of it, familiarisation, explanation and consultation. This is a well-accepted UNICEF definition of participation and you can see that it refers to things like the age and maturity of the child, so it's context dependent and age sensitive. It refers to things like having information, having access to explanations that allow you to understand what's going on, it refers to things like influencing arrangements, it doesn't necessarily refer to things like making actual decisions. So it's a fairly subtle concept I think, participation, and we certainly found that it's quite a complex concept as well in our research. I won't go into the depth of that complexity in this presentation because it's perhaps a little bit too nuanced and there's some general messages that I really want to convey today but if you want to look at that discussion it is all in the report.

So thinking about the participation functions, looking at the explanation kind of aspect of it, informing the child, young person of the nature of proceedings and options for their involvement. What's interesting is that judges emphasise that, you know, and this is the pattern throughout these data, the judges place great importance on these things, and the ICLs place less importance on these things than any other professional group. Similarly for informing the child, young person of potential outcomes and obtaining their feedback, similar kind of pattern although some differences among the professional groups about informing the child and young person of the outcomes and implications of court orders, and this is an area where funding restrictions I think come into play quite significantly in that Legal Aid grants often don't cover that post proceeding aspect of ICL work, so this just very broad level question about ensuring focus is on the best interests of the child in proceedings. Interesting to note that judges and non-legal professionals were very close to each other in that regard but really that question is a bit of a no-brainer.

Turning now to the question of the frequency of ICL direct contact with children and young people. We asked ICLs how often they met with children or young people and the response options were rarely, sometimes, often, always, never and then cant say or not applicable. And what's interesting is that we find that most ICLs nominate the rarely, sometimes, those two options. More than half of them say that their practice is to meet with children and young people rarely or sometimes. Often and always was nominated by 30 per cent of the ICL sample, never by 8 per cent. And what I'll say to you is these data kind of start to suggest to us how complex the participation - the questions around participation are because not only do we have different decisions made in different kinds of cases with different ages of children, we have different practices among individual practitioners, among individual States and Territories and among different communities of practice. And again I don't have time to go into all of that in depth today but it's something that's worth looking at in the report.

So now this slide depicts the question that we asked, responses to the question that we asked of other stakeholders, other professionals about ICLs having contact with children, we just asked them quite baldly, "Do you think that ICLs should have direct contact with children in person or by telephone where the child is of sufficient maturity", so the sufficient maturity caveat was in the question, and we found that most but not all stakeholders said yes. It is interesting that a quarter across each of those groups and slightly higher for non-legal professionals said no.

One of the things that I'll just refer to very briefly is that in some States, particularly Queensland and South Australia, this ICL participation function which to complicate things even more also has a forensic character, is carried out in some places by some professionals as a collaborative task with a social science professional, so with a family consultant or perhaps in some instances a single expert witness. So there are lots of complexities and nuances in how practice is carried out in this context.

I just want to look at some of kind of the practice rationales for meeting with children and young people and basically I think these comments, this comment and the next comment really tell us that apart from the more formal kinds of ways of thinking about why you would or wouldn't meet with children or young people, basically it's about ICL credibility. If they haven't met with the child or the young person then how can they explain to them, the court what's in their best interests. That's the question that came up from other professionals and also from children and young people and parents themselves. So basically it's kind of an issue around practice, about knowing who you're working for in the sense of a best interests representative, reassuring the parents that this person has actually met with their child or the young person involved and they do actually have some idea about what is going on for that child or young person.

So that they're just some of the less kind of complex rationales for meeting with children and young people. So as I've already flagged we found that this issue of participation is very complicated. There are varied approaches among practitioners and between States and Territories and within States and Territories. We also found this concept of community of practice was quite influential in a number of ways, one of them was where we had practitioners that practised in the Child Protection jurisdiction where in some instances it's a direct instructions model, we found that where we had ICLs who also practised in the Child Protection jurisdiction, we found that that group of participants in our survey was more likely to indicate practices consistent with what we named, we called a high participation orientation. So there's sort of lots of complicated issues that are tied up in this bundle. But basically what we found was a disjunction between expectations of stakeholders and the approach of some practitioners.

I'm now going to talk through some of the findings on the basis of the data from the families that we interviewed who were involved in litigated matters involving an ICL. So as I said at the start we talked to 24 parents and carers and we spoke to 10 children and young people. Basically most of the parents and carers reported the cases that they were involved in concerned family violence and child safety, all of the children we spoke to reported issues relating to safety were involved in their matters and this is quite a broad definition of safety encompassing emotional, psychological and physical safety.

This group of parents that we interviewed mainly, not all of them, but most of them had been involved in long and complex cases. Some of them had spent years in the system. Few reported wholly positive experiences with the ICL; several reported very negative experiences with the ICL. Only one of the children and young people that we interviewed reported a mainly positive experience. The concerns that the parents and carers raised with us consistent with the concerns expressed by professionals revolved around the competence of the ICL in their matter. They were also concerned about the ICL's lack of communication or poor communication with them and their children or the young person that was involved. Some of our parents expressed concerns about a lack of impartiality on the part of the ICL in discharging their functions. Some also said that the ICL had a negative impact on the trajectory of the proceedings in their particular case.

From the parents' perspective where things were working well when they had positive things to say about the ICL role, they felt it was very positive that there was somebody in the whole mess that was listening to the child or the young person. There was also appreciation of situations in which the ICL facilitated certain processes happening to help the children and young people in the case understand what was going on from a sort of a process and decision making perspective. There are also some parents who said that the ICL in their matter, their involvement meant that there was less mud slinging that occurred, there was less capacity for this adversarial back and forth to go on. And some parents were also very appreciative of the fact that the ICL had helped the court understand their protective concerns for their child. But equally there were parents who felt that the protective concerns that they were raising weren’t listened to sufficiently.

So this quote from this participant that we've called Elise, this is not a real name, this kind of epitomises the very best expectations, the very best experiences that people have of ICLs. They expect them to be, "Really dedicated, really dogged and to do the right thing for the children regardless of funding". And so that quote really encapsulates those expectations and they're very much consistent with the expectations that we found among professionals and judges. And this woman had an experience that allowed her to make that comment.

Turning now to the experiences of the children and young people that we interviewed. Most reported little if any contact with the ICL, there were only a couple that had no contact, most had met the ICL but many of them described it as a fairly cursory encounter. Their expectations when they heard that they had an independent children's lawyer is that the lawyer would stick up for them, the lawyer would help them, the lawyer would listen to them. And sadly most of these expectations for most children in that sample were not met. Some children expressed the view that they were ignored, they'd expressed a view but it was ignored, OK.

So there was one person, one child or young person, really a young woman in our sample who had a really positive experience and it was really great, this interview was a great interview because it told us lots about the things that ICLs can do that are really, really good. And it was interesting, this was an interesting case in that this young woman, there were very serious protective concerns involved in her case but she had experience with what we call a high participation orientation ICL which is interesting because another thing that I can't talk very much about today is that some ICLs are very, very cautious in applying a high participation orientation where there are protective concerns. And again that's discussed in the report.

But for Sarah, this was a fabulous experience in that she felt listened to, she felt engaged, she felt respected. The ICL negotiated things as subtle as talking to Sarah about where she wanted to sit for the interview made Sarah feel comfortable. There was also this sort of little fabulous vignette that Sarah conveyed to us where the ICL sat down with her and she said, "Right I'm going to do my submission, you help me with the dot points" and Sarah said she felt that was really good. There were also a number of other things she said but basically what encapsulates her experience is that her word got out, her word got out, and she ended up safe. If her word hadn't got out she wouldn't be where she was when we interviewed her, she might not be safe. So they're the kinds of things that we were - well that's what we heard from this positive experience and I've flagged some of the other issues we heard about from children and young people who didn't have such positive experiences.

So I'm just going to discuss this issue of competence quite briefly. All professionals raised concerns about competence, judges, ICLs, non-ICL lawyers, non-legal professionals, and parents. The issues raised most frequently were concerns about a lack of rigor in the way the ICL discharged their obligations, sort of a lack of commitment to doing what Elise's ICL did which was to leave no stone unturned, and also kind of some questions around the impartiality of the ICL involved in their case. This quote from a judge sort of sums it up. There were sort of many similar comments made by professionals across the board. And basically something that a number of people said was that, "If an ICL wasn't doing a good job it was a waste of resources and in some situations could make it even worse for the people involved".

Now there are some underlying issues, which I don’t have, time to go into at length today but they are part of the context for this discussion, which are the funding issues. So Legal Aid rates are said by many, many people to be insufficient to meet the costs of running cases for private practitioners, so they're doing work pro bono often. Often grants of Legal Aid don't extend to things like explaining outcomes to children and then following up. There's also quite clearly a need for training and professional development to be improved especially in dealing directly with children and young people and also dealing with family violence and child abuse issues.

So in terms of our conclusion it's actually quite a complex set of conclusions but basically we do conclude that competent ICLs can improve outcomes for children and young people because there's more comprehensive information before the court and the litigation is better managed. However these issues around participation are quite significant as well, practices in that regard are complex, contested and shifting and I think there needs to be some consideration and further debate around those issues and that indeed is beginning.

I want to just acknowledge the people and the organisations that supported this research, so I've already referred to the Attorney-General's Department, which commissioned and funded the research. We received a lot of support from National Legal Aid and the individual Legal Aid Commissions and the Family Law Working Group that's part of National Legal Aid. We're very, very grateful to the parents and children or young people who spoke with us, it's never easy to share difficult experiences and without their views and perspectives we'd have a much less rich and detailed picture of this area. We had fabulous support from the three family law courts, also a range of organisations involved in the sector, the Family Relationships Services Australia, the Family Law Section of the Law Council of Australia, Women's Legal Services Australia and the APA Family Law and Psychology Interest Group. Our consultants were Patrick Parkinson, Judy Cashmore and Nicola Ross, so we were able to draw on their expertise for insight as well.

Thank you.

[Applause]

END OF TRANSCRIPT


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