Evaluating best interests representation

Introduction

13.49 The notion of best interests has three different applications. It is the principle upon which decisions concerning children are made and which requires decision makers to prefer the interests of children over any other competing interests. Prior to the 1995 amendments to the Family Law Act, the best interests principle also applied to procedural matters in the Family Court.^[111] The third use presents the principle as the basis of advocacy for children.

13.50 The best interests model of representation is often regarded very positively and some of the benefits are described in this section. However, there are a number of concerns deriving from the position of the child in the litigation and the representative’s relationships with the child and the court.

Protecting the child

13.51 Best interests representation is claimed to allow children to express an opinion without feeling responsible for the ultimate decision. For this reason, it can help to minimise the tension between parents and children involved in family law or care and protection litigation. Several submissions to the Inquiry advised that encouraging and facilitating children’s participation should not be confused with burdening children with decision making.^[112] The Law Council of Australia argued that any other form of representation by children in proceedings between disputing parents

…would only add to the stresses and emotions experienced by the children at that time in their lives. Children’s rights include the opportunity to have an ongoing relationship with each of their parents after the litigation has concluded and to be protected from the effects of parental disputation as far as possible.^[113]

Another submission suggested

[t]he many matters which lead family arrangements to break down are in most instances beyond the responsibility of a child and participation in dispute resolution risks giving a message to children that belies this fact.^[114]

Participation by the child

13.52 In Re K the Family Court declared itself satisfied that the guidelines it established in that case^[115] were ‘…not only consistent with the requirements of Articles 9 and 12 of the Convention on the Rights of the Child, but further these objects’.^[116] Some submissions to the Inquiry considered that the best interests principle as the basis of advocacy is appropriate so long as the wishes of the child form one part of the advocate’s assessment of those interests. For example one submission accepted the value of the model on the basis that the provision of the representative ‘…does not preclude consideration of the child voicing their concerns directly to the Court’.^[117] It noted

…representatives need to present to the Court the wishes of the child in conjunction with… aspects or issues relevant to the best interests of the child.^[118]

13.53 However, the major criticism of the model is that it effectively denies competent children the right to instruct their advocates even where they are directly involved in a case.^[119] The best interests model of advocacy for children is based on the assumption that children lack the judgment of adults. It is generally considered that adolescents, even those who are cognitively mature, are more influenced by others in their decision making, more impulsive and less averse to risk taking than adults.^[120] As a consequence, the social and personal costs to the development of the child of allowing adolescents to exercise this limited judgment are said to be too great.^[121] These assumptions are now being challenged.^[122] Many children have the maturity and judgment to direct their lawyer just as many adults have limited maturity and poor judgment but instruct legal representatives. The fact that a child’s views may be editorialised or discounted for no reason other than that the representative disagrees with those views effectively holds children to a higher standard than adults.^[123]

13.54 One submission noted

I am of the view that children are entitled to be represented before the Courts by a properly qualified legal practitioner acting as the child’s advocate in the traditional sense. There are certainly advantages to be gained by having a next friend or guardian ad litem appointed to represent the “interests of” the child rather than the child per se, however, I think it presumptuous and paternalistic to suggest that the child should have no independent “mouthpiece” through which to put his or her own views.^[124]

13.55 Children may better accept decisions that they understand and have participated in making.^[125] In the young people’s survey conducted during the Inquiry 85% of 623 child respondents indicated that children should have a greater say in family law decisions, many stating children should be able to choose where they are to live.^[126] The inclusion in the Family Law Act of the wishes of the child as one of the primary determining factors in deciding the best interests of a child gives some voice to children in the process.^[127] However, providing effective representation for children is crucial to assisting them to participate in the decision-making process. As one commentator noted,

[b]eing heard, even though an official or professional considers that one is wrong, is a necessary aspect of justice; a right to a hearing in a decision-making process may of itself fulfil a psychological need, regardless of the practical conclusion reached.^[128]

There is evidence that the increased sense of control by effective participation in these processes is strongly related to the health, both psychological and physical, of the child.^[129]

13.56 Many children feel marginalised by the imposition of best interests advocacy. One study quoted a 9 year old child.

Why is it that everyone is talking about my future and what’s going to happen to me and I’m the only one who doesn’t get to have a say in it?^[130]

13.57 Children expect the best interests representative to advocate for their wishes and act as their lawyer. Children in a study of the NSW care and protection jurisdiction generally expected their lawyer to act as an advocate or interpreter of their views. Few of the lawyers who contributed to the study perceived that to be their role.^[131] Many submissions to the Inquiry referred to children’s disappointment and frustration at what they perceived to be the failure of the best interests representative to advocate according to their wishes.^[132] One submission referred to the ‘…feeling of helplessness by the young people in that they didn’t feel they were being listened to or believed…’^[133] Another quoted a child who said

…I knew I could have my say, and not being able to have my say was really frustrating. I worried the wrong decision would be made. The lawyer did not say what I wanted in Court.^[134]

A 12 year old girl in Queensland indicated that her representative would not speak to her despite her and her mother’s requests that he do so. She told the Inquiry that she desperately wanted someone to tell the judge her wishes for the outcome of her parents’ long running dispute about parental responsibility. She suggested that a child should be provided with either a psychologist who could be appointed by the court to be the child’s ‘defender’ or a solicitor who could advocate for the child as ‘…a solicitor, not a sep rep, just like the adults…’ She commented that she knows what she wants, and why, and she should be the one to decide where she should live.^[135]

13.58 The Inquiry received many complaints about lawyers who did not speak to the child and who did not convey all relevant information from or concerning the child to the court. Some submissions maintained that many best interests representatives do not meet or interview the child but rely solely on the assessment of their chosen social scientists to determine the best interests of the child.^[136] One submission stated that ‘[o]ften the separate representative for the child has never met the child let alone attempted to understand the child’s point of view’.^[137] Another problem is illustrated by the following account.

Recently in Alice Springs a Separate Representative was appointed in regard to two aboriginal children aged 13 and 10 years respectively. The children resided with their mother in a community in far north Western Australia. The paternal grandparents, Arrente people from the Centre were seeking contact with the children. The Separate Representative sought the children’s wishes over the telephone. The Separate Representative then presented those discussions to the Court as being the true wishes of the children. The Separate Representative had little experience with aboriginal children. And it is remarkable that the Separate Representative believed that it was appropriate or possible to obtain instructions over the telephone with such young children.^[138]

In each of these circumstances the value for the child of having a representative at all is doubtful.

Role confusion

13.59 Lawyers have different perceptions of their role as the best interests representative. A submission to the Inquiry pointed out

[i]n practice, private solicitors are appointed as child representatives and there has been some confusion as to the extent of the role, the duty to “follow instructions”, the duty to assist the court and the duty to co-ordinate. The practice in each state and territory differs as a result of the evolution of the role in the various registries and among practitioners.^[139]

A study in the Canberra and Melbourne registries of the Family Court indicated that practitioners had a number of different approaches to the role as best interests representatives. These were

…the legal advocate model, in which they advocated for the child’s best interests, the settler of the dispute model, in which they advocated for the child and saw the settling of the dispute as a high priority, and the social worker model, in which they advocated for the child and monitored for the child’s welfare^[140]

13.60 Best interests advocacy can present the representative with a confusion of roles.^[141] The representative is asked to conduct investigations and make assessments that are properly within the area of expertise of social scientists. The representative advocates the case on the basis of his or her assessment, in effect making ‘…legal decisions that are properly in the province of the judiciary’.^[142] The Family Court has cited an English case as providing a useful summary of the role of the best interests representative in Australia.^[143] That English case noted that the role requires ‘…a multiple function…’ since the advocate

…acted not only as the child’s solicitor and spokesman but also as an officer of the court with an independent brief to investigate issues of fact or divergent expert opinion and address the court as to the requirements of the best interests of the child. Instances would be bound to occur when the reconciliation of all those functions would be impossible…^[144]

One of the difficulties with the model has been expressed

…to be that a significant amount of discretion is left to the practitioner to carry out appropriate/proper investigations (often there are no available instructions); evaluate such results (in both instances does the practitioner have the skills/education/training necessary); and then make a decision as to what materials to be put before the court (in the best interests of the child). The separate representative is being asked to act impartially but non-neutrally…^[145]

13.61 The Family Court in E and E confirmed that legal representatives should not accept a role that is outside the area of their expertise.^[146] In that case, the representative interviewed the parties and grandparents, visited their respective homes and observed the relationship between the parties and the child and made her own assessments of the reliability and maturity of the child and of the relevant adults. The court commented that the representative had misunderstood the role.^[147] Best interests representatives, the court held, may collect material for cross-examination and employ the services of expert witnesses. However, they should not leave themselves open to being called as a witness and should not make statements they are not qualified to make.^[148] Even so, several submissions to the Inquiry confirmed that

[a]t present the role of the separate representative is confused and at times may be more akin to the role of psychologist or social worker than that of a legal advocate.^[149]

Locating the representative’s instructions

13.62 As noted above, the child is not the client of the best interests representative.^[150] In the absence of a client the lawyer has no instructions and is not bound by any directions given by the child. In the absence of a separate guardian ad litem to provide instructions, the representative is required to conduct the case according to his or her assessment of the matter.

13.63 The representative is not required to present to the court all relevant evidence, as would an amicus curiae. He or she is required to present to the court only evidence that supports the particular submission to be made by the representative. Assessments and decisions are necessarily made by the representative in this process. The best interests representative chooses evidence to be collected, appoints an expert and supplies information on the case to the expert. In making submissions on the child’s best interests, the representative is guided by his or her own view of the child’s best interests. In E and E, Strauss J commented that the representative ‘…made a number of inferences a judge might draw from facts, but which themselves were not facts’.^[151] The functions required of best interests advocates run the risk that a representative may unconsciously introduce personal and inappropriate judgments into the investigation and presentation of information to experts and the court. These judgments intrude on part of the judicial function. None of the decisions made by the representative in this regard is open to the scrutiny of the court. Best interests advocacy gives an unexaminable discretion to legal representatives.^[152]

13.64 In some cases, particularly in relation to very young children or those who are unwilling to participate, the representative may add nothing of substance to assist the court to determine the issues. In other cases the conclusions reached and the submissions made by the representative may add to the rancour of the litigation by simply supporting one party, creating a perception of ‘two against one’ that does not assist in the resolution of the dispute.