1 Contrasting children s participation in Family law and Child Protection proceedings. Creative solutions might be found to meeting children s protection and participation rights by comparing the way they participate in these two different jurisdictions Nicola Ross, Lecturer, Newcastle Law School, University of Newcastle; PhD candidate University of Sydney
2 Anna s story: Family Law Anna, an Independent Children s Lawyer, supported a 15 year old girl to achieve her desire to move into her father s care, when she was being physically assaulted by her mother and mother s new partner, and was very fearful of further abuse...
3 Karl s stories: Family Law and Child Protection Family Law Story about FM s refusal to consider 17 year old girl s wish to attend court in relation to name change application Child Protection Story of support for 9 year old abandoned child to meet Magistrate and observe final orders being handed down.
4 Wendy s story... Wendy found herself putting pressure on a hugely hostile 14 year old child to participate in an interview in a short period of time so that she could fulfil the court s agenda of considering the child s views.
5 Empirical study Qualitative study 35 children s lawyers in NSW (Australia) 2006 family law, child protection and criminal proceedings Semi-structured interview format, vignettes and in-depth case studies
6 Context The Convention on the Rights of the Child : Article 12 children s participation rights Growing legal recognition and conceptions of children as active/competent citizens New visibility of children s perspectives from research
7 Children s participation in family law proceedings: what does research tell us? Children exhibit competence in response to their context and the extent to which lawyers can scaffold their participation Children who do not have a voice in their family may want a voice in legal proceedings Children believe they have a right to be heard in decisionmaking processes and that their views improve outcomes.
8 Children s participation in child protection proceedings: what does research tell us? Children want to be listened to and treated with respect by their legal representative They want to know their perspective has been taken seriously and included in the proceedings through their lawyer They want to understand the lawyer's role and legal process and how they can participate in decision-making. They may wish to have greater influence in child protection proceedings (Cashmore & Bussey 1994; Masson & Winn Oakley 1999; Block et al 2010)
9 Children s participation in family law proceedings in Australia Children can participate... Not at all (this is common) Via Family Reports prepared by a Family Consultant or other expert. They may be interviewed as part of the Child Responsive Program and have their views fed back to their parents. Via the Independent Children s Lawyer (ICL) As a party (this is very rare)
10 Children s participation in child protection proceedings in New South Wales -Principle of participation (s 9, s 10) -Right of appearance (s 98) -Right to have proceedings explained & to participate to fullest extent (s95) Children can participate... In decisions made by the DoHS Via Children s Court clinic reports Via representation by a lawyer (on a best interests or direct basis) Directly by giving evidence (Not required to do so under s 98)
11 The complex role of Independent Children s lawyers (representing children in family law proceedings) This best interests role includes: Assisting the judge to determine the best interests of children Protecting the child from harmful impacts of the proceedings Assisting parties to resolve the dispute Facilitating the child s participation in the proceedings, i.e. Ensuring any views the child expresses are put before the court
12 The complex role of lawyers representing children in NSW child protection proceedings Independent legal representative* for children under 12 years - best interests model - presumption of incapacity to instruct Legal representative* for children over 12 years - direct representation model - presumption of capacity to instruct * Amendments in 2006 meant the age increased from 10 to 12 years
13 Guidance for lawyers representation of children in family & child protection proceedings (NSW) Legislation Other legislative directions relating to children s participation Legal Aid Guidelines/ Practice standards Representation principles for Children s Lawyers Accreditation training: e.g. 2 day national ICL training (family)
14 Research findings... The extent to which lawyers support children s participation in legal proceedings is affected by: (1) The nature of the proceedings and discourses operating in the jurisdiction (2) The model of legal representation and (3) Individual lawyer s training, values, and skills
15 (1) Nature of the proceedings in the jurisdiction Family Law Private law: private applicants Parties are parents or family members; No independent body represents child s BI Emphasis on maintaining relationships; parental decision-making; child s wellbeing Strong concerns re harm caused by child s involvement in dispute; acceptance of need to hear the child s views Child Protection Public law: state intervenes Parties are parents, family members, Child welfare authority (represents child s BI) Emphasis on maintaining child s safety & wellbeing and provision of alternative support if necessary Strong concerns re harm caused by parents; acceptance of child s right to be heard and to participate in the matter.
16 Discourses in family law and child protection Three discourses were evident in lawyers thinking: Welfare/protective Child development Children s rights The first two discourses were dominant and there was stronger support for protection than participation. A stronger discourse emphasising children s rights to participation was evident in lawyers thinking in child protection. Lawyers revealed conceptions of children as active and capable of contributing to decision-making. (Echoed in the case studies)
17 (2) Models of Legal representation for children Best interest and direct models have developed internationally and in Australia since the 1970s Different impetus for development in different jurisdictions: - extending civil rights (crime); - helping judge make decisions about children s welfare & keep focus on child (family) - focus on child s interests and participation (child protection) Both models developed with scant regard for how lawyers training, values and skills prepare them for practice with children
18 Best Interests: Family Law Child protection (child<10) Clear role in legislation, National Legal Aid Guidelines and Family Courts case law Guidelines (not legislation) emphasise need for lawyers to meet and develop professional relationship with children Many children very young Less time with children (sometimes no contact) likely to lead to reduced rapport Direct representation: Child protection child>10) Limited development of direct role in legislation or case law (Children s Court cases not reported) Model assumes child has similar characteristics to an adult; Lawyers expressed difficulties taking instructions and with scaffolding children s understanding.
19 (3) Factors operating at the individual level While legislation, guidelines, practice directions and professional standards provide ethical guidance and constrain the actions of independent children s lawyers to some extent, they do not define a moral approach or provide values to guide lawyer s behavior and choices about what kind of lawyer to be.
20 Different ethical approaches Parker (2004) Parker and Evans (2007) have identified that lawyers have different approaches to legal ethic (see also Banks 2007). In this study lawyers views about participation depended on the type of approach they adopted: Relational lawyers (ethics of care) focused on their responsibility to children/their families and relationships and were more likely to develop rapport with children. Responsible lawyers focused on duties to the court: contact with children was limited to meeting the court s needs. Rapport was developed for more instrumental reasons.
21 Lawyers attitudes to children s participation: legal conceptions of children s competence During the interviews lawyers revealed the strength of prevailing images of children. Lawyers tended to view younger children, less than 8 years of age, as rarely able to contribute meaningfully to specific arrangements. Some lawyers carefully circumscribed just which children should be able to contribute to decision-making.
22 Lawyers beliefs about children s views: Family Law Were subject to parental influence and did not therefore always represent their true views; Were of limited value (due to traditional legal conceptions of competence) Child Protection Less concern about parental influence Some thought children's views could be an important contribution to decision-making
23 What do lawyers mean when they refer to children s participation?
24 Support for different kinds of participation (family law) Indirect participation Most were more supportive of participation through the ICL and through family consultants Some lawyers did not provide information about options for participation or only did so when asked by the child. Direct participation Generally did not support direct participation, such as going to court or speaking to judges. Few lawyers felt it was their responsibility to outline options to participate,: without this the children could not participate. (Denis)
25 Comparison of support for direct involvement in family law and child protection proceedings Research findings: Family Courts Right of appearance in Act No Yes Participation principle in Act No Yes Judges welcome children No Yes Lawyers pass on child s request to speak to judge (vignette) NSW Children s Courts 6/12 11/13 Lawyers encourage children s attendance at court 2/12 6/13
26 Summary: influences on practice at the individual level (1) Approaches to legal ethics: responsible/relational lawyers (2) Legal conceptions of children s capacity (3) Concerns that children s views were not authentic as subject to parental influence (4) Protective discourses: concerns that professional relationships with children might harm them due to lawyers poor skills or concerns about systems abuse; (5) Lack of time and financial incentives to meet with children.
27 Limitations of current framework Lawyers will not always have the time, funding or skills to put children at ease or develop a trusting relationship: children s lack of desire to be involved may be a choice made in the context of a lack of time and skills.
28 Family law Comparing representation Lawyers greater concern about parental pressure on children Lawyers relied more on expert reports Child Protection Lawyers thought children were heard in more matters Lawyers met more with children they represented directly Lawyers more likely to develop professional relationships Both: Lawyers who emphasised their role in supporting children s participation developed closer professional relationships
29 Where to from here? Closing the gap between children s aspirations and lawyers support for participation: Improve the context of representation: Amend legislative/ funding frameworks to value participation and children s perspectives on child representation; Incorporate clear participation principles in best interests and direct models (in legislation etc) Encourage judicial officer s support for participation Develop feedback and accountability mechanisms
30 We need to develop lawyers capacity to support children s participation Extend lawyers capacity to work with children 1. Extend lawyers training to include: - rationales for participation; - ethics of care approaches; - more training in child development, family dynamics etc - communication skills, supporting participation and protection - A national child protection training program for lawyers? 2. Select lawyers with ethical approaches and the skills to develop professional relationships with children My thanks to those lawyers who participated in this study, The NSW Legal Aid Commission, and my PhD supervisors: Professor Patrick Parkinson and Associate Professor Judy Cashmore
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