The hidden child : how lawyers see children in child representation

Abstract

Children’s participation rights in international and domestic law include the opportunity to express their views and have them taken into account in legal decision making processes, where decisions are being made about their lives. In New South Wales, legal representation is understood to be a key means by which children can participate in family law, child protection and criminal proceedings. This is reflected in legislation, guidelines, standards and models of representation which guide the practice of children’s lawyers. However, research with children reveals that relationships with lawyers often do not meet their expectations or give them confidence that they have been heard in proceedings. Anecdotal evidence raises questions about how children’s lawyers understand their responsibilities to support children’s participation in proceedings, but to date there has been limited research into this topic. This study considers and compares how children’s lawyers in these three jurisdictions understand the aspects of their role intended to facilitate children’s participation. It explores their experience of representing children and reveals some of the tensions that impact on their practice. It employs a qualitative method, using interviews with 35 children’s lawyers who practise in one, two or all three of these jurisdictions in New South Wales. The study utilises existing research into children’s experiences of legal representation. It takes a children’s rights approach, coupled with relational theory, sociocultural theory and the sociology of childhood. The findings suggest that lawyers’ practice in relation to children’s participation is affected by the nature of the proceedings and discourse in the jurisdiction, the model of representation and individual factors relating to lawyers’ ethical orientations to practice. Lawyers’ relational approaches correlated most closely with children’s right to participation and expectations of legal representation; in contrast, lawyers who focused exclusively on the needs of the court had less interest in children’s participation. The study concludes that to provide children with choices about participation, lawyers need to have the skills and commitment to develop rapport and trust with children. Legislation and models of representation need to be informed by principles that ensure individual children’s centrality to representation and respect for their perspectives and better articulate their right to participate. Selection processes and training and mentoring programs that assist lawyers to develop necessary skills and attitudes, also have a valuable contribution to make to the delivery of children’s participation rights in practice.