Children’s participation: a look towards the future

Judge Peter Johnstone, President of the Children’s Court of NSW; the paper was first presented for the Child Representation Conference on 5 March 2016.

[1-0160] Introduction

[1] This paper has been prepared for the Child Representation Conference on Saturday 5 March 2015 at the Novotel Wollongong Northbeach.[1]

I am conscious not to be unduly repetitive of the issues that have been presented by my colleagues. Accordingly, I have approached this paper by viewing the issue of children’s participation through the lens of an Independent Legal Representative (ILR).

[2] This paper will explore the important role played by Independent Legal Representatives (ILRs) in the Children’s Court, including the challenges implicit in their work and ways to strengthen the performance of their role by undertaking participatory advocacy. I will conclude by canvassing promising initiatives for enhancing child participation in the future.

[3] Firstly I wish to acknowledge the traditional owners of the land on which we meet, the Wadi Wadi people of the Dharawal nation and pay my respects to their Elders past and present.

[4] 4. Harnessing the participation of children and young people is fraught with challenges, particularly where children and young people have experienced disempowerment, maltreatment and historical disadvantage.

[5] Part of the complexity of the ILR’s role lies in balancing the safety, welfare and well-being of the child against the need to provide the child with the opportunity to freely participate in the decisions that affect him/her. This intricate balancing act requires significant skill on the part of the advocate.

[6] The discourse and research in this area has not yet developed or settled to the extent that we will see a legislative change with respect to child representation. As you are all aware, child representation is a vexed issue. Until we can confidently incorporate alternate child representation schemes into legislation, we must work to promote and harness the participation options that are available.

[7] My intention in presenting this paper is explorative, not determinative. I have arrived at this topic in response to criticisms levelled at the ILR model and/or solicitors’ interpretation of what it means to be an ILR. The core question this paper seeks to unpack is: how can ILRs enhance their role by undertaking participatory advocacy.

[8] I will investigate the tension between the ILR model and the Direct Legal Representative (DLR) model and will undertake a jurisdictional analysis. I will then highlight the skills that advocates can draw upon to improve their representation of children. I will conclude by canvassing some initiatives that appear to hold promise for the future of child representation.

The tension between an independent legal representative and a direct legal representative

[9] The concept that ‘children should be seen and not heard’ has become redundant as society has developed an appreciation of the value that children and young people can add when they are empowered to participate.

[10] However, empowerment is subject to one important qualification – the paramountcy principle. Where participation does not accord with the child or young person’s safety, welfare and well-being, the latter will prevail.

[11] Thomas argues that:

Rights should reflect children’s developing competence, offering them protection as long as they need it combined with empowerment as soon as they are ready for it, with restrictions on their freedom and autonomy only where these can be justified in terms of maximising their future choices.[2]

[12] This qualification has been enshrined in Art 12 of the United Nations Convention on the Rights of the Child (UNCROC). While I recognise that you are all familiar with this provision, I will include it for completeness:

1. States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.[3] [My emphasis.]

[13] As you can see, the participation principle in Art 12, is qualified by ss 8 and 9 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). The Care Act clarifies that a young person’s participation in decision making is subject to ensuring their safety, welfare and well-being.[4]

[14] The Care Act also outlines the responsibilities the Secretary owes to the child to facilitate the child’s participation in decisions made under the Act. This includes a responsibility to provide, inter alia, information about the matter, tailored to the child’s communication needs and level of understanding; the opportunity to express his or her views freely and the opportunity to respond to decisions made under the Act.[5]

[15] In addition, the Act requires that:

due regard must be had to the age and developmental capacity of the child or young person.[6]

[16] The Independent Legal Representative (ILR) or “best interests” model is consistent with the need to consider the child’s views whilst maintaining an overarching commitment to safeguarding the child’s interests. The ILR will consult with the child, but their overriding duty is to the Court, to act in accordance with the safety, welfare and well-being of the child.[7]

[17] The Direct Legal Representative (DLR) model requires that a DLR may be appointed for any child at the age of 12 or over who is capable of giving instructions. The DLR must then advocate as instructed by the child.[8]

[18] Many have argued that the qualification on children’s right to participate is limiting and fails to privilege the valuable perspectives and knowledge that children can offer. Ross argues that the best interests principle:

… is embedded in welfare discourse that conceives of children as incompetent, dependent and vulnerable victims who are in need of protection by the legal apparatus of the state. “Best interests” is fundamentally about expert, adult interpretations of what is best for children.[9]

[19] The jurisdictional analysis that follows highlights the ways in which Australian jurisdictions have balanced providing the child with agency, whilst protecting their safety, welfare and well-being.

[20] In the Australian Capital Territory and South Australia children and young people are primarily represented in accordance with the DLR model.[10] However, in South Australia an ILR approach applies if a child is not capable of providing proper instructions to their solicitor.[11]

[21] In Western Australia, a child will be represented on a DLR basis[12] unless the child is not capable of giving proper instructions or where a child does not wish to give his/her solicitor instructions.

[22] In these circumstances, an ILR model will apply.[13] In addition, a judicial discretion applies as to whether a child should be represented by an ILR.[14]

[23] Interestingly, Queensland, the Northern Territory and Tasmania appear to have the most similar model to an ILR insofar as solicitors must present the child’s views and wishes to the Court, if possible, but the best interests approach applies regardless of any instructions from the child.[15]

[24] In Tasmania, an additional qualification is added, providing that a care application cannot be decided by the Court unless the child is legally represented or the Court is satisfied that the child has made an informed and independent decision not to be represented.[16]

[25] In Victoria, a solicitor acting for a client must act in accordance with any instructions or wishes expressed by the child, so far as it is practicable to do so having regard to the maturity of the child (my emphasis).[17] Significantly, where a child is not considered mature enough to give instructions, the court has the power to adjourn the case to enable legal representation to be obtained, but only if there are exceptional circumstances in the best interests of the child.[18]

[26] The variety of approaches taken in Australian jurisdictions highlights the challenges implicit in defining an age, stage and methodical way of striking a balance between securing a child’s safety, welfare and well being while also facilitating their participation.

[27] In RCB (as litigation guardian of EKV, CEV, CIV and LRC) v The Honourable Justice Forrest, the High Court articulated this complexity as a practical issue:

Determination of an application for a return order and, in particular, determination of any issues about the strength of a child’s objection to return and the maturity of that child will affect the child’s interests. Deciding issues about strength of objection and maturity of the child in a way that is procedurally fair to all who are interests in or affected by their decision — the parents, the child or children concerned and the Central Authority — presents an essentially practical issue. How is the court to be sufficiently and fairly apprised of what the child concerned wants, how strongly that view is held and how mature the child is?[19]

[28] The challenge of ensuring that you are sufficiently and fairly apprised of what a child wants, how strongly that view is held and how mature the child is, is one that ILRs must grapple with on a daily basis. The next section will canvass some of the skills ILRs can draw upon in order to ensure that they foster a child’s participation.

Strengthening the role of the independent legal representative through participatory advocacy

[29] In my view, providing children with a voice and choice to participate is critical to the performance of my role as a Judicial Officer. Therefore, I consider that advocating for participation acts as an important protective factor against “ivory tower” decision making. I have coined this term “participatory advocacy”.

[30] Many of the children and young people who come before this Court have been denied a voice through a range of traumatic circumstances associated with, and dominated by, adults. Successful application of the participation principles recognises the voice of the child as valid and valuable.

[31] Stasiulis advises:

Rather than view children as “pre-citizens” or as silent, invisible, passive objects of parental and/or state control … children are cast as full human beings, invested with agency, integrity and decision making capacities.[20]

[32] The question thus becomes how can practitioners engage children and encourage their participation when undertaking the role of ILR? The answer is simple. Trauma-informed communication.

[33] Children and young people experience and perceive the world differently to adults and are generally able to communicate their needs, views and wishes when adults adopt appropriate methods of communication.

[34] Principle D6 of the “Representation principles for children’s lawyers” provides you with a clear indication of what is required when communicating with children.[21]

[35] The commentary includes a list of “Basic rules for practitioners”. This is a useful resource and one you should consider as a guide to the way you communicate with children.

[36] I intend to supplement the guidance provided in Principle D6 with the knowledge I gained during my attendance at the “Speaking Their Language: Young People and the Courtroom” conference at the Judicial College of Victoria.[22] I was particularly struck by the research presented by Karen Hogan, on the impact of trauma, and the session by Professor Pamela Snow, on the oral language skills of children and young people.

[37] We see children and young people on a daily basis, and recognise the impact trauma can have on young persons’ ability to articulate themselves and their ability to regulate their behaviours.

[38] While it is important to understand the impact of language in the criminal jurisdiction, for example how to make a child witness feel at ease, in the care jurisdiction, the impact of language and its correlation with trauma is an important factor to understand and to add to your knowledge of the effects of abuse and neglect. What follows in this section, is my summary of the research presented.

[39] Karen Hogan, the Director at the Gatehouse Centre of the Royal Children’s Hospital in Victoria explained that a history of trauma can lead to a wide variety of difficulties and challenges for children and young people. She explained that negative relational experiences at an early age can have a significant impact on the child or young person’s socialisation. Ms Hogan made the following assertion, which I consider to be particularly poignant:

Children do well if they can. But trauma seriously impacts the opportunity for children to learn HOW to do well.[23]

[40] Ms Hogan’s presentation was structured according to the effects that different types of abuse can have on a child. Her research showed that the effects of child abuse and family violence result in trauma that affects cortisol levels and neural development, impacting the structural and functional development of the brain and resulting in behavioural ramifications.[24]

[41] These behavioural ramifications can be classified either as internalising behaviours or externalising behaviours. Internalising behaviours include fears or phobias, anxiety, obsessiveness and control; depression, lack of hope, withdrawal; self-harm and identity confusion. Externalising behaviours include aggression, poor concentration, hyper vigilance, acting out and risk taking behaviours, sexualised behaviours/sexual risk taking and destructive behaviours.[25]

[42] Ms Hogan concluded by outlining the long term impacts of child abuse and family violence, especially where: the abuse is not recognised and stopped; the child/young person’s experience is not validated; the child/young person is not assisted to feel safe, understand and manage their emotional experience; explore their loss and create a positive future.

[43] Implicit in Ms Hogan’s research and observations is the conclusion that trauma can significantly affect a child/young person’s ability to identify and articulate abuse, which can leave the child/young person with unresolved issues and affect their long term health and development.

[44] It follows then, that communication is a vital part of preserving the safety, welfare and well-being of the child. In Professor Pamela Snow’s presentation, she described the different factors that can impact upon a child or young person’s language development. Importantly, she stated that:

We have evolved a special facility for oral language, such that it is innate BUT it is highly vulnerable to a range of developmental conditions eg hearing impairment, intellectual disability, autism spectrum disorders, brain injury and it is highly sensitive to environmental exposure.[26]

[45] Professor Snow’s presentation explained that articulating feelings is a “higher-order” communication skill which draws upon a range of cognitive, psychological and social factors. Importantly, she spoke of “Alexithymia” which means “having a lack of words for emotions”. She explained that this was typically associated with autism spectrum disorders but may also occur in children who have either witnessed or been victims of trauma.[27]

[46] A noteworthy aspect of Professor Snow’s presentation was her reference to a 1995 study by Hart and Risley.[28] This study examined the link between language exposure and children of parents on welfare benefits, working class parents and professional parents

[47] Hart and Risley’s study examined children (aged 3) and found that:

  • Children of parents on welfare benefits experienced 616 words per hour

  • Children of working class parents experienced 1251 words per hour, and

  • Children of professional parents experienced 2153 words per hour.

[48] Further, Hart and Risley conducted a longitudinal follow-up and examined these children at ages 9 and 10.

[49] This longitudinal study showed strong links between language exposure at age 3 and academic outcomes later in life.

[50] Professor Snow also identified a number of “red flags” that may indicate communication difficulties.

[51] These are: a diagnosed developmental disability, special school attendance, academic under-achievement, teacher, parent, or employer concern, social/peer level interpersonal difficulties, restlessness, avoidance and poor eye-contact, overly acquiescent style, “yep, nup, dunno, maybe, whatever” responses and a history of either internalising or externalising mental health problems.

[52] The research by Ms Hogan and Professor Snow show that there is a link between trauma and communication. It is important for ILRs to keep this guidance in mind when meeting the child.

[53] In addition to the communication style enunciated in the representation principles, a general understanding of cognitive and language development will bolster an ILRs ability to engage in participatory advocacy.

[54] This includes an understanding of cognitive and language skills from early childhood through to adolescence.

[55] I will not examine the detail of these skills, but will draw your attention to cognitive and language acquisition skills that I consider to be particularly important for an ILR to have an awareness of the following.

Early childhood (3–6 years)

(a) 

Words and language:

  • Confuse the meaning of prepositions ie before, after, behind

  • Interpret words literally and very narrowly or very broadly ie a child may understand that ‘touching’ only happens with a person’s hand and deny being touched because another body part was used

  • Expect sentences to take the sequence subject-verb-object. Passive voice can be confusing, as are embedded phrases (use two separate questions instead) ie “Did the man chase you?” and “Was he wearing a red coat?” rather than “Was the man who chased you wearing a red coat?”

  • Might be able to use specific words but may not understand the concepts behind them.

(b) 

Cognitive:

  • Cannot self regulate emotions of understand comprehension. They will not be able to understand a question or when they need a break

  • Young children can only focus on one thing at a time. If a question contains two parts, they will only be able to focus on one part.[29]

Middle years (7–10 years)

(a) 

Words and language:

  • Will learn an additional 5000 words during these years but will not always understand their meanings

  • During this stage, children develop the ability to think about more than one idea at a time, however lack the linguistic skills to put all of the parts of a complex sentence together

  • Understand generalisations and can give more than one meaning to a word ie a person’s “house” can be an apartment, and that you can “touch” something with a part of your body other than your hand.

(b) 

Cognitive:

  • Developing logical thinking so they can reason and solve problems. They can also predict events and understand some consequences. They employ these logical operations before they can identify or understand them

  • Continue to have difficulty self-regulating emotion and monitoring comprehension, particularly under stress.[30]

[56] It is also vital for ILRs to understand the powerful role Authorised Clinicians (ACs) play in empowering children. ACs are in a position to either directly or indirectly facilitate the child or young person’s participation. They do this by creating child friendly environments within which to conduct their assessments and communicate in plain English with the child or young person. For example, they might ask the child if they have a message to send to the “big boss” of the Court.

[57] ILRs can draw upon the professional expertise of ACs by taking into account the ways ACs have facilitated indirect participation of the child through their analyses and observations of attachment styles and non-verbal cues. Depending on the observations, a child may be indirectly communicating to the AC that they have an anxious or insecure attachment or if they are internalising or externalising behaviours.

[58] An ACs ability to understand the nature and quality of a child’s behaviours and attachments, by using a trauma-informed approach, is a way of hearing the child’s voice and facilitating the child’s participation. ILRs can draw upon knowledge of developmental and social sciences and the specialised expertise of ACs to ensure that they are facilitating a child’s participation without giving direct instructions.

Promising initiatives for enhancing child participation in the future

[59] As we gather more and more knowledge about children, and develop greater consistency in child-centred, trauma-informed approaches across Australia, we may be able to implement some of the changes Kylie Beckhouse cites in her study of child representation schemes.[31]

[60] My view is that any approach to child representation must be holistic and collaborative. I do not propose that practitioners become social workers, however, there is opportunity for a multi-agency approach of the kind Kylie speaks of.

[61] Tobin, in his discussion of taking a rights-based approach (in reference to Art 12 of UNCROC) bolsters this view:

In terms of practical steps, the first stage of a human rights-based approach must be to undertake an evaluation and identification of children’s needs by reference to their rights.

This inquiry has to be linked to identification of various factors — social, cultural, economic, geographic, political, environmental and personal — that undermine the realisation of these rights. The collection of such data must then be used to develop a comprehensive strategy using all necessary measures — legislative, administrative, economic, educational and other social measures — to build the capacity of the people responsible for the realisation of children’s rights and the elimination or minimisation of the various structural, social and institutional factors that have impeded this objective.[32]

[62] I wish to direct you to an exciting initiative for promoting active participation in the criminal justice system. The NSW Government is piloting the use of witness intermediaries in child sexual assault matters in the District Court.

[63] Witness intermediaries bridge the communication gap between counsel and child witnesses. Intermediaries are independent and owe their duty to the Court, acting in a similar capacity to interpreters by facilitating communication between the witness and counsel.

[64] Intermediaries can also play a part in providing advice or communication aids to assist counsel and the Court to ensure the use of tailored and appropriate communication.

[65] Intermediaries are a powerful resource in empowering the participation of children and young people. As Plotnikoff and Woolfson state:

Intermediaries are a great untold “good news” story of the criminal justice system.[33]

[66] While witness intermediaries are used and being piloted in the criminal justice system, they may play a role in care and protection matters in the future. The Court will be eager to read the evaluation of the pilot at its conclusion.

[67] There is capacity for a representation scheme to more effectively balance the need to support the participation of the child with an approach consistent with the safety, welfare and well-being of the child.

Conclusion

[68] The role of the ILR is critical to ensuring that the participation principles of the Act are adhered to. ILRs can do this, while preserving the safety, welfare and well-being of the child, by using participatory advocacy. The future is bright and with scientific, psychiatric and sociological advancements, we will no doubt see further discussion of alternative schemes.



[1]  I acknowledge the considerable help and valuable assistance in the preparation of this paper provided by the Children’s Court Research Associate, Paloma Mackay-Sim.

[2]  N Thomas, “Children’s Rights: Policy into practice”, Centre for Children and Young People Background Briefing Series no 4, Centre for Children and Young People, Southern Cross University.

[3]  UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations Treaty Series, vol 1577 at Art 12.

[4]  Children and Young Persons (Care and Protection) Act 1998, s 9(1).

[5]  ibid, s 10.

[6]  ibid, s 10(2).

[7]  ibid, ss 99–99D.

[8]  ibid.

[9]  N Ross, “Images of Children: Agency, Art 12 and Models for Legal Representation” (2005) 19 AJFL 94 at 96.

[10]  Court Procedures Act 2004 (ACT), s 74E; Children’s Protection Act 1993 (SA), s 48(1).

[11]  Children’s Protection Act 1993 (SA): s 48(2).

[12]  Children and Community Services Act 2004 (WA): s 148(4).

[13]  ibid, s 148(4).

[14]  ibid, s 148(2).

[15]  Child Protection Act 1999 (Qld), s 110(5); Care and Protection of Children Act 2007 (NT), s 143A(1) and 143B(1)(b); Children, Young Persons and Their Families Act 1997 (Tas), s 59.

[16]  Children, Young Persons and Their Families Act 1997 (Tas), s 59(1).

[17]  Children, Youth and Families Act 2005 (Vic), s 524(9).

[18]  ibid, s 524(4).

[19]  RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Honourable Justice Forrest (2012) 247 CLR 304 at [44], French CJ, Hayne, Crennan, Kiefel and Bell JJ.

[20]  D Stasiulis, “The active child citizen: lessons from Canadian policy and the Children’s movement” (2002) 6(4) Citizenship Studies 507 at 508.

[21]  The Law Society of NSW, “Representation principles for children’s lawyers”, 4th edn, 2014.

[22]  Judicial College of Victoria conference, Speaking their language: young people and the courtroom, 19 and 20 October 2015.

[23]  K Hogan, “The impact of trauma”, paper presented to the Judicial College Of Victoria conference, Speaking their language: young people and the courtroom, 19 October 2015.

[24]  ibid.

[25]  ibid.

[26]  Professor P Snow, “Oral language competence: implications for the legal interface”, paper presented for the Judicial College Of Victoria conference, Speaking their language: young people and the courtroom, 20 October 2015.

[27]  ibid.

[28]  B Hart and T Risley, Meaningful differences in the everyday experiences of young American children, Paul H Brookes Publishing, 1995.

[29]  Victoria Department of Justice and Regulation (prepared by the Child Witness Service), Factsheet, “Early childhood (3–6 years)”, 2015.

[30]  Victoria Department of Justice and Regulation (prepared by the Child Witness Service), Factsheet, “Middle Years (7–10 years)”, 2015.

[31]  K Beckhouse, “To investigate legal representation schemes for children in the US, Canada and the UK — administration, delivery and innovation”, Winston Churchill Memorial Trust of Australia, 2014.

[32]  J Tobin, “The development of children’s rights” in G Monahan and L Young (eds) Children and the Law in Australia, 2008, Lexis Nexis Australia, pp 23–53.

[33]  J Plotnikoff and R Woolfson (with a foreword by Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales), Intermediaries in the criminal justice system: improving communication for vulnerable witnesses and defendants, University of Bristol, Policy Press, UK, 2015 at p 304.