Who or what is counsel for the child? It is not, as many think, someone provided to give counselling, but rather a lawyer appointed to represent a child when parents cannot agree on care arrangements for that child. Kathryn Buchanan of Anderson Lloyd Caudwell describes the role of counsel for the child.
The Court can appoint a lawyer for any child who is involved in proceedings under the Guardianship Act 1968 or the Family Proceedings Act 1980. The Courts hold lists of people suitable and willing to undertake the task. Usually counsel for the child is appointed after a mediation conference where the parties cannot agree. Counsel for either of the parties can ask the Court to make the appointment before mediation.
There have been two schools of thought as to how counsel for the child should approach the task.
In all proceedings involving children the wellbeing of the children is the overriding concern - the paramountcy principle. Traditionally counsel for the child operated on the basis that, once they had completed their fact finding and interviewing, they would recommend what they thought was in the best interests of the child.
This paternalistic approach is no longer seen as appropriate. Article 12 of the United Nations Convention on the Rights of the Child 1989 gives children the right to express their views and for those views to be given due weight. The Convention also gives children the right to be heard in any proceedings affecting them, including the right to have a representative to speak for them.
The role of counsel for the child is "to represent the child"; that is, advocate for the child. (A lawyer may be appointed to assist the Court, quite independently of that.) Thus a child involved in the Court proceedings is represented by a lawyer, as are the adult parties.
The counsel talks to all the relevant people, including those involved in the child's parenting and the other people who have a major influence in the child's life, eg school or pre-school teachers, doctors, extended family, siblings.
Each case is different and must be approached with a fresh outlook. In some, a large variety of people may be contacted, in others very few. It depends entirely on the circumstances of the case, the people involved, what is being sought and, of course, the background to the proceedings.
The most important part of the role is to meet with and talk to the child. Where and how this happens is at the counsel's discretion and depends a great deal on the child's age and circumstances. Whether the child is interviewed at home, school or in the office is a matter of choice and convenience.
Counsel for children recognise that it is a very tall order for any child, however mature, to meet with a total stranger and within a short time frame open up to them about very intense, personal and emotional feelings. Invariably children do not know what is happening. Usually no one has asked their opinion about it. Often what they have been told is inappropriate and damaging and can create a great deal of unnecessary resentment and trauma. Ascertaining the child's wishes can be difficult and, with very young children, impossible.
In reality, the role of counsel for the child is a combination of representing the child, ascertaining their wishes and presenting them to the Court, while keeping the children they represents welfare uppermost. It can be difficult when a child's wishes are at variance with what appears to be the best interests of that child.
Counsel presents to the Court not only the wishes of the child, but also any other relevant evidence. Sometimes, this involves calling additional witnesses to give evidence when the parents have chosen not to or cannot present certain evidence.
This independent representation is intended to facilitate negotiation and assist the parties to find a solution without needing a defended hearing. If a hearing is necessary, counsel for the child is an integral part of that process too. Counsel may make submissions, call evidence and cross-examine another party's witnesses. Counsel for the child must also do their best to minimise the impact on the children involved. They can do this by, for example, controlling the number of expert witnesses who have access to the children, usually psychologists or social workers.
It is unfortunate that many cases get to the stage where the appointment of counsel for the child is necessary. On the other hand, it is fortunate that there is an opportunity for children to be represented and their wishes and views to be presented in a way that focuses on their welfare. The question is - is this representation provided too far into the process?
Copyright The Lawlink Group Ltd 1999
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Kathryn Buchanan is an associate with the Dunedin and Queenstown Lawlink firm of Anderson Lloyd Caudwell. Kathryn specialises in family law.
Web site: Anderson Lloyd Caudwell
Email: kathryn.buchanan@andersonlloydcaudwell.com
July 1999
The Court can appoint a lawyer for any child who is involved in proceedings under the Guardianship Act 1968 or the Family Proceedings Act 1980. The Courts hold lists of people suitable and willing to undertake the task. Usually counsel for the child is appointed after a mediation conference where the parties cannot agree. Counsel for either of the parties can ask the Court to make the appointment before mediation.
There have been two schools of thought as to how counsel for the child should approach the task.
In all proceedings involving children the wellbeing of the children is the overriding concern - the paramountcy principle. Traditionally counsel for the child operated on the basis that, once they had completed their fact finding and interviewing, they would recommend what they thought was in the best interests of the child.
This paternalistic approach is no longer seen as appropriate. Article 12 of the United Nations Convention on the Rights of the Child 1989 gives children the right to express their views and for those views to be given due weight. The Convention also gives children the right to be heard in any proceedings affecting them, including the right to have a representative to speak for them.
The role of counsel for the child is "to represent the child"; that is, advocate for the child. (A lawyer may be appointed to assist the Court, quite independently of that.) Thus a child involved in the Court proceedings is represented by a lawyer, as are the adult parties.
The counsel talks to all the relevant people, including those involved in the child's parenting and the other people who have a major influence in the child's life, eg school or pre-school teachers, doctors, extended family, siblings.
Each case is different and must be approached with a fresh outlook. In some, a large variety of people may be contacted, in others very few. It depends entirely on the circumstances of the case, the people involved, what is being sought and, of course, the background to the proceedings.
The most important part of the role is to meet with and talk to the child. Where and how this happens is at the counsel's discretion and depends a great deal on the child's age and circumstances. Whether the child is interviewed at home, school or in the office is a matter of choice and convenience.
Counsel for children recognise that it is a very tall order for any child, however mature, to meet with a total stranger and within a short time frame open up to them about very intense, personal and emotional feelings. Invariably children do not know what is happening. Usually no one has asked their opinion about it. Often what they have been told is inappropriate and damaging and can create a great deal of unnecessary resentment and trauma. Ascertaining the child's wishes can be difficult and, with very young children, impossible.
In reality, the role of counsel for the child is a combination of representing the child, ascertaining their wishes and presenting them to the Court, while keeping the children they represents welfare uppermost. It can be difficult when a child's wishes are at variance with what appears to be the best interests of that child.
Counsel presents to the Court not only the wishes of the child, but also any other relevant evidence. Sometimes, this involves calling additional witnesses to give evidence when the parents have chosen not to or cannot present certain evidence.
This independent representation is intended to facilitate negotiation and assist the parties to find a solution without needing a defended hearing. If a hearing is necessary, counsel for the child is an integral part of that process too. Counsel may make submissions, call evidence and cross-examine another party's witnesses. Counsel for the child must also do their best to minimise the impact on the children involved. They can do this by, for example, controlling the number of expert witnesses who have access to the children, usually psychologists or social workers.
It is unfortunate that many cases get to the stage where the appointment of counsel for the child is necessary. On the other hand, it is fortunate that there is an opportunity for children to be represented and their wishes and views to be presented in a way that focuses on their welfare. The question is - is this representation provided too far into the process?
Copyright The Lawlink Group Ltd 1999
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Kathryn Buchanan is an associate with the Dunedin and Queenstown Lawlink firm of Anderson Lloyd Caudwell. Kathryn specialises in family law.
Web site: Anderson Lloyd Caudwell
Email: kathryn.buchanan@andersonlloydcaudwell.com
July 1999
June, 2001
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