Representing children in legal proceedings
9 July 2015, 1:00 pm to 2:00 pm (AEDT)
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About this webinar
This webinar was held on 9 July 2015.
The legal representation of vulnerable children is arguably one of the most critical roles played by lawyers in the family and child protection legal systems. Child representatives play a vital role in facilitating the participation of the child, gathering evidence and focusing courts and parties on the views of the children who are the subject of these legal proceedings.
Kylie Beckhouse is a leader in the field of child legal representation practice and has just returned from a study tour of child legal representation schemes in America, Canada and the United Kingdom.
In this webinar Kylie discussed notable developments and initiatives taking place internationally in the area of child legal representation. Kylie described her impressions of current international practices, and the initiatives that could improve Australian approaches to child legal representation.
Included in this webinar was an overview of a variety of different approaches in international practice, including:
- the different structures utilised in each jurisdiction to deliver child representation services
- how cases are allocated and child representatives are appointed
- getting information about children and families before the courts early
- roles and practices that support children and families through court processes
- hearing the voice of the child
- ensuring that quality child legal representation services are delivered
- system-wide initiatives that improve outcomes for children
This webinar was presented in partnership with the Greater Melbourne Family Law Pathways Network.
Audio transcript (edited)
Webinar facilitated & speaker introduced by Dr Rae Kaspiew
Good afternoon everyone and welcome to this Child Family Community Australia webinar on representing children in legal proceedings. My name is Rae Kaspiew and I'm a senior research fellow in the Family Law and Family Violence Research programs here at the Australian Institute of Family Studies. Today we're here to hear about approaches to children representation in legal proceedings that are applied in America, Canada and the United Kingdom.
I know from the research that we did on independent children's lawyers in 2013 that there's great passion and interest in this topic. Many of you may well have participated in our research for that project and today's webinar is an opportunity to hear how thinking is developing in this area. This webinar is being held in partnership with the greater Melbourne family law pathways network.
Before I introduce our speaker I'd like to acknowledge the traditional custodians of the lands on which we are meeting. In Melbourne, the traditional custodians are the Wurundjeri people of the Kulin Nation. I pay my respects to their elders past and present, and to the elders of other communities who may be participating in this webinar today.
It is now my pleasure to introduce today's presenter – Kylie Beckhouse. Kylie is executive director of family law at Legal Aid New South Wales. She's an accredited specialist in family law and an independent children's lawyer. With a family law practice background of more than 20 years, Kylie is also a member of a number of advisory groups, including family law council. In 2014, Kylie was awarded a Churchill Fellowship and travelled to the US, Canada and the UK to research approaches to the administration and implementation of child representation programs in those countries.
But before I hand over to Kylie to hear about what she's found out and what her thinking is, I need to alert you to some housekeeping matters. One of the core functions of the CFCA information exchange is to share knowledge. So I'd like to remind everyone that you can submit questions via the chat box at any time during the webinar. There will be a limited amount of time for questions at the end of Kylie's presentation and we will try to respond to as many as possible. This webinar is being recorded and the audio presentation and slide will be made available on the CFCA website and the CFCA YouTube channel in due course.
After the webinar, there will be a forum on the CFCA website to provide further opportunities for you to continue the conversation started here today. So without further ado, please join me in giving Kylie a very warm virtual welcome.
Thank you very much Rae and I wanted to start by also paying my respects to the Gadigal people of the Eora Nation, which is where I'm coming from today in Sydney, and, of course, their elders and families and children who are listening. I want to start by taking people probably a long, long way away from the Gadigal people to Pittsburgh in Pennsylvania. I found myself in Pittsburgh, Pennsylvania during Halloween last year and as Rae explained I was there travelling as part of a Churchill fellowship to investigate child representation schemes in other countries.
Now I'm sure some of you have been in America at Halloween. It's impossible to escape the event and in the lead up to that day I had visited many family courts and children's courts. The courts were decorated with tinsel, pumpkins, scarecrows, and I'm just putting up my first image there of the court in Los Angeles where you can see those decorations. But here I was in Pittsburgh and I was visiting a child representation practice called Kids Voice in Pittsburgh, which I suppose a bit of trivia is an inspiration for the child advocacy office used in the TV series The Guardian. It actually does exist.
Unfortunately there were no well dressed corporate types to be seen in this court or indeed in this practice. The court personnel on the day I was there were dressed in a range of orange and black outfits including the presiding judge, and I'll show you a picture of her in a minute. The court officer sported a decorative pumpkin tie and at the back of the court the sheriff in uniform was handing out treat bags to all of the kids who came before the court.
Let's be clear. The children don't attend all court events in Pittsburgh and some of them choose not to attend court at all. But when they do, they're welcomed warmly. On the day I was there, Ziere and Tijana, two black children aged between ten and 12 were sitting at the bar table with their lawyer. Their paternal great aunt and mother have been in dispute about their living arrangements. But today, orders are being made by consent for the children to remain living with their aunt. There's the judge there now. She acknowledges the family members, the neighbours and friends who have been attending court to support the children. She says encouraging words to the mother about her progress in rehabilitation and implores Ziere and Tijana to continue to make their mother proud.
But it's not quite over. "Trick or treat?" asked the judge of Ziere and Tijana who are sitting at the bar table. Fortunately they choose treat and run behind the bench to the judge, where there's two treats on offer: Snickers or Reece's Peanut Cups. Clearly no anaphylaxis issues in Pittsburgh. Now I could spend the next 45 minutes regaling you all with tales of different practices that I saw over my seven-week study tour through the United States, Canada and the United Kingdom. But it actually would trivialise a very serious topic.
The Churchill Fellowship gave me the rare privilege of meeting over 90 experts in nine cities throughout those countries, all of whom have an involvement in the legal representation services received by children. The Pittsburgh family court experience described earlier is a rather strange one but just one example of the practices I saw.
Today I'm going to share with you some of my impressions of the current international practices and discuss some notable developments and initiatives taking place internationally in the area of child legal representation. After the webinar you'll receive a paper, which is the report I've now submitted, and, as an added bonus, a literature review that we recently conducted at Legal Aid New South Wales in partnership with the University of Southern Cross. That literature review is on facilitating the participation of children in family law processes. In the report I've made nine recommendations that I hope if implemented will lead to improvements for children using our legal system. I hope you'll join me in considering could some of these international practices inform new ideas and fresh approaches to child representation practices across Australia?
Now I want to give you a little bit of background to why we have legal representatives for children and I won't take too long for those of you who are familiar with the legal structure. The United Nations Convention on the Rights of the Child or UNCROC as we call it obliges Australian courts to facilitate the participation of children in legal proceedings and to ensure that their views are heard. The appointment of a lawyer to represent the interests of a child impacted by family law or child protection proceedings is a key means by which Australia meets this international obligation.
It is estimated that each year legal aid commissions across Australia facilitate the appointment of over 10,000 child representatives to act for children in such matters. Child representatives play a critical role in facilitating the participation of child and in focusing courts and parties on the views of the children they represent. This is crucial because the children are generally unable to advocate effectively on their own behalf and their parents are often unable to advocate effectively for them either.
My research focused on child legal representatives in two jurisdictions; family law and child protection. In the context of family law, the Family Law Act empowers Family Courts in Australia to make orders about who a child shall live with, how much time the child should spend with other people and how often and in what ways a child and parent should communicate with one another.
In these proceedings, the views and voice of the child can be facilitated via two principal methods. A child may meet with an expert from a social science background so that they can prepare a child and family assessment. In addition, they might have a lawyer called an independent children's lawyer appointed to represent their best interests. In Australia, child protection law is governed by state legislation, such as the New South Wales Children and Young Persons Care and Protection Act.
This legislation allows the state child protection agency to remove a child from a parent's care in order to protect the child from abuse, harm and neglect. In child protection proceedings in New South Wales, the court may also appoint a legal representative for the child. There are two models of representation. This is in New South Wales. A child representative may be either an independent legal representative with a best interests role or for children 12 years and over with sufficient maturity a direct legal representative who acts on instructions. So what does the child representative do?
In Australia they perform three roles. They ensure the courts have evidence about the child's life. This involves making enquiries with a range of people like therapists, schools, health providers and carers. Information about the child's circumstances is also obtained through a legal process called a subpoena. Subpoena's require agencies, such as police, child protection and doctors, to produce court documents and files about a child or family to the court. In the court context, the child representative plays an honest broker role in case management and settlement negotiations between parties. They facilitate the participation of a child or ensure that the voice of a child is heard.
In the Australian legal system, we place high reliance on the child representative to perform all of these roles. In the jurisdictions I visited, I found that there were many more professionals involved in the discharge of these important obligations when compared to Australia.
I'm now going to talk about how we allocate child representation and other resources to meet those aims in Australia and in other countries. I visited three agencies that had the responsibility for allocating resources in their systems: The office of the children's lawyer in Ontario, Canada; the children and family court advisory and support service known and CAFCASS in the UK; and the office of the child representative in Colorado, United States.
All these agencies operated in a climate of financial constraint but they also had a range of tools or resources available to matters before the court. This allowed more focus at an early stage on what resources were most required for each matter, and I discovered that the appointment of a child representative was often a resource allocated only in the most serious of matters and once other avenues had been exhausted. These agencies had triage processes that allowed them to consider what resources a case most needed. This included undertaking a safety or risk assessment, obtaining an expert's report, ordering a preliminary investigation report or allocating a legal representation service. The three single focus agencies also identified that their primary question when allocating resources is whether their service can add value to a matter or improve a child's journey through the legal process. Sometimes this didn't require the appointment of a child legal representative.
The early intake and assessment practices reflected what was commonly referred to as front loading services to families. In the United Kingdom, CAFCASS has increasingly taken this approach with a focus on providing courts with safety assessments early in the life of a matter. In the American states, Canada and the United Kingdom, clients sign authorities to have police, child protection and medical records released without the need for subpoenas. Sometimes officials from these agencies were co-located in the court or the service so that access to information was quickly available. The police department had an office permanently stationed in CAFCASS, for example.
Put simply, this means that within a time frame of up to 60 days of a matter coming to court, some jurisdictions focused their resources on active evidence gathering processes so that courts have the best understanding possible of both the views and needs of a child and family at that point in time.
Private investigator services featured prominently in the United States and Canada. They were specially trained people from legal and social welfare backgrounds who were asked to gather as much information as possible about the current circumstances of the child and family. That involved not only collecting and collating records and information but also speaking with parents and children usually at home about current arrangements and issues.
A report was prepared and the investigator was available to attend court as a witness. Sometimes these investigators were part of the court system and in other situations engaged by legal practices charged with the representation of children. In Colorado, the investigator can later be appointed as a parenting time coordinator to assist in resolving disputes about parenting both during and after court proceedings. In Australia, we rely on a long established principle that was enunciated in a case in 1994 called Re K and we use this criteria to determine whether an ICL or child representative should be appointed.
The case lists a number of reasons why you would appoint a child representative and they include things like where someone has said there has been child abuse, if the parents cannot agree on any issues, if there are cultural or religious differences affecting the child. There's a long list of factors. But arguable that case fails to pose the most important question. How will the child's best interests be assisted by the appointment of a children's representative? Now given that the case also contains some now antiquated notions the criteria would benefit from review.
In Australia, a child representative is appointed in most cases for the duration of the legal proceedings. These three single focus agencies had supervision processes throughout the life of cases to ensure that the involvement of a child representative was always still required. In Australia we are appointing more child representatives in family law matters than in any of the countries I visited. Even still, funding for the appointment of child representatives in the family law system is a resource that is spread thinly over an ever increasing number of matters. Whilst undesirable and unacceptable, a lowering of quality as a result of poor funding levels is sometimes not surprising. Whilst in Australia we appreciate the multifaceted nature of the child representative role in the future, we should, at the time of appointing a child representative, be able to articulate what aspect of that role the appointment will most - - -
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- - - another way this can be achieved as takes place in other countries. International practice suggests that structural changes in how we allocate resources could result in the availability of better information at an early stage that will allow courts to make well-informed decisions about children. A review of our intake and allocation processes would allow us to consider whether we're getting the best impact from the resources being allocated and this has the potential to be cost neutral.
The most interesting and distinguishing feature of the children's legal practices that I visited was the multidisciplinary teamed approach to delivering legal services for children. These models teamed social workers with lawyers in order to adequately address the educational, social and psychological issues that arise in legal proceedings. I've got a picture up there of the Kids Voice office in Pittsburgh who were a very good example of this multidisciplinary teamed approach.
In Australia, child representatives work closely with other experts, particularly family consultants. Indeed, we turn to them for insights into family dynamics, attachment, and to assist us to identify and understand the needs of the child. This collaboration is not without its issues. There are tensions that arise from the fact that these experts are or become court experts and witnesses. They need to retain some independence. The relationships can be complicated by the uncertainty about role boundaries and the relationship and how this should actually be managed.
So what did this multidisciplinary teamed approach look like? At the legal aid society in New York, lawyers worked in teams consisting of four attorneys, one social worker and a paralegal. In addition, there was a pool of interns, investigators and secretarial support for the unit. At Kids Voice in Pittsburgh, the attorney and social worker roles are treated equally and the teams operated on a consensus approach. Their social workers came from a range of backgrounds including education, child protection, foster care and mental health. Kids Voice aims for this diversity, which is seen as enriching its practice.
Teams are also supported by a small pool of support staff and paralegals. I saw multidisciplinary models as being particularly effective for triaging matters when they first came before courts. I observed social workers attend court to help the lawyer make an assessment of the needs of a matter moving forward. This was the case with the CAFCASS social worker I observed in a court in London.
A child protection matter involving two children aged ten and 14 was filed. The children had been removed from their mother's care and there were allegations that she was a long-term drug user and was involved in criminal activities to support her habit. It was reported that the mother had been uncooperative with child protection authorities. The maternal grandmother attended court and advised that the children had regularly been in her care since birth, often each weekend. She asked to be assessed as a placement option urgently.
With the CAFCASS workers' encouragement and using the lawyers to negotiate, the local authority agreed to complete an assessment in three days. While the lawyers read the material filed and discussed the most immediate legal issues, the CAFCASS worker did the following. She developed a plan for the three days, which involved visiting the mother at home, visiting the maternal grandmother at home, attending visitation to observe the attachment between children and family, meeting the children, talking to the school, talking to the local authority and possibly preparing a report for submission to the court.
She spoke at length with the mother and maternal grandmother. She had discussions with a social worker from the local authority. She certainly wasn't a social worker acting for the local authority. She instructed the lawyer for the children on the evidentiary matters that might need to be pursued before the matter came back before the court.
Perhaps there is a more urgent need for responsiveness in child protection matters for these children who've been placed in an emergency care arrangement. The disruption and trauma they were exposed to as a result of the interim placement was high. The impact of the social worker on the lives and experience of these children was powerful. In some parts of the USA that I visited, such as Flint Michigan, famous as the birthplace of Mike Moore, private practitioners were funded to employ social workers on a ratio of two attorneys to one social worker.
The lawyers engaged in this multidisciplinary practice in Flint sighted a range of benefits, which included that they could focus on court and their advocacy. They could test case theories, bounce ideas off each other and generally they reported knowing the case better. The social workers were useful at assisting with observations of meetings especially on issues like attachment. The social workers sped things up. They’ve got children access to services, liaised with schools, did home visits and gathered important information that lawyers often didn't have time to get because of court commitments.
Having regard to both the research I conducted and the feedback I received, some of the advantages identified in using a multi-disciplinary service model are as follows. It helps develop a shared ownership of a client's case and provides a more comprehensive service to clients. It ensures continuity of representation through to the final case resolution. A lack of continuity is often a reality of our system in Australia as a result of staff movements, maternity leave arrangements. They help increase the quality and amount of our of court time spent on cases because there are people available to take responsibility. There is enhanced accountability for children across the team, and studies in the US have found it to be a more efficient and effective means of delivering legal services to children.
At the end of each meeting with the legal directors of the children's law practices I visited, I posed a question: if the government gave you an extra one million dollars tomorrow, how would you spend it? The responses were consistent: "More social workers to support our lawyers."
I'm not aware of the existence of any multidisciplinary approaches to child representation in Australia, but I recommend a trial of multidisciplinary approach. This will allow us to test whether there are benefits that children derive from a multidisciplinary team approach, as well as whether these models have the potential to be as cost effective as the traditional methods of legal service delivery.
As a manager of a large institutional legal practice, one of the things that I was most interested in was the structure of other child representation practices. I had the benefit of spending many days with child representatives who face similar issues to the ones we face in Australia. I observed the management of these practices from recruitment through to induction, supervision, and ongoing training, and I also spent time looking at panel processes in other jurisdictions and the way that child representatives were trained, selected, supported, and performance was monitored. My report provides much more explorations of these issues, but I wanted to make a few observations today.
I visited three university law schools in the US, and at each I attended a children's law clinic or observed a public law program. Class sessions covered a range of topics including law and procedure, hearing assimilations, interviewing clients especially children, social science. In addition to the structured learning, students under supervision represented children, parents and other parties in court proceedings as part of the practical course work component. The area of child representation has been professionalised as a result of courses offered in universities to students of both law and social work, many of whom go on to be engaged by family and children's law practices across the united states. As I travelled through each country I became increasingly aware of some unexplored partnerships in Australia between universities and the providers of child representation services; furthermore, partnerships between various children's legal services with active litigation practices in child protection and family law could potentially offer a range of benefits in Australia and so should be investigated.
The integration of law students and interns into family law and children's legal services encourages good lawyers to engage in this important work. They may also contribute to a professionalisation of child representation law so it develops into an area of expertise. The practice of child representation could dramatically impact on the lives of thousands of children and families in Australia each year. It's an increasingly complex and specialised field, and to be done properly requires specialist training and dedicated resources. The very best agencies internationally dedicate resources to training, supervising and monitoring the quality of work undertaken by child representatives on their panels. Arguable this is an investment that yields good outcomes in terms of the quality of child representation services delivered.
Most agencies had at least one designated training officer who trained in law, social science research, child development, mental health and best practices relating to the issues impacting children involved in court proceedings. In my observations, larger institutional practices were better equipped to provide training and appropriate supervision.
In New York, the administration for child services has a staff of 400 including 250 lawyers. They reported using a consistent template to review new cases, outline evidence and witnesses. The Legal Aid society of New York has a staff of 1900 and they have a three-week induction program for their staff. They reported developing a range of delegations for case decision making to ensure accountability and appropriate supervision of case related decisions. For example, newly admitted lawyers are not allowed to appear in court alone for the first six months and a supervisor must sit next to them or be present in court observing them.
Kids Voice in Pittsburgh has developed a road map to guide and ensure consistent decision-making and case management practices. All of these practices have upper limits on caseloads as well. There can be no doubt too that there is a direct link between reasonable caseloads and effective legal representation of children. Appropriate resourcing of child representation schemes, particularly of positions focused on monitoring and supporting the delivery of quality legal representation services is critical.
However, when it comes to achieving consistent standards, there were advantages observed in the single focus agency model. These agencies could oversee the provision of child representation services, therapeutic services and guardians, and allocate investigatory and expert reports to matters when required. Better public accountability and consistently across the systems seemed to be achieved as a result. Single focus agencies were able to partner with large institutional child representation practices such as legal aid to provide services. These large institutional providers had the size and scale to provide more consistent services, and due to their training, support and supervision structures led to better child representation practices. This approach could be investigated in Australia.
The character Linus in the Peanuts comic strip said, "There are three things I have learnt never to discuss with people. Religion, politics, and the great pumpkin." Now, following my travels, I would add to that list the model of child representation used. The debate between client directed and best interest representation involved passion wherever I went, and was generally one of the first questions I was asked about our model in Australia.
I don't intend to traverse the issue today and it wasn't something I traversed in the research, but I make one observation. I was fortunate to watch child representatives ply their craft in different countries and with different models, and it left me with the sense that a model is not the panacea to child inclusive practice. A well trained, thoughtful, prepared and well-informed child representative was generally able to apply their skills to the most difficult of matters and find a way to ensure that a child felt heard regardless of the model.
While each jurisdiction I visited had different approaches to representation, they were all able to articulate clear expectations about their processes for meeting with children. These expectations related to frequency, location, who was to be present, how old the child should be to mandate a meeting occurring, how soon after the appointment a meeting should occur and ongoing (indistinct) contact.
Lawyers in Ontario are expected to listen to the voice of a child contextually over several meetings when first appointed. In Colorado child representatives are required by statute to within 30 days personally meet the child they represent under a best-interest model. In family law matters, the alienation and dysfunction of one parent is often so extreme as to cause the child representative to take a protectionist stance in their representation of the child as a way of insulating them from the conflict.
The child representative may argue that the child is already overly involved with that parent or that the child should not be drawn into choosing sides on the ground that this would only perpetuate the trauma, thereby creating loyalty, conflicts and anxiety. Many such children also have prolonged involvement with the legal system, including attending multiple interviews and having a sense that they are over assessed.
This is reflected in the Family Law Act at s.68LA(5), which requires the child representative to endeavour to minimise the trauma to the child associated with the proceedings. The national guidelines for independent children's lawyers make clear the expectation that the child representative will meet with the child unless the child is under school age or there are exceptional circumstances, including if there is risk of systems abuse for the child.
Recent studies involving children in the family law system have highlighted a need to question our current approach. We now understand that lack of direct contact between a child representative and a child may increase stress levels and lead to a lack of faith and trust in the court system. AIFS research has found that in matters involving family violence and child abuse, child representative can feel constrained by protective concerns and can have negatives views of the needs of children and their wish to participate. In the United States, child representatives were regarded as having a heightened duty to ensure that their client understood the relevant issues in those sorts of matters. Their textbook on child representation known as the red book notes that representation "starts with really listening the child and understanding the short-term and long-term consequences of any position taken on the entire fabric of the child's life."
The ambiguity and discretion allowed in Australia can result in inconsistent practices. Further work is needed in Australia to ensure that the current guidelines and legislative framework are promoting the appropriate level of participation of children in family law processes, as well as promoting community confidence in those processes.
Such a review needs to consider the currency of the notion of systems abuse and whether any amendments to the Family Law Act are required to ensure an appropriate level of participation of children in family law processes. I visited nine courts during my research and was able to view a range of practices in place for supporting children and families who use them. A number of those courts were quite different to the practices in Australia.
For example, in the US, at least in 22 states courts were open with judicial discretion to close any hearing if the safety of children and families might be jeopardised. Those in favour of the practice said it had led to more accountability and transparency of both courts, as well as the legal practitioners; although there were others who expressed concerns that it could be traumatising for the children involved in the proceedings.
Pursuant to article 12 of the (indistinct), a child is entitled to participate in and be heard in judicial proceedings about their lives. While theoretically this may be read to suggest that children are entitled to communicate directly with judicial officers in the Australia family law and child protection systems, we are fortunate to have child representatives and clinicians or experts who routinely meet with children involved in court proceedings and communicate their views and wishes on their behalf.
There is, however, a growing body of research in Australia that suggests that some children may be dissatisfied with these processes and indeed would prefer to have more direct participation. Across the US, Canada and the United Kingdom, I visited courts where it was commonplace for children and families themselves to attend court facilities like in Pittsburgh; furthermore, participation of children in court processes was more often the norm rather than exception. In recent times, these countries have all considered the presence of children at courts, their participation in court proceedings and the general transparency of court processes concerning children. I should note at this point that there is much greater support for the attendance and participation of children in child protection proceedings than in private family law proceedings.
Notwithstanding this in private family law proceedings, there is still consideration of what the child's involvement in the legal proceedings would entail. There is also the option to facilitate a child's participation in proceedings in appropriate circumstances. On the screen now are images of the Edmund D Edelman Children's Court in Los Angeles, a purpose built facility opened in 1992. It was designed on the basis of a longstanding philosophy and practice that encourages and facilitates the attendance of children in a court-sensitive court facility.
These facilities cater for about 25,000 cases annually, which go before a total of 21 judges to oversee the cases in courts. I was fortunate to view a range of processes involving children attending and at times participating in courts in Los Angeles, Denver, Pittsburgh. New York, Toronto and London. In most of the courts, gifts were provided to children who attended and most also had small libraries from where they could choose books and they were usually encouraged to keep them. On your screen now is the bookshelves in Washington DC where any children who used the court were taken and offered a book.
In the Family Court in Manhattan, the library came complete with a roster of volunteer grandmothers who read to the children attending court. The legal aid society of New York is co-located with their Family Courts, and in New York it offers Connie's Closet. Connie is appearing on your screen now. Connie's Closet is a second-hand clothing store room for clients operated by the legal aid society of New York. Connie works as a secretary for the legal aid society of New York but also as part of her job collects clothing for clients, including, at the time of year I was there, winter jackets for children.
Most court facilities I visited were decorated with children's artwork and all had noticeboards with practical information about transportation and social services. I was impressed by the way court facilities reflect the fact that they existed to make decisions about children and families. As I observed it, instead of courts being a traumatising experience, the children and their families were often seen leaving courts on a positive note with the sense that their contribution had been both welcomed and was important.
I was able to observe the participation of children in various court settings and it was usually underpinned by the purpose of their attendance, which fell into three categories: firstly, to obtain the wishes of the child; secondly, to ensure that the child was given the opportunity to express their views about the decision the court was being asked to make; and thirdly, to provide the judge with information and context about the child.
Most of the courts I visited were able to direct me guidelines, court rules or policy documents that governed the participation of children. There are advantages to this approach. Importantly, guidelines articulate the purpose of the child's attendance but they also guide all the participants, reducing judicial discretion and arguably leading to a greater comfort in the process.
In recent times the United Kingdom has experienced drastic reductions in the funding of legal assistance services and their court system. Some commentators have expressed concern that compliance with UNCROC can in many cases only be achieved in the UK by judicial meetings and that there is now a great role for judges' direct involvement with children.
In 2010, in the United Kingdom, guidelines for judges meeting children who are the subject of family proceedings were issued and those guidelines emphasised that whilst at the discretion of a judge, it can't be stressed that children meeting with judges is not for the purpose of gathering evidence. The purpose is to enable the child to gain some understanding of what is going on and to be reassured that the judge has understood him or her.
In 2014, in Ontario, guidelines for judicial interviews and meetings with children in custody and access cases were introduced. The guidelines were promulgated as a result of a consultation throughout their system. Interestingly the guidelines divide judicial interactions with children into two categories: meetings and interviews. The primary purpose of both though is not to gather evidence but to gather information about the child's views and preferences.
There are many methods that are currently used in Australia to give a voice to children involved in legal proceedings about their lives. These methods operate effectively for most children in the legal system and are not broken. There are cases, however, where judicial meetings with children should be considered as another valuable way of involving them. Children may feel that they have directly participated in the process and had their rights and views acknowledged if they are afforded the opportunity to visit the court and meet with the judicial officer. Anecdotally judicial meetings with children in Australia are occurring more frequently than they have in the past. These children would benefit from a system that allowed them to participate in a safe, neutral and supportive way.
The judges being asked to meet them would benefit from training before doing so and all of the people involved would benefit from understanding the purpose and utility of the meeting from both a process and evidentiary point of view. Our system cannot call itself child focused until we can articulate what approach should be taken when children wish to have this involvement.
Furthermore, while each matter must be approached on a case-by-case basis, we all need some direction or agreement. Our system is mature and sophisticated enough to work on guidelines that will ensure that if judicial meetings with children take place, they are done in a safe, transparent and child inclusive manner. Across Australia, various formal and informal mechanisms have developed to ensure accountability for the practice standards of child representatives. Lawyers and judicial officers I would argue are in the most powerful position to ensure accountability due to their capacity to observe and assess performance.
Presently in Australia, there is an assortment of mechanisms, though none of these involve children who as the AIFS report observed are "in the weakest position to assess ICL performance and exercise agency through a feedback or complaints mechanism." I observed that many overseas jurisdictions now use children or youth advisory committees to get feedback on a range of matters, from published resources, court design, to the services themselves.
I also saw many feedback tools ranging from client satisfaction surveys of young people to the use of youth references as a component to child representation panel renewal processes. Seeking better feedback from children and professionals is another step we could take to strengthen our practices. A shared approach to monitoring performance and maintaining accountability for children's legal representative is required.
In Toronto, I was moved by the feedback provided by a 13-year-old girl who said she felt acknowledged and respected by the family justice system. Those words struck me. There is no reason why children should leave the Australian family law system feeling that their needs, wishes and feelings have not been considered. At the end of the day, we're not talking about children having a choice about where they will live or who they will spend time with. Just a voice and a voice that is acknowledged and respected by all of us.
The Churchill fellowship has provided me with a unique opportunity to spend time with people and agencies who have shaped child representation practices across the world. I have returned armed with enthusiasm and a commitment to drive better practice. In reality the journey has only just begun, but I hope that it will ultimately result in the improvement across our family law and child protection systems for the children, families and professionals involved. The appetite for change and the desire to improve continues.
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- Representing children in legal proceedings - learnings from the US, Canada and the UK
- KYLIE BECKHOUSE
- THE WINSTON CHURCHILL MEMORIAL TRUST OF AUSTRALIA
- The views expressed in this presentation are those of the presenter and May not necessarily reflect those of the Australian institute of Family Studies, the Australian Government or Legal Aid NSW
- Los Angeles, US
- Image of Courtroom
- Pittsburgh, US
- Image of Courtroom
- Why do we have legal representatives for children?
- The United Nations Convention on the Rights of the Child (Articles 9 and 12)
- Article 12. Every child has the right to say what they think in all matters affecting them, and to have their views taken seriously.
- Family Law Act 1975 (Aust.)
- State child protection law
- Direct and best interests models of representation
- The United Nations Convention on the Rights of the Child (Articles 9 and 12)
- What does a child legal representative do?
- They perform 3 roles:
- Evidence gathering about the child’s circumstances
- i.e. by making enquiries with therapists, schools and carers, or by issuing subpoenas to agencies such as police, child protection agencies and doctors.
- Honest broker role in case management and settlement negotiations between parties.
- Facilitating the participation of a child, or ensuring that the voice of a child is heard
- Evidence gathering about the child’s circumstances
- They perform 3 roles:
- Reviewing resource allocation
- Redesign the initial information-gathering, screening and assessment processes undertaken by Family Courts and the resultant agency responses
- Committing more resources in the early stages of a court matter could improve our responses to children and families.
- Structural changes to how we allocate resources could result in better information being available at an early stage to allow courts to make well-informed decisions about children.
- Multi-disciplinary team approaches
- Image of reception desk with smiling welcoming woman. Sign on wall reads: Kids Voice, Protecting Children's Rights.
- Multi-disciplinary team approaches to child representation
- In children’s law practices, trial a multidisciplinary team approach to the delivery of child representation services
- To test whether there are benefits that children could derive from a multidisciplinary team approach
- To assess whether this approach could be as cost effective as traditional methods of legal service delivery
- Better links with universities
- Image of university classroom
- Better links with universities
- Forge closer links between children’s legal practices and university law schools and clinical programs
- To improve the standard of child representation in Australia
- To encourages good lawyers and social workers to specialise in this area
- Let’s professionalise child representation, so that it develops into an area of legal expertise
- Training and support
- Dedicate funding and resources to supporting, monitoring and training child representatives so they can deliver higher quality child representation services
- Investing resources in effective monitoring processes, training and supervision improves the quality of child representation services.
- There is a connection between the resourcing of child protection and family law legal systems and the quality of legal services delivered.
- Establish a single-focus advocacy office for children
- Investigate whether establishing a single-focus advocacy office for children would better ensure that all of their legal needs are appropriately addressed
- To provide a wider range of functions i.e. overseeing child representation, investigatory & expert report writing services, guardians
- To ensure better public accountability, improve resource allocation practices and achieve more national consistency across the family law system.
- To partner with Legal Aid commissions, who have the size and scale to provide more consistent services, and due to their training, support and supervision structures, lead to better child representation practices.
- Hearing the voice of the child
- Image of woman and child sitting at a desk and having a discussion. The desk has colour pencils and textas and there is a teddy bear on a bench behind them.
- Hearing the voice of the child
- Review the 'Guidelines for Independent Children's Lawyers' and the legislative framework to ensure they lead to an appropriate level of participation for children in family law processes.
- To ensure that we promote appropriate levels of participation of children and community confidence in court processes.
- To consider the notion of 'systems abuse'
- Edmund D. Edelman Children’s Court in Los Angeles
- Images of:
- Edmund D Edelman Children's Court building seen from outside.
- Edmund D Edelman Children's Court cafeteria.
- Playground at Edmund D Edelman Children's Court.
- Pool tables at Edmund D Edelman Children's Court.
- Images of:
- Child centred facilities at courts
- Image of room filled with toys and dressing up costumes with smiling woman.
- Image of bookshelves full of books.
- Children’s involvement in court processes
- That Children’s Courts and the Family Courts develop principles to guide decision making about the participation of children in legal processes including judicial interactions with children.
- To inform decision making and the participants
- To articulate appropriate processes and procedures
- To ensure that judicial meetings are conducted in a safe, transparent and child inclusive manner.
- Feedback tools
- Introduce a system-wide feedback mechanism for child representation services in order to elicit the views and perspectives of people across the system, including children
- To ensure child representatives are meeting the needs of the children they represent and the family law system
- To improve the performance of child representatives
- To monitor performance and assess whether skill levels are appropriate
- THANKS TO THE WINSTON CHURCHILL MEMORIAL TRUST OF AUSTRALIA
- KYLIE BECKHOUSE – July 2015
- JOIN THE CONVERSATION
- You can continue the conversation started here today, and access some of the resources discussed, via the following link: www.aifs.gov.au/cfca/news-discussion
Further reading and resources
- To investigate legal representation schemes for children in the US, Canada and the UK - administration, delivery and innovation (PDF 1.7MB)
This is the final report from Kylie Beckhouse's Churchill Fellowship. It draws on notable developments and initiatives taking place internationally in the area of child legal representation that might inform improvements, and it makes recommendations on what we in Australia could do to improve our approaches to child legal representation.
- Facilitating the participation of children in Family Law processes (PDF 762KB)
This Discussion Paper reviews the research literature on children’s participation in family related proceedings and specifically, children’s relationship with their lawyers in those proceedings. It was produced by Legal Aid NSW in partnership with the Centre for Children and Young People at Southern Cross University.
Kylie Beckhouse is Executive Director of Family Law at Legal Aid NSW.
She is an accredited specialist in family law and an independent children's lawyer. She has been practicing exclusively in family law for over 20 years, initially in private practice and for the last 13 years at Legal Aid NSW.
She is appointed to the Family Law Council of Australia and the NSW Children's Court Advisory Committee. She is also a member of the Family Courts Children’s Committee, Law Society of NSW's Family Law Issues Committee, and National Legal Aid’s Family Law working group.
In 2014 Kylie was awarded a Churchill Fellowship to investigate the administration of child legal representation schemes in overseas jurisdictions.