PARTE II. CREANDO LA REALIDAD
VII. Del intelecto a la intuición
An orientation that involves a high level of direct contact reflects an ICL’s confidence in speaking to children and young people for a range of purposes—including familiarisation, explanation and consultation—and view that best interests outcomes are often allied to children’s/young people’s views. Some ICLs indicated that they consulted older children particularly on some procedural aspects of the case. For these ICLs, the participation function was equally as important, if not more important, than the evidence gathering and litigation management aspects of the role. The following quotations from an interview with an ICL demonstrate these characteristics. In relation to the first meeting and subsequent engagement, this interviewee from NSW described how they engaged with the child/young person to explain the process and their role in it. This ICL indicated they consulted children/young people where appropriate on procedural issues:
I leave it to the kids really … to determine how they want to use their ICL. I see the purpose of the first meeting with the child to give them information about the process, about what’s happening for them in court, because often parents don’t give children
40 Australian Institute of Family Studies Chapter 3
neutral or accurate information about what’s happening at court … to given them an opportunity to ask me stuff, to find out information and determine too their level of input into this process … With an older child, for instance, I might talk to them around the kind of report they want to be involved in. [ICL, LAC, interview]
The following comments illustrate this professional’s approach to eliciting and working with children’s/young people’s views:
I give all the children I meet the opportunity to express a view if they want to, but they don’t have to, and I am always clear to advise them … that they have options not to express a view at all … I don’t actually question children about their views. I give them the opportunity to share that with me, if that’s what they would like to do. [ICL, LAC, interview]
This interviewee also raised the issue of best interests representation (as compared with direct instructions), indicating it did not raise tensions in their practice because:
Generally speaking, 90 per cent of cases, the views expressed by a child are directly in line with their best interests. Kids are pretty smart characters. [ICL, LAC, interview]
This comment further illustrates the consultative focus adopted by some ICLs in their dealings with children and young people:
Prior to a hearing, I will ask the child if they wish me to say anything to the court (ensuring they know that will also be in the presence of their parents), and we will agree on a written statement that I read back to them. And I assure them that that message will be delivered verbatim. [ICL, private practice, survey]
3.3 Expectations and practices of ICL direct contact
The following sections explore in some depth practices and attitudes to children’s/young people’s direct consultation and participation, beginning with a discussion on cross-disciplinary attitudes on children’s/young people’s ages and the weight that should be placed on their views.
3.3.1 Age-appropriate practice: Cross-disciplinary views
and experiences
Responses to a survey question on the level of emphasis that should be placed on the views of children and young people at different ages reveal some interesting differences between the views of legal and non-legal professionals in the survey data, as shown in Figure 3.1. There is near consensus across all professional groups that the views of 15–17 year olds should be accorded high importance, with very large majorities of all professionals (78—81%) also indicating that high importance should be placed on the views of 12–14 year olds. In relation to younger age groups, however, substantially greater proportions of non-legal professionals than legal professionals suggested that children’s/young people’s views should be accorded high importance. For example, 42% of non-legal professionals indicated that the views of 8–11 year olds should be given high importance, compared to 20% of non-ICL lawyers and 15% of ICLs and 16% of judges. In relation to children in the 3–4 and 5–7 year age groups, a higher percentage of ICLs than any other respondents indicated that children’s views should be given no or limited importance.
3.3.2 Frequency and expectations of ICL direct contact
Two broad orientations in ICL approaches in relation to direct contact were discussed in section 3.2.4. Survey responses in relation to expectations and practices in relation to direct contact are discussed in this section. This material establishes, as suggested in the preceding section, that the cautious multipronged orientation is the dominant approach, but that this approach is not necessarily consistent with the expectations of other professionals, particularly judicial officers.
The ICL role: Participation function 0 10 20 30 40 50 60 70 80 90 100 IC L Non-IC L lawyer Judicial o fficer Non-legal professional IC L Non-IC L lawyer Judicial o fficer Non-legal professional IC L Non-IC L lawyer Judicial o fficer Non-legal professional IC L Non-IC L lawyer Judicial o fficer Non-legal professional IC L Non-IC L lawyer Judicial o fficer Non-legal professional IC L Non-IC L lawyer Judicial o fficer Non-legal professional
0–2 years 3–4 years 5–7 years 8–11 years 12–14 years 15–17 years
Percentage
High importance Medium importance No/limited importance
Note: Professionals were asked: “More specifically, what weight do you generally give to the views of children/young people at varying ages when forming a view as to what parenting orders accord with the best interests of the child/young person?” The proportion of missing responses ranged from 9.4% to 11.1%. ICL survey, n = 149. Non-ICL lawyers survey, n = 192. Judicial officers survey, n = 54. Non-legal professionals survey, n = 113. Percentages do not sum to 100% as not all response categories are presented.
Figure 3.1 Weight given to children’s views, at various ages of children, by type of
professional
Most ICLs surveyed indicated that meeting with children or young people was not necessarily a routine part of their practice. Table 3.2 shows that just over half (54%) of ICLs surveyed indicated that they “rarely or sometimes” had such contact, when asked to reflect on their last three ICL cases. Greater frequency in direct contact was reported by just over one-third (35%) of the sample, with 8% saying they never had direct contact. It should be noted that the question was designed to elicit a more easily accessible response to indicate recent practice approaches rather than a less specific indication of general practice approaches.
Table 3.2 Frequency of ICL direct contact with children/young people
Frequency of contact Total (%)
Never 8.1 Rarely/sometimes 54.4 Often/always 34.9 Missing 2.7 Total 100.0 No. of responses 149
Note: ICLs were asked: “Thinking about the last three cases in which you have acted as an ICL, how frequently did you have direct contact (in person or on the telephone) with the child/young person?” Percentages may not total exactly 100.0% due to rounding.
As Table 3.3 shows, among non-ICL survey respondents, close to two-thirds indicated they believed that ICLs should meet with children/young people in each case. Interestingly, non-
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legal professionals were marginally less likely to see a need for this (64%) than judicial officers (69%) and non-ICL lawyers (68%).
Table 3.3 Whether ICLs should have direct contact with children/young people in each case, non-ICL professionals reports
ICL should
contact Judicial officers (%) Non-ICL lawyers (%) Non-legal professionals (%)
Yes 68.5 67.7 63.7 No 25.9 25.5 29.2 Not sure 1.8 4.2 3.5 Missing 3.7 2.6 3.5 Total 100.0 100.0 100.0 No. of responses 54 192 113
Notes: Non-ICL professionals were asked: “Do you consider that ICLs should consult directly (in person or by telephone) with the relevant child or young person in each case where that child/young person is of sufficient maturity?” Percentages may not total exactly 100.0% due to rounding.
Considerable variation in practice concerning the purpose of meeting with children and young people is highlighted in the survey and interview data. Where direct contact does occur, it is most frequently undertaken to familiarise the child/young person with the ICL (86%), explain the ICLs role (86%), and explain the family court process to the child/young person (71%). Purposes associated with consultation—discussing the child’s/young person’s situation and ascertaining their views—were nominated as being undertaken often or always by a lower proportion (60%) of ICLs. Purposes associated with ensuring that children/young people understood the outcomes of the legal process were nominated as being undertaken often or always by the lowest proportions of survey participants—51% for explaining court orders and 56% for explaining outcomes more generally.
This is an area where differences were evident in the responses of ICLs who also practice as separate representatives in the child protection (CP) jurisdiction and those who do not. The most substantial differences in response patterns between the two groups of ICLs are apparent in relation to explaining processes and post-proceedings engagement. Markedly higher proportions of dual-function ICLs than family-law-only ICLs said the purpose of meeting children/young people was often or always to explain their role (97% cf. 80% respectively), explain court orders (66% cf. 41%) and explain court outcomes more generally (60% cf. 48%).
Table 3.4 Main purposes (“often” or “always”) of ICL direct contact with children/young people, by whether ICL also represents children in state child protection matters
Reason for contact
ICLs who also represent children/ young people in state
CP matters (%)
ICLs who do not represent children/ young people in state
CP matters (%) All ICLs (%)
To explain ICL’s role 96.9 79.5 85.9
To introduce ICL 93.8 81.9 85.9
To explain the family law process 81.2 65.1 71.2 To explain the court orders that were
made 65.6 41.0 51.0
To discuss the child’s/young person’s
situation and ascertain their views 63.3 59.0 59.7 To explain the outcome of the family
law process 60.4 48.2 55.7
No. of responses 64 83 149
Notes: The following question was asked: “What is/are the main purpose(s) of your direct contact (in person or by telephone) with the relevant child or young person?” Data for two cases where CP representativeness status was not indicated is not included in the first two columns. The proportion of “cannot say”/missing responses ranged from 1.6% to 4.8%. Percentages do not sum to 100% as not all response categories are presented.
The ICL role: Participation function