Alternatives to best interests advocacy

Introduction

13.65 These concerns about best interests representation prompted a variety of suggestions for reform from children, parents and professional participants in the system. The alternatives to the model of best interests advocacy as developed in Australia and internationally are the team approach and the provision of representation to children on the basis of their instructions.

Two representatives acting as a team

13.66 The team approach seeks to separate the different functions asked of the representative in the best interests model. In the team approach, the lawyer is not required to investigate directly and assess the best interests of the child or to reach conclusions that it is argued he or she may not be equipped to make. The representative takes instructions in the usual manner from an appropriately trained and qualified social scientist who is responsible for the assessment of the child's circumstances and the determination of the child's best interests.

13.67 This option received considerable support in submissions to the Inquiry.[153]

We recommend greater adoption in the Family Court, care and protection and juvenile justice proceedings, of "cross-profession" or "conjoint" advocacy since these would appear to provide greater opportunities for the advancement of children's interests in the context of legal proceedings as opposed to the traditional "direct instruction with supplementary Court Report" model.[154]

It is submitted that a team approach consisting of a solicitor and a child counsellor or social worker is a more appropriate approach than simply a solicitor, particularly where the child is likely to be interviewed and "advised" by the solicitor.[155]

There is a strong argument for an approach to separate representation of children which utilises the different but complementary skills of lawyers and social service professionals working as a team.[156]

One commentator suggested that the team approach should be '...an indispensable part of the process'. It '...would soften the apparent role conflict/confusion which in turn appears to place a heavy responsibility and burden on the separate representative.'[157]

13.68 The team approach is commonly taken in the US and the UK.[158] A US commentator has suggested that the team approach frees the lay advocate or social scientist to

...focus on fact finding, relationship building, communication and monitoring. The attorney can provide the vehicle to ensure that the lay advocate has access to necessary information, is appropriately informed of changes to the child's or family's circumstances, is provided with notice of all hearings and administrative reviews, and is recognised by the court as a key player in the decision making process.[159]

13.69 There have been a number of significant recommendations for the introduction of a team approach to representation of children in the Family Court. In a 1989 report Representation of Children in Family Law Proceedings, the Family Law Council recommended that the role of the best interests representative should be undertaken by a team comprising a solicitor and a social worker.[160]

13.70 More recently the Family Law Council report Involving and Representing Children in Family Law proposed the introduction of a co-ordinator in addition to a separate representative in family law proceedings.[161] Under this model the representative's role would be broadly the same as it is at present and the representative would retain control over the conduct of the child's case in the court. The co-ordinator, on the other hand, would perform such functions as producing a report on the child's best interests, interposing the child's interests in discussions between the relevant parties, working with the representative and explaining some of the processes to the child.[162] The Council argued that early and co-operative involvement of an appropriate social science professional may well reduce the need for a representative, and for litigated solutions, in some cases.[163] The proposal aims at an efficient, co-ordinated response to the child's needs.

13.71 The ALRC, in its report For the Sake of the Kids: Complex Contact Cases and the Family Court, recommended that the Family Court trial both a case team and a co-ordinator approach and reconsider the effectiveness of each after the trial period.[164] The co-ordinator option is considered in more detail below.[165]

13.72 Legal representatives and the Family Court Counselling Service operate independently of one another. In Demetriou and Demetriou the Family Court proposed little contact between the representative and the court counsellor.[166] However, more recently the Chief Justice has written that he considers this position to be wrong in principle and '...antithetical to the interests of the child or children in question'.[167] In September 1996 a committee headed by Judicial Registrar Smith in Representing the Child's Interests in the Family Court of Australia recommended closer ties between the representative and the Family Court counselling service.[168] It suggested that the counsellor should discuss some issues arising from confidential counselling with the representative.[169] However, the committee did not recommend that the representative and the counsellor work as a team as it was considered that this may fetter the independence of the representative.[170]

13.73 A team approach has substantial benefits. The role confusion of a best interests legal representative is reduced and the intervention of a social scientist allows the representative to advocate according to the instructions or advice of the social scientist. However, it still suffers from many of the problems that beset best interests advocacy in Australian jurisdictions. It retains the problem of paternalism and does not provide children with advocacy of their instructions or wishes. In fact, it adds an extra participant between the child and the decision-maker, the court. This may lead to greater editorialisation of the views and wishes of the child.[171] It is also particularly resource intensive. The Inquiry has not recommended the introduction of a team approach as a solution to the problems posed by best interests advocacy.

Direct representation of children

13.74 The second alternative to best interests representation is direct representation of children's wishes. This allows the child to direct the litigation. This model operates in several care and protection jurisdictions.[172] Several submissions to the Inquiry supported its more general application in family law and care and protection proceedings. One submission noted

...children and young people need to appear as parties with an entitlement to legal representation to act on their instructions. Without this there is not full participation in court proceedings as envisaged by Article 12 [of CROC].[173]

Another suggested

[i]n cases that involve older children, they often want to be heard directly in the proceedings....Such young people should be given the opportunity to use the standard representation model.[174]

13.75 This model of representation provides the child with a direct voice in the decision making process. However, some submissions to the Inquiry expressed concern that direct representation of children on their instructions in family law or care and protection litigation may not be in their objective best interests in that children could manipulate parents or other parties for their own short term or other inappropriate ends. Direct representation, it was argued, also may encourage parents to impose their wishes on the child and overbear the child's real wishes.[175] The Queensland Law Society suggested that the direct representational model of advocacy is not appropriate.

    • It would increase the pressure upon a child to express a wish.

    • It may unnecessarily align children with one parent against the other parent.

    • It may damage the long term relationship of the child with one parent.

    • It may inappropriately empower children enabling them to play one parent off against the other in a way that may not be in the child's interests.

    • It would increase rewards to a parent who was prepared to inappropriately pressure a child.[176]

An American commentator has noted

[t]he knowledge that the lawyer will advocate the point of view expressed by the child can encourage parents to engage in direct or indirect pressure on the child. Competition for the child's preference can profoundly distort family life and is damaging to children.[177]

13.76 However, advocating for children's wishes and assisting them to direct litigation, if performed well, does not require children to make a bald choice between two parents. Discussion with a child allows the child's preference to be framed while minimising any damage to relationships and reducing the pressure on the child. A representative

...can reduce the burden on a child to favour one parent over another. A child may have a wish to maintain relationships with both parents, to enjoy a particular activity or some time alone with one parent, to continue in a particular school, or not to be separated from a sibling.[178]

While it is inappropriate to ask children involved in custody disputes which parent they prefer to live with, it is appropriate to ask them about specific aspects of their daily lives that are of immediate concern to them and which may be more affected by living with one parent rather than the other. Children often ask , for example, 'Will I be able to stay at the same school? When will I be able to see my friends? Will I still be able to play soccer? And so on.[179]

13.77 It has been argued that

[c]oncern with the effects of asking the child to choose between parents is misplaced in that usually children already have been exposed to the trauma of parental discord. Moreover, not to explore this would be to join in their denial and in the broader conspiracy of silence around them.[180]

13.78 Some submissions argued that a child's instructions may not only be contrary to the best interests of the child but may actually place the child in a situation of risk or danger. A scenario that is often raised in this context is a child's desire to return home to face the apparent certainty of serious abuse. For example, in a Canadian case of In re AW, a child wanted overnight unsupervised access with her father who had been released from prison after a four year sentence for sexually assaulting her.[181] Again, acting on the directions of a child does not mean that the representative is prevented from discussing the decision with the child and negotiating a course of action that conforms with the child's directions while protecting the safety and well-being of the child. It does not mean that the court has to decide the case on the basis of the child's wishes. On the contrary, it leaves the determination of the child's best interests where it should be, as the paramount responsibility of the court.

13.79 Direct legal representation avoids the role confusion associated with best interests advocacy by establishing a lawyer-client relationship between the representative and the child. It allows children to participate directly in proceedings if they are able and willing to do so.

[153] eg Geelong Rape Crisis Centre DRP Submission 61; T Brown et al Monash University IP Submission 47; SA Dept of Family & Community Services IP Submission 110; Family Services Council IP Submission 122; Australian Psychological Society IP Submission 131; Geelong Rape Crisis Centre IP Submission 151; SA Children's Interest Bureau IP Submission 156; Law Society of NSW IP Submission 209; Burnside IP Submission 214. See also Parents Without Rights IP Submission 32; Australian Association of Social Workers IP Submission 207.

[154] Australian Psychological Society IP Submission 131.

[155] Feminist Lawyers IP Submission 177.

[156] SA Dept of Family & Community Services IP Submission 110. See also Parents Without Rights IP Submission 32.

[157] F Castiglione 'Present difficulties of role conflict and accountability of the separate legal representative' Fifth National Family Law Conference 8–12 September 1992 Business Law Education Centre Melbourne 1992, 287.

[158] See paras 13.44-47.

[159] D Levine 'To assert children's rights or promote children's needs: How to attain both goals' (1996) 64 Fordham Law Review 2023, 2029.

[160] AGPS Canberra 1989. See also TL Muhlhauser & DD Knowlton 'The "best interests team": Exploring the concept of a guardian ad litem team' [1995] 71 North Dakota Law Review 1021.

[161] Family Law Council Canberra 1996.

[162] id 31–33.

[163] id 33.

[164] Report 73 For the Sake of the Kids: Complex Contact Cases and the Family Court ALRC Canberra 1995, 51.

[165] See para 13.116.

[166] (1976) FLC ¶90–102.

[167] Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 13.

[168] Report to the Chief Justice of the Family Court of AustraliaFamily Court of Australia Brisbane 1996.

[169] Family Court of Australia Representing the Child's Interests in the Family Court: Report to the Chief Justice of the Family Court of Australia Family Court of Australia Brisbane 1996, 27–29.

[170] id 31.

[171] See eg D Levine 'To assert children's rights or promote children's needs: How to attain both goals' (1996) 64 Fordham Law Review 2023, 2028–2029.

[172] See paras 13.24-25, 13.29.

[173] Feminist Lawyers IP Submission 177.

[174] Oz Child Legal Service IP Submission 195. See also AFPDRP Submission 66; Child Health Council of SA IP Submission 146; Defence for Children International IP Submission 204; E Travers, Future Echoes Public Hearing Submission Adelaide 1 May 1996; R Gurr, President Community Services Appeal Tribunal Minutes of Meeting Sydney 9 August 1996; Bendigo Practitioners' Forum 31 May 1996; Melbourne Practitioners' Forum 28 May 1996.

[175] Law Council of Australia DRP Submission 84 .

[176] Qld Law Society IP Submission 190. A similar argument could be made in relation to the care and protection jurisdiction.

[177] LE Shear 'Children's lawyers in California Family Law Courts: Balancing competing policies and values regarding questions of ethics' (1996) 34 Family and Conciliation Courts Review 275.

[178] id 267.

[179] J Cashmore 'Making legal processes work for children'(1997) 71 Reform forthcoming.

[180] AM Levy 'Many facets of child custody consultation' quoted in E Lecco 'Independent legal representation for children in custody and access cases: A case commentary of Stobridge' (1996) 34 Family and Conciliation Courts Review 303, 313.

[181] Case no 86 J 3561 (Circuit Ct Cook County, Juvenile Division).