Different Views? Children's Lawyers and Children's Participation in Protective Proceedings in New South Wales, Australia

Abstract

Fierce debates about the appropriate role of children's lawyers in child protection have erupted in Australia and overseas since the 1990s, with different models of legal representation for children incorporated into legislation. Given the pace of change and the variety of arrangements in Australia, there has been surprisingly little research into how lawyers think about these roles or put them into practice. This article examines how children's lawyers in the NSW Child Protection system think about their practice and formulate their approach to the representation of children, with reference to their contact with children. It reports on the findings of a qualitative study undertaken in 2006 that asked 21 lawyers how they work with children and how they think about children's participation. Lawyers reported that they represented children in very different ways, reflecting ambiguity about how to interpret these roles and involve children as clients or the subject of best interests representation. The author argues that an integral aspect of the lawyers' role is to ensure that children are heard by the court, but that more needs to be done to ensure this is carried out in practice.

“I didn't Know You were Fighting So Hard for me”: Attorneys' Perceptions of Youth Participation in Child Dependency Proceedings

“…The present study supports the movement in the United States and internationally for enhanced youth participation in legal decision making (Cashmore, ; Hughes, ; Ross, ; Weisz et al, ). In addition to dependency proceedings, study findings may have broader implications for other types of legal proceedings (e.g., custody).…”

“…Studies demonstrate that attorneys and other court players may pose a barrier to youth participation. Ross (2013) conducted qualitative interviews with attorneys in Australia who represent children in family law cases, including child protective cases. The majority of attorneys preferred for young people to participate indirectly through the attorney and not be present in court during the proceedings.…”

Children’s Participation in Care and Protection Decision-Making Matters

“…The evidence of parents or guardians may provide yet another perspective but is not necessarily an accurate and unbiased representation. Although legal proceedings in the care jurisdiction are intended to be non-adversarial (e.g., s 93 of NSW Care Act), they are widely perceived to adopt many elements of an adversarial approach in practice (Fernandez et al 2013;Ross 2013;Sheehan and Borowski 2013;Sheehan 2013;Thomson et al 2017;Tilbury 2013;Walsh and Douglas 2011). The evidence and arguments of each party are typically those that support that party's position rather than representing a unified inquiry into the interests, needs and wishes of the child.…”

“…Inquiries, research and reviews indicate that there is wide variation in practice and disparate views about whether children's legal representatives, both in care and family law matters, should meet with children, regardless of their age, and advocate for their views as well as best interests (Australian Law Reform Commission 2019;Bell 2016;Carson et al 2018;Ross 2013). As Ross (2013) pointed out, there are "tensions caused by the intersection of different perspectives: a welfare discourse underpinning the child protection system; the adversarial nature of child protection proceedings; and recognition of children's human rights, including children's rights to express a view and be heard as part of decisionmaking processes" (p. 333).…”