Alternative Law Journal
by Lani Blackman; Victoria Law Foundation, 2002; 320 pp; $45.00.
by Phillip A. Swain; The Federation Press, 2002; 2nd edn; 312 pp; $49.50.
It is a difficult task to write about children and the law today as any discussion about children inevitably must address different views about the child. In the case of the representation of children this can be identified in debates about whether lawyers acting for children do so as a 'direct representative' or as a 'best interests representative.' As Lani Blackman explains, the former relies on a view of the child as having the capacity to instruct their lawyers as opposed to the latter where the lawyer must represent the immature child according to what they consider to be in the child's best interests.
The catch, of course, is that any assessment of the child's capacity to participate in legal proceedings and properly instruct their legal representative must itself be judged by others - that is, adults -who may well use a child's preference for a course of action, which is considered by them to be unwise, as evidence of the child's lack of capacity to independently instruct. Blackman makes it clear that her book encourages the use of the direct representative role (p.l7). The difficulty is in assessing when this role is the correct one to adopt. Blackman attempts to explain the appropriate pro cess to determine this matter in chapter 4 ('Assessing capacity to instruct'). But in this chapter we see at work all the issues regarding the autonomy of the child that have worried child lawyers since the House of Lords decided the Gillick case (if not before). It is relatively easy to acknowledge in the abstract that the child has a right to make mistakes and so support the child's decision to adopt a course of action with which one disagrees, but this is often a difficult position to put into practice. Thus one can only applaud Blackman when she articulates her approach to how lawyers should assess the capacity of the child to give
The first step is for the lawyer to discard any preconceived ideas about the capacity and maturity of children and young people of certain ages. Adults often approach serious discussions with children and young people with the certainty that the complexity of the issues will exceed the understanding of the child or young person. Lawyers who are unable to discard these kinds of views are not suited to representing children and young people. [p.72]
The problem that remains for the lawyer, in spite of this suggestion, is that one of the reasons we have special laws and procedures for children at all is that children are often seen as vulnerable and in need of special treatment because they lack the maturity of adults. In other words, on the one hand lawyers are asked not to assume children cannot understand complex matters, while on the other hand, this exercise itself must be undertaken because there is special provision for children because they often lack the ability to protect their own interests or fully appreciate the consequences of their actions. The question then is whether in any particular case the child being represented falls on one side of the line or the other-or even has partial understanding of the matters involved. How does one resolve these vexed questions?
Blackman suggests that the most crucial skill for lawyers who represent children is 'communication'. Clearly, being able to communicate with the child in language which the child understands must be central to the role of the child's legal representative. As Blackman explains, this requires some understanding of child development and the language skills of children at different ages. It also suggests that the process of interviewing the child must be carefully considered. There are matters in this context which are often for gotten by practitioners when dealing with children:
Sometimes physical appearance, tone of voice, clothing, physical setting or smell can trigger certain responses in a child or young person, making them unwilling to confide in an adult. For example, some young people find that they are not able to confide in or communicate with adult males with facial hair, because the person who sexually abused them had a moustache. The smell of a particular aftershave has been known to have an adverse effect on certain young people. [p.59]
This is then a book that is heavily oriented towards process. In many ways this follows from its stated role as being a 'practical guidebook to be used by lawyers' who represent children and young people. The problem in this -and I use this term not as a criticism, for this is a very important and useful book -is that being aware of the need for considered processes when dealing with children does not resolve the difficulties such as those described above with respect to the view of the child which one should adopt in any given case. The concept of the autonomy of the child which underpins the direct representative model, as with the concept of the best interests of the child, are contested notions which can be smokescreens for many and various agendas.
An example of this can be gleaned from the way in which the book deals with the matter of the client's access to documents (p.140). The import of this discussion is that the child must be protected from possibly harmful material which might be contained in documents:
If the information is likely to cause distress, the author may amend the document before disclosure or it may be appropriate for the information in the document to be imparted to the child or young person by the author of the document. [p.l41]
What is 'likely to cause distress' in this context will no doubt be bound up in the concept of the child to which the participants in a particular case sub scribe. It is acknowledged in the book that the ability to provide full instructions to a legal representative will often depend on full knowledge of the con tents of such documents, but that does not prevent cautioning against disclosure, which may distress a child client. There is of course nothing necessarily flawed in this approach, but it does underscore the many contradictions and ambiguities that abound in child law.
There is much to recommend this book. It addresses different types of young people, the management of cases, and specific jurisdictions. It provides a practical guide to many of the issues which will arise in representing children. But it should not end there. One thought which struck me in preparing the review is the extent to which practising law for children should be conducted within the framework of practice as set by adult problems. Do lawyers have to act differently when representing children? I do not mean by this just being sensitive to the issues raised in this book. For example, should child lawyers (a term itself not that widely used in the Australian con text) be more proactive in their approach to children's problems with the law? Do they need to engage with children in their own spaces rather than waiting for children to approach them? Does the practice of child law require more in the way of campaigning for law reform than traditional types of practice? And so on.
It is a pity that such a debate about what constitutes legal practice is not often entered into in Australia. For surely if it were, it would be a real mark of the extent to which children's issues were integrated into mainstream discussions if the nature of practising law for children was itself a contested matter. And should it not be?
Debates about the nature of practice might be in fact more often undertaken within social work. Social workers are often cast in the role of advocate for clients left out of the mainstream channels of legal advice. Children's issues too form a large part of the workload of many social workers. Phillip Swain's edited work illustrates how the issues that concern Blackman also permeate the practice of social work:
Legislation has promoted the rights of children and young persons to be heard. However basic rights such as the right to care and to have an education have not been prominent.
Whether such attempts at involving young people are successful, will be dictated by the professional will to ensure that this happens.There is still much to be achieved in this regard. As studies of wards leaving care from the majority of services show, too often young people cannot even articulate why they are in care, and are far from being full partners in decision making. [p.l 06]
One suspects that the 'professional will' written about here is that philosophical commitment to the notion of the child as having a right to autonomy which is lacking in all practitioners who prejudge the capacity of children to make independent assessments of their circumstances. It is an important point -changes in how children are treated will most likely come about through shifts in thinking about children. Practice develops from ideas.
But the Swain text is not only about children. This is an eagerly awaited second edition of the book used widely by teachers of law to social workers. This edition incorporates all that one would wish for in such a book. It covers those areas of law which are most likely to be encountered by social workers as well as discussion of the special needs of particular groups, that is, those who would make up the largest part of many social workers' client base. All of this is presented with some critical reflections on the relationship between law and social work (especially chapter 22 by Spencer Zifcak). In my view that chapter should be compulsory reading for all social work students. For if the essence of good practice in representing children is understanding how they think, then the standard of good social work practice -to the extent that social work must engage with the legal world - should be to understand how law and lawyers think. Such discussions are not abstract excursions -perhaps this chapter should be at the front of the book! A minor criticism of this book is that no chapter author comes from South Australia. While there are South Australian references in the text, the editor might consider whether a future edition would be strengthened by the inclusion of authors from all jurisdictions in Australia.
Brian Simpson teaches law and is Director of the LLM in Child Law at Keele University in England.