Children’s right to legal protection in America and Australia – a comparative perspective

 

The AHRCentre and the National Children’s and Youth Law Centre at UNSW hosted a seminar on 16 March 2016 entitled, Children’s rights to legal representation: Lessons from the US. The guest speakers were: Emily Buss, the Mark and Barbara Fried Professor of Law, University of Chicago Law School and Kylie Beckhouse, an Accredited Family Law Specialist and Director of Legal Services, Family Law at Legal Aid NSW.

The seminar examined the representation of children in family, child protection, and juvenile justice matters. Both speakers advocate in favour of children having the right to counsel although they offer different models as to how children should be best represented. Kylie Beckhouse considered the Australian context and offered insights into the participatory model, which emphasises that child protection lawyers should facilitate the participation of the child in legal proceedings. She spoke about the conversation that lawyers should have with children regarding their desire to participate and the extent of their participation. Ms Beckhouse also raised some key challenges for lawyers working is this jurisdiction, such as i) an accepted process to guide meetings between judges and a child prior to making a determination; and ii) ensuring that lawyers act as gatekeepers and prevent children from system abuse ie preventing trauma that can result from a child being required to repeat their story to different people at different points of the legal process. .

Emily Buss discussed the ways in which lawyers’ representation of children has developed in the U.S. In child protection cases, every State is required to provide some kind of legal representative. However, there is no direction given from the courts or by statute as to how lawyers should interact with the child. Professor Buss pointed out that there are two models that are widely accepted amongst lawyers - the “traditional attorney” model (whereby the lawyer takes direction from the child and maintains the child’s confidence and right to privacy and the “best interests” model (whereby the lawyer’s role is to protect and explain the process to the child). In the latter model, there is less emphasis to comply with the child’s wishes and instructions. Rather, the legal representative reaches conclusions on their assessment of what the best interests of the child are. Prof Buss spoke of the many ways that the system excludes children despite their apparent participation. For example, if the child is present at court, they may not get the opportunity to speak. Even when they do speak, they may not feel that what they said will influence the decision. Buss emphasised that if a child does participate in the proceedings, the court should reassure them about the importance of their participation.

In regards to the juvenile justice system, Prof Buss noted that there is increasing attention to judicative competence. A child cannot be forced to go to trial or advise counsel if they do not have the competence to understand the proceedings. In most States in Australia, the age of competency is 12 years old. However, Prof Buss argued that there needs to be more research and scientific knowledge undertaken about child development to establish what a child actually comprehends. She also mentioned how children generally do not have a right to counsel in divorce and separation cases because the aim is to settle these matters outside of court.

In contrast to the U.S, Australia lacks unified guidelines on the protection of children in the legal system. There is also some disagreement among lawyers as to whether a child should have the right to be represented. These factors create barriers to sophisticated legal protection of children in Australia. A further issue of contention raised by the speakers was whether the role of the lawyer in relation to the child ends at the conclusion of the court process or if the lawyer should maintain contact with the child and ensure that he/she has necessary support. Prof Buss also pointed out that in the US, unlike in Australia, children placed in foster care were brought to courts every 6 months given the State has obligations to ensure the child’s well-being under care and to address any issues raised by the child. This example and others were illustrative of some of the important initiatives Australia might adopt from the American system to provide better legal protection of our children.

 

With thanks to Lucy Chen, AHRCentre intern for semester 1, 2016, author of this article. Read more about our internships here.

 

Photo from left to right: Kylie Beckhouse, Matthew Keeley, Emily Buss and Noam Peleg.