4. Ejes de acción para el cantón Pimampiro
4.10 Eje de acción: Riesgos
One of the main criticisms of judges meeting with children is the perception, often held by judges themselves, that judges lack the required skills and training to speak with children27 or to draw out and interpret their views.28 It is widely thought that
22 In accordance with the test of judicial prejudice approved by the High Court in
Johnson v Johnson (No 3) (2000) FLC 93-041.
23Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175. 24 Ibid, 78,958.
25Lachlan and Lachlan [2008] FamCA 455 (Unrep, Le Poer Trench J, 25 June 2008).
26 Ibid, [658-659]. His Honour said that while there was nothing particular arising from his meeting with the child that his Honour thought should remain confidential, ‘without understanding all of the history of the family I could be entirely insensitive to some piece of information which the child gave me which I thought unimportant to the decision to be made by me. If I were to make available to the parties the recording of the interview I might inadvertently cause damage to an aspect of the relationships between the child and his parents. It is this aspect of the matter which in this case I find compellingly drives me not to release the recording of the interview.’ (Ibid, [661]).
judges ‘generally lack knowledge about developmental differences in [children’s] cognitive, language, and emotional capacities’.29
A situation where a judge attempted to interpret a child’s views arose in Nicholson and Crans.30 Demack J interviewed a 15 year old boy without anyone else being present. The child expressed a clear preference to live with his mother. His Honour found the child’s answers were ‘carefully rehearsed and designed to bring forth all conceivable reasons to support the view that he was advancing’.31 His Honour was unsatisfied that the views expressed were the child’s true wishes and not the product of the mother’s manipulation.
As Demack J was without the assistance of a family consultant (as they are now called), an issue arises as to whether his Honour had the expertise to assess the validity of the child’s views in this case, particularly when his Honour stated in the same paragraph, ‘[h]e is a small lad for his age and appeared to be extremely nervous’. It is unclear whether this observation had any impact on his Honour’s findings. If it did, it may have been inappropriate to make findings of truth based on a child’s size and his apparent nervousness on meeting with a judge by himself. On the other hand, judges are accustomed to ascertaining the veracity of evidence and credibility of witnesses. While the task may be different when the evidence is being presented by a child, judges would presumably have some skill in determining the truth of what is said. This may be so particularly in cases involving older children. While it is almost certain that the majority of judges do not have adequate training to comfortably and appropriately speak with children alone, this problem can be addressed by offering training32 and taking advantage of the skills and training of a family consultant. In ZN and YH33Nicholson CJ said:
28 J Cashmore, ‘Children’s Participation in Family Law Matters’, above n2, 167.
29 J Kelly, ‘Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current Research and Practice’ (2002) 10 Virginia Journal of Social Policy and the Law
129, 154. 30
Nicholson and Crans (1976) FLC 90-025.
31 The full text of this judgment has not been reported. These facts were taken from the extract published by CCH Australia Limited, Family Law Cases, citation above.
32 M Harrison, Finding a Better Way: A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings, Family Court of Australia (2007), 42, also A
This Court already offers regular judicial training to judges and there is no reason why such training should not be offered as part of that programme.34
If judicial meetings are conducted in the presence of a family consultant, the consultant can facilitate the discussion and ask appropriate questions to ascertain the child’s views, thus relieving the judge of that responsibility. The judge may listen to the conversation and ask specific questions as they arise, or invite the child to speak freely.35
In any event, in the vast majority of cases the child’s views would previously have been obtained and interpreted by a family consultant, and presented in a family report. This goes some way to explaining why meetings between judges and children are so rare, as ‘interviews by other professionals have long since replaced judicial interviews as the normal means of ascertaining the views of children’.36
Family consultants are highly trained to speak with children and establish their views. They have the expertise to analyse the views expressed by a child and give the judge an informed opinion on whether the views are genuinely held or whether the child is under some other influence, such as parental pressure or loyalty.37 This thesis argues that a meeting between a judge and a child should take place in addition to hearing the child’s views through the reports of family consultants and other suitably qualified experts.38 It is a complementary measure, to clarify or elucidate information or emphases that may have been left inconclusive by a report, or to satisfy a child who wishes to talk directly to a judge. A judicial meeting should not be in substitution for
Nicholson, ‘Family Law Reform: How Much Real Reform is Involved? Does It Take Us Forward or Backwards?’ (Paper presented to the ACT Council of Social Services, Canberra, 17 August 2006) 22.
33ZN and YH and Child Representative (2002) FLC 93-101. 34 Ibid, [109].
35 As occurred in the case involving the purportedly terminally ill mother discussed in Chapter Four. 36 Parkinson and Cashmore, ‘Judicial Conversations with Children’, above n12, 162.
37 Chief Justice A Nicholson (as he then was), ‘Children and Children’s Rights in the Context of Family Law’ (Paper presented at the LawAsia Conference, Brisbane, 21 June 2003) 6. For example, it has been widely recognised that children may be ‘alienated’ from one parent to the extent that a child may express unreasonable negative feelings and beliefs toward a parent that are significantly disproportionate to the child’s actual experience with that parent (J Kelly and J Johnston, ‘The Alienated Child: A Reformulation of Parental Alienation Syndrome’ (2001) 39
Family Court Review 249).
an expert report, except in circumstances of urgency or where it is impractical to obtain one.39
While some direction may be given by the court, the family consultant cannot be expected to know what particular information provided by the child will be considered important by the judge. Further, the family report is usually provided well before the trial. By the time the matter is ready for hearing before a judge, issues of importance to the ultimate decision may be different from when the family report was prepared. A judicial meeting can allow the child’s views to be updated in preparation for a trial.
Additionally, in many of the cases mentioned in Chapter Four, the views expressed by children during judicial meetings did not require interpretation or deciphering.40 Instead, they were simple statements of what children considered to be important in their situations, which clarified, supplemented or updated information already disclosed in a family report.41 Had the respective judges in cases such as ZN and YH42
and Painter and Morley43 been limited to the accounts of the children’s views in the
family reports, the decisions may have been different, and may not have accorded with the children’s best interests.
Lyon has argued that judges should not let their perceived lack of ‘expertise’ prevent them from speaking with children:
What does it take to talk to children? Do judges have the same reservations when dealing with children in the dock in criminal courts? Do they refuse to do cases in which children are defendants because they ‘do not know how to talk to children?’ It is necessary to be provocative here because this is a very serious question and one in respect of which children feel extremely insulted when they are told that someone has not been ‘specially trained to talk to them’. Children have successively made the very valid point in a huge range of research studies now that they are people who
39 This view was confirmed by the Full Court in Joannou and Joannou (1985) FLC 91-642.
40 This accords with the experience of judges who have spoken with children in other countries, such as in New Zealand where judicial meetings with children take place relatively frequently. See Chapter Six for discussion about practices in other jurisdictions.
41 See, for example,
Painter and Morley [2007] FamCA 283 (Unrep, Benjamin J, 29 March 2007). 42ZN and YH and Child Representative (2002) FLC 93-101.
have the same rights to be informed and to be involved in decisions made about them as any other person.44
In contrast, the Chief Justice of the FCA, Diana Bryant, said it was not a good idea for judges to speak with children for forensic purposes.45 She expressed the concerns identified above; that judges are not qualified for the purpose and would not glean any information not already available through a family report. Her Honour also said that, although there may be a role for a judge and child to meet for non-forensic purposes (for example, to explain a decision to the child), ‘you would have to be extremely careful about the process’.46