A personal viewpoint

I have been invited to present this paper because I am qualified as a lawyer in Australia and in England and Wales and have experience of practising family law extensively in both jurisdictions. At this stage of my career I do not claim to be a specialist in child law as I spend most of my time solving complicated international divorce problems for rich clients. In my younger days, however, I was a legal aid lawyer in Melbourne responsible for representing children in the Family Court of Australia and also for developing policy and training for child lawyers in both private law and public law cases. My court experience was limited to private law cases, although in the public law sphere I did a lot of work to help bring about reforms in the Children’s Court system in Victoria, particularly through my work as Chair of the Law Institute of Victoria Child Welfare Committee in the mid 1980s.

Since moving to London in 1989 and qualifying as an English solicitor I have not been involved in representing children at all. However, as a member of the National Committee of the Solicitors Family Law Association of England and Wales (SFLA) for the past three years I have worked frequently with the English Children Panel specialists in their struggle to help develop a coherent system for child representation in public law cases. Also, as Chair of the UK Host Committee of the World Congress on Family Law and the Rights of Children and Youth, held in Bath, England, in September 2001, I became familiar with the problems faced by child legal representatives in many jurisdictions throughout the world. As a policy consultant rather than a case worker I am familiar with the current crisis in England and Wales in implementation of child representation through CAFCASS (Children and Family Court Advisory and Support Service) and I feel qualified, despite my lack of practical experience, to offer some views on why the current system in England and Wales is not working effectively.

I ask you to bear in mind my professional background as I address the important issues which face you in this workshop. I do not speak to you as a detached academic or theoretician but as one who has seen how effective child representation systems can work and also how some systems do not work as well as others. I hope my presentation will offer you some simple and pragmatic guidance as to what you should do in Italy as you develop a child representation scheme.

Introduction

Now that I have confessed my personal bias and explained the limitations on what you may expect to hear from me, I will go on to consider the models for legal representation of children in Australia and England. The following limitations on the scope of this presentation should be borne in mind:

- It is concerned mainly with public child law, that is, where the state intervenes to protect the welfare of the child. Contrast private child law, which involves disputes between parents and occasionally other relatives.

- I will mention some private child law situations where relevant. Much of the theory and practice in relation to the various models of child representation and training children’s lawyers is common to both public and private law situations. Indeed, sometimes public and private law issues converge in a particular case: this can lead to complications where two or more lawyers represent different aspects of the child’s case.

- In relation to the United Kingdom, this presentation will cover only the law and practice in the jurisdiction of England and Wales. Scotland and Northern Ireland have different legal systems within the UK but these will not be covered in this presentation.

- In Australia, one must distinguish between the Federal and the State jurisdictions. The Federal jurisdiction of the Commonwealth of Australia covers children in relation to private law matters: residence/custody, contact/access/visitation and parental responsibility, that is, disputes between parents. The State jurisdiction covers children in relation to public law and each State legal system is different. I will focus on the jurisdictions with which I am most familiar, the Federal jurisdiction and the State jurisdictions in Victoria and New South Wales.

The Fundamental Questions

1. Does the child’s lawyer act only on instructions (direct representative) or does the role involve acting in the child’s interests (best interests representative)?

2. How many lawyers should a child have?

In Australia and England several different models of child representation are used:

- Children’s Court of Victoria (State jurisdiction, public law)
This model provides for single lawyer representation with the lawyer advocating only the child’s instructions and not the child’s best interests. Advocacy of the child’s best interests is undertaken by the State government authority responsible for child welfare, in Victoria called the Human Services Department (HSD). Where the child has no capacity to instruct a lawyer (for example, when the child is too young) then no lawyer represents the child’s instructions in the Victorian model. Sometimes the HSD reports to the Children’s Court on the child’s circumstances but there is no legal advocacy on behalf of the child incapable of giving instructions.

- Children’s Court of New South Wales (State jurisdiction, public law and sometimes private law).
This model is similar to that in Victoria but the child’s representative may act in the child’s best interests if the child is incapable of giving instructions.

- Family Court of Australia (Federal jurisdiction, private law)
Here the model is also single lawyer child representation. The child’s lawyer informs the Court of the child’s wishes but acts in the child’s best interests.

- England and Wales: The Children and Family Court Advisory and Support Service (CAFCASS) is an independent government funded body responsible for providing legal representation in the child’s best interests in public law cases. The English model provides tandem or dual representation. This means a CAFCASS officer, called the Child’s Guardian, represents the child’s best interests and a Law Society Children Panel solicitor acts on instructions from the child. If the child is not sufficiently mature to give instructions the child’s Children Panel solicitor takes instructions from the CAFCASS Children’s Guardian. Where a mature child’s instructions conflict with the Guardian’s view of best interests, the child’s Children Panel solicitor must follow the child’s instructions even if the solicitor does not agree with the child (Solicitors Family Law Association Guide to Good Practice for Solicitors Acting for Children 6th edition, January 2002, page 6, paragraph B.3.2).

This basic summary of the four models I am considering glosses over many permutations, for example:

- Where the child is involved in private law and public law proceedings at the same time.

- Where the child is involved in public law and criminal law proceedings at the same time.

- Where the lawyer represents more than one child in a family.

- Where the solicitor representing the child briefs a barrister to appear at the Court hearing(s).

- The special role of the solicitor representing the child in contested adoption proceedings.

This presentation will be confined to the simplest case scenario for ease of explanation, that is, the case where the solicitor represents a single child in straightforward public law proceedings.

Victoria: The Children’s Court

What follows is a brief description of the practice in the Children’s Court of Victoria, as set out in two recent publications:

- Guidelines for Lawyers Acting for Children and Young People in the Children’s Court (Victoria Law Foundation, 1999). These Guidelines can be downloaded from the website of the Victoria Law Foundation at www.victorialaw.org.au.

- Children’s Court Duty Lawyer Manual [draft] (Victoria Legal Aid, 2003). Because this is still a draft being worked on I regret that I am unable to circulate a copy of the Manual. I am hopeful that the Manual will be in its final form within the next few months, at which time a copy should be made available to AIAF.

I will say at the outset that my personal experience in dealing with the Victorian system of child representation in public law proceedings in the Children’s Court is such that I can recommend this model as one to be followed. It is effective in getting the instructions of the competent child across to the presiding Magistrate. The training of the Children’s Court duty lawyers, provided by Legal Aid Victoria, ensures that the child’s instructions are zealously and forcefully advocated. The system ensures that the child will have a well trained lawyer to represent him or her on the first occasion the case comes before the Court. It is an efficient and cost effective model, although it depends for its effectiveness largely on the training of the lawyers and the competence and cooperation of the Children’s Court Magistrates and support staff, including Children’s Court Clinic psychologists and other personnel.

The Guidelines (Children’s Court of Victoria)

The Guidelines are founded upon Article 12 of the UN Convention on the Rights of the Child, which provides that the child shall have an opportunity to be heard in legal proceedings either directly or through a representative.

The Guidelines set out the general approach which the child’s lawyer should take. Tips are given on interviewing techniques, communicating with children, assessing the child’s capacity to give instructions (relating to age, maturity and intellectual capacity), taking instructions and legal obligations relating to confidentiality, legal professional privilege and conflict of interests. Important principles include:

- The lawyer must make sure the child understands the proceedings.

- The child’s instructions must always be put to the Court, whether or not the lawyer agrees with those instructions.

- The lawyer must show the child all relevant documents unless there is a Court order suppressing a report.

- The lawyer must assess whether the child should give evidence (this is rare when the child is very young).

- The lawyer must participate in settlement negotiations to try to resolve the case.

- The lawyer must explain the final outcome of the Court proceedings and advise the child in relation to any rights of appeal or review.

- Children are always entitled to be represented by a duty lawyer in the Children’s Court, irrespective of the financial circumstances of the family.

Duty lawyers are employed and trained by Legal Aid Victoria, the government funded body which provides legal services in the State of Victoria for Legal Aid those who cannot afford for a lawyer privately. They tend to be relatively young and inexperienced, however a zealous commitment to legal representation of children is part of the job requirement. Duty lawyers are stationed at the Children’s Court everyday so they can see children as soon as they are bought into the Court for any proceedings. Duty lawyers work under enormous pressure, often having to see several new clients each morning. Very often the children have just been removed from their families or otherwise apprehended by the police or social workers and bought to the Children’s Court on just a few hours notice. Children are often distressed and confused. Perhaps this is the first time they have been separated from their family and bought to Court.

The duty lawyer must prioritise his or her clients in order of urgency, assess capacity to give instructions, take instructions, speak with the police or social workers about the reasons for the case being bought to Court, prepare argument and then appear before the Magistrate. After the hearing the duty lawyer must report the outcome to the child and help the child come to terms with the consequences.

If the child is incapable of giving instructions a duty lawyer can represent a parent. As parents are often in conflict it is rare that a duty lawyer will represent both parents but this can happen when the parents are united in their approach to the Court proceedings.

An interesting feature of the Australian procedure is that Children’s Court hearings are held in open Court, that is, members of the public are allowed to attend. However, there are severe restrictions on reporting Children’s Court proceedings and any report must not identify the parties or witnesses. The open Court policy is based on the principle that the public have a right to know how the justice system operates, even when children are involved. Contrast the situation in England and Wales where all proceedings concerning children are held in private, that is, no members of the public are allowed in Court.

My personal view is that the open Court policy, which applies in the Family Court of Australia as well as in the Children’s Court, works well. The difficulty with the closed Court is that it can encourage parties aggrieved by decisions to complain about unfair secret hearings.

The Duty Lawyer Manual (Legal Aid Victoria)

The Duty Lawyer Manual establishes correct procedures for dealing with cases. After taking instructions from the child and discussing the case with police or social workers, the duty lawyer will first try to negotiate an appropriate interim order. This can involve, for example, the child remaining in the care of a family member while the circumstances of the case are investigated by police, social workers and psychologists. Where no suitable family member is available the child can be placed in foster care temporarily.

If negotiation does not lead to agreement the duty lawyer must present the child’s case to the Magistrate. An initial hearing after apprehension of the child normally takes about 1-2 hours. No formal evidence is given, rather oral submissions are made from both sides.

After explaining the action which the duty lawyer should take, the Manual summarises the relevant law relating to various types of proceedings which come before the Children’s Court (for example, child suffered or likely to suffer physical injury, sexual abuse or emotional harm; child’s physical development or health significantly harmed; irreconcilable differences, etc).

After the initial hearing the Human Services Department will prepare reports summarising the evidence and recommending what should be done. The child’s lawyer considers these reports with the child, takes instructions and on the second hearing date (usually within three weeks of the first hearing) the child’s case is presented in accordance with instructions. The lawyer may recommend that the Court order the Children’s Court Clinic to prepare a family assessment. These are usually reserved for cases where there is some issue of emotional health or serious family dysfunction in relation to which the Court should require expert psychological or medical evidence.

Once all the evidence has been prepared the case, if still contested, will be listed for a Final Hearing before a Children’s Court Magistrate. Final hearings can sometimes last several days. The child’s lawyer may choose to brief a senior lawyer, either a solicitor or a barrister, to assist presenting the child’s case at the Final Hearing.

New South Wales: Representation Principles for Children’s Lawyers

In March 2002 the Law Society of New South Wales published the second edition of Representation Principles for Children’s Lawyers. This manual is derived largely from the Victorian Guidelines for Lawyers Acting for Children and Young People in the Children’s Court and American Bar Association Standards of Practice. Like the Victorian Guidelines it sets out general policy recommendations rather than specific duties like the Victorian Duty Lawyer Manual. Unlike the material from Victoria the New South Wales Representation Principles consider both models for child legal representation, that is, the direct representative model which applies in the Children’s Court of Victoria and the best interests representative model which applies in the Family Court of Australia.

The New South Wales Representation Principles do not purport to recommend one particular model of Child Representation. They are intended as a guide for all child lawyers irrespective of what model of representation they work with. They are a useful adjunct to the Victorian Guidelines and Duty Lawyer Manual because clear explanations are given for some of the most important concepts and procedures. There is a very clear description of the differences between direct representation and best interests representation. Importantly, Principle B4 provides that a lawyer should not act as both a direct representative and a best interests representative for the same child. The reason for this is that there may be a conflict between the child’s instructions and what the lawyer thinks is in the child’s best interests. Such conflict would undermine the child’s faith in the legal system and compromise the principle in Article 12 of the UN Convention on the Rights of the Child that the child shall be heard.

This principle has not always been followed in the past. For example, where a child has been involved in both public law and private law proceedings, a Legal Aid Duty Lawyer has sometimes been appointed to act on behalf of the child in both the Family Court of Australia private law proceedings and in the Children’s Court public law proceedings. In the Family Court the child’s lawyer acts as a best interests representative and in the Children’s Court as a direct representative. Although this practice may have been acceptable in the past, as a result of the clear guidance in Principle B4 good practice dictates that separate lawyers should be appointed for the Family Court and the Children’s Court proceedings.

Principle B2 requires that where the child is unable or unwilling to provide instructions the child’s lawyer should act as a best interests representative. This New South Wales principle appears to conflict with the Victorian Children’s Court model which provides that the child incapable of giving instructions will not be legally represented but will have his or her circumstances explained to the Court by the Human Services Department (Victorian Guidelines, Section 5).

Australian Federal Jurisdiction: The Family Court of Australia

In 1975 the Australian Federal government passed the Family Law Act, a radical piece of legislation which established the Family Court of Australia, introduced no fault divorce based on 12 months separation and established a Counselling Service as part of the Family Court. One of the radical changes was to introduce the concept of separate representation of children in private law cases, such representation to be provided by specialist Federal government employed family lawyers without cost to the family.

It was established through a series of case reports that the role of the Family Court separate representative is to be a best interests representative. This means that the child involved in Family Court private law proceedings is not entitled to direct legal representation where the lawyer is bound by the child’s instructions. This is in marked contrast to the position in the Children’s Court of Victoria.

For the most part Family Court separate representatives are government employed legal aid lawyers with specialist training in representation of children. However, the model also allows for legal aid bodies, which fund the representation, to engage private lawyers as separate representatives. Occasionally solicitor separate representatives will brief a barrister to appear in court, particularly when the case is complex.

The way in which the Family Court separate representative prepares and presents the child’s case has been developed substantially over the past quarter century. Just this year the Law Council of Australia Family Law Section (the national representative body for Australian family lawyers) developed a substantial training programme for Family Court separate representatives. Recently the term child representative has come to replace separate representative and when referring to the Family Court I will use the term child representative for clarity. In 2002 the Family Court published draft Guidelines for the Child’s Representative. Although the Family Court Guidelines are not yet officially in force I understand that they are being followed already as a general rule.

The Law Council of Australia Family Law Section Training Manual for child representatives, A Child’s Voice, is a massive volume comprising over 400 pages of law, commentary, case studies, exercises and advice. The draft Family Court Guidelines are included in the Training Manual. The first two day training course using the new Manual was conducted in Sydney in May 2003.

I cannot hope to summarise adequately the contents of A Child’s Voice in this brief paper. I strongly urge the IAIF to obtain a copy of the Manual from the Law Council of Australia and to secure permission to use it for training child representatives in Italy.

Although, as mentioned before, the Family Court model provides for the child’s representative to act in the child’s best interests, and not as a direct representative bound by the child’s instructions, much of the Manual provides useful guidance for direct representatives as well. Therefore, whether Italian child representatives decide to follow the direct representation model or the best interests representation model, or a hybrid of the two, or a completely new model, A Child’s Voice, should be essential reading for all trainers and representatives.
In particular, the draft Family Court Guidelines for the Child Representative should be studied. This is somewhat more digestible, comprising a mere 16 pages.

The Family Court Guidelines, like the other documents referred to in my presentation, are founded on Article 12 of the UN Convention on the Rights of the Child. The crucial distinguishing features of the Family Court child representative are set out in Section 4 of the Guidelines:

- The child representative is an impartial best interests advocate (that is, not a direct representative bound by instructions of the child).

- The child representative does not take instructions from the child but is required to ensure the Court is fully informed of the child’s wishes, in an admissible form where possible.

The Family Court child representative has a wide range of powers and responsibilities including the power to call evidence and initiate enquiries into the child’s circumstances.

Where the Family Court child representative considers the child’s expressed wishes are contrary to his or her best interests, the representative must put evidence of the child’s wishes before the Court but must also make submissions which are in accordance with the child’s best interests. This dual role of explaining the child’s wishes and advocating the child’s best interests, in circumstances where these conflict, has lead to some criticism from lawyers who argue that a child representative is likely to lose the trust of the child in these circumstances.

Australia: A Summary

It can be seen that two distinct models of child representation exists in Australia. In the Children’s Court of Victoria the representative acts strictly on the child’s instructions. In the Family Court of Australia (private law) the child’s representative is not bound by instructions and must present the case in the child’s best interests. There has been much debate over the past quarter century as to which model is preferable but, despite (or perhaps because of) the debate there are strong advocates for both models. I can say from personal experience that both models work successfully, although from time to time problems have arisen in the past, due mainly to lack of government funding.
With the recent publication in Australia of the Victorian Guidelines for lawyers acting for children and young people in the Children’s Court, the New South Wales Representation Principles for Children’s Lawyers and the Law Council of Australia Family Law Section Training Manual A Child’s Voice, taken together with the draft Victorian Children’s Court Duty Lawyer Manual and the draft Family Court Guidelines for the Child’s Representative, I can state with some confidence that the representation of children in Australia is the most effectively planned and structured in the world, so far as I am aware. However, there are critics of the single lawyer models which prevail in Australia.

I will now deal with the situation in England and Wales.

The System of Child Representation in England and Wales

The English system provides for the best possible representation of children in public law proceedings. The child’s instructions are presented to the court by a Law Society Children Panel solicitor who, in difficult cases or in cases which run in the Family Division of the High Court of Justice, may brief a barrister for court hearings. In particularly complex or important cases the child may have a solicitor and two barristers, with one of the barristers being Queen’s Counsel. The child’s best interests are represented by a Children’s Guardian appointed by the Children and Family Court Advisory and Support Service (CAFCASS), an independent government body set up on 1 April 2001 to provide representation for children and advice to courts and families. The Children’s Guardian may also brief barristers for court hearings. It can therefore be seen that, in especially complex or difficult cases, the child may be represented by up to six lawyers at court hearings.

In addition, the Local Authority, which brings the child protection proceedings to court, will also have a solicitor (preferably one who is a member of the Law Society Children Panel) and the solicitor may decide to brief one or two barristers for Court hearings. If the child’s parents, or other interested parties, also join in the proceedings with their own legal representatives you will understand that it can sometimes get quite crowded in the court rooms of the Family Division of the High Court of Justice!

The English model of dual representation is a paragon and, in theory, it should be the best in the world. It provides for the child to have, in effect, two lawyers, one a direct representative bound by instructions and the other a best interests representative. Unlike the Australian child representation schemes which have limited funding from legal aid bodies, there is no limited budget affecting the representation of children in England. The Legal Services Commission will fund proceedings as far as this is reasonably required in the child’s best interests. Child public law cases in England can sometimes cost hundreds of thousands of pounds of legal aid and government money. But the standard of legal representation provided is without equal anywhere in the world.

As with the Australian and American models, the scheme for representation of children in England is based on the principles set out in Article 12 of the UN Convention on the Rights of the Child. Law Society Children Panel solicitors are well qualified and experienced. They must be qualified for at least three years and undergo rigorous training and assessment procedures before they are allowed to handle cases without supervision. Similar standards apply to CAFCASS Children’s Guardians.

One of the great advantages of the English system is that it is supported by a number of non-government bodies whose members comprise qualified lawyers and non-lawyer child advocates who specialise in representing children. These include the Association of Lawyers for Children, the National Youth Advocacy Service, the Law Society (which runs the Children Panel) and the Solicitors Family Law Association. All of these organisations provide training for children lawyers and liaise with government on policy and legislation to ensure that children are offered the best possible standards of legal representation. The SFLA has, for many years, published a Guide to Good Practice for Solicitors Acting for Children, now in its 6th edition (January 2002). In many respects the SFLA Guide to Good Practice offers advice similar to that provided by the Victorian Guidelines and the New South Wales Representation Principles for Children’s Lawyers. I suspect that the SFLA Guide to Good Practice was very carefully considered by the Victorian and New South Wales people who drafted their documentation. A commendable novelty in the SFLA Guide to Good Practice is the encouragement for the child’s lawyer to represent the child in any mediation or conciliation process, although this delicate role must be handled with care.

Unfortunately, the English system of child representation has run into serious difficulties over the past couple of years. There are many reasons for this, but the underlying main difficulty seems to be that the government is seeking to cut the cost of child legal representation. CAFCASS has been engaged in an exercise of forcing Children’s Guardians to accept contractual terms of engagement which are generally seen to be downgrading the role by reducing job security and remuneration. As a result, there are now fewer lawyers in England and Wales willing to take on the role of Children’s Guardian on the terms being offered by CAFCASS. A consequence of this is that there are serious delays in the appointment of children’s representatives, sometimes delays of many weeks. This delays the finalisation of legal proceedings concerning children in extremely vulnerable circumstances.
My personal view is that the English system, although it is probably the best in the world in theory, is so expensive to maintain that it is unlikely to continue much longer in its current form. I suspect that funding cuts will mean that the dual representation model will have to be eventually radically changed. It is also likely that increasingly severe restrictions on legal aid funding of children cases will be introduced.

The difficulties in England have recently been compounded by a reform in the government departmental structure announced just this month. The ministerial office of Lord Chancellor has been abolished (after 1,400 years!) and the responsibilities of the Lord Chancellor have been divided between other ministries. A new Minister for Children has been appointed with CAFCASS coming under the umbrella of this Minister’s responsibility. Interestingly, the new Minister for Children is Margaret Hodge, the wife of well-known lawyer Henry Hodge, whose Camden practice does a lot of family law work, including child representation. I hope that this means that the new Minister for Children will listen to her husband’s colleagues about the problems child representatives are now facing in England!

Conclusions

The ideal model for child representation must be the English one, which provides for dual representation through one lawyer acting as a direct representative bound by the child’s instructions and another lawyer acting in the child’s best interests. However, this model is expensive to run and, like a Rolls Royce, if you cannot afford to run the machine it does not go anywhere. I think a more pragmatic model is to provide the child with just one lawyer. If the child has the capacity to provide instructions then the lawyer should be bound by those instructions as a direct representative. If the child is too young or otherwise incapable of giving instructions, then the lawyer should opt to represent the child’s best interests. The Children’s Court of Victoria model is effective, although I do have concerns about the policy that the child incapable of giving instructions is, in effect, without a lawyer to advocate his or her best interests. I do not think the government authorities which prosecute child protection cases can properly undertake the role of representing the child’s best interests because there is too great a risk of a conflict of interests.

I will be leaving with the AIAF workshop organisers a bundle of training materials which I have gathered together from Australia and the United Kingdom and I hope that they will be able to make good use of this in preparing materials for training Italian child representatives. Annexed to this presentation is an Appendix which lists some useful websites in the United Kingdom and Australia so you can conduct your own research on the various overseas models.

I congratulate all of you for making the personal commitment to learn how to become effective children’s lawyers. Although I no longer work as a child representative, I recall my experience as a separate representative for children in the Family Court of Australia many years ago with pride. The lawyer acting for the child has the great satisfaction of knowing that he or she is always on the right side. It is a most rewarding and worthy career to follow.

I wish you all the best of luck in your work as lawyers acting for children.

David Truex
June 2003