67 All court rules should require the guardian ad litem or next friend of a child to regard the best interests of the child as the paramount consideration in conducting proceedings on behalf of that child. The rules should stipulate that failure to consider the child’s best interests constitutes grounds for removal of the next friend or guardian ad litem by the court.
Implementation. The Federal and High Courts, along with State and Territory courts, are encouraged to amend their rules to this effect.
68 There should be a rebuttable presumption that a child over the age of 16 years living independently is competent to initiate or defend litigation.
Implementation. The Attorney-General should introduce legislation to this effect to apply to the Federal and High Courts and the rules of those courts should be amended to reflect that legislation. The Attorney-General through SCAG should encourage the States and Territories to enact similar legislation in State and Territory courts.
69 Court rules should be amended by the insertion of a subrule similar to that contained in the Family Law Rules O 23 r 3(1) whereby the court may require the appointment of a next friend for a child where the child has initiated proceedings directly but the court is satisfied that the child does not understand the nature and possible consequences of the proceedings or is not capable of conducting proceedings directly.
Implementation. The Federal and High Courts, along with State and Territory courts, are encouraged to amend their rules to this effect.
70 Clear standards for the representation of children in all family law and care and protection proceedings should be developed. Among other matters, these standards should require the following.
In all cases where a representative is appointed and the child is able and willing to express views or provide instructions, the representative should allow the child to direct the litigation as an adult client would. In deter-mining the basis of representation, the child’s willingness to participate and ability to communicate should guide the representative rather than any assessment of the ‘good judgment’ or level of maturity of the child.
Every child should be seen except in those rare instances where it is physically impossible for the representative to see the child. The representative should see the child as soon as possible and, in most instances, well before the first hearing.
The representative should meet with a verbal child at least before any sub-stantive proceeding or event at which important decisions are being made regarding the child or which are relevant to the representation of the child.
Contact with the child should occur where and when it is comfortable for the child not merely where and when it is convenient for the representative.
Even where the child is non-verbal, the representative should at least see the child, preferably in the child’s living environment.
The lawyer should use language appropriate to the age and maturity of the child.
The representative should employ appropriate listening techniques and provide non-judgmental support.
Preference should be given to face to face communication with the child rather than communication by telephone or in writing.
Implementation. Legal professional bodies, including the Law Council of Australia, law societies or institutes, bar associations and legal aid commissions should convene a working group to develop appropriate standards in consultation with young people and relevant youth agencies. The Family Court, children’s courts and OFC should be consulted in the development of these standards.
71 The standards should make the following provisions where the child is able to communicate and expresses wishes about the direction of the litigation.
Sufficient time should be devoted to each child to ensure that the child understands the nature of the proceedings and that the representative has established the child’s directions.
The representative should meet with the child often enough to maintain and develop the lawyer-client relationship.
When discussing the case with the child, the representative should use concrete examples and provide the client with a ‘road map’ of the interview and the legal process.
Younger children who wish to direct the litigation may be clear about their views on one or more issues to be decided but be unwilling to express a view on other matters. In such cases, the representative should make procedural decisions with a view to advancing the child’s stated position and should elicit whatever information and assistance the child is willing to provide. Representatives should seek the assistance of appropriate social scientists to assist them to ascertain the wishes and directions of younger children where necessary.
72 The standards should make the following provisions where the child is unable or unwilling to provide direction on the litigation.
Where a child is unable or unwilling to set the goals of the litigation, the representative should ensure that the court is aware of the fact and understands that the representation is to be on the basis of the best interests of the child.
Under no circumstances should the representative proceed if he or she is uncertain of the basis of representing the child.
Standards should specify functions of a representative acting in the best interests of a child. They should include
― to ensure that all relevant evidence, including any evidence that may contradict the assessment of the representative, is placed before the court
― to investigate all relevant facts, parties and people
― to subpoena all documents
― to retain experts as needed
― to observe the child in the caretaker’s setting and formulate optional plans
― to advocate zealously for the legal rights of the child including safety, visitation and sibling contact
― to challenge the basis for experts and agency conclusions to ensure accuracy
― to ensure that all relevant and material facts are put before the court.
73 Legislation should ensure that legal professional privilege applies to communications between the representative and the child in family law and care and protection matters even where the child is not the client of the representative. This privilege should be subject to the obligation of the representative to notify the court of matters
that may place at risk the safety or best interests of the child
that the court would otherwise not have access to and
that would be likely materially to affect the court’s deliberations.
Implementation. O 23 of the Family Law Rules and relevant State and Territory care and protection legislation should be amended accordingly.
74 The standards at recommendation 70 should require the representative to explain to the child at the first meeting the limits of the confidentiality that applies to their communications. Where it subsequently becomes clear that it will be necessary for the representative to disclose a communication with the child, the representative should meet with the child and formulate a strategy for that disclosure.
Implementation. The standards referred to at recommendation 70 should include a provision to that effect.
75 In cases where a representative is acting for more than one child the representative should carefully ascertain the views and instructions of each child. Where any divergence in instructions amounts to a conflict of interests for the representative, the representative should not represent all the children.
Implementation. Standards in recommendation 70 should make provision to that effect.
76 Where it appears to the representative that the child is unwilling or unable to express a view about the litigation and
the representative considers that the best interests of the child do not require that evidence be tested or adduced or
the representative is merely confirming the submissions of one party and is calling no independent evidence
the representative should apply, as early in the proceedings as possible, to be discharged.
Implementation. Standards for representatives of children in care and protection and family law litigation should make appropriate provision to this effect. Inclusion of a rule to this effect in O 23 of the Family Law Rules may assist as could express provision in relevant care and protection legislation.
77 A child who has been provided with a representative in family law or care and protection proceedings should be able to apply for the representative to be dismissed and request a second representative be engaged where the child has no confidence in the representative. The court should generally make such an order on application if the child can show the representative has failed to consult.
Implementation. Standards for representatives of children in care and protection and family law litigation should make appropriate provision to this effect. Inclusion of a rule to this effect in O 23 of the Family Law Rules and in relevant care and protection legislation may assist.
78 The memorandum filed by the court counsellor for the first directions hearing should contain information as to
whether the court will need to appoint a counsellor or other person to offer clinical interventions or professional advice to the child or the family
whether relevant reports are available from someone outside the court system and how they can be obtained
what other professionals, agencies and persons are already working with the child
whether any of those professionals would be prepared to
― maintain liaison with the court with a view to ensuring that the services already being provided to the child are not disrupted by the legal process
― act as a contact point for any legal representative appointed for the child by the court and
― where appropriate assist the legal representative in the case and help explain the court processes to the child
whether the child’s interests are being adequately addressed by the parties
whether or not a child should be assessed further
the substance of any wishes expressed by the child as to the outcome of the matter.
Implementation. Case Management Guidelines should be drafted to this effect.
79 The appointment of a representative for a child under s68L of the Family Law Act should be made as early as possible.
Implementation. Appointment of a representative should preferably be made at the first directions hearing by the registrar taking into account the assessment by the counsellor referred to at recommendation 78.
80 The role of the Family Court counsellor in providing family reports should be expanded and enhanced in appropriate cases, particularly where a child is unwilling or unable to engage with a representative. There should be more detailed early investigation and assessment of the best interests of the child in preparing family reports and the presentation to the court of the evidence upon which that assessment is based. This investigation should encompass many of the functions currently performed by the child’s representative including interviewing relevant people such as family members, school teachers and professionals involved with the child. Where a child is not represented, a co-ordinator/report writer should be responsible, where appropriate, for keeping the child informed about the progress of the litigation and may be asked to oversee and co-ordinate the management of the case.
Implementation. The Family Court should draft an amendment to O 25 of the Family Law Rules to this effect.
81 The order in which evidence is adduced at trial should be changed so that evidence relating to financial matters is heard after evidence concerning children’s issues to enable the child’s representative to be excused at the completion of the hearing of relevant evidence.
Implementation. The Family Court should amend the Family Law Rules and/or Case Management Guidelines, as appropriate, to this effect.
82 All children who are the subject of a care and protection application in the States and Territories should be provided with a lawyer as early as possible. The ethical principles and standards for representation are outlined at recommendations 70–76.
Implementation. The national care and protection standards proposed in recommendation 161 should include provisions to this effect.
83 Clinics similar to the Melbourne Children’s Court Clinic should be attached to children’s courts and adequately resourced to provide the court and legal representatives with expert advice on the best interests of the child.
Implementation. The Attorney-General through SCAG should encourage the States and Territories to introduce these clinics.
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.
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.
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.
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 should 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.
88 Legal aid for the representation of children should be nominated by each jurisdiction as an area of priority for funding. The Commonwealth and the States and Territories should make separate appropriations of funds for the representation of children in all jurisdictions, particularly care and protection, family law and juvenile justice. These funds should be administered by State and Territory legal aid commissions.
Implementation. The Attorney-General should negotiate with the States and Territories to secure separate appropriations of funds for children’s matters across all jurisdictions.
89 The effects of funding caps on children’s cases, particularly on repeat applications in family law cases, should be closely monitored. Further retrospective funding caps should not be introduced for children’s cases in any jurisdiction.
Implementation. State and Territory legal aid commissions should monitor the effects of caps on children’s cases and seek adjustments to funding agreements with the Commonwealth as appropriate.
90 Children’s eligibility for legal aid should not depend on the means of their parents in either family law or care and protection matters. However, the Family Court should have a discretion in appropriate cases to order the recovery of costs for representation of a child pursuant to s68L of the Family Law Act from either or both of the parties. These orders should be made only where the parties are able to meet the costs and where it is appropriate to do so. They should be made only on the court’s own motion or on the application of the child’s representative. Children who are full parties to family law proceedings that involve a parent should be subject to an individual legal aid means test independent of the parents.
Implementation. Commonwealth legal aid guidelines for family law should be amended to this effect and the Attorney-General should propose an appropriate amendment of s 117 of the Family Law Act.