A personal viewpoint
I have been invited to present this paper because
I am qualified as a lawyer in Australia and in England and
Wales and have experience of practising family law extensively
in both jurisdictions. At this stage of my career I do not
claim to be a specialist in child law as I spend most of
my time solving complicated international divorce problems
for rich clients. In my younger days, however, I was a legal
aid lawyer in Melbourne responsible for representing children
in the Family Court of Australia and also for developing
policy and training for child lawyers in both private law
and public law cases. My court experience was limited to
private law cases, although in the public law sphere I did
a lot of work to help bring about reforms in the Children’s
Court system in Victoria, particularly through my work as
Chair of the Law Institute of Victoria Child Welfare Committee
in the mid 1980s.
Since moving to London in 1989 and qualifying
as an English solicitor I have not been involved in representing
children at all. However, as a member of the National
Committee of the Solicitors Family Law Association of
England and Wales (SFLA) for the past three years I have
worked frequently with the English Children Panel specialists
in their struggle to help develop a coherent system for
child representation in public law cases. Also, as Chair
of the UK Host Committee of the World Congress on Family
Law and the Rights of Children and Youth, held in Bath,
England, in September 2001, I became familiar with the
problems faced by child legal representatives in many
jurisdictions throughout the world. As a policy consultant
rather than a case worker I am familiar with the current
crisis in England and Wales in implementation of child
representation through CAFCASS (Children and Family Court
Advisory and Support Service) and I feel qualified, despite
my lack of practical experience, to offer some views on
why the current system in England and Wales is not working
I ask you to bear in mind my professional
background as I address the important issues which face
you in this workshop. I do not speak to you as a detached
academic or theoretician but as one who has seen how effective
child representation systems can work and also how some
systems do not work as well as others. I hope my presentation
will offer you some simple and pragmatic guidance as to
what you should do in Italy as you develop a child representation
Now that I have confessed my personal bias and explained
the limitations on what you may expect to hear from me,
I will go on to consider the models for legal representation
of children in Australia and England. The following limitations
on the scope of this presentation should be borne in mind:
- It is concerned mainly with public child law, that is,
where the state intervenes to protect the welfare of the
child. Contrast private child law, which involves disputes
between parents and occasionally other relatives.
- I will mention some private child law situations where
relevant. Much of the theory and practice in relation
to the various models of child representation and training
children’s lawyers is common to both public and
private law situations. Indeed, sometimes public and private
law issues converge in a particular case: this can lead
to complications where two or more lawyers represent different
aspects of the child’s case.
- In relation to the United Kingdom, this presentation
will cover only the law and practice in the jurisdiction
of England and Wales. Scotland and Northern Ireland have
different legal systems within the UK but these will not
be covered in this presentation.
- In Australia, one must distinguish between the Federal
and the State jurisdictions. The Federal jurisdiction
of the Commonwealth of Australia covers children in relation
to private law matters: residence/custody, contact/access/visitation
and parental responsibility, that is, disputes between
parents. The State jurisdiction covers children in relation
to public law and each State legal system is different.
I will focus on the jurisdictions with which I am most
familiar, the Federal jurisdiction and the State jurisdictions
in Victoria and New South Wales.
The Fundamental Questions
1. Does the child’s lawyer act
only on instructions (direct representative) or does the
role involve acting in the child’s interests (best
2. How many lawyers should a child have?
In Australia and England several different
models of child representation are used:
- Children’s Court of Victoria
(State jurisdiction, public law)
This model provides for single lawyer representation with
the lawyer advocating only the child’s instructions
and not the child’s best interests. Advocacy of
the child’s best interests is undertaken by the
State government authority responsible for child welfare,
in Victoria called the Human Services Department (HSD).
Where the child has no capacity to instruct a lawyer (for
example, when the child is too young) then no lawyer represents
the child’s instructions in the Victorian model.
Sometimes the HSD reports to the Children’s Court
on the child’s circumstances but there is no legal
advocacy on behalf of the child incapable of giving instructions.
- Children’s Court of New South
Wales (State jurisdiction, public law and sometimes private
This model is similar to that in Victoria but the child’s
representative may act in the child’s best interests
if the child is incapable of giving instructions.
- Family Court of Australia (Federal
jurisdiction, private law)
Here the model is also single lawyer child representation.
The child’s lawyer informs the Court of the child’s
wishes but acts in the child’s best interests.
- England and Wales: The Children and Family Court Advisory
and Support Service (CAFCASS) is an independent government
funded body responsible for providing legal representation
in the child’s best interests in public law cases.
The English model provides tandem or dual representation.
This means a CAFCASS officer, called the Child’s
Guardian, represents the child’s best interests
and a Law Society Children Panel solicitor acts on instructions
from the child. If the child is not sufficiently mature
to give instructions the child’s Children Panel
solicitor takes instructions from the CAFCASS Children’s
Guardian. Where a mature child’s instructions conflict
with the Guardian’s view of best interests, the
child’s Children Panel solicitor must follow the
child’s instructions even if the solicitor does
not agree with the child (Solicitors Family Law Association
Guide to Good Practice for Solicitors Acting for Children
6th edition, January 2002, page 6, paragraph B.3.2).
This basic summary of the four models
I am considering glosses over many permutations, for example:
- Where the child is involved in private law and public
law proceedings at the same time.
- Where the child is involved in public law and criminal
law proceedings at the same time.
- Where the lawyer represents more than one child in a
- Where the solicitor representing the child briefs a
barrister to appear at the Court hearing(s).
- The special role of the solicitor representing the child
in contested adoption proceedings.
This presentation will be confined to the simplest case
scenario for ease of explanation, that is, the case where
the solicitor represents a single child in straightforward
public law proceedings.
Victoria: The Children’s
What follows is a brief description of the practice in
the Children’s Court of Victoria, as set out in
two recent publications:
- Guidelines for Lawyers Acting for Children and Young
People in the Children’s Court (Victoria Law Foundation,
1999). These Guidelines can be downloaded from the website
of the Victoria Law Foundation at www.victorialaw.org.au.
- Children’s Court Duty Lawyer Manual [draft] (Victoria
Legal Aid, 2003). Because this is still a draft being
worked on I regret that I am unable to circulate a copy
of the Manual. I am hopeful that the Manual will be in
its final form within the next few months, at which time
a copy should be made available to AIAF.
I will say at the outset that my personal experience in
dealing with the Victorian system of child representation
in public law proceedings in the Children’s Court
is such that I can recommend this model as one to be followed.
It is effective in getting the instructions of the competent
child across to the presiding Magistrate. The training
of the Children’s Court duty lawyers, provided by
Legal Aid Victoria, ensures that the child’s instructions
are zealously and forcefully advocated. The system ensures
that the child will have a well trained lawyer to represent
him or her on the first occasion the case comes before
the Court. It is an efficient and cost effective model,
although it depends for its effectiveness largely on the
training of the lawyers and the competence and cooperation
of the Children’s Court Magistrates and support
staff, including Children’s Court Clinic psychologists
and other personnel.
The Guidelines (Children’s
Court of Victoria)
The Guidelines are founded upon Article 12 of the UN Convention
on the Rights of the Child, which provides that the child
shall have an opportunity to be heard in legal proceedings
either directly or through a representative.
The Guidelines set out the general approach which the
child’s lawyer should take. Tips are given on interviewing
techniques, communicating with children, assessing the
child’s capacity to give instructions (relating
to age, maturity and intellectual capacity), taking instructions
and legal obligations relating to confidentiality, legal
professional privilege and conflict of interests. Important
- The lawyer must make sure the child understands the
- The child’s instructions must always be put to
the Court, whether or not the lawyer agrees with those
- The lawyer must show the child all relevant documents
unless there is a Court order suppressing a report.
- The lawyer must assess whether the child should give
evidence (this is rare when the child is very young).
- The lawyer must participate in settlement negotiations
to try to resolve the case.
- The lawyer must explain the final outcome of the Court
proceedings and advise the child in relation to any rights
of appeal or review.
- Children are always entitled to be represented by a
duty lawyer in the Children’s Court, irrespective
of the financial circumstances of the family.
Duty lawyers are employed and trained by Legal Aid Victoria,
the government funded body which provides legal services
in the State of Victoria for Legal Aid those who cannot
afford for a lawyer privately. They tend to be relatively
young and inexperienced, however a zealous commitment
to legal representation of children is part of the job
requirement. Duty lawyers are stationed at the Children’s
Court everyday so they can see children as soon as they
are bought into the Court for any proceedings. Duty lawyers
work under enormous pressure, often having to see several
new clients each morning. Very often the children have
just been removed from their families or otherwise apprehended
by the police or social workers and bought to the Children’s
Court on just a few hours notice. Children are often distressed
and confused. Perhaps this is the first time they have
been separated from their family and bought to Court.
The duty lawyer must prioritise his or her clients in
order of urgency, assess capacity to give instructions,
take instructions, speak with the police or social workers
about the reasons for the case being bought to Court,
prepare argument and then appear before the Magistrate.
After the hearing the duty lawyer must report the outcome
to the child and help the child come to terms with the
If the child is incapable of giving instructions a duty
lawyer can represent a parent. As parents are often in
conflict it is rare that a duty lawyer will represent
both parents but this can happen when the parents are
united in their approach to the Court proceedings.
An interesting feature of the Australian
procedure is that Children’s Court hearings are
held in open Court, that is, members of the public are
allowed to attend. However, there are severe restrictions
on reporting Children’s Court proceedings and any
report must not identify the parties or witnesses. The
open Court policy is based on the principle that the public
have a right to know how the justice system operates,
even when children are involved. Contrast the situation
in England and Wales where all proceedings concerning
children are held in private, that is, no members of the
public are allowed in Court.
My personal view is that the open Court policy, which
applies in the Family Court of Australia as well as in
the Children’s Court, works well. The difficulty
with the closed Court is that it can encourage parties
aggrieved by decisions to complain about unfair secret
The Duty Lawyer Manual (Legal
The Duty Lawyer Manual establishes correct procedures
for dealing with cases. After taking instructions from
the child and discussing the case with police or social
workers, the duty lawyer will first try to negotiate an
appropriate interim order. This can involve, for example,
the child remaining in the care of a family member while
the circumstances of the case are investigated by police,
social workers and psychologists. Where no suitable family
member is available the child can be placed in foster
If negotiation does not lead to agreement the duty lawyer
must present the child’s case to the Magistrate.
An initial hearing after apprehension of the child normally
takes about 1-2 hours. No formal evidence is given, rather
oral submissions are made from both sides.
After explaining the action which the duty lawyer should
take, the Manual summarises the relevant law relating
to various types of proceedings which come before the
Children’s Court (for example, child suffered or
likely to suffer physical injury, sexual abuse or emotional
harm; child’s physical development or health significantly
harmed; irreconcilable differences, etc).
After the initial hearing the Human Services Department
will prepare reports summarising the evidence and recommending
what should be done. The child’s lawyer considers
these reports with the child, takes instructions and on
the second hearing date (usually within three weeks of
the first hearing) the child’s case is presented
in accordance with instructions. The lawyer may recommend
that the Court order the Children’s Court Clinic
to prepare a family assessment. These are usually reserved
for cases where there is some issue of emotional health
or serious family dysfunction in relation to which the
Court should require expert psychological or medical evidence.
Once all the evidence has been prepared the case, if still
contested, will be listed for a Final Hearing before a
Children’s Court Magistrate. Final hearings can
sometimes last several days. The child’s lawyer
may choose to brief a senior lawyer, either a solicitor
or a barrister, to assist presenting the child’s
case at the Final Hearing.
New South Wales: Representation
Principles for Children’s Lawyers
In March 2002 the Law Society of New South Wales published
the second edition of Representation Principles for Children’s
Lawyers. This manual is derived largely from the Victorian
Guidelines for Lawyers Acting for Children and Young People
in the Children’s Court and American Bar Association
Standards of Practice. Like the Victorian Guidelines it
sets out general policy recommendations rather than specific
duties like the Victorian Duty Lawyer Manual. Unlike the
material from Victoria the New South Wales Representation
Principles consider both models for child legal representation,
that is, the direct representative model which applies
in the Children’s Court of Victoria and the best
interests representative model which applies in the Family
Court of Australia.
The New South Wales Representation Principles do not purport
to recommend one particular model of Child Representation.
They are intended as a guide for all child lawyers irrespective
of what model of representation they work with. They are
a useful adjunct to the Victorian Guidelines and Duty
Lawyer Manual because clear explanations are given for
some of the most important concepts and procedures. There
is a very clear description of the differences between
direct representation and best interests representation.
Importantly, Principle B4 provides that a lawyer should
not act as both a direct representative and a best interests
representative for the same child. The reason for this
is that there may be a conflict between the child’s
instructions and what the lawyer thinks is in the child’s
best interests. Such conflict would undermine the child’s
faith in the legal system and compromise the principle
in Article 12 of the UN Convention on the Rights of the
Child that the child shall be heard.
This principle has not always been followed in the past.
For example, where a child has been involved in both public
law and private law proceedings, a Legal Aid Duty Lawyer
has sometimes been appointed to act on behalf of the child
in both the Family Court of Australia private law proceedings
and in the Children’s Court public law proceedings.
In the Family Court the child’s lawyer acts as a
best interests representative and in the Children’s
Court as a direct representative. Although this practice
may have been acceptable in the past, as a result of the
clear guidance in Principle B4 good practice dictates
that separate lawyers should be appointed for the Family
Court and the Children’s Court proceedings.
Principle B2 requires that where the child is unable or
unwilling to provide instructions the child’s lawyer
should act as a best interests representative. This New
South Wales principle appears to conflict with the Victorian
Children’s Court model which provides that the child
incapable of giving instructions will not be legally represented
but will have his or her circumstances explained to the
Court by the Human Services Department (Victorian Guidelines,
Australian Federal Jurisdiction:
The Family Court of Australia
In 1975 the Australian Federal government passed the Family
Law Act, a radical piece of legislation which established
the Family Court of Australia, introduced no fault divorce
based on 12 months separation and established a Counselling
Service as part of the Family Court. One of the radical
changes was to introduce the concept of separate representation
of children in private law cases, such representation
to be provided by specialist Federal government employed
family lawyers without cost to the family.
It was established through a series of case reports that
the role of the Family Court separate representative is
to be a best interests representative. This means that
the child involved in Family Court private law proceedings
is not entitled to direct legal representation where the
lawyer is bound by the child’s instructions. This
is in marked contrast to the position in the Children’s
Court of Victoria.
For the most part Family Court separate representatives
are government employed legal aid lawyers with specialist
training in representation of children. However, the model
also allows for legal aid bodies, which fund the representation,
to engage private lawyers as separate representatives.
Occasionally solicitor separate representatives will brief
a barrister to appear in court, particularly when the
case is complex.
The way in which the Family Court separate representative
prepares and presents the child’s case has been
developed substantially over the past quarter century.
Just this year the Law Council of Australia Family Law
Section (the national representative body for Australian
family lawyers) developed a substantial training programme
for Family Court separate representatives. Recently the
term child representative has come to replace separate
representative and when referring to the Family Court
I will use the term child representative for clarity.
In 2002 the Family Court published draft Guidelines for
the Child’s Representative. Although the Family
Court Guidelines are not yet officially in force I understand
that they are being followed already as a general rule.
The Law Council of Australia Family Law Section Training
Manual for child representatives, A Child’s Voice,
is a massive volume comprising over 400 pages of law,
commentary, case studies, exercises and advice. The draft
Family Court Guidelines are included in the Training Manual.
The first two day training course using the new Manual
was conducted in Sydney in May 2003.
I cannot hope to summarise adequately the contents of
A Child’s Voice in this brief paper. I strongly
urge the IAIF to obtain a copy of the Manual from the
Law Council of Australia and to secure permission to use
it for training child representatives in Italy.
Although, as mentioned before, the Family Court model
provides for the child’s representative to act in
the child’s best interests, and not as a direct
representative bound by the child’s instructions,
much of the Manual provides useful guidance for direct
representatives as well. Therefore, whether Italian child
representatives decide to follow the direct representation
model or the best interests representation model, or a
hybrid of the two, or a completely new model, A Child’s
Voice, should be essential reading for all trainers and
In particular, the draft Family Court Guidelines for the
Child Representative should be studied. This is somewhat
more digestible, comprising a mere 16 pages.
The Family Court Guidelines, like the other documents
referred to in my presentation, are founded on Article
12 of the UN Convention on the Rights of the Child. The
crucial distinguishing features of the Family Court child
representative are set out in Section 4 of the Guidelines:
- The child representative is an impartial
best interests advocate (that is, not a direct representative
bound by instructions of the child).
- The child representative does not take instructions
from the child but is required to ensure the Court is
fully informed of the child’s wishes, in an admissible
form where possible.
The Family Court child representative has a wide range
of powers and responsibilities including the power to
call evidence and initiate enquiries into the child’s
Where the Family Court child representative considers
the child’s expressed wishes are contrary to his
or her best interests, the representative must put evidence
of the child’s wishes before the Court but must
also make submissions which are in accordance with the
child’s best interests. This dual role of explaining
the child’s wishes and advocating the child’s
best interests, in circumstances where these conflict,
has lead to some criticism from lawyers who argue that
a child representative is likely to lose the trust of
the child in these circumstances.
Australia: A Summary
It can be seen that two distinct models of child representation
exists in Australia. In the Children’s Court of
Victoria the representative acts strictly on the child’s
instructions. In the Family Court of Australia (private
law) the child’s representative is not bound by
instructions and must present the case in the child’s
best interests. There has been much debate over the past
quarter century as to which model is preferable but, despite
(or perhaps because of) the debate there are strong advocates
for both models. I can say from personal experience that
both models work successfully, although from time to time
problems have arisen in the past, due mainly to lack of
With the recent publication in Australia of the Victorian
Guidelines for lawyers acting for children and young people
in the Children’s Court, the New South Wales Representation
Principles for Children’s Lawyers and the Law Council
of Australia Family Law Section Training Manual A Child’s
Voice, taken together with the draft Victorian Children’s
Court Duty Lawyer Manual and the draft Family Court Guidelines
for the Child’s Representative, I can state with
some confidence that the representation of children in
Australia is the most effectively planned and structured
in the world, so far as I am aware. However, there are
critics of the single lawyer models which prevail in Australia.
I will now deal with the situation in
England and Wales.
The System of Child Representation
in England and Wales
The English system provides for the best possible representation
of children in public law proceedings. The child’s
instructions are presented to the court by a Law Society
Children Panel solicitor who, in difficult cases or in
cases which run in the Family Division of the High Court
of Justice, may brief a barrister for court hearings.
In particularly complex or important cases the child may
have a solicitor and two barristers, with one of the barristers
being Queen’s Counsel. The child’s best interests
are represented by a Children’s Guardian appointed
by the Children and Family Court Advisory and Support
Service (CAFCASS), an independent government body set
up on 1 April 2001 to provide representation for children
and advice to courts and families. The Children’s
Guardian may also brief barristers for court hearings.
It can therefore be seen that, in especially complex or
difficult cases, the child may be represented by up to
six lawyers at court hearings.
In addition, the Local Authority, which brings the child
protection proceedings to court, will also have a solicitor
(preferably one who is a member of the Law Society Children
Panel) and the solicitor may decide to brief one or two
barristers for Court hearings. If the child’s parents,
or other interested parties, also join in the proceedings
with their own legal representatives you will understand
that it can sometimes get quite crowded in the court rooms
of the Family Division of the High Court of Justice!
The English model of dual representation is a paragon
and, in theory, it should be the best in the world. It
provides for the child to have, in effect, two lawyers,
one a direct representative bound by instructions and
the other a best interests representative. Unlike the
Australian child representation schemes which have limited
funding from legal aid bodies, there is no limited budget
affecting the representation of children in England. The
Legal Services Commission will fund proceedings as far
as this is reasonably required in the child’s best
interests. Child public law cases in England can sometimes
cost hundreds of thousands of pounds of legal aid and
government money. But the standard of legal representation
provided is without equal anywhere in the world.
As with the Australian and American models,
the scheme for representation of children in England is
based on the principles set out in Article 12 of the UN
Convention on the Rights of the Child. Law Society Children
Panel solicitors are well qualified and experienced. They
must be qualified for at least three years and undergo
rigorous training and assessment procedures before they
are allowed to handle cases without supervision. Similar
standards apply to CAFCASS Children’s Guardians.
One of the great advantages of the English system is that
it is supported by a number of non-government bodies whose
members comprise qualified lawyers and non-lawyer child
advocates who specialise in representing children. These
include the Association of Lawyers for Children, the National
Youth Advocacy Service, the Law Society (which runs the
Children Panel) and the Solicitors Family Law Association.
All of these organisations provide training for children
lawyers and liaise with government on policy and legislation
to ensure that children are offered the best possible
standards of legal representation. The SFLA has, for many
years, published a Guide to Good Practice for Solicitors
Acting for Children, now in its 6th edition (January 2002).
In many respects the SFLA Guide to Good Practice offers
advice similar to that provided by the Victorian Guidelines
and the New South Wales Representation Principles for
Children’s Lawyers. I suspect that the SFLA Guide
to Good Practice was very carefully considered by the
Victorian and New South Wales people who drafted their
documentation. A commendable novelty in the SFLA Guide
to Good Practice is the encouragement for the child’s
lawyer to represent the child in any mediation or conciliation
process, although this delicate role must be handled with
Unfortunately, the English system of child representation
has run into serious difficulties over the past couple
of years. There are many reasons for this, but the underlying
main difficulty seems to be that the government is seeking
to cut the cost of child legal representation. CAFCASS
has been engaged in an exercise of forcing Children’s
Guardians to accept contractual terms of engagement which
are generally seen to be downgrading the role by reducing
job security and remuneration. As a result, there are
now fewer lawyers in England and Wales willing to take
on the role of Children’s Guardian on the terms
being offered by CAFCASS. A consequence of this is that
there are serious delays in the appointment of children’s
representatives, sometimes delays of many weeks. This
delays the finalisation of legal proceedings concerning
children in extremely vulnerable circumstances.
My personal view is that the English system, although
it is probably the best in the world in theory, is so
expensive to maintain that it is unlikely to continue
much longer in its current form. I suspect that funding
cuts will mean that the dual representation model will
have to be eventually radically changed. It is also likely
that increasingly severe restrictions on legal aid funding
of children cases will be introduced.
The difficulties in England have recently been compounded
by a reform in the government departmental structure announced
just this month. The ministerial office of Lord Chancellor
has been abolished (after 1,400 years!) and the responsibilities
of the Lord Chancellor have been divided between other
ministries. A new Minister for Children has been appointed
with CAFCASS coming under the umbrella of this Minister’s
responsibility. Interestingly, the new Minister for Children
is Margaret Hodge, the wife of well-known lawyer Henry
Hodge, whose Camden practice does a lot of family law
work, including child representation. I hope that this
means that the new Minister for Children will listen to
her husband’s colleagues about the problems child
representatives are now facing in England!
The ideal model for child representation must be the English
one, which provides for dual representation through one
lawyer acting as a direct representative bound by the
child’s instructions and another lawyer acting in
the child’s best interests. However, this model
is expensive to run and, like a Rolls Royce, if you cannot
afford to run the machine it does not go anywhere. I think
a more pragmatic model is to provide the child with just
one lawyer. If the child has the capacity to provide instructions
then the lawyer should be bound by those instructions
as a direct representative. If the child is too young
or otherwise incapable of giving instructions, then the
lawyer should opt to represent the child’s best
interests. The Children’s Court of Victoria model
is effective, although I do have concerns about the policy
that the child incapable of giving instructions is, in
effect, without a lawyer to advocate his or her best interests.
I do not think the government authorities which prosecute
child protection cases can properly undertake the role
of representing the child’s best interests because
there is too great a risk of a conflict of interests.
I will be leaving with the AIAF workshop organisers a
bundle of training materials which I have gathered together
from Australia and the United Kingdom and I hope that
they will be able to make good use of this in preparing
materials for training Italian child representatives.
Annexed to this presentation is an Appendix which lists
some useful websites in the United Kingdom and Australia
so you can conduct your own research on the various overseas
I congratulate all of you for making the personal commitment
to learn how to become effective children’s lawyers.
Although I no longer work as a child representative, I
recall my experience as a separate representative for
children in the Family Court of Australia many years ago
with pride. The lawyer acting for the child has the great
satisfaction of knowing that he or she is always on the
right side. It is a most rewarding and worthy career to
I wish you all the best of luck in your work as lawyers
acting for children.