Bargen, Jenny; Irwin, Jane; Sanders, Jane --- "Advocating for children: challenges for lawyers" [2014] PrecedentAULA 50; (2014) 124 Precedent 42

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ADVOCATING FOR CHILDREN

CHALLENGES FOR LAWYERS

By Jenny Bargen, Jane Irwin and Jane Sanders

While differences exist in laws and practice between Australian states and territories, there are four principles that are universally applicable to lawyers working as child advocates in this country. These principles of representing children are identified in the international jurisprudence of children’s rights. Briefly put, they are participation; non-discrimination; best interests; and survival and development.

In 2010, Precedent published a piece by James McDougall and Sally Hamilton about the lawyer’s role in representing children.^[1] Their piece was written 20 years after Australia became a signatory to the UN Convention on the Rights of the Child (CROC), and 12 years after the (then) Australian Human Rights Commission and the Australian Law Reform Commission jointly published Seen and Heard,^[2] a report that, as McDougall and Hamilton argued:

‘outlined the failures of the Australian legal system to adequately address children’s legal needs and recommended avenues for reform to ensure that children’s voices would be heard in the legal process, in accordance with the rights afforded by the convention’.^[3]

McDougall and Hamilton also claimed that ‘successive state and federal governments, and the legal profession in general, have largely ignored the report’s recommendations’, which has led to the failure to uphold the four internationally recognised principles mentioned above.^[4]

Another four years on, we revisit the claims made by McDougall and Hamilton, and suggest that, while many lawyers working with children in Australia are cognisant of, respect and apply, these principles, more could be done, particularly in the promulgation of the principles, in the provision of specific training for children’s lawyers, and in monitoring compliance in practice.

SPECIAL PRINCIPLES FOR LAWYERS ADVOCATING FOR CHILDREN

Seen and Heard recommended that the legal profession should develop guidelines for the legal representation of children and young people. The Law Society of NSW took up the challenge and, following extensive consultation with children’s lawyers, academics, child development specialists and other advocates for children and young people, published the first edition of its comprehensive Representation Principles for Children’s Lawyers in 2000. It will publish the fourth edition later this year. The Representation Principles are universally applicable and are consistent with CROC. As well as providing guidance for lawyers advocating for children, they seek to ‘challenge the dangerous view that the Children’s Court is a place for beginners, and that the child client deserves only a basic competency in advocacy and representation’.^[5]

While law societies in other parts of Australia have not produced their own equivalent documents, most make reference to the NSW version as a guide to best practice for lawyers working with children, and at least two^[6] have produced guidelines for lawyers acting for children. Courts in some jurisdictions have also produced specific codes of conduct for lawyers acting for children and Legal Aid bodies in some states have published guidelines for lawyers representing children in criminal, care and family matters.

The Representation Principles contain sections on who is the client, the role of the practitioner, the child’s capacity to give instructions, taking instructions and preferences, duties of representation, confidentiality, conflicts of interest, access to documents and reports, interaction with third parties, and ending the relationship.

The voices of children and young people who have been represented by lawyers in criminal, care and family law matters are also included in the document. These voices provide a timely reminder that while many legal advocates for children strive to comply with the principles, some fall short, particularly when it comes to listening to and communicating with children, ensuring that children’s voices are heard, and ensuring that children’s views are accurately represented to the court. For example, one young person quoted in the document said that they had to ask their sister to translate what the lawyer said to them in words they could understand because the lawyer didn’t do that.^[7] Another said ‘I still don’t know where [the lawyer] got her facts from, but I think it would have been better if she’d actually represented me... [She could have done that by] taking my viewpoints and not making decisions about what was best for me before actually meeting with me. And stating them and getting a chance to know me.’^[8] Another said ‘the worst bit would be her not listening, I suppose, disregarding what we had to say and then... representing views that weren’t actually ours.’^[9]

So how should lawyers advocating for children respond to these complaints? Law schools tend to teach budding lawyers how to communicate with the court and other lawyers, using language that can be confusing and unintelligible for those outside legal circles. In the remainder of this article, we focus largely on advocacy for children in trouble with the law, and discuss the skills needed by legal advocates working with children in criminal matters to ensure that, as far as possible, the children’s rights to be heard and to participate in decisions affecting their lives are respected and met. We have chosen this focus because these children are in a flawed, adult-focused system, and they are perhaps the most vulnerable to failure by legal advocates to comply with the principles of participation, non-discrimination, best interests, and survival and development as outlined by McDougall and Hamilton in 2010.

CHILDREN IN TROUBLE WITH THE LAW

Writing in 1997, soon after completing her work as one of the Commissioners for Seen and Heard, Dr Kathryn Cronin pointed out that:

‘Many of the young people involved in family matters are confident, articulate, well-nurtured youngsters who are keen to inform the judge of their views while the juvenile justice cohort has within it some of the most disadvantaged, damaged, and least articulate young people in our community.’^[10]

Recent research by children’s language specialists has revealed that the levels of oral language skills of children serving community-based and custodial orders are lower than those for children in the general population.^[11] We also know that a significant proportion of children who begin their interaction with the legal system in the care jurisdiction ‘drift’ into the juvenile justice system,^[12] as do children who drop out of school, are homeless, or suffer from mental illnesses. Indigenous children and young people continue to constitute an alarmingly high proportion of all children in trouble with the law, at every point in the juvenile justice system.^[13] Children’s lawyers in the criminal jurisdiction are therefore dealing with an extremely complex client group.

Research focused on juvenile offending has generally shown that most children or young people who offend and are dealt with by the Children’s Court will cease offending without targeted intervention. It is only a small group of children and young people who go on to continue offending and are disproportionately represented in the juvenile justice system.^[14] Throughout Australia, Indigenous young people are about 30 times more likely than non-Indigenous young people to be in detention.^[15] Research published in 2011 found that of the young people in detention in NSW in 2009:

• 60 per cent had a history of child abuse or trauma;

• 27 per cent had been removed from their families and placed in care;

• 45 per cent had had a parent in prison;

• 10 per cent currently had a parent in prison;

• many were homeless or had unstable accommodation. About 23 per cent of young women and 8 per cent of young men had moved four or more times in the previous six months;

• only 38 per cent were attending school before going into detention;

• 26 per cent were working in the six months before going into detention;

• 87 per cent were found to have at least one psychological disorder;

• 20 per cent of Aboriginal and 7 per cent of non-Aboriginal young people were assessed as having a possible intellectual disability (IQ scores less than 70); 32 per cent of the young people scored in the borderline range for intellectual ability (IQ 70 to 79);

• 78 per cent consumed alcohol at risky levels;

• 89 per cent said they had used illegal drugs; and

• 65 per cent used illegal drugs at least weekly in the year before they went into detention. ^[16]

WHAT CAN AN ADVOCATE DO?

Communication

The real challenge for children’s advocates is to understand and adopt the intellectual, emotional and practical skills that are critical in this field in order to ensure that the voices of this vulnerable and complex group are heard in the legal process. At a minimum, a child advocate needs to be mindful that children are vulnerable before the law, and also in relation to their (adult) advocate. This is not only because of their developmental stage, but also because, in relation to adults, they have no power and yet must rely on adults to tell their story. An advocate needs to understand that for many children appearing in court on criminal matters, these disadvantages are compounded by low oral comprehension skills, and intellectual and sometimes psychological and physical disability. Good communication is vital and we suggest that the key is the capacity of an advocate to listen. We cannot adequately represent our clients without hearing their story and taking their instructions. In order to have proper regard to the principle of participation it should be understood that children and young people, navigating an adult legal world, require time.

Children and young people often find it difficult to understand the role of a lawyer in the court process. One of the most important starting points is to explain to the child the relationship of confidentiality, and our duties as their lawyer to act on client instructions.^[17] Children as legal consumers are entitled to quality. At the heart of the recognition of their rights in the justice system is the identification of children as legal consumers entitled to high professional standards. Advocates should keep this in mind when considering the principle of non-discrimination.

We should call on the knowledge and experience of colleagues from other disciplines in order to attain a basic understanding of, and training in, motivational interviewing techniques in the pursuit of good communication skills that will ensure quality legal representation for these disadvantaged children and young people. Learn how to employ a person-centred approach to our communication with young people – listen more than tell, elicit information, be respectful in our approach. Ask open questions, reflect back what the child or young person is saying to elicit clear instructions, ask the child’s permission before we disclose information that they have given to us, and give advice about legal issues to them in clear and simple terms. We need to learn how to respond to resistance, in a way that does not increase resistance and therefore entrench it.^[18]

Monitoring compliance in practice

Monitoring compliance is fraught with difficulties. It is a truism that the vast majority of disadvantaged children and young people do not complain when their rights to be heard and to participate in legal proceedings have not been respected, although there have been some notable exceptions.^[19] So, how should children’s advocates address compliance? How does the legal profession respond when the legal consumer (child) is not an experienced/knowledgeable consumer of legal services, who may be unable to accurately judge quality or alternatively access information about avenues of complaint and thereby call to account the professional standards of their advocate?

We hope that we have stimulated readers to consider their own practice, and to start a conversation between all children’s advocates about compliance. That is, how children as legal consumers can become part of the current legal discourse of client service and high quality and appropriate professional approaches that are consistent with the high standards set by the Representation Principles and the UN Convention on the Rights of the Child.

CONCLUSION

Children’s legal advocates must seek to understand how disadvantage and disempowerment affect children’s capacity to communicate. They should undertake training in the communication skills necessary for robust advocacy for the most disadvantaged, damaged and least articulate groups in our community, and they should start a conversation about monitoring compliance. Only then might advocates capably address the concerns expressed by children and young people about their experiences with lawyers. Addressing these issues will contribute to the protection of these children’s rights to be heard, to participate, to be free from discrimination, to have their best interests protected and to survive and develop. In so doing, the recommendations made in Seen and Heard may begin their journey to implementation.

Jenny Bargen was the founding Director of Youth Justice Conferencing with the (then) NSW Department of Juvenile Justice from 1997 to 2007. She is now an Adjunct Lecturer at the University of Sydney Law School, teaching Crime Research and Policy and Young People Crime and the Law in its Masters of Law program, and a member of the Juvenile Justice Committee of the Law Society of NSW. EMAIL [e-mail].

Jane Irwin is a senior solicitor at the Shopfront Youth Legal Centre and an accredited specialist in criminal law. Jane began working as a lawyer at the Aboriginal Legal Service and then worked as a children’s solicitor at Marrickville Legal Centre. She is a member of the Juvenile Justice Committee of the Law Society of NSW. EMAIL [e-mail].

Jane Sanders is the principal solicitor at the Shopfront Youth Legal Centre, a free legal service for homeless and disadvantaged young people, based in inner-city Sydney. The Shopfront provides court representation and other legal services to young people with high and complex needs who are unable to effectively access other legal services. Ms Sanders is an accredited specialist in criminal law and children’s law. She is a member of the NSW Law Society Criminal Law Committee. EMAIL [e-mail].

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^[1] James McDougall and Sally Hamilton, ‘Children and the law: A lawyer’s role’, Precedent, Issue 96, January/February 2010: 13–18.

^[2] Australian Human Rights Commission and Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, (1997) Australian Government, Canberra.

^[3] McDougall and Hamilton, above n1, at 14.

^[4] Ibid.

^[5] Preface to the Third Edition, Law Society of NSW Representation Principles for Children’s Lawyers (2011).

^[6] Australian Capital Territory and South Australia.

^[7] NSW Law Society, Representation Principles for Children’s Lawyers, 4^th edition (forthcoming), at 15.

^[8] Ibid, at 24.

^[9] Ibid, at 17.

^[10] Kathryn Cronin, ‘The failings of federalism – juvenile justice issues in Australia’, (1997) 9 (2) Current Issues in Criminal Justice 107–112 at 109 (emphasis added).

^[11] Pamela C Snow and Martine B Powell, ‘Oral language competence in incarcerated young offenders: Links with offending severity’, (2011) International Journal of Speech-Language Pathology, 1–10.

^[12] Australian Institute of Health and Welfare, Children and young people at risk of social exclusion: Links between homelessness, child protection and juvenile justice, AIHW Data Linkage Series Number 13, Canberra, (2012) <http://aihw.gov.au/publication-detail/?id=60129542237> .

^[13] Kelly Richards, ‘What makes juvenile offenders different from adult offenders?’ Trends and Issues in crime and criminal justice, No. 409, Australian Institute of Criminology, Canberra, 2011.

^[14] Ibid, at 2.

^[15] Australian Institute of Health and Welfare, Juvenile Detention Population in Australia 2012, Juvenile justice series No. 11. Cat. No JUV11, (2012) <www.aihw.gov.au/publication-detail/?id=60129542553>.

^[16] Devon Indig et al, 2009 Young People in Custody Health Survey, Justice Health and Juvenile Justice, Sydney, 2011 <www.djj.nsw.gov.au/pdf_htm/publications/research/JH_YPICHSRep2009_D10b_full.pdf>.

^[17] Rule 8 and Rule 9, New South Wales Professional Conduct and Practice Rules 2013 (Solicitors Rules). These rules adopt the Australian Solicitors’ Conduct Rules adopted by the Law Council of Australia on 18 June 2011 (Rules 1-43); NSW Law Society Representation Principles for Children’s Lawyers, Principle B.

^[18] See, for example William R Miller and Stephen Rollnick, Motivational Interviewing: Preparing People for Change (3^rd edition), Guilford Press, New York, 2013; Sylvie Naar-King and Mariann Suarez, Motivational Interviewing with Adolescents and Young Adults, Guilford Press, New York, 2011. For a useful text on issues in working with Indigenous children, see Diana Eades, Sociolinguistics and the Legal Process, MM Textbooks, Bristol, 2010, and Diana Eades, Aboriginal Ways of Using English, Aboriginal Studies Press, Canberra, 2013.

^[19] See, for example, ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966; Reg Graycar and Joe Tan, ‘Restraints on the involuntary transfer of juvenile detainees to adult prisons: The paramount consideration of rehabilitating young offenders’, NSW Law Society Journal, February 2009: 2 – 5.