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Appendix C

PN 20 Practice Note – Counsel for the Child: selection, appointment and other matters

1. Background

The terms of this Practice Note have been settled in consultation with the Department for Courts and the Family Law Section of the New Zealand Law Society.

2. Contents

The Practice Note covers the following matters:

– appointment;

– Children, Young Persons, and Their Families Act 1989 – review procedures;

– reports;

– selection process;

– review of lists;

– levels of remuneration; and

– complaints.

3. Introduction

In 1997, the Principal Family Court Judge asked the Department for Courts to undertake a review of the representation of children in the Family Court. Two Focus Committees, including representatives from the department, the New Zealand Law Society and the Judiciary, were established to address the issues associated with the role and administration of Counsel for the Child. The report of the Focus Committees was released in April 1999.

This Practice Note consolidates and supersedes previous Practice Notes only where they concern matters relating to Counsel for the Child appointments and incorporates recommendations from the report. These are:

– Practice Note issued by Principal Family Court Judge Trapski in January 1982 on Family Court procedure (refer “Separate representation of children”);

– Practice Note issued by Principal Family Court Judge Mahony in April 1988 (refer “Periodic reports from Counsel for the Child and Guardianship Act 1968, ss 29 or 29A”);

– Practice Note issued by Principal Family Court Judge Mahony in April 1988 on Counsel for the Child quarterly reports;

– Practice Note issued by Principal Family Court Judge Mahony in 1992 on CYPF Act 1989 – review procedures;

– Practice Note issued by Principal Family Court Judge Mahony in March 1996 on Matters affecting the appointments and payment of Counsel appointed by the Family Court (only where matters relate to Counsel for the Child);

– Department for Courts Circular issued on 1 April 1998 – outlining new fees for Counsel for the Child.

In this practice note:

– References to “Counsel”, unless otherwise stated, refer to Counsel for the Child.

– References to “Specialist Report Writer” means any specialist report writer from whom a report has been requested under s 29A of the Guardianship Act 1968 and s 178 of the Children, Young Persons, and Their Families Act 1989. “Specialist report” has a corresponding meaning.

– The term “child” includes both “child” and “young person” as defined in the Children, Young Persons, and Their Families Act 1989.

4. Separate representation of children

– Section 30(1)(b) of the Guardianship Act 1968 authorises the Court to appoint a barrister or solicitor to represent any child who is the subject of or who is otherwise a party to proceedings under that Act.

– Section 162(1)(b) of the Family Proceedings Act 1980 gives similar jurisdiction in respect of a child involved in proceedings under that Act.

– Section 159 of the Children, Young Persons, and Their Families Act 1989 authorises the Court to appoint a barrister or solicitor to represent any child or young person who is the subject of any proceedings under care and protection and, if the Court thinks desirable, for such other purposes (including any other proceedings under this Act or any other enactment) as the Court may specify.

– Section 81(1)(b) of the Domestic Violence Act 1995 authorises the Court to appoint a lawyer to represent the child in any proceedings on an application for a Protection Order (or in any proceedings relating to or arising out of a Protection Order) made on the child’s behalf.

– Section 26(2) of the Matrimonial Property Act 1976 authorises the Court to appoint a solicitor or Counsel to represent children of the marriage if there are special circumstances which render it necessary or expedient.

5. Appointment of Counsel for the Child

5.1 (a) Appointments must be made by the Court. The Judge is responsible for settling the brief for Counsel for the Child. This will usually be done in consultation with Counsel for the parties. The initial brief (and any extensions approved by the Court) will cover the span of the appointment of Counsel for the Child up until the time of any hearing.

(b) As far as possible, the brief for Counsel for the Child should be settled at the time the decision is made to appoint Counsel for the Child.

(c) Unless any risks to the children are identified earlier, appointments under s 30(2) Guardianship Act 1968 generally will not be made until a mediation conference has identified the matters that are really in issue between the parties and, whether custody or access proceedings appear likely to proceed to a hearing.

(d) Where the solicitor for either party considers that an appointment should be made before a mediation conference, application can be made to the Court through the Registrar.

5.2 The Court will consider, in allocating the brief to Counsel for the Child, the following listed factors:

– match of skills to case requirements;

– availability of Counsel;

– current workload of Counsel;

– equitable distribution of work among Counsel on the list.

5.3 Every brief should include:

– a description of the issues to be addressed and, if appropriate, the task/s to be undertaken;

– any reporting requirements both written and otherwise;

– the time and funding allocated to carry out the brief;

– the timeframe for completion of the tasks.

5.4 The role of Counsel for the Child is referred to in detail in the Code of Practice for Counsel for the Child issued by way of Practice Note on 17 November 2000.

5.5 Once the Court has settled the brief for Counsel for the Child, the Registrar will negotiate an estimate for time and cost for undertaking the outlined brief with the proposed Counsel. This will include payment of any disbursements. Once an acceptable arrangement has been reached, the Judge will sign a Minute of Appointment.

5.6 A bill of costs should be rendered in a form usually acceptable to the Legal Services Agency and should be calculated in accordance with an agreed hourly rate of remuneration.

5.7 Where, during the course of the work, it becomes clear that the estimate of time does not cover the work required for the proper discharge of Counsel’s function, Counsel should report the fact to the Court with reasons. Counsel should use best endeavours to report before the estimate is exceeded. Similarly, where the nature of the assignment changes and Counsel believes a different payment level should apply, Counsel should report to the Court as soon as practicable. Where Counsel and the Registrar cannot agree on any additional cost, the matter should be resolved by the procedures set out in s 30 of the Guardianship Act 1968.

5.8 Each Court will maintain a register, listing each appointment of Counsel, the date of appointment, the estimate of fees and actual fees paid for the type of case and the date on which the appointment terminates.

5.9 The register will be available for the regular monthly management meeting of each Family Court.

5.10 In areas such as Auckland, where several Courts use one pool of Counsel, there should be inter-Court communication to ensure that, as far as possible, there is a spread of assignments to all listed Counsel.

6. Children, Young Persons, and Their Families Act 1989 – review procedures

6.1 Counsel for the Child’s appointment will continue after the initial proceedings have been finalised or have subsequently been reviewed with a further review to follow. Though Counsel’s appointment continues in this way, no active work is to be undertaken until the time of the review, unless specifically authorised by the Court or issues arise unexpectedly or urgently.

6.2 Because the appointment continues, Counsel becomes a person who has to agree to the reviewed plan. Early consultation will be required by the person preparing the plan. (Refer s 132(1)(b) and s 135(3)(e) of the Children, Young Persons, and Their Families Act 1989.)

6.3 If there is no dispute about the reviewed plan and the direction in which the proceedings are to go, those preparing the reviewed plan should obtain the formal consent of all parties as required. The consent forms should indicate whether parties wish to attend a hearing or whether they consent to the review being conducted without a hearing. The Judge should be advised of any dispute when the plan is filed.

6.4 After filing, the plan will be placed before a Judge to consider release of the report and any other steps to be taken, and whether orders can be made on the papers.

6.5 The intention of this procedure is to reduce to a minimum any disruption to the lives of children, foster parents and others by having them attend the Court, but at the same time to protect all parties’ rights under the Act. This is particularly appropriate where everyone agrees that the status quo should continue. It is also intended to lead to significant savings in time and cost.

7. Report from Counsel for the Child

7.1 As from the 1 February 2001, the Court will not require Counsel for the Child to provide three monthly reports on each case. Reports will be provided as specified by the brief or as directed by a Judge.

7.2 Copies of the reports must be forwarded to Counsel for the parties.

7.3 The report should summarise steps taken by Counsel and results that have been achieved. It should then outline further steps to be taken or recommended. The report should be short, factual, and informative, but should be couched in neutral terms and should not introduce any material that ought to come to the Court’s knowledge only by way of evidence. Further steps recommended may include one or other of the following:

– that the parties be referred back to counselling;

– that a mediation conference be held;

– that a pre-hearing conference be held;

– that the matter proceed to a hearing;

– that a report be prepared under s 29 or s 29A of the Guardianship Act 1968 or s 178 or s 186 of the Children, Young Persons, and Their Families Act 1989. Reasons for such a report should be stated;

– that no steps need be taken and that the matter be left in the hands of Counsel for a further specified period.

7.4 Because circumstances differ so much from case to case, Judges have been reluctant to approve a set form or model to be used as a basis for reports required from Counsel for the Child.

7.5 Nevertheless, the following draft is included as a useful guideline. It focuses attention:

– on relevant issues;

– the point that has been reached by the parties;

– the input to date by Counsel for the Child; and

– advice to the Court on initiatives that may be appropriate.

7.6 It is comprehensive, but concise and to the point. In an appropriate case Counsel may refer in a neutral way to issues settled or still to be determined.

The Registrar

Family Court

Re: B Family – X/X/88.

Thank you for your letter of 18 June advising of my appointment as Counsel for the children.

This is my report of my attendance to date.

Summary of Issues:

1. The future of Mr and Mrs B’s marriage;

2. Custody of three children;

3. Occupation of a state rental home.

Situation:

1. Mr and Mrs B and their children presently occupy the home;

2. There are three children directly affected by the dispute;

(a) G – pupil Wellington College;

(b) R – pupil Wellington College;

(c) P – categorised as an autistic child, functioning in the severely handicapped range. P attends a Special School.

3. Mr and Mrs B have attended counselling;

4. A mediation conference was held on Friday 11 July. However, the problems have not been resolved, and an urgent hearing has been sought.

My attendance to date:

1. Read Court documents;

2. Formulated an approach;

3. Spoke on telephone and attended on the parties’ solicitors;

4. Conference with Mrs B;

5. Conference with Mr B;

6. Conference with Principal, Special School;

7. Telephone conference with school Counsellor, Wellington College;

8. Telephone conference, social worker, Wellington Hospital;

9. Attended mediation conference;

10. Conference with school Principal preparing affidavit;

11. Conference with school Counsellor preparing affidavit.

It appears that the only and most appropriate means of resolution is an urgent Court hearing. I have, at this stage, decided to call witnesses to give evidence at the hearing and, to that end, am in the process of preparing affidavits.

I intend to speak to ..................... of the Education Department Psychological Service as she/he has completed an assessment of P for the Education Department. I will also be speaking to G and R and intend to meet further with Mr and Mrs B and their solicitors prior to the hearing. I have to date spent X hours on the case as detailed by my interim bill, which is enclosed.

Yours faithfully,

8. Selection of Counsel for the Child

8.1 In each Court there will be a list of Counsel who are available to accept appointments from the Court as Counsel for the Child and from which Counsel may be appointed in individual cases.

8.2 The following selection process has been settled following the recommendations from the report of the Focus Committees on the role of Counsel for the Child and associated matters. The Department for Courts and the Family Law Section of the New Zealand Law Society have agreed to this process.

8.3 The Registrar will convene a Panel to consider applications for inclusion in the list of Counsel for the Child available to undertake Family Court appointments. This Panel will consist of a Family Court Coordinator, two nominees from the Family Law Section of the New Zealand Law Society, a Specialist Report Writer nominated by the Court, a Family Court Judge nominated by the Principal Family Court Judge and the Registrar, as convenor. The Panel should normally have six people, but a panel of three could be convened in some circumstances (for example, where an interview would be unable to be arranged within a reasonable timeframe). Any Panel of three must include a Family Court Judge, a nominee from the Family Law Section of the New Zealand Law Society and the Registrar (or a Family Court Coordinator).

8.4 Panels will be convened as required but no less than twice a year, if there are applications waiting to be considered and a need for Counsel to be appointed.

8.5 The following appointment process should be followed:

– Counsel submit an application form to the Registrar in the Court region in which they wish to practise, nominating the particular Court or Courts where they wish to be on the list. The application is referred to a Panel convened by the Registrar.

– panel members make such inquiries as may be needed for them to be informed about the applicant’s ability to meet the criteria. Panel members will be assisted by the requirement that applicants provide the names of referees who can provide professional, confidential comment.

– the Panel will interview each candidate. If the Panel has any concerns about a candidate’s ability to meet the criteria, these concerns will be put to the applicant who will have the opportunity to reply.

– it is expected that the Panel’s approval will be by way of a consensus decision.

– the Registrar will advise the applicant, the Court, the Family Law Section of the New Zealand Law Society (if required) and the National Office of the Department for Courts of the decision, in writing.

– there is no obligation for the Panel to provide reasons for non-selection onto the list, but it is expected that, if an applicant is not selected, the Panel will have discussed their concerns with the applicant during the selection process.

8.6 Counsel for the Child should meet the following criteria:

– ability to exercise sound judgment and identify central issues;

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

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

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

– good people skills and an ability to relate 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 cooperatively 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 NZ Law Society on 18 February 2000.

8.7 Counsel will be able to transfer their approval from one Court region to another.

9. Review of Counsel for the Child lists

9.1 A review of Counsel for the Child lists must be undertaken at intervals of not more than three years. The Registrar in each Court must ensure that lists of approved Counsel are reviewed at such intervals. Where several Courts use one pool of Counsel, the Registrars in those Courts may choose to review the lists of approved Counsel together.

9.2 The Registrar shall give notice to all Counsel who are currently on the list. Such notice will include a requirement for all Counsel whose names appear on the list to indicate, within a period of not more than 28 days:

– whether they wish to continue to receive Counsel for the Child appointments;

– whether they wish to withdraw from the Counsel for the Child list; or

– whether they have any matters relating to present or past appointments which they wish to draw to the attention of the Panel.

9.3 The Panel shall meet as soon as practicable and reconstitute the Counsel for the Child list. The Panel shall also consider any matters raised by Counsel that relate to the administration of the list.

9.4 The Panel shall notify all Counsel of the revised list and whether their names have been retained or deleted from the list, as the case may be. The reasons for deletion must be specified, and limited to either the practitioner’s request or the practitioner’s failure to respond within the stipulated time.

9.5 The Registrar shall send the revised list to the National Office of the Department for Courts and the Family Law Section of the New Zealand Law Society.

10. Levels of remuneration

10.1 Until regulations are made fixing levels of remuneration, the Court notes the levels of remuneration agreed between the Department for Courts and the New Zealand Law Society. Levels applying at October 1995 are:

Level 1

$130 to $155 per hour (GST inclusive). Range to be used in cases where the practitioner appointed has only recently been approved or where no approved Counsel is available and Counsel appointed is not on the list of approved Counsel.

Level 2

$155 per hour (GST inclusive). This fee will be used in the majority of cases.

Level 3

$155 to $170 per hour (GST inclusive). This range will be used to calculate fees:

– in cases where superior skills are required;

– in cases of extreme urgency;

– in cases where there are grave concerns about the immediate safety of children;

– in most Hague Convention cases;

– in cases where there are allegations of sexual abuse.

10.2 The Department has reminded Registrars that they have discretion to exceed the rate in exceptional circumstances.

10.3 Disbursements are not included in the rates set out above. Disbursements such as reasonable travelling expenses, toll calls, faxes etc, shall be paid by the Registrar on receipt of an itemised account from Counsel. Extraordinary expenses, such as long distance travel, should be approved in advance.

10.4 Where there are unresolved differences between Counsel and Registrar, Counsel should do the work, submit an account, and the provisions of s 30 of the Guardianship Act 1968 will then apply, ie taxation by the Registrar and judicial review where necessary. It is envisaged that this procedure will rarely have to be used. Proper recourse to this procedure will not prejudice the position of Counsel in relation to future appointments.

10.5 This Practice Note shall continue to apply following the making of regulations fixing levels of remuneration to the extent that it is not overtaken by the same.

11. Complaints

11.1 The Family Court does not have jurisdiction to hear any complaints against Counsel for the Child when the case has concluded. Any such complaint received by the Court should be referred to the New Zealand Law Society.

11.2 Applications for release of material to the New Zealand Law Society should be referred to a Family Court Judge.

11.3 Any complaints about Counsel for the Child received by the Court, when the case is in progress, should be referred to the presiding Judge. The complainant must put their complaint in writing.

Commencement date:

This Practice Note is issued as at 17 November 2000 and comes into operation on 1 February 2001.

Signed

Judge PD Mahony

PRINCIPAL FAMILY COURT JUDGE