DESCRIPCIÓN DE TRABAJO

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interviews with 32 children/young people between the ages of 7 and 17 years emphasised the importance of professionals listening to children and young people and the importance of providing the “choice, opportunity and availability” to be part of the decision-making process (p. 414).

In the Australian context, Parkinson and Cashmore’s (2008) study of 47 children and young people aged from 6 to 18 years, including 17 children/young people who had had an ICL appointed to represent their best interests, identified mixed views about their interaction with professionals in the family law process. While about half of the children and young people were “quite positive” about their ICL, negative views also emerged regarding their interactions with their ICLs, including whether they felt that they had been listened to and whether they felt their confidentiality had been betrayed (see also Cashmore & Parkinson, 2008). The earlier New Zealand study of Taylor, Gollop, and Smith (2000), which included interviews with 20 children/ young people aged between 8 and 15 years, identified mixed experiences of having a lawyer represent them in family law proceedings. The clear message that emerged was that lawyers need to listen more closely to the children/young people that they represent and to understand their views, to communicate with them on their level, to take the time to get to know them, to keep them informed (including advising them of outcomes) and to advocate for them (see also Smith, Taylor, & Tapp, 2003; Taylor, 2006).

8.2 Interviews with parents and children/young

people

This chapter examines perceptions about the experience of being involved in a matter with an ICL, gathered from 23 interviews with 24 parents or extended family member carers (17 mothers, five fathers and one couple who were members of an extended family who had successfully obtained residence orders) and 10 children/young people (six girls and four boys, including two sibling groups).47 _{In total, the families where parents/carers were interviewed}

involved 41 children/young people in these age ranges: 0–2 years = 1, 3–4 years = 9, 5–11 years = 20, 12–14 years = 8.48

As explained in some depth in Chapter 1, various methods were used to recruit the adult participants, including asking legal aid commissions to send letters on behalf of AIFS to potentially eligible parents (yielding 10 parent interviews) and via targeted advertising in local media and social media (n = 13). Children and young people were recruited through their parents, rather than independently. This approach was adopted for two reasons. First, given the complex nature of the cases involving ICLs and the significant proportion that involve family violence and child abuse, it was decided that parental support for their children’s participation in the research would provide safeguards against children and young people engaging with the research team and re-living difficult experiences without having access to family (or other) support to assist them to deal with any issues or questions that may arise through being interviewed. Second, the data obtained from parents provided context for the interviews with children and young people. This obviated the need for seeking factual clarification and permitted the focus of the discussions with the children and young people to remain primarily centred on their experiences.

The approach of selecting a defined sampling frame (parents and children/young people who had been involved in a matter with an ICL in Victoria, NSW and Queensland between 1 January 2011 and 31 December 2012) and issuing an invitation through legal aid commissions was intended to ensure that, at the very least, the invitation to participate in the research reached a significant proportion of potentially in-scope parents. Although this was intended to ameliorate the potential for sample biases that might arise through a less systematic approach to reaching potential participants, it is nonetheless clear that the participants whose experiences were quite

47 Some data were missing or unknown from the interviews. Consequently, the numbers presented in this chapter do not always sum to the expected number. Information was received from 23 interviews with parents/ carers in and 10 interviews with the children/young people. Pseudonyms have been assigned to parents and children/young people in the discussion in this chapter. The terms “carers”, “parents”, “participants”, and “interviewees” are used interchangeably in this chapter.

Perspectives of parents and children

negative were motivated to take part by a desire to be heard and a wish to see an improvement in the practices of ICLs.

The accounts from 23 interviews with 24 parents/extended family carers and 10 interviews with 10 children/young people examined in this chapter cannot therefore be assumed to be representative of the experiences of all parents and children/young people involved in matters with an ICL. Rather, they provide insight into the lived experience of being involved in a matter with an ICL in the particular circumstances of each individual interviewed. These experiences nonetheless provide illustrations of the personal effects of those more problematic approaches and practices of some ICLs that were apparent from Chapter 7. Though the extent of the problem cannot be accurately gauged, their experiences reinforce the need, discussed in Chapter 6 and 7, for more effective training of ICLs and an improved system-wide approach to meeting the needs of children/young people and parents at risk of harm.

That said, it will be seen also that a minority of interviewees reported positive, even empowering experiences, with ICLs, providing some evidence of the potentially beneficial effects that ICL practitioners can have.

This chapter begins with an overview of the circumstances of and outcomes for the families that participated in this aspect of the project. It then examines parents’ perceptions of the nature and consequences of the ICL’s involvement in their particular cases. The discussion of the data generated through interviews with parents/carers establishes, in broad terms, the context for the discussion of the interview data from children and young people. The important focus of the analysis of the data from the interviews with children/young people is each child’s/young person’s experience of the way in which critical issues in their lives were dealt with in the family law process. Specifically, to what extent does it appear that children’s/young people’s knowledge about their own lives and circumstances feed into their understandings of decisions made about them?

8.3 Overview of family circumstances

Parents’ descriptions of their parenting dispute show that most families in the sample were involved in very complex cases. Most interviewees indicated that their case had taken more than two years to resolve. Eleven indicated that it had extended over a timeframe of two to four years, and a further six reported a litigation period of five or more years.

Most parents (n = 14) reported that their case had been heard in the FMC; four were dealt with in the FCoA; and a further four matters had been dealt with in both courts. Just over half the parents (n = 13) indicated that the situation had ultimately resolved by consent, and nine reported resolution by judicial determination.

Eight parents said that the case they were being interviewed about was not the first set of parenting proceedings involving their children. A minority of parents interviewed (n = 5) indicated that they had been self-represented throughout the proceedings. Fourteen indicated having legal representation throughout the proceedings and four had been self-represented for part of the proceedings.

The information collected in the parent interviews reveals that ICLs were most commonly appointed early in proceedings (first 6 months) (n = 18). The most common reasons parents indicated that ICLs were appointed included dealing with the presence of family violence (n = 14), child abuse (n = 8), and high conflict (n = 7), and to represent the best interests of children/ young people (n = 6). Other reasons for ICL appointments identified by parents included the child/young person wanting reduced time with one parent, a request for an ICL by the parties, and international relocation issues. Ten parents indicated that the ICL was employed by legal aid and six reported the ICL was in private practice. Other participants were unclear about this dimension.

The interview data explicitly indicate that the families had had involvement with child protection departments in 13 cases, while eight parents indicated having current safety concerns for their children as result of contact with the other parent at the time of interview. Ten parents reported that they had concerns about sexual abuse or child injury at the hands of the other parent before or during their court case. Of the 14 interviewees who had indicated that a history of

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family violence was relevant, seven also indicated that personal protection orders had been obtained. More mothers than fathers who participated in our study raised concerns about family violence and child safety and abuse (12 out of 14 participants reporting family violence and 8 out of 10 participants reporting safety concerns for their children were mothers). In 18 cases, there were reports of safety concerns for a parent or child/young person, though four of these were not accompanied by reports of family violence. Out of the five fathers interviewed, two indicated that child abuse related concerns were relevant. Issues related to child safety and abuse were pertinent in the case involving the extended family carers.

In terms of the parenting arrangements before the case, the most common arrangement was for children/young people to spend most/all time with their mother (n = 12). In three cases, shared cared arrangements were in place. Arrangements after the case were broadly similar, although there were fewer cases (n = 9) where children/young people spent most/all time with their mother. Only a few cases had supervised contact arrangements prior (n = 2) and after the case (n = 3).

8.4 Parents’ views of the role and efficacy of ICLs

As foreshadowed in the introduction to this section, parents were largely negative in their overall assessments of the effect that the ICL had in their case. Almost all the parents rated the work of the ICL negatively (n = 14) or more negatively than positively (n = 6). Only three parents indicated that their experience of the ICL was mostly or wholly positive.

Most parents (n = 18) did not feel the ICL worked in the best interests of their children, with a further four parents indicating a mixed response on this issue. One parent indicated they felt the ICL had clearly assisted the court to understand the best interests of their child(ren). Nine parents made comments about the ICL that had both positive and negative elements, though the overall tenor tended to be more negative than positive. Nine participants said the outcome was consistent with their own position, while eight reported it was consistent with the other parents’ position and three indicated an outcome consistent with neither party’s position.

8.4.1 Expectations of ICLs and child participation

Very few parents in the sample demonstrated high levels of awareness of the multi-dimensional nature of the ICL’s role. Most recognised that the ICL was appointed to represent the best interests of their children. This raised an expectation that the ICL would meet with the child/ young person, even among some parents who had children under eight. The emphasis in the parents’ discussions of their expectations was on the ICL’s role as a representative for the child/young person, including in some cases, as a “voice” for the child/young person. While parents referred to ICL activities related to evidence gathering and case-management functions—sometimes in negative terms (see further below)—in their accounts of how their matter unfolded, their discussions of what they thought ICLs were appointed to do showed little awareness of these aspects of the ICL role.

This mother’s explanation of what she thought the ICL role would entail in relation to her under- school-age son demonstrates the emphasis in many parents’ accounts of what they thought the ICL would do:

I assumed that the children’s lawyer would be, um, working for the child, like, would do what was best of the child … My son was pretty young, so she—I know that she couldn’t take his opinion, but, um, I just assumed that she would be working to work out the best thing for him. [Tessa]

Parents’ understandings of the ICL role, and their consequent expectations of ICLs as a source of child focus in the proceedings, underpin the powerful theme of disappointment and negativity in the interview data. A common observation made by parents was that initial positive expectations of the ICL’s involvement evolved into less positive or wholly negative experiences as the proceedings developed.

These responses encompass a spectrum from expressing disappointment to very significant concerns about the way in which the ICL discharged their professional responsibilities (see

Perspectives of parents and children

further below). At the level of disappointment, parents’ responses to ICL involvement reveal three main areas where expectations were not met: contact with and accessibility to the child/ young person; contact with the parent; and playing a role in the case that focused attention on the child/young person.

From the perspective of parents, the interview data suggest that an absence of contact with parents and children/young people raises a significant question about knowledge: if the ICL has not met the parents or the child/young person, how can they know what is in the child’s/young person’s best interests? Even parents whose children were less than school age expressed disappointment with a lack of contact between the child and the ICL, although two (including Tessa, quoted above), were accepting of this, given their children were under four:

Um, well, I guess it’s the role of the Independent Children’s Lawyer which concerns me, is where they don’t actually interview parents. So I’m unsure of how they ascertain the case for the child when they don’t speak to the child. They don’t speak to the mother that cares for the child … There’s absolutely no interviews conducted or to see, um, from a welfare perspective or a safety perspective that the child is actually in a good or a bad environment. And there’s no follow-up. [Megan, mother of a child under school age]

Another interviewee with a child under eight said her son’s communication skills were of a standard that would have made a discussion with the ICL a useful exercise, even though this did not occur:

I felt—thought—that he was ready at an age to even have a chat or an interview with … the Independent Children’s Lawyer and also the report writer. I mean he was only [age omitted] at the time but, you know, they can probe in a way that they can get an understanding of how the child is even feeling at the moment. I think that they should have been interviewed, um, just to gauge an idea. [Felicity]

Similar views have also been expressed by some professionals who participated in this research and these are described in section 3.3.1.

8.4.2 Views on ICLs and direct contact

About a third of parents (n = 8) indicated that the ICL met with their children, and in four cases such contact occurred on two or more occasions. Children’s/young people’s experiences of having direct contact with an ICL are described in section 8.5.2.

Of the 16 interviews in which parents commented on how the children/young people felt about the ICL, nine parents indicated that the children/young people didn’t know about the ICL and only one parent reported that the child/young person was more positive than negative about the ICL. In relation to the question of ICL contact with children/young people, three themes are prominent. The first is the ICL’s level of competence in dealing with children/young people; second is the effect such contact had on the children/young people; and the third is the effect that the lack of such contact had on the children/young people.