3.5.1 Views of non-ICL survey participants
The complexity demonstrated by ICL discussions about direct contact is also reflected in the views expressed by respondents in the other survey groups. Responses recognised the importance of direct contact in the fulfilment of the ICL role and of the ICL child participation and evidence- gathering functions. Lack of contact between some ICLs and children/young people was raised as a concern by judges, non-ICL lawyers and family consultants; however, a number of concerns were also raised about direct consultation, some mirroring those of ICLs themselves.
ICLs attracted criticism for failing to take a proactive approach in relation to consulting with children and young people:
The provision of the child’s views are not at the level which I consider sufficient. Sometimes an ICL can get carried away with the fact finding and forget about the impact of some aspects on the child, such as requiring a therapeutic health provider to supply information which may [then] undermine the child’s relationship with that provider. [Judicial officer, survey]
I think it should be standard practice [for ICLs] to meet [the] children they are representing. [Judicial officer, survey]
It should be mandatory unless the child is not of an appropriate age or it is not recommended by a family consultant for risk of systems abuse. [Non-ICL lawyer, survey] Upon the child obtaining an appropriate age, the ICL should deal and consult directly [with the child]. The ICL’s position has an extremely heavy weight in the courtroom. In most cases, the judge will not go against what the ICL recommends, and therefore they should speak directly with the child. [Non-ICL lawyer, survey]
I feel very strongly about this. You cannot represent the interests of a young person or child without meeting them. [Non-ICL lawyer, survey]
In many ways, [the ICL’s] position as a lawyer acting for the interests of children/young people is compromised by not speaking to … the person in whose interest they are seeking to protect. [Non-ICL lawyer, survey]
You can represent a person’s view only if you have listened to the person. [Non-legal professional, survey]
The UN Convention on the Rights of the Child stipulates the child’s right to have a voice and be represented in a child-focused way. In the current system, the ICL has been appointed to uphold these rights, thereby making it critical that they consult directly with the child. From a micro individual practice perspective, I think that ICL practitioners who directly engage with children are more capable of upholding the children (and their best interests) as the primary focus through court proceedings. It is hard to ignore the lived experiences of a child who tells us their story directly, as opposed to reading their stories from other adults (who are often incapable of accurately understanding the child’s experiences at these times). [Non-legal professional, survey]
[ICLs should consult with children] so that the child can tell their story directly to the lawyer. That way, [it is] unbiased. [Non-legal professional, survey]
If the ICL hasn’t seen the child, they are representing a client they know nothing about. The danger is that the case they put forward may be either hearsay and information may have been obtained from someone who has only seen the child once. If a child is seen, then [ICLs] have information firsthand and can properly represent the child’s best interests. [Non-legal professional, survey]
50 Australian Institute of Family Studies Chapter 3
It is hard to understand how a child could be adequately represented by an ICL throughout legal proceedings if the ICL has never met with and consulted with the subject child. [Non-legal professional, survey]
Feedback from children with less child-focused ICLs sometimes mentions that they were never spoken to directly by the ICL and that they did not understand what their role was. [Non-legal professional, survey]
Not having direct contact with children/young people was identified by some non-ICL lawyers as being particularly problematic where this failure was associated with a lack of independence (see Chapter 7 for further discussion):
Invariably, my experience is that the ICL refuses to speak to the child even when the child is over 12 and wants to express a view. Especially in sexual abuse allegation cases, the ICL invariably sides with the accused parent … by speaking exclusively to the accused person. I have seen several cases over the last two years where there is objective evidence of sexual interference, but the ICL strongly recommends that the child be left with the alleged abuser … The usual order is: Child taken away from mother and mother cannot contact child for one month. Mother forced to undergo psychological/psychiatric treatment with reports going to ICL. If ICL [is] satisfied, then mother allowed limited contact … and yet the ICL never sees/talks to the child or mother. I consider the ICL system to be a very nefarious part of the Family Court system, with the ICL having far too much influence on the outcome, without the ICL having the necessary independence of mind or knowledge of what the child is thinking/feeling. [Non-ICL lawyer, survey] In my experience, ICLs are inconsistent in their approaches and often out of their depth when it comes to actually engaging with the child as a client. They tend to align with one parent’s views, and most appear to me to misunderstand the independence of their role. Quite frankly, some are very lazy, they are paid by legal aid, seem to belong to a “club”, and their clients cannot complain about the service they provide. [Non-ICL lawyer,
survey]
Indeed, the capacity of ICLs to consult with children/young people was also the subject of criticism:
Engaging and determining a child’s view requires a personality and a capacity to establish an understanding and trust with the child that ICLs generally seem to lack, and the resulting ICL views are informed from views from others in the process, rather than from the child. As a result, the views of the child are seldom identified. [Non-ICL lawyer, survey]
The difficulty is that ICLs are invariably young and/or inexperienced, lacking the skills etc. to properly consult with young people and determine when they should and should not [make direct contact]. [Non-ICL lawyer, survey]
An ICL who did not understand child development or communication would be at risk of not understanding what the child was trying to communicate. [Non-legal professional, survey]
I’ve only experienced limited disadvantage, and this was specifically when an ICL took the lead role to explain the order, without proper understanding of the child and the child’s stage of development. [Non-legal professional, survey]
By virtue of being lawyers, ICLs inadvertently encourage legalistic views and approaches to considering “children’s interests” and frequently miss the complexity of each child’s experiences. [Non-legal professional, survey]
Some non-ICL lawyers also described the difficulties ICLs could experience if they did not meet with the children/young people whose interests they represented, both in relation to dealing with (or having credibility with) parents, and in terms of facilitating the progression of a matter:
Reassuring children and explaining appropriately what is happening can be enormously beneficial for children. I think it is very difficult for ICLs to have credibility with parents if they do not talk to sufficiently mature children, and it diminishes their ability to help resolve matters. [Non-ICL lawyer, survey]
The ICL role: Participation function
The parents are far more satisfied with ICLs involvement if they take the time to speak with the children and find out their views. They also feel like their children aren’t just “names on a page” and that the ICL’s views are somehow more valid having met the
children. [Non-ICL lawyer, survey]
I believe [consultation with the child/young person] should be done more frequently as I often have clients very frustrated that the child is expressing views to them and asking them questions and they do not know what they can say, particularly when there are orders restricting the parent discussing the proceedings with the child. [Non-ICL lawyer, survey]
3.5.2 Views of child protection professionals
Data from interviews conducted with child protection department representatives indicate that the majority supported the role of ICLs in ensuring that children and young people have opportunities to be directly heard. For some of the representatives, this support was contextualised as being related to the role of ICLs independently gathering evidence about best interests:
Their most important task—well, for younger children—is to assess the best interests of the children independently of the conflict of the parents. As children are older and more able to have a voice, then I think one of their very important roles is to bring that voice to those proceedings. [Child protection department representative, ACT]
My understanding is that they don’t have very much contact at all with the child, and I’m unclear on how they can make an assessment at all as to what the best thing for the child is if they don’t actually know that person. [Child protection department representative, SA]
Well, ultimately presenting to the court their perception of what’s in the best interests of the child. Hopefully that will also take into account the wishes of the child as well as any other dynamics they’ve picked up about the child and their relationship with the parties. So they act as a monitoring role between the proposals being put up by either parent and testing that. [Child protection department representative, NSW]
The NSW child protection department representative further elaborated that the ICL role was also important for shepherding or guiding the child/young person through the process of family law proceedings:
So the ICL gives that buffer but also is able to keep the child informed about what’s happening and get those wishes and other perspectives put to the court so that the court’s able to understand that dynamic. [Child protection department representative, NSW]
Caution in relation to having direct contact between an ICL and a child/young person was indicated by child protection department representatives in two areas, reflecting the concerns raised by ICLs themselves that were explored earlier in this chapter. First were concerns about children/young people having been interviewed multiple times or having had contact with multiple services:
Where a kid has gone through a forensic experience, I think the facts are often before the court without necessarily having to talk to the child. But that’s not to say that the child might not have a particular view about the perpetrator, which also may need to be canvassed. [Child protection department representative, WA]
Second, was the concern about lawyers not being well trained to speak with children/young people or social science specialists, as expressed by the following child protection representative:
So I think what is needed is a very careful assessment that’s personalised to the individual circumstances of that particular child at that particular point in time. I think that ICLs should take advice from the professionals who are trained in child development and training in family dynamics and trained in offender theory, and take advice from those people as to the suitability or not of them directly engaging with the child. [Child protection department representative, WA]
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3.6 Summary
The discussion in this chapter has focused on the role that ICLs play in facilitating the participation of children and young people in family law proceedings. This is an area where significant divergences in views are apparent among ICLs and between ICLs and other professionals. The analysis recognises that the notion of participation is context-dependent and multidimensional. In the family law context, a distinction may be made between child focus and child participation. Although child focus may involve participation, it is often conceptualised as referring to the approaches that centralise children’s best interests in decision-making. In this conceptualisation, child focus may occur in the absence of participation. The more specific notion of child participation arises from Articles 12 and 9 (among others) of the UNCRC and encompasses the idea that children need to be engaged, through information and discussion, in decisions relevant to their care, and should have the opportunity to express their views in relation to such decisions. This involves directly engaging with children about such decisions but does not necessarily extend to making decisions consistent with their views. It also involves facilitating the child’s understanding of why decisions have been made and how their engagement influenced them.
This analysis identifies a range of ICL practices in relation to engaging with children and young people to support child focus and participation. It is evident that there is a spectrum of practice in this regard, particularly in the extent to which ICLs have direct contact with children/ young people. Three main purposes of direct contact have been identified—familiarisation, explanation, and consultation. It is apparent that considerable variation occurs in the extent to which ICLs engage with children and young people for these purposes. Practice decisions about this are influenced by the age of the child/young person and the nature of the case. Cases in which particular concerns about direct contact arise include those involving family violence and/or child abuse. These concerns relate to subjecting children/young people to multiple interviews with professionals and the implications of an ICL receiving disclosures about abuse from a child/young person.
Two broad variations in approach to direct contact have been identified. The first and dominant approach is characterised by a cautious, multipronged approach to direct contact, with this occurring mainly for the purpose of familiarisation and, to a lesser extent if at all, explanation. Direct contact for consultative purposes, or ascertaining children’s/young people’s views, is often seen by ICLs as being the primary responsibility of the family consultant/single expert, and active collaboration between ICLs and family consultants/single experts takes place for these purposes. The minority approach is one in which there is a high level of direct contact, where the ICLs engage with children/young people for all three purposes—familiarisation, explanation, and consultation—and will in some circumstances consult them on procedural decisions.
Apart from the age and nature of the case, it is apparent that other factors also influence ICL practice in relation to direct contact. These include the community of practice to which the ICL belongs. Among ICLs from Queensland, South Australia and Western Australia, the dominant approach is particularly evident, with consultation for ascertaining views being seen as the responsibility of the family consultant in Queensland and the single expert in South Australia and Western Australia. Practice context is also relevant, with dual function ICLs—that is, those who also represent children/young people in child protection proceedings—being more likely to demonstrate a high level of direct contact than ICLs who practice exclusively in family law. The data in this chapter demonstrate a divergence between judicial officer expectations of ICLs in relation to direct contact and ICL practices. Although 35% of ICLs reported meeting with children/young people “often or always” when reflecting on their last three ICL cases, 69% of judicial officers indicated they believed ICLs should meet with the children/young people in every case. Qualitative data from judges indicate significant concerns about the lack of direct contact between ICLs and children/young people. Both ICLs and other practitioners raised a number of concerns about direct contact with children and young people, including ICLs being inadequately trained for this task, the possibility of disclosures being made that mean the ICL may become a witness in the case, and the increasing the burden placed on children/young people by having to take part in interviews with multiple professionals.
4
This chapter examines the two other aspects of the ICL role that were introduced in Chapter 2. It begins by discussing what’s often referred to as an “honest broker” (litigation management) function, and then examines their evidence-gathering function.