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Appendix D

PN 21 Practice note – Counsel for Child: code of practice

1. Background

This Code of Practice for Counsel appointed to represent children in Family Court proceedings arose out of a review of representation for children in the Family Court initiated in 1997. 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 report recommended that the Principal Family Court Judge issue a Practice Note clarifying the accountability of Counsel for the Child (see para 5.4), and that the New Zealand Law Society develop and ratify Best Practice Guidelines based on a draft in the report. That has been done and the Guidelines were ratified on 18 February 2000 by the Council of the New Zealand Law Society.

At the request of the Family Law Section of the New Zealand Law Society I agreed to incorporate as many as possible of these Guidelines and in an appropriate form, into a Code of Practice to be issued as a Practice Note.

I have done so in consultation with the Administrative Family Court Judges.

I now issue this Code which also incorporates Counsel’s accountability.

At the same time I recommend to all Counsel the full set of Guidelines ratified by the New Zealand Law Society as the pathway to consistently high practice throughout New Zealand. In any areas where the Guidelines differ from this Practice Note, the provisions of this Practice Note shall prevail.

2. Introduction

The welfare of children is the first and paramount consideration of the Family Court in all proceedings that involve children.

The role and practice of Counsel for the Child as described in this Code of Practice is guided by the United Nations Convention on the Rights of the Child, domestic legislation and a growing body of research and theory on best practice in working with children.

In this practice note:

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

– References to “Report Writer” means any specialist report writer or social worker from whom a report has been requested under s 29 or s 29A of the Guardianship Act 1968 and s 178 or s 186 of the Children, Young Persons, and Their Families Act 1989. “Report” has a corresponding meaning.

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

3. Discretion

The intent of the Code is to promote quality and consistency of practice without fettering the discretion of Counsel to exercise their professional judgment. As it is essential that Counsel respond to the characteristics of each case and client rather than following a formulaic approach, the Code seeks to establish some benchmarks for good practice while allowing Counsel to tailor their practice to the needs and circumstances of individual children including their age and maturity.

4. Guiding principles

4.1 Children have the right to be given the opportunity to be heard in any judicial and administrative proceedings affecting them as provided for by articles 9.2 and 12.2 of the United Nations Convention on the Rights of the Child, s 23 of the Guardianship Act 1968 and s 6 of the Children, Young Persons, and Their Families Act 1989.

4.2 Child clients have the right to be treated with the same respect as clients who are adults.

4.3 Children have the right to express their views and have their views given due weight in accordance with their age and maturity when adults are making decisions that affect their lives.

4.4 Children have the right to information about the case in which they are involved including information on the progress and outcome of that case.

4.5 Children have the right to competent representation from experienced and skilled practitioners.

5. Role of Counsel for the Child

5.1 The role of Counsel is to represent the child in accordance with the brief provided by the Court.

5.2 Counsel has a duty to put before the Court the wishes and views of the child but should not require the child to express a view or wish if he or she does not want to do so.

5.3 Counsel has a further duty to put before the Court other factors that impact on the child’s welfare.

5.4 Where a conflict arises between a child’s wishes/views and information relevant to the best interests of the child, Counsel should, where the child is sufficiently mature:

– attempt to resolve the conflict with the child;

– discuss the issues and Counsel’s obligations, with the child;

– advise the Court of Counsel’s position and in the case (anticipated to be rare) where 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 in respect of best interests issues.

6. Relationship with the child

6.1 Counsel should meet with the child he or she is appointed to represent other than in exceptional circumstances where in the opinion of Counsel such a meeting would be inappropriate. The timing for such meeting and any further meetings should be at the discretion of Counsel.

6.2 Counsel should attempt to build a relationship of trust and confidence with the child. Counsel should guard against developing a relationship beyond what is necessary for the proper performance of the role. Counsel should assist the child to develop realistic expectations of the role and influence of Counsel.

6.3 Counsel should be clear about his or her objectives in meeting with the child and should consider the venue and style of meeting which will best meet those objectives.

6.4 Counsel should explore the options for resolution and the implications of each option with the child as appropriate.

6.5 Where the child favours an option which Counsel considers may not be in the best interests of the child, Counsel should explain to the child that the child’s preferred option may not be acceptable to the Court and encourage the child to consider other options.

6.6 Other than is required by law, only in exceptional circumstances should Counsel show affidavits or reports to the child. Counsel should exercise cautious judgment in showing other documents to the child.

In every case Counsel should carefully consider the likely impact on the child and the child’s relationships.

7. Interviewing the child at school

7.1 Counsel should exercise caution before deciding to interview children at school. The school’s consent is required before any such interview is conducted.

7.2 If Counsel is to interview the child at school it is desirable to obtain the prior consent of the parents and to notify the school of those consents. If consents are not forthcoming Counsel may need to seek a direction from the Court. Counsel must also comply with any protocols or requirements of the school. If a formal order or letter appointing Counsel is available, this should be shown to the school principal.

8. Informing the child

8.1 Counsel should explain his or her role and define Counsel’s relationship with the child in a manner and language the child will understand.

8.2 Counsel should reassure the child that the child is not responsible for any decision which will be made by the Court.

8.3 Counsel should inform the child of the progress of the case at regular intervals or at key points throughout the life of the case.

8.4 Counsel should ensure the child knows how to make contact with Counsel.

8.5 Counsel should ensure that the child is informed of the outcome of the case and its implications and where appropriate, any grounds for appeal or further applications.

9. Confidentiality

9.1 Counsel for the Child should in a manner and language the child can be expected to understand:

– explain the limits of confidentiality; and

– advise that the information the child provides may need to be made available to others including on occasions parents and the Judge.

10. Systemic abuse

10.1 Counsel for the Child must be aware of and actively manage the risk to children of systemic abuse. Systemic abuse occurs when children are required to talk about themselves, their families and events, sometimes traumatic, in their lives to a procession of professionals with whom they will have little or no on-going relationship and who may ask them to relive the traumas they have been through.

11. Case management

11.1 Counsel should be proactive in moving the case towards resolution except where Counsel considers to do so would be contrary to the child’s best interests.

11.2 Where Counsel wishes to cross-examine the report writer (as opposed to leading evidence), Counsel should advise the Judge at the earliest practicable opportunity.

11.3 Counsel should recognise that while the resolution of the dispute may be the most important outcome for the child, the wishes of the child must not be overlooked and the best interests of the child must remain paramount.

11.4 In care and protection cases, Counsel should:

– be proactive in ensuring a Family Group Conference (FGC) is held as soon as possible; and that the matter proceeds to a hearing as soon as possible;

– be present at the FGC to ensure that the welfare and interests of the child shall be the first and paramount consideration;

– investigate the child’s situation and other than in exceptional circumstances, meet with the child. Prior to every review by the Court, Counsel should investigate the child’s situation and subject to para 6.1 meet with the child.

11.5 Counsel for the Child should not delegate the preparation, supervision, conduct or presentation of the case, but deal with it personally.

12. Judicial meeting

12.1 Where the child requests a meeting with the Judge, Counsel should discuss the request with the child and if appropriate confer with the Judge, in consultation with other Counsel.

12.2 Counsel should be present at any meeting between the child and a Judge.

13. Relationship with the Court

13.1 Any information provided to the Court by Counsel must be provided to the parties save in exceptional circumstances, such as where safety issues exist.

13.2 Cases involving children should not be unduly delayed. Before accepting any appointment, Counsel should be satisfied that he or she is able to give the time which the case requires to advance matters promptly for the child.

13.3 Counsel should ensure that he or she does not exceed the negotiated fee for the appointment without first obtaining approval from the Court.

13.4 In addition to the duty as an officer of the Court, Counsel’s role shall be carried out in accordance with the instructions and brief provided by the Court.

14. Counsel for the Child and report writers

14.1 Generally, Counsel should liaise with the report writer to ensure that the report writer is properly briefed on the issues for examination and assessment.

14.2 Where Counsel has obtained the leave of the Court to lead the report writer’s evidence, Counsel should:

– ensure that the report writer is familiar with Court procedures;

– alert the report writer to issues which are likely to be raised in cross-examination;

– ensure the report writer has either data collected from the interviews or theoretical material to deal with issues likely to be raised by the parties or the Judge.

15. Role of Counsel in negotiation between parties

15.1 Once Counsel has a clear appreciation of the issues involved in the case, Counsel should be proactive in exploring alternative methods of resolution where it is clearly in the child’s best interests to have his or her parents negotiate a settlement rather than have the matter determined by the Court.

15.2 Counsel should not attempt to resolve disputed issues of fact relating to sexual abuse, violence or other safety issues upon which the Court should make findings.

16. Role of Counsel in cases under s 16B Guardianship Act 1968

16.1 If issues are disputed the Court will need to make findings of fact. It is the role of the Court and not of Counsel to make findings covering violence/assessment of risk.

16.2 Counsel must not compromise, for the sake of expediency, on issues where findings of fact must be made.

16.3 At all times Counsel should be conscious of the provisions contained in s 16B of the Guardianship Act 1968 and in particular Counsel should:

– take all necessary steps to expedite the hearing in accordance with s 16B(2);

– determine the most appropriate way of ascertaining the views of the child pursuant to s 16B(5)(g);

– in considering matters pursuant to s 16B(6)(b), advocate measures that will enhance the safety of the child.

17. Role of Counsel for the Child at hearing

17.1 At the hearing, Counsel should endeavour to:

– identify all relevant issues which need to be determined in regard to the child’s welfare;

– ensure the Court has all relevant information, including the views of the child, on which to make an informed decision; and:

– call evidence where appropriate eg from psychological and/or medical professionals, teachers and others;

– ensure Counsel does not give evidence him/herself;

– cross-examine to ensure all relevant issues are fully explored;

– make submissions on behalf of the child.

18. Guardianship of the Court

18.1 Counsel should not accept appointment as agent for the Court until relinquishing his/her appointment as Counsel for the Child.

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