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FCA Document: Guidelines for the Child’s Representative

This document is intended to provide guidance to the Child’s Representative (lawyer) in fulfilling his/her role.

From Murray Robertson's website:

Guidelines for the Child's Representative

1. The Purpose of these Guidelines (p1)

2. Introduction (p1)

3. Statement of Principles (pp1-2 )

4. The role of the Child's Representative (p2)

5. Relationship with the Child (pp2-3)

5.1 Information which should be explained to the child (p3)

5.2 Limitations of the Role of the Child's Representative (pp3-4)

5.3 Children's Wishes (p4)

5.4 Making submissions contrary to the Child's wishes (pp4-5)

6. General procedures to be followed when a Child's Representative has been appointed (p5)

6.1 Who should be advised? (p5)

6.2 Meeting the Child (p5)

6.3 Consultation between the Child's Representative, Child and Family Counsellor (p6)

6.4 Relationship with the Parties and their Legal Representatives (pp6-7)

6.5 Case Planning (pp7-8)

6.6 Changing, Reviewing or Terminating the Appointment of the Child's Representative (p8)

6.7 Reports (pp8-9)

6.8 Interim Hearings (p9)

6.9 Final hearing (The Trial) (pp9-10)

6.10 At the Conclusion of Proceedings (pp10-11)

6.11 Appeals (p11)

7. Family Violence and Abuse (p11)

8. Cross-cultural and/or Religious Matters (pp12-13)

9. Aboriginal and Torres Strait Islander Children (pp13-14)

10. Children with disabilities (p14)

11. Special medical procedures and other parens patriae/welfare jurisdiction cases (section 67ZC) (pp14-15)

12. Glossary of Terms (pp15-17)

Guidelines for The Child's Representative

1. The Purpose of these Guidelines

This document is intended to provide guidance to the Child's Representative in fulfilling his/her role.

The Guidelines have also been issued for the purposes of providing practitioners, parties, children and other people in contact with the Family Court, with information about the Court's general expectations of Child's Representatives. It also sets out these expectations as they relate to children in circumstances of family violence, children from culturally and linguistically diverse families and communities, children with disabilities, Aboriginal and Torres Straight Islander children, and where applications arise for the authorization of special medical procedures and other orders relating to the welfare of children.

This is a public document that is made available by the Court. In addition, the Guidelines will be used in the training of Child's Representatives.

2. Introduction
The role of the Child's Representative is unique. The lawyer appointed to represent and promote the best interests of a child in family law proceedings has special responsibilities. Decisions in particular cases as to how the Child's Representative progresses the case and how he/she involves the child in the case are ultimately in the Child's Representative's discretion.

The Child's Representative is expected to use his/her professional judgment and skill, subject to any directions or orders of the Court. The availability of funding is a practical constraint.

The way in which the Child Representative acts may not always meet with the approval of the parties or the child, but this does not mean that the Child's Representative has failed in his/her professional responsibilities.

A glossary of terms used in the guidelines appears at the end of this document to assist readers in understanding them.

3. Statement of Principles

The appointment of a Child's Representative is one means of giving effect in family law proceedings to the United Nations Convention on the Rights of the Child which states that:

- In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Article 3)

- Parties shall assure to the child who is capable of forming his or her 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. (Article 12.1)

- 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 consistent with the procedural rules of national law. (Article 12.2)

4. The role of the Child's Representative

The best interests of the child will ordinarily be served by the Child's Representative enabling the child to be involved in decision-making about the proceedings. However, this does not mean that the child is the decision maker. Among the factors that indicate the appropriate degree of involvement in an individual case are:

- the extent that the child wishes to be involved; and

- the extent that is appropriate for the child having regard to the child's age, developmental level, cognitive abilities, emotional state and the child's wishes are.

These factors may change over the course of the Child's Representative's appointment.

The Child's Representative is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.

The Child's Representative must be truly independent of the Court and the parties to the proceedings.

The professional relationship provided by the Child's Representative will be one of a skillful, competent and impartial best interests advocate. It is the right of the child to establish a professional relationship with his or her Child's Representative.

The Child's Representative should seek to work together with any Child and Family Counsellor or external expert involved in the case to promote the best interests of the child.

The Child's Representative should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child's best interests.

The Child's Representative should bring to the attention of the Court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement.

The Child's Representative is to promote the timely resolution of the proceedings that is consistent with the best interests of the child.

The Child's Representative does not take instructions from the child but is required to ensure the Court is fully informed of the child's wishes, in an admissible form where possible.

The Child's Representative is to ensure that the views and attitudes brought to bear on the issues before the Court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.

The Child's Representative is expected and encouraged to seek peer and professional support and advice where the case raises issues that are beyond his or her expertise. This may involve making applications to the Court for directions in relation to the future conduct of the matter.

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