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 effectively.
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
scheme.
Introduction
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 interests representative)?
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 law).
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 family.
- 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 Court
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 principles include:
- The lawyer must make sure the child understands the proceedings.
- The child’s instructions must always be put to the Court,
whether or not the lawyer agrees with those instructions.
- 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 consequences.
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 hearings.
The Duty Lawyer Manual (Legal Aid Victoria)
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 care temporarily.
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,
Section 5).
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 representatives.
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 circumstances.
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 government funding.
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 care.
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!
Conclusions
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 models.
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 follow.
I wish you all the best of luck in your work as lawyers acting for
children.
David Truex
June 2003
