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• Overview
• Counsel For The Child
• Child Advocates
• Better Training For Counsel For The Child

11. Representing children

OVERVIEW

647 THIS CHAPTER describes the role of counsel for the child, their training and selection. It looks at criticism of their role, and considers calls for establishing a new position of child advocate.

648 New Zealand puts into effect Article 12 of the United Nations Convention on the Rights of the Child (UNCRC) by ensuring children’s views are legally represented in private law court matters, and in reports prepared by psychologists, social workers and psychiatrists.

649 Article 12 declares:

Rights of the Child to Express Views

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

650 Some are concerned, however, that the Family Court process does not hear children’s voices clearly enough. As the research in chapter 4 suggests, many parents do not listen to what their children are saying or tell them what is happening, nor do they invite them to have an appropriate say in custody and access arrangements. Neither does the Court system do a good job of supporting children or providing them with the skills to speak up.

651 There has been criticism of counsel for the child’s effectiveness in representing children. In 1997, the Principal Family Court Judge asked the Department for Courts to review representation of children in the Family Court. The Department commissioned research on current practice, and on the views and perceptions of children and counsel themselves.[178]

652 Although the research findings supported the claim that children in New Zealand are well represented in Family Court proceedings, they also identified inconsistencies, poor practice and lack of quality assurance. Consequently, two focus committees were set up to look at the role and practice of counsel for the child.[179]

653 The Principal Family Court Judge also issued two practice notes: “Counsel for the Child: Selection, Appointment and Other Matters”, and “Counsel for Child: Code of Practice” (CCCP).[180] These, and the Counsel for the Child Best Practice Guidelines developed by the Family Law Section and the Principal Family Court Judge are what guide current and prospective counsel for the child.

654 Nevertheless, we still received criticisms about counsel for the child in response to our preliminary paper. These cover three main areas of concern:

• that counsel for the child are not adequately trained to deal with children, and do not meet with them long enough to ascertain or represent their views;

• that counsel drag matters out to earn higher fees (a criticism often made of lawyers in general);

• that counsel for the child is “working for” one parent and/or biased against the other.

COUNSEL FOR THE CHILD

Current practice

655 Counsel for the child legally represents children. The counsel must ascertain a child’s views, research relevant law, devise a strategy to promote the child’s case, negotiate on the child’s behalf, represent the child’s interests in any mediation or other dispute resolution process, gather evidence to support the child’s case, and act as advocate for the child if the matter goes to a hearing. How counsel performs these tasks depends, amongst other things, on the age and maturity of the child.

656 The Family Court appoints a counsel for the child in a particular case. The counsel is then given a brief settled by the Court, usually in consultation with counsel for the parties. This brief sets out what counsel must do for the child.

657 In guardianship matters, counsel will liaise, and possibly also discuss proposals, with the report writer.

658 In Child, Youth and Family Services matters, counsel for the child gets information from, and discusses outcomes with, the social workers. Counsel speaks with caregivers, family members, and any appropriate experts and liaises with CYFS solicitors.

659 Counsel must always advise the Court of any wishes the child has expressed. Counsel is obliged to put all relevant evidence about a child’s situation before the Court. There is a long-standing debate about what counsel should do in the event of a child’s wishes conflicting with the child’s best interests.

660 The CCCP states that where a child’s wishes or views conflict with his or her best interests, counsel should, where the child is sufficiently mature:

• try to resolve the conflict with the child;

• discuss the issues and obligations of the counsel with the child;

• advise the Court of the counsel’s position, and in the (rare) case where the counsel is unable to resolve the conflict and as a matter of professional judgment can advocate only the child’s wishes, invite the Court to appoint counsel for best interests issues.

661 There is a risk that the CCCP might be interpreted in a way that undermines the child’s views and contrives to have them resemble counsel’s view of what should happen.[181] Counsel for the child must act on the instructions of a child who is willing or able to give them.[182] Part 2 of the guidelines, however, potentially conflicts with this by stating that counsel for the child is free to interpret the role according to the counsel’s professional judgment. The risk is that such a conflict makes the proper role of the child’s representative uncertain.

Training and selection

662 Each Family Court must maintain a list of counsel available to be counsel for the child, and lawyers must apply to go on it. They are interviewed, and their application assessed, by a panel. The practice note “Counsel for the Child: Selection, Appointment and Other Matters”[183] states that counsel should have:

• a minimum of five years practice in the Family Court;

• proven experience in running defended cases in the Family Court;

• ability to exercise sound judgment and identify central issues;

• an understanding of, and ability to relate and listen to, children of all ages;

• good people skills and an ability to relate to, and listen to, adults;

• sensitivity and awareness of gender, ethnicity, sexuality, cultural and religious issues for families;

• relevant qualifications, training and attendance at relevant courses;

• personal qualities compatible with assisting negotiations in suitable cases and working co-operatively with other professionals;

• independence; and

• knowledge and understanding of the Code of Practice contained in the practice note issued on 17 November 2000 and the Best Practice Guidelines for Counsel for the Child ratified by the New Zealand Law Society on 18 February 2000.

663 The New Zealand Law Society runs a three-day training course in Wellington for lawyers wanting to act as counsel for the child; a similar course is planned for Auckland. It covers the following:

• the roles of counsel for the child and those with whom they will interact, particularly specialist report writers;

• child development and children’s needs;

• communicating with children;

• how to structure initial appointments with children;

• counsel for the child as negotiator and case manager, and what makes an effective counsel for the child;

• the role of counsel for the child in domestic violence cases;

• bicultural issues;

• court skills, including appearing in court and post-hearing matters;

• evidential matters;

• accountability and professional objectivity, including an assessment of counsel for the child’s own knowledge and preferences in managing conflict situations.

664 We have reservations about this course: we do not think three days enough to equip lawyers with the skills they need to work closely with children of various ages.

CRITICISMS OF COUNSEL FOR THE CHILD

665 Some people believe that retaining counsel for the child is not the best way to ensure children’s voices are heard in legal decisions affecting them. One survey found only 70 per cent of specialist report writers and 46 per cent of social workers thought counsel for the child should have direct contact with children; on the basis, presumably, that counsel’s training does not focus on working with children.[184]

666 On the other hand, the Children’s Issues Centre (CIC) found children believed their lawyers had consulted them. Approximately half the children said they had known what they wanted to say and counsel for the child heard them out. The other half said they formed their views after discussion with the counsel for the child and weighing up options. Very few reported feeling they had not been listened to.

667 Most of the interviewed children felt that having counsel for the child meant their views impacted on eventual decisions; most could give good reasons why they formed their particular view of the situation. The CIC observed:

Perhaps surprisingly there was little indication that they had been heavily influenced by someone else in the family in coming to their view. Hence the view which we have heard expressed that children have been “coached” by someone (usually a parent) did not receive any support from what the children said.[185]

668 It seems, however, that after the Court makes a decision, the process falters. Some children were not told the outcome, while about half remembered their parents or caregivers telling them about the decision. This is not acceptable. Counsel’s duty to a child client should not end with the decision; counsel should ensure the client is informed of it.

Opinions on counsel for the child

669 Some submissions to the Law Commission criticised the role and practices of counsel for the child. They said counsel were too adversarial, did not represent children, and did not ensure compliance with court orders.[186] Some felt counsel for the child were paid too much, creating an incentive to drag cases out. They suggested substitution of a child advocate, but did not say why they thought this would be a cheaper option. We outline below major concerns about counsel for the child.

Counsel for the child failing to meet with children

670 Several people commented on the degree to which counsel for the child is directly involved with the child he or she is representing. Some expressed concern that counsel for the child does not always meet with children.[187]

671 One man said counsel for the child scarcely met with his children and did not ask what they thought because counsel believed they had been coached by the parents.[188]

672 Apparently not all counsel for the child feel the need to have much direct contact with children. A survey of lawyers found they met only once or twice with children they were to represent.[189] In CYPF Act hearings, most lawyers met with the child twice a year prior to six-monthly reviews. One lawyer admitted to having no contact at all with the child other than at the hearing. It is hard to see in such a case how enough rapport could be established to encourage the child to say what he or she wanted.

673 Another lawyer confirmed that not all counsel for the child meet with children they are representing,[190] possibly because they assume all children of a particular age think the same and have the same interests. The lawyer criticised this assumption, pointing out that children differ developmentally even within a narrow age-bracket, and their needs will reflect this.

674 One submitter who had worked as a social worker for several years said she was still hearing reports of cases where counsel for the child did not meet the children.[191]

Bias

675 Some accuse counsel for the child of bias, because counsel refuse to interview those nominated by one of the parents. They claim counsel for the child is being obstructive if they do not automatically accept the evidence of parents.[192]

676 One woman felt counsel for the child had worked closely with the specialist report writer and alongside her ex-husband to make her look like “the mother from hell”.[193]

677 Another woman said:

Counsel for the child under the current system is most often seen to be getting in the road of the decision-making process of the parents. Counsel often ignores crucial concerns of the parent(s). ... They often are seen to be taking sides of one or the other parent. ... Often fail to recognise the fundamental nature of the bond between the child and the mother (who is the primary caregiver). ... Often the [c]ounsel for [c]hild will take on the “surrogate” role of guardian thereby denigrating the parental role.

678 Another claimed counsel for the child was working for the father and ignored evidence she wanted to produce about the father’s breach of court orders and his abuse of the child.[194]

679 One man felt counsel for the child was, in his case, biased against men. He suggested, however, the solution was not changing the role, but better monitoring of the selection process, and institution of a complaints procedure. He also suggested giving parents the opportunity to select jointly counsel for the child.[195]

680 The National Collective of Independent Women’s Refuges alleged that one counsel for the child made comments strongly in favour of the “father’s rights movement”, and gave legal advice to the father of the child she was representing. Counsel for the child may often make suggestions to parents in an effort to settle their dispute; fine judgment is needed to avoid doing so to one parent’s advantage.

681 Respondents have distinctly diverging views on the role of counsel for the child vis-à-vis parents. One said some parents have unrealistic expectations, assuming counsel for the child have decision-making power or the ability to enforce decisions.[196]

682 Counsel for the child is useful as a representative of the pivotal person in a guardianship dispute: he or she can speak directly with both parties, which parties’ counsel cannot do, and therefore acquire independent knowledge. Counsel for the child can sometimes successfully negotiate with another party, but cannot be a mediator because he or she is representing one of the parties – the child.

683 The Court tends to see counsel for the child as someone apart from the dispute, and as offering more rational and measured input. In fact, given what is at stake emotionally for the parties, their likely power imbalances, and their lawyers’ varying skills, the judge will not have the right information for a correct decision unless counsel for the child can take a more objective view.

684 Counsel for the child has sometimes been accused of bias because he or she has advocated on the child’s behalf that one parent is preferable to the other. But if the child’s views, and available information, show one parent would be better for a child, it is counsel’s duty to advocate it, and to be “biased” on behalf of his or her client.

685 We suspect some parents will always be unhappy with counsel for the child, or indeed any other professional, who, after consulting the child, recommends a course of action the parent does not agree with. This might be inevitable in a system that truly values and respects children’s perspectives.

Lack of skills or training

686 Presbyterian Support Central believes not all counsel for the child have the skills to do the job well.[197] They suggested there be more emphasis on child development training, and that counsel for the child be encouraged to work closely with the other Court professionals, such as counsellors, social workers and case managers.

687 Presbyterian Support Central thought it would be useful to supervise counsel for the child and support the role by ensuring appropriate referrals to services for children, such as counselling or social work assistance.

CHILD ADVOCATES

688 Many respondents were enthusiastic about the concept of a child advocate. Most, however, only sketched in appropriate background or training and responsibilities. In almost all cases, suggested tasks replicate what counsel for the child do already (or should be doing). Common suggestions included:

• knowledge of legal issues;[198]

• willingness to meet with the child, family members and significant others;

• an ability to assess children’s needs;[199]

• knowledge of child development and an ability to relate to and interview children;[200]

• knowledge of domestic violence and sexual abuse, and their effect on children;[201]

• background in disciplines such as law, psychology,[202]education, counselling and social work;[203]

• power to request specialist reports;[204]

• willingness to encourage dialogue rather than having parents communicate through lawyers;[205]

• willingness to ascertain children’s views so as to represent them at mediation.[206]

689 To perform all these tasks, a child advocate has to be highly trained and skilled. Such qualifications do not come cheaply.

690 Others approved of the concept of a child advocate but thought counsel for the child should still be appointed where complex legal issues arose.[207]

691 Defining a child advocate role is problematic because many of the suggested tasks are already carried out by counsel for the child, or could be carried out by those currently playing another role in Family Court processes; for example, counsellors, specialist report writers and social workers.

692 We accept that not all counsel for the child are doing the job as it should be done, and that they should have better practical training in working with children.

693 We believe that when a case proceeds to a hearing, it is vital children have someone to represent their legal rights; a role that, in our view, can only be taken by a qualified legal professional. Even if a child advocate were appointed earlier, counsel for the child would still have to be appointed once a hearing date was set. Adding another player, though, risks duplication of appointments and further expense.

694 Not all respondents supported a new child advocate role, a group of psychologists among them, saying it would subject children to yet another round of interviewing.[208] They say children often complain of having to repeat themselves to many people, and that either they are not heard or may have given the wrong answers.

695 In our view, the best way to address criticisms of the counsel for the child is to ensure adequate training and monitoring. We do not believe adding another player to the process is justified.

696 We believe other professionals could help ascertain and represent children’s views at an earlier stage. As discussed in chapters 6 and 7, we believe children should have access to programmes and counselling that will help them understand what is happening to their family and express how they feel about it. Whatever is relayed from a child to counsellors, mediators or social workers during conciliation, cannot be accessed later by counsel for the child unless the child agrees, because it is privileged information.

697 We believe that as soon as it is clear that the case will advance to a hearing, counsel for the child should be appointed, and his or her role should be ascertaining the child’s views, and representing and promoting their legal interests and welfare. We do not, therefore, envisage any fundamental change in the role of counsel for the child.

BETTER TRAINING FOR COUNSEL FOR THE CHILD

698 We recommend counsel for the child be offered more comprehensive training, covering child development and family dynamics, and techniques for interviewing children. Counsel must meet with children they represent and, following any decision, be sure the child understands what it means.

699 The CIC offers (largely theoretical courses) to those wishing to work with children: the Postgraduate Diploma in Child Advocacy, and the Postgraduate Certificate in Children’s Issues. Students study by audio-conference and/or the Internet, and are encouraged to attend a two-day seminar in Dunedin. The course curriculum includes:

• advocating for children (parts one and two); the sociology of childhood; UNCRC; children’s behaviour in various contexts;

• advanced early childhood studies focusing on early childhood development, and models and practices in early New Zealand childhood services;

• a paper on children and the law, looking at how the New Zealand legal system and UNCRC can enhance the rights and well-being of children and young people.

700 Such a course is a good model for further training of counsel for the child.

701 We suggest those wanting to act as children’s legal representatives first undertake a year-long distance education course covering such areas as child development, family systems theory and basic psychology. There should be at least three additional weekend practicums spread throughout the year, to train counsel for the child to interview and talk with children. We believe the CIC is well placed to design and run such a course.

702 The course should be additional to existing prerequisites for appointment as counsel for the child and not necessarily replace the current New Zealand Law Society training course, which could presumably refocus on the role’s legal aspects, and on the interface between counsel for the child and other Family Court professionals.

703 There should also be regular refresher courses to ensure lawyers and judges are kept up-to-date with social science research about children and families.

Recommendations

Counsel for the child should be required to meet with children he or she represents.

Counsel for the child should be offered more comprehensive training in child development, family dynamics and techniques for interviewing children.

Regular refresher courses should keep counsel for the child and judges up-to-date on social research about children and families.