"Survey for Independent Children's Lawyers"

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Category: Uncategorised

Created: Wednesday, 08 August 2012 14:30

Written by Alecomm2

{module Independent Children's Lawyer Survey for NSW Attorney General}

‘Direct representative’

A direct representative, regardless of how he or she is appointed, receives and acts on instructions from the child client irrespective of what the representative considers to be the best interests of the child client. A direct representative owes the same duties of undivided loyalty, confidentiality and competent representation to the child as is due to an adult client.

PRINCIPLE A1 - Client of a direct representative

Where a legal practitioner is acting as the direct representative of a child, the child is the client. The direct representative must act upon the instructions of the child client, regardless of who has appointed the practitioner or who is paying legal fees.

Direct representatives could be appointed by a court, retained directly by the child or by the parents or guardians of the child.

PRINCIPLE A3 - Client where a guardian ad litem or next friend has been appointed

Where a guardian ad litem or next friend has been appointed to act on behalf of a child in legal proceedings, that person is the client of the legal practitioner. The legal practitioner is to act on the instructions of the guardian ad litem or next friend.

PRINCIPLE C1 - Determining whether child has capacity to give instructions

In determining whether the child is capable of giving instructions, the child’s willingness to participate and ability to communicate should guide the practitioner rather than any assessment of the ‘good judgement’ or level of maturity of the child.

Child development literature suggests that the skills required to be capable of giving instructions are regularly attained by age six or seven.

PRINCIPLE C2 - Enhancing child’s capacity

The practitioner should seek to enhance the child’s capacity to provide instructions by structuring all communications to account for the child’s age, level of education, cultural context and degree of language acquisition.

Adults frequently underestimate the knowledge and understanding of children, and their capacity to work through problems and provide a cogent view as to what is in their interests. If necessary, practitioners should consider seeking the assistance of appropriate behavioural scientists to assist them to ascertain the wishes and directions of younger children.

PRINCIPLE D1 - Seeing the child

Other than in exceptional circumstances, his or her independent children’s representative must see every child. The practitioner should see the child as soon as possible and, where possible, well before the first hearing.

(all efforts should be made to meet with the child before each and every court date)

PRINCIPLE D5 - Support persons

The practitioner should consider whether the child would benefit from the support of a trusted adult during the interview process. It is essential that the practitioner seek the child’s view on this issue. The support person should only be invited at the request of, or with the consent of, the child.

Many children need or would benefit from having a trusted adult with them during the interview with the practitioner. In many cases, this will be a parent or carer.

Children have the right to exclude support persons, including parents, from the room at any time.

PRINCIPLE E2 (Part 1) - General obligations of direct representative

The direct representative should represent the child in a competent and professional way in accordance with the Solicitors’ Rules and general legal requirements.

The direct representative’s presence at and active participation in all telephone or other conferences and hearings is critical, unless the hearing involves issues completely unrelated to the child.

The direct representative should actively advocate in accordance with the child client’s instructions and preferences.

Before closing submissions, quickly consult with the child client to ensure that all aspects of the instructions have been put to the court.

PRINCIPLE E4 - Whether a child should give evidence

When determining whether to call a child as a witness, or to consent to the child being called as a witness by another party, practitioners should consider the following:

• The child’s need or desire to give evidence.
• Use of written or audio-taped statements as alternatives to the child’s direct evidence.
• The child’s developmental ability to provide direct evidence and withstand possible cross-examination.

Practice Direction No 2 of 2006 relates to the less adversarial proceedings and provides for the possibility of a Judge speaking directly with children. Paragraph 9.2 of the Practice Direction provides that “in the discretion of the Judge, and in appropriate cases, the Judge may interview the child.

PRINCIPLE H1 - Access to documents by child client

A child client is entitled to access documents held by the direct representative that have been created or received by the direct representative for the purposes of the child client’s matter.

PRINCIPLE J2 - Right to dismiss direct representative

A child client has the right to dismiss their direct representative, regardless of how or by whom the direct representative was appointed.

Link to Media Statement