THE DEVELOPMENT OF THE BEST INTERESTS LAWYER IN

CHILDREN’S COURT PROCEEDINGS

Robyn Hamilton

Family Law Advocate

VLA Chambers

Overview…

• UN Convention of the Rights of the Child and the Charter of Human Rights and Responsibilities Act 2006

• What is the best interests lawyer aka ICL or separate representative?

• Appointment• Duties and Role• Issues for consideration• Case examples.

UN Convention on the Rights of the Child

The appointment of a child’s representative is one means of giving effect to provisions of the CROC;

• In any proceedings…all interested parties shall be given an opportunity to participate in the proceedings and make their views known (art9.2)

• Parties shall ensure that a child who is capable of forming a view has the right to express that view and ensure that due weight is given to the child’s view in accordance with age and maturity of the child (art 12.1)

CROC (cont)

• The child shall be given the opportunity to be heard in any judicial and administrative proceeding affecting the child either directly or through a representative (art 12.2)

• No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence…the child has the right to the protection of the law against such interference (art 16.1 and 16.2)

Charter of Human Rights and Responsibilities

• S. 8 Recognition and equality before the law

• S.17 Right to protection of family and child

• S.24 Right to a fair hearing

Appointment – how and when?

• S. 524(4) of the Children Youth and Families Act 2005 provides:

If in exceptional circumstances, the court determines that it is in the best interests of a child who, in the opinion of the Court is not mature enough to give instructions, for the child to be represented in a proceeding in the family division, the court must adjourn the hearing of the proceeding to enable that legal representation to be obtained.

Cf Appointment under Family Law Act

s68L(2) if it appears to the Court that the child’s interests ought to be represented the Court will request the appointment of an Independent Children’s Lawyer.

s68L(4) A court may make an order for an ICL:

(a) on its own initiative; or

(b) on the application of:

(i) the child; or

(ii) an organisation concerned with the welfare of children; or

(iii) any other person

s. 524(4) CYFA 3 elements

1. Exceptional circumstances; and

2. Best interests; and

3. Child not mature enough to give instructions

1. Exceptional circumstances

• Not defined in the CYFA

• Case law specific to the Children’s Court jurisdiction not yet sufficiently developed to provide a guide.

• Examples: PCO (particularly to non family), no parents participating, proposed removal from jurisdiction, child under 10 expressing strong views

exceptional circumstances (cont)

• The FLA does not specify criteria for appointments either, however the 1994 case of Re K is authority for circumstances warranting the appointment of an ICL

• Re K (1994) FLC 92-461

Sets out guidelines for cases in which there should be an appointment and includes a discussion of the power to appoint, the role of representative and the United Nations Convention on the rights of the child

Re K Factors

• Allegations of child abuse (physical, sexual or psychological)

• Intractable conflict between the parents

• Where the child is apparently alienated from one or both parents

• Issues of cultural or religious difference affecting the child

Re K factors (cont)

• Sexual preference of either or both parents or other significant person, which are likely to impinge on the child’s welfare

• Antisocial conduct of either or both parents impinging on the child’s welfare

• Significant medical, psychiatric or psychological illness or personality disorder

• Neither parent seems a suitable custodian

Re K factors (cont)

• A child of mature years is expressing strong views, which involve changing a long standing arrangement

• Where one of the parties proposes a permanent removal from the jurisdiction

Where siblings may be separated

• Where no one is legally represented

• Medical treatment cases

2. Best Interests Principles

• s. 8 CYFA : the Court and the Secretary must have regard to the principles in making any decision or taking any action

• s. 10 CYFA

The primary definition of best interests

(i) Protection from harm;

(ii) Protection of rights; and

(iii) Promotion of development

3. Child not mature enough to give instructions

• Children’s Court Clinic opinion = < 7• CYFA s 524 = < 10 or >10 and not mature

enough to instruct• Case of A & B [2012]VSC 589• Although ‘mature’ usually regarded as age

related, provision could include intellectual disability, autism or other factors impinging on ability to give instructions – Re Marion (1992) 175 CLR 218

Mechanics of appointment

• Procedural Orders / Directions

Examples:• within 48 hours of notice of appointment, parties

to send ICL relevant documents;• Release of clinic report, subpoenaed material to

the ICL, • order for child to attend ICL, • an order that the ICL is considered to be a party.

Example Family Law rules

Rule 8.02 – Status as party(3)A person appointed as an independent children’s lawyer:

...(c) may do anything permitted by these Rules to be done by a party.

(4)If an independent children’s lawyer is appointed, the parties must conduct the case as if the independent children’s lawyer were a party.

Meeting with the child (5)  The Court may make an order to allow the ICL to find

out what the child's views are

DUTIES OF ICL

The CYFA mandates 2 duties:• S. 524(11):

– a lawyer representing a child not mature enough to give instructions must

(a) act in accordance with what he or she believes

to be in the best interests of the child; and

(b) to the extent that it is practicable to do so, communicate to the Court the instructions given or wishes expressed by the child.

(a) best interests

Implicit in s. 524(11) (a) is the requirement to form a view about what constitutes the child’s best interests

• S. 10 CYFA Best Interests principles - s10(2) includes the need to protect children from harm and to promote development (note s.17(2) Charter; arts 6(2), 19 Croc)

• the definition of best interests also includes the need to protect rights – articles 3,12 and 16 CROC; ss 8(3), 17 and 24(1) of the Charter

• DoHS v Sanding [2011] VSC 42 – rights and limited interference; A & B v Children’s Court [2012] VSC 589 – best interests cannot be complied with if art 12 of CROC not satisfied.

How to form a view in best interests ?By gathering and assessing evidencei. Subpoena material, eg police records, crèche,

school, doctor, hospital, MCHN, counsellors, DoHS file, etc;

ii Request information from parties, speak with parties, carers, school;

Iii Meet the child (note: expressed views or observations made need to be in admissible form)

iii. Request Children’s Court Clinic Assessment or other type of assessment

Australian Law Reform Commission and HREOC

ALRC report No 84 in relation to child protection cases:• Role of ICL must go further than child’s instructions or

wishes;• In relation to non verbal children, should include-

– Investigating all relevant facts, parties and people;– Subpoena all documents– Retain experts as needed– Observe child in caretaker’s setting and formulate optional plans– Challenge basis for experts and agency conclusions– Advocate for legal rights of child, incl safety, visitation and sibling

contact– Ensure all relevant and material facts are put before the Court

(from material produced by Magistrate Peter Power)

General Nature of the Role - s68LA

(2) The ICL must form an independent view of what is in the child’s best interests, based on evidence and act in what the ICL believes to be in the best interests of the child

(3) If the ICL is satisfied that a particular course is in the best interests of the child, the ICL must make a submission to the court suggesting the adoption of that course

(4) The ICL is not the child’s legal representative and is not obliged to act on the child’s instruction

Role under Family Law Act

Case law

• P & P (1995) FLC 92-615

Guidelines for the role and duties of the ICL (generally adopted by s 68LA of the Family Law Act)

• B & R and the Separate Representative (1995) FLC 92-636

Deals with the role of the ICL at trial including evidence gathering

(b) Communicate instructions or wishes to

the Court • R & R: Children’s Wishes (2000) FLC 93-000• Court to give “appropriate and careful consideration”

to wishes; and

• ICL to arrange for evidence as to how children would feel if outcome not as they wished

• Communicating instructions/wishes in admissible form; eg through clinic assessment, psychological report, counsellor, a party.

Issues for consideration• Act impartially (‘honest broker’)

- copy all correspondence and communications to all parties

- confirm all communication in writing, including arrangements to meet with the child

- given that the child’s wishes/instructions must be communicated to the Court, these should be provided to the parties prior to Court.

Issues for consideration (cont)

• Assist resolution

- recommend and participate in NMC,DRC

- advise parties of the ICL’s recommendations (incl disposition and conditions) in advance of hearing (can be provisional)

Issues for consideration (cont)

• Role at trial

- communicate child’s wishes/instructions (the ICL should not be a witness)

- call witnesses

- cross examine

- make submissions

- be available to give instructions

Note: Mandatory Reporting• FAMILY LAW ACT 1975 - SECT 67ZA Where member of the Court personnel, family counsellor, family dispute

resolution practitioner or arbitrator suspects child abuse etc.          (1)  This section applies to a person in the course of performing duties or

functions, or exercising powers, as:               (a)   …(g)              (h)  a lawyer independently representing a child's interests. (2)  If the person has reasonable grounds for suspecting that a child has been

abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

(3)  If the person has reasonable grounds for suspecting that a child:               (a)  has been ill treated, or is at risk of being ill treated; or

        (b)  has been exposed or subjected, or is at risk of being exposed or subjected,

to behaviour which psychologically harms the child; the person may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

Mandatory Reporting (cont)

(4)  The person need not notify a prescribed child welfare authority of his or her suspicion that a child has been abused, or is at risk of being abused, if the person knows that the authority has previously been notified about the abuse or risk under subsection (2) or subsection 67Z(3), but the person may notify the authority of his or her suspicion.

(5)  If notice under this section is given orally, written notice confirming the oral notice is to be given to the prescribed child welfare authority as soon as practicable after the oral notice.

(6)  If the person notifies a prescribed child welfare authority under this section or subsection 67Z(3), the person may make such disclosures of other information as the person reasonably believes are necessary to enable the authority to properly manage the matter the subject of the notification.

Case studies

• Oregan

• Reid

• Wisjman

• Clarke