Representation of children in family law and care and protection

Representation in the Family Court

13.22 The Family Law Act 1975 (Cth) (Family Law Act) allows children to commence proceedings in the Family Court.[44] Even where the child has commenced proceedings in this way, the Family Law Rules allow the court to appoint a next friend where it is satisfied the child does not understand the nature and possible consequences of the proceedings or is not capable of conducting the proceedings directly.[45] In practice, children rarely litigate in family law either directly or by a next friend.[46] More commonly, children the subject of disputes in the Family Court are separately represented by a child's representative, if they are represented at all.[47] The Family Court can appoint a child's representative wherever it appears to the court that a child ought to be separately represented.[48] The court may make an order on its own initiative or on the application of any other person including the child.[49] Representatives are required to advocate in accordance with their assessment of the child's best interests and do not act upon the child's instructions or advocate their wishes. The particular roles and functions of best interests representatives in the Family Court are discussed in more detail from para 13.33.

Representation in care and protection jurisdictions in Australia

13.23 Australian care and protection systems have differing models of representation including the direct instructions model and the best interests model. Generally, children in care and protection proceedings are represented by legal practitioners rather than by lay or social science trained representatives.

13.24 In South Australia a child must be represented unless the court is satisfied the child has made an informed and independent decision not to be represented.[50] The representative acts on the instructions of the child unless the child is not capable of properly instructing the representative, in which case the practitioner must act according to his or her own view of the child's best interests.[51] The child the subject of the application is considered to be a party to that application.[52]

13.25 Victorian legislation similarly requires children to be represented in any care and protection matters[53] where they are mature enough to provide instructions.[54] Representatives are required to act upon the instructions of the child.[55] The Victorian Government noted that '...children of the age of seven years and over are normally considered mature enough to give instructions...' but the relevant protocol emphasises maturity rather than the specific age of the child.[56] Children who are not considered competent are not represented. Children the subject of the application must be served with a copy of the application.[57]

13.26 The Children's Services Act 1986 (ACT) provides that proceedings should be adjourned to allow a child to obtain representation wherever it appears to the court that the child should be represented.[58] The legislation provides no guidance on the model of representation for children but in practice the best interests model is followed by practitioners. A child the subject of an application is considered to be a respondent to the application.[59]

13.27 In NSW representation of children is arranged in all cases and is provided through a roster of duty solicitors drawn from private practice.[60] The role and functions of the representative have not been defined in legislation but in practice the representative functions in a similar manner to the child's representative in the Family Court, representing the child's best interests.[61] One submission to the Inquiry described the representation of children in the NSW care and protection system as '...rarely satisfactory...'[62] A child the subject of an application has a right of appearance in relation to that application.[63]

13.28 The Community Welfare Act 1983 (NT) provides that the court may make such provision for the legal representation of the child as it thinks fit.[64] In the 1996–97 financial year, there were two grants of aid for the representation of children by the Legal Aid Commission but generally the Department of Health and Community Services provides a child representative.[65] Once again, the legislation provides no guidance on the model of representation. The Act provides that children over 10 years old who are the subject of an application should be provided with written notice of the application.[66]

13.29 The Children's Court of Western Australia Act 1986 (WA) makes no specific provision for the representation of children in care and protection applications. The Legal Representation of Infants Act 1977 (WA), however, allows a court to appoint a guardian ad litem for a child where it appears the interests of the child may be affected. In practice children are generally represented on the basis of their instructions. Where there is concern about such a course of action, the court may order the representative to represent the best interests of the child.[67]

13.30 In Queensland there is no statutory provision for representation of children in care and protection matters and at present children are rarely represented.[68]

13.31 The proposed Tasmanian care and protection legislation, the Children, Young Persons and Their Families Bill 1997, provides that all children the subject of a care and protection application should be represented unless the child has made an informed decision not to be represented.[69] The representative is to take instructions from the child and act on those instructions unless the representative considers the child unable or unwilling to give instructions. In those cases, the representative will represent the child's best interests, which are to be assessed by a social scientist.[70] The Bill provides that the child is a party to the application.[71]

13.32 In those care and protection jurisdictions where children are parties to the proceedings or are entitled to appear or be given notice of an application, those children able to give instructions generally are represented on the basis of those instructions.[72] The ACT and NSW are exceptions.[73] Where children are not parties to the litigation, representation is generally provided on their best interests.

The best interests model of representation in Australian practice

13.33 In Australia a representative acting on the basis of the best interests model is commonly known as a separate or a child's representative.[74] Neither the Family Law Act nor State and Territory care and protection legislation determines the functions, rights, responsibilities, obligations and duties of these best interests representatives. The ethical and professional rules of legal practitioners in Australia are similarly silent. Guidance on these matters derives from the common law. This is almost invariably from cases heard in the Family Court as State and Territory children's courts generate very little precedent even on appeal.[75]

13.34 The best interests representative is not the legal representative or advocate for the child and does not act upon the instructions of the child. The court, rather than the child, may best be considered the client of the best interests representative.[76] The child cannot dismiss the representative if he or she is unhappy with the performance or conclusions reached by the representative.[77] The representative's focus is on the court and is intended to assist the court.

13.35 The appointment of a best interests representative does not make the child a party to the relevant proceedings.[78] However, the representative acquires all the privileges and obligations of a representative for a party.[79] The role of the best interests representative may be compared to that of an amicus curiae or counsel assisting a court or royal commission.[80] However, there are differences between the best interests representative and each of those. The amicus curiae calls attention to matters that the court may otherwise overlook but does not take a position on the issues before the court,[81] whereas usually the best interests representative does, at least by the end of the case.[82]

13.36 The Family Court has established some general guidelines concerning the function of the best interests representative.[83]

  •  
    • The separate representative is entitled to ask questions which are relevant to the welfare of the child and otherwise permissible, irrespective of whether the effect is to adduce evidence which could have been led by a party.

    • The separate representative is entitled to the same rights and subject to the same obligations as an advocate for a party both at general law and under the Evidence Act 1995 (Cth)...

    • The separate representative may, depending on the circumstances, make an opening address to the court.

    • The separate representative may, depending on the circumstances, indicate to the court the orders which the separate representative proposes either at the commencement of the hearing or in final address. The separate representative is not obliged to do this at the commencement of the hearing. This is because the role which the separate representative plays is such that he or she may be unable to indicate what orders are sought until after the examination of the parties and/or their witnesses is completed.[84]

13.37 Another Full Family Court decision listed the following functions of the representative.

1. Act in an independent and unfettered way in the best interests of the child.

2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers the adoption of such a course is in the best interests of the child.

3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard, the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court.

4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.

5. Test by cross examination where appropriate the evidence of the parties and their witnesses.

6. Ensure that the views and aptitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.

7. Minimise the trauma to the child associated with the proceedings.

8. Facilitate an agreed resolution to the proceedings.[85]

13.38 The best interests representative is required to collect evidence, including by talking to the child, family members, school teachers or other relevant people and looking at relevant departmental or court files.[86] The representative may muster material for cross-examination and engage expert witnesses.[87]

13.39 The best interests representative has a duty to act impartially and to make submissions to the court on behalf of the child when in the best interests of the child.[88] The best interests representative must tell the court what wishes the child has expressed[89] but does not have a duty to make submissions to the court which represent the wishes of the child or to argue for an outcome in line with the wishes of the child.[90] The credibility and weight given to children's wishes are matters for the court and will vary from case to case. In many cases involving children the representative for a child may discount, editorialise or reject the child's wishes and argue the case in accordance with his or her own views of the child's best interests.

A report on the representation of children in the Family Court concluded

[t]he Child's Representative should seek to build up a relationship of trust with the child as they will have an ongoing relationship during the course of the matter. The Child's Representative will meet with the child on a number of occasions and must be aware of the special skills necessary when talking to children...Only in exceptional cases, such as where a child has been severely traumatised by abuse and has already seen a number of professionals from whom the Child's Representative can get a clear picture of the child and the issues involved, should the Child's Representative consider not meeting his/her client.[91]

13.40 The Inquiry was told that, based on anecdotal evidence, about 70% of children over about 12 with a best interests representative in family law matters express wishes as to the outcome of a matter.[92] In most cases those wishes are sufficiently developed for them to form the basis of submissions on the best interests of the child.[93]

13.41 A major role of the best interests representative is to keep the child informed of the progress of the litigation.[94] The representative also should act to minimise the trauma to the child associated with the proceedings.[95]

International models of representation in family law and care and protection

13.42 In the US the Child Abuse Prevention and Treatment Act requires that a guardian ad litem, who may be a lawyer, a social worker or a lay person including a court appointed volunteer, be appointed to represent the child in every case involving allegations of abuse or neglect.[96] Debate continues in the US as to the role ascribed to and qualifications needed for a guardian ad litem.[97] Generally, the role is filled by a legal representative and/or a court appointed volunteer.

13.43 The US model of representation of children in many states relies heavily upon the participation of volunteers in a Court Appointed Special Advocate (CASA) system. CASA schemes provide a form of guardian ad litem for children in care and protection matters. The role of the advocate is to conduct an independent investigation of the best interests of the child by speaking to the child and collecting relevant information to assist the court and promote settlement of the litigation. He or she appears in court to represent and make submissions on the child's best interests and monitors the implementation of the orders. He or she must also explain the proceedings to the child in appropriate language.[98] Analysis of the system indicates that CASA volunteers can provide useful advice and support to the child.[99]

13.44 Some American studies suggest that a mixed system where children are represented by both lay and legal representatives results in more effective child advocacy.[100] Legal representatives have access to important information and advice in consulting with lay advocates or working as part of a multidisciplinary team. 'The lawyer who represents a child without such consultation and support must make difficult evaluations in each case...for which he or she may be ill-trained.'[101] In a team environment the lay advocate or social scientist is said to be able 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.[102]

13.45 On the other hand, there is potential for personal or professional conflicts between the two advocates.[103] The model is resource intensive and introduces another layer of possibly paternalistic interpretation of a child's needs and interests between the child and the decision maker, the court.

13.46 The various states differ in their approach where there is a conflict between the child's wishes and the guardian ad litem's assessment of his or her best interests. Wisconsin requires that children over twelve be represented upon the basis of their instructions but the best interests model applies for children under twelve. In Hawaii, the guardian ad litem is required to represent both the child's best interests and his or her instructions.[104]

13.47 In the UK there are different arrangements for representation of children in private family law disputes and public care and protection proceedings although the model of advocacy is substantially the same in each. A social science trained guardian ad litem, who represents the child's best interests, is generally appointed in care and protection matters.[105] The guardian is required to instruct a solicitor as necessary. The court may appoint a separate solicitor to act directly on the instructions of the child as well as or instead of a guardian ad litem in some circumstances.[106] In the lower courts, guardians ad litem are chosen from panels established by the local authority, which is also responsible for initiating care and protection applications.[107]

13.48 In private family law disputes, the Probation Service provides court welfare officers who act as officers of the Family Court and are directly responsible to the Court.[108] In family law matters where a guardian ad litem is appointed, it is generally considered unnecessary to involve a separate court welfare officer as well.[109] The guardian ad litem in this jurisdiction may also be a solicitor.[110]

[44] s 69C.

[45] O 23 r 3(1).

[46] The Family Court does not keep statistics about the numbers of children appearing as either plaintiffs or by a next friend or guardianad litem but anecdotal evidence indicates that this is not common. Pagliarella and Pagliarella (1993) FLC ¶92–400 is an exception. See also the recent case of In the Matter of an Application by the Children of L(unreported) Family Court of Australia 30 January 1997 per Mushin J. Issues associated with children as parties in the Family Court are discussed in more detail at paras 16.58-60. In the UK, the Family Proceedings Rules 1991 allow a child to be independently represented if the court is satisfied that the child is mature enough to provide instructions: r 9.2A.

[47] Amendments to the Family Law Act in 1995 refer to the representative for a child in this model of representation as a 'child's representative': s 68M(1). Prior to these amendments, the term used was 'separate representative': see fn 74.

[48] Family Law Act s 68L(2).

[49] Family Law Act s 68L(3).

[50]Children's Protection Act 1993 (SA) s 48(1).

[51]Children's Protection Act 1993 (SA) s 48(2). See Child Health Council of SA IP Submission 146.

[52]Children's Protection Act 1993 (SA) s 46(1).

[53]Children and Young Persons Act 1989 (Vic) s 21(1).

[54]Children and Young Persons Act 1989 (Vic) s 20(2).

[55]Children and Young Persons Act 1989 (Vic) s 20(9).

[56] Vic Government IP Submission 213.

[57]Children and Young Persons Act 1989 (Vic) ss 20–21.

[58] s 167.

[59]Children's Services Act 1986 (ACT) s 77(2).

[60] Representatives are appointed pursuant to the Children (Care and Protection) Act 1987 (NSW) s 66(2). See also NSW Dept of Community Services Legislation Review Unit Review of the Children (Care and Protection) Act 1987 Discussion Paper 1: Law and Policy in Child ProtectionNSW Dept of Community Services Sydney 1996, 70.

[61] NSW Dept of Community Services Legislation Review Unit Review of the Children (Care and Protection) Act 1987 Discussion Paper 1: Law and Policy in Child Protection NSW Dept of Community Services Sydney 1996, 70.

[62] Burnside IP Submission 214.

[63]Children (Care and Protection) Act 1987 s 65(1).

[64] s 39 (3).

[65] See NT Legal Aid Commission letter 9 September 1997.

[66] s 36(2).

[67] T Schwass, SA Youth Court Minutes of Meeting 3 July 1996.

[68] Qld Law Society IP Submission 190; Brisbane Practitioners' Forum 29 July 1996. See also table 2.17 in relation to legal aid grants in that jurisdiction.

[69] cl 59(1).

[70] Tas Government IP Submission 210.

[71] cl 64.

[72] In SA and in the Tas Bill: see paras 13.24 and 13.31 respectively.

[73] See paras 13.26 and 13.27 respectively.

[74] Under the Family Law Act s 68L, children may be separately represented. Such a representative is known as a 'child's representative' under s 68M of the Act. Prior to the introduction of the Family Law Reform Act 1995 (Cth), these representatives were known as 'separate representatives'. This term has been applied in many of the care and protection jurisdictions around Australia. To distinguish representatives on the basis of best interests advocacy from other representatives, the Inquiry has chosen to refer to these representatives as 'best interests representatives'.

[75] While the model may vary slightly between and within jurisdictions, this general discussion is gleaned from available material.

[76]Demetriou and Demetriou (1976) FLC ¶90–102, 75,468: 'Counsel is appointed to assist the Court and consequently the child...'

[77]Pagliarella v Pagliarella (1993) FLC ¶92–400. See also Re K (1994) FLC ¶92–461, 80,770.

[78] F Castiglione 'Present difficulties of role conflict and accountability of the separate legal representative' Fifth National Family Law Conference Business Law Centre Perth 1992, 277.

[79]B and R and the Separate Representative (1995) FLC ¶92–636, 82, 417.

[80]Bennett and Bennett (1991) FLC ¶92–191. In that case, at 78,259, the court noted that the role of a separate representative is similar to that of counsel assisting a royal commission in that '...his or her duty is to act impartially but if thought appropriate to make submissions suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child'. See also A Nicholson 'Advancing children's rights and interests: The need for better inter-governmental collaboration' (1996) 26 University of WA Law Review 249.

[81]Grice v R (1957) 11 DLR 699.

[82] E Lecco 'Independent legal representation for children in custody and access cases: A commentary of Stobridge'(1996) 34 Family and Conciliation Courts Review 303, 307.

[83] See Bennett and Bennett (1991) FLC ¶92–191, 78,258–78,259; P and P (1995) FLC ¶92–625, 82,157.

[84] Family Court of Australia Annual Report 1995–96 Family Court of Australia Sydney 1996, 59. See B and R and the Separate Representative (1995) FLC ¶92–636.

[85]P and P (1995) FLC¶92–616, 82,157.

[86] KM Berck 'The role of the separate representative' PK Cooper (ed) Family Law: Children Blackstone Press Sydney 1993, 127.

[87]E and E (1979) FLC ¶90–645, 75,466.

[88]Bennett and Bennett (1991) FLC ¶92–191. See also Demetriou and Demetriou (1976) FLC ¶90–102, 75,468.

[89]Pagliarella and Pagliarella (1993) FLC ¶92–400, 80,108; Re K (1994) ¶92–461, 80,770.

[90]Pagliarella and Pagliarella (1993) FLC ¶92–400, 80,108; Re K (1994) FLC ¶92–461, 80,770; Bennett and Bennett (1991) FLC ¶92–191, 78,259.

[91] 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, 47. However, see para 13.58.

[92] J Ryan, NSW Legal Aid Commission Minutes of Meeting Sydney 11 November 1996.

[93] ibid. See also D Smith & J Rimmer Minutes of Meeting Brisbane 2 August 1996.

[94] KM Berck 'The role of the separate representative' PK Cooper (ed) Family Law: Children Blackstone Press Sydney 1993, 131.

[95]P and P (1995) FLC ¶92–615, 82,157.

[96] 42 USC 5101–5107 (1988) 4(b)(2)(G). In eight states, however, the appointment is discretionary: D Levine 'To assert children's rights or promote children's interests: How to achieve both goals' (1996) 64 Fordham Law Review 2023, 2025. See also RH Heartz 'Guardians ad litem in child abuse and neglect proceedings: Clarifying the roles to improve effectiveness' (1993) 27 Family Law Quarterly 327, 328.

[97] RH Heartz 'Guardians ad litem in child abuse and neglect proceedings: Clarifying the roles to improve effectiveness' (1993) 27 Family Law Quarterly 327, 328.

[98] id 344–346.

[99] They have substantially greater contact with their clients than do legal representatives, they make more detailed inquiries as to the circumstances of the child and are more likely to submit written reports. They are, however, less likely to attempt to negotiate a settlement or mediate in a matter and are not able to provide effective legal representation in court: see D Levine 'To assert children's rights or promote children's needs: How to attain both goals' (1996) 64 Fordham Law Review 2023, 2027–8.

[100] id 2025.

[101] id 2029.

[102] ibid.

[103] ibid.

[104] RH Heartz 'Guardians ad litem in child abuse and neglect proceedings' (1993) 27 Family Law Quarterly 327, 334.

[105] For a discussion of the function of guardians in Britain see J Masson & M Shaw 'The work of guardians ad litem' (1988) 3 Journal of Social Welfare Law 164.

[106] ie where no guardian ad litem has been appointed, the child has sufficient understanding to instruct a solicitor and wishes to do so, or it appears to the court that it is in the child's best interests to appoint a solicitor: Children Act 1989 (UK) Pt IV.

[107] C Jackson 'Reporting on children: The guardian ad litem, the court welfare officer and the Children Act 1989' (1992) 22 Family Law 252, 253. These panels were often staffed by local authority social workers who were basically being asked to review the decisions of their colleagues. It has been argued that the lack of true independence from the authority making the application creates a serious flaw in such a system: 255.

[108] id 252.

[109]Re S (A Minor) (Guardian Ad Litem/Welfare Officer) [1993] 1 FLR 110. In fact, court welfare officers have often acted as guardians ad litem in family law matters: C Jackson 'Reporting on children: The guardian ad litem, the court welfare officer and the Children Act 1989' (1992) 22 Family Law 252. A guardian ad litem and the court welfare officer may be involved simultaneously in some circumstances: see eg L v L (Minors)(Separate Representation) [1994] 1 FLR 156.

[110] Family Proceedings Rules 1991 r 9.5(1).