13.123 Interviewing and taking adequate instructions from children are important skills for any representative and advocate for children. The Inquiry received a number of submissions stressing the need for training for children’s representatives in the Family Court. There was not the same concern for training of children’s advocates in other courts. It was pointed out that representation of children is a speciality area and representatives should receive specific and substantial training. The National Children’s and Youth Law Centre described reports of poor quality and inconsistency among privately funded duty solicitors. An overwhelming complaint children make is that neither the processes nor the outcomes of litigation are properly explained to them.
13.124 Inquiry was told that training for representatives should include
…factors related to children’s memory and suggestibility, the development and use of language and an understanding of how children view and understand the world around them. They need to be able to communicate effectively with children and to be able to translate the child’s needs and issues into the adult context of the world.
13.125 The SA Department of Family and Community Services recommended
…that knowledge of child development be included as a core component of any training. The capacity to represent children continues to be compromised by lack of comprehensible (to the child) language during interviews and lack of understanding about the impact of certain experiences upon children’s different ages.
At the very least, legal representatives for children should be able to communicate effectively with their child clients.
13.126 One submission noted that ‘[a] reliance on multi-disciplinary training expects too much of one person in a complex area …’ Referral is a particularly important skill for representatives for children. Training should address the need to ensure that lawyers realise the limits of their expertise and are aware of the need for referral.
13.127 The Law Council of Australia, National Legal Aid and the College of Law have developed and implemented during 1996 a training program for children’s representatives in the Family Court. The training program covers technical procedural and legal issues and provides some understanding of family dynamics including domestic violence and sexual abuse allegations. It has a component on child development including techniques for ascertaining children’s wishes. This initiative is commendable and should be extended to provide more detailed training on a regular basis once all practising child’s representatives have received initial training. The extension of the training program to include care and protection representatives should also be considered.
13.128 A multidisciplinary team from Monash University is researching the handling of matters in the Family Court in which allegations of child abuse had been made. This team told the Inquiry that it
…has made a proposal to Monash University that it establish a multi-disciplinary teaching and research centre to develop and transmit the knowledge which is urgently needed for the new services developing at the welfare/law interface around children and their families.
13.129 There is also an undergraduate course offered at the School of Law at Flinders University in South Australia in relation to children and the law and interviewing children. The Inquiry strongly encourages the continued development of training courses for representatives for children. These programs should begin with undergraduate legal studies and should provide continuing legal education for practitioners.
13.130 Legal aid commissions now generally appoint as representatives for children only those who have undertaken the child’s representatives training program. Representatives for children should be skilled in this area but in some cases restricting legal aid grants to accredited representatives could undermine children’s right to choose representatives in whom they have confidence. One submission noted that ‘[e]xperience is often matched by enthusiasm and the role that young lawyers play around Australia in representing children is often unfairly ignored’. Representatives directly chosen by children should be eligible for legal aid grants.
13.131 In all jurisdictions solicitors employed within the legal aid commission provide legal assistance to children. Expertise in children’s issues is developed as much by specialist units within legal aid commissions that set the standards for all practitioners as by training. Specialist units that provide representation for children across all jurisdictions — federal, State and Territory — may be hindered by funding arrangements. Nevertheless, the lack of specialist expertise in representing children makes it important to ensure that cross-jurisdictional units specialising in children’s representation generally, rather than in representation within each jurisdiction, are developed.
13.132 There are two specialist children’s community legal centres in Australia — the Youth Advocacy Centre in Brisbane and the Youth Legal Service in Perth. The National Children’s and Youth Law Centre generates policy proposals and concentrates on providing advocacy for children on a systemic basis. Several other generalist legal centres have a specialist children’s law position. The specialist centres and representatives are successful in providing assistance to individual children and raising the priority of children’s issues on a systemic level out of proportion to their numbers and funding levels. One submission to the Inquiry provided the following case studies illustrative of the services provided.
An 11 year old boy with Attention Deficit Disorder rang a community legal centre in tears saying that he had been told that he had to do his work at home because of his behaviour. He had received no special assistance with his learning disability and was becoming more and more frustrated at school which exacerbated his behavioural problems. The community legal centre wrote to the Department of School Education to negotiate with them about the child returning to school and getting some support. A complaint was made to the Anti-Discrimination Board alleging discrimination on the basis of his disabilities and a resolution was finally reached.
A former state ward has made allegations about being assaulted and neglected whilst in foster care. A community legal centre has commenced an action in the Supreme Court for negligence, for breach of statutory duty and breach of fiduciary duty.
These advocates provide significant services to children on a very cost-effective basis. A greater number of these positions, preferably located within specialist children’s legal centres, should be funded.
Recommendation 84. Multi-disciplinary training for lawyers and social scientists working in the area of children and the law should be developed. This training should form part of tertiary studies in law at undergraduate and postgraduate level and professional training and education by existing continuing professional education and specialist accreditation processes.
Implementation. The Commonwealth should make grants available through DEETYA or the Attorney-General’s Department to support the development of suitable training programs.
Recommendation 85. The practice of children’s law in the Family Court and State and Territory children’s courts should be developed as an area of specialisation. Children’s representatives in all jurisdictions should receive appropriate training in children’s development and cognition and in interviewing children. Legal aid grants should generally be restricted to lawyers accredited as qualified children’s representatives. However, exceptions to this requirement should be made where there is good reason to do so.
Implementation. The Attorney-General through SCAG should seek agreement of the States and Territories to the development of specialist accreditation programs in children’s law for practice in children’s courts and the Family Court and to the introduction of appropriate legal aid guidelines.
Recommendation 86. Specialist children’s units should be established within the legal aid commission of each State and Territory to work on children’s issues in federal, State and Territory jurisdictions. The units should provide representation for children in family law, care and protection and juvenile justice matters, before tribunals and in pursuing complaints.
- These units should be staffed by lawyers experienced in representing children and skilled in working and communicating with children. Social workers trained and experienced in working with children should also be employed in these units.
- All legal and social work staff in the units should receive regular training on the law and social science practice in relation to children, child development and cognition, interviewing and communicating with children and cross-cultural awareness.
Implementation. The Attorney-General should negotiate with the States and Territories concerning the establishment, operation, staffing, training and funding of children’s units to be operated by legal aid commissions.
Recommendation 87. In addition to these specialist units within legal aid commissions, legal advocates for children should be funded within specialist children’s legal centres or generalist community legal centres. Initially, at least one legal advocate position should be funded in each State and Territory in addition to the existing positions. These advocates could form part of the advocacy network proposed at recommendation 9 and should be able to work on cases for individual children, matters of public interest and test cases. They should provide legal advice, information, assistance and representation to children and their families.
Implementation. The Attorney-General should take the necessary steps to fund these children’s legal advocates.
 eg National Children’s and Youth Law Centre IP Submission 12; T Brown et al Monash University IP Submission 47; B Burt IP Submission 92; SA Dept of Family and Community Services IP Submission 110; J Benfer et al IP Submission 119; Council of Single Mothers and Their Children IP Submission 124; Child Health Council of SA IP Submission 146; SA Children’s Interests Bureau IP Submission 156; Berry Street IP Submission 159; Australian Association of Social Workers IP Submission 207.
IP Submission 12.
 eg Berry Street IP Submission 159; Alice Springs Focus Group 19 July 1996.
 Australian Association of Social Workers IP Submission 207.
IP Submission 110. See also SA Children’s Interest Bureau IP Submission 156.
 Council of Single Mothers and Their Children IP Submission 124; Brisbane Practitioners’ Forum 29 July 1996.
 National Children’s and Youth Law Centre DRP Submission 59.
 Family Law Section Law Council of Australia, National Legal Aid & College of Law A Child’s Voice: National Training Program for the Separate Representatives of Children Appointed Under the Family Law Act in the Family Court of Australia Family Law Section Law Council of Australia, National Legal Aid & College of Law Canberra 1996.
 T Brown et al Monash University IP Submission 47.
 Course materials Bachelor of Laws Litigation Course Flinders University 1996 Handouts 5, 6. See also Action for Children SA IP Submission 189.
 G Quinlivan, Qld Legal Aid Minutes of Meeting Brisbane 30 July 1996.
 D Sandor DRP Submission 30.
 National Children’s and Youth Law Centre DRP Submission 59.
 See para 13.138.
 National Children’s and Youth Law Centre IP Submission 12.
 ibid. Four specialist positions were funded under The Justice Statement Attorney-General’s Dept Canberra 1995, 113.
 NSW Youth Justice Coalition IP Submission 4.