Family Court

LAWYER FOR THE CHILD

INTRODUCTION

When the Family Court is asked to decide disputes about a child, the Court almost always appoints an independent lawyer for the child. This lawyer is called the lawyer for the child.

WHEN WILL A LAWYER BE APPOINTED FOR A CHILD?

The Court can appoint a lawyer for the child whenever a dispute involving a child needs to be resolved.

If the dispute is about the day-to-day care of or contact with a child and it hasn't been resolved by counselling or mediation and is likely to go to a Court hearing, the Care of Children Act 2004 says the Judge must appoint a lawyer for the child, unless the Judge thinks this wouldn't be helpful.

The Court can also appoint a lawyer for the child in other types of Family Court cases under the Care of Children Act - for example, a dispute between guardians about an important decision to do with the child's upbringing.

The Court must appoint a lawyer for the child in care and protection cases involving Child, Youth and Family Services under the Children, Young Persons, and Their Families Act 1989.

WHO CAN BE APPOINTED AS THE LAWYER FOR A CHILD?

Each Family Court has a list of experienced family lawyers who can be appointed as the lawyer for a child. All of them have had specific training in representing children and they are familiar with children's issues.

WHO DECIDES IF A LAWYER FOR THE CHILD WILL BE APPOINTED?

A Family Court Judge will decide if a lawyer for the child will be appointed, and they choose who that lawyer will be.

DOES EACH CHILD IN A FAMILY GET THEIR OWN LAWYER?

Not usually. In most cases, the same lawyer represents all the children in a family. However, usually the lawyer is expected to meet with each child individually.

If the lawyer for the children or a parent or other person involved in the case thinks that another lawyer should be appointed to represent one or more of the other children in the case, then a Judge can be asked to decide this.

WHO PAYS FOR THE LAWYER FOR THE CHILD?

The costs of the lawyer for the child are paid by the Court. But the Judge can require the parents or any other person who is a party to the case to contribute to the lawyer's costs. The Judge will ask them for input and for details of their financial situations before requiring them to pay anything.

THE ROLE OF THE LAWYER FOR THE CHILD

WHAT DOES THE LAWYER FOR THE CHILD DO?

There are four main things the lawyer for the child has to do. They have to -

• explain the Court process to the child in a way they can understand
• represent the child in the Court process, and in any negotiations between the parents or other parties if there is a dispute about care arrangements for the child
• make sure the child's views and all issues relevant to the child's welfare and best interests are explained to the Court, and
• explain the Judge's decision to the child and discuss with them how it will affect them.

HOW DO THEY DO THOSE THINGS?

Although each lawyer has their own style, it is likely the lawyer for the child will -

• spend some time with the child
• spend some time with each parent or other party individually, and
• spend some time with other significant people involved in the child's life.

Sometimes the child's lawyer will talk to others who know the child - such as members of the wider family, or teachers or social workers.

WHAT ARE THE GUIDING PRINCIPLES?

The lawyer for the child will be guided by principles contained in the Care of Children Act 2004, the Children, Young Persons, and Their Families Act 1989, and the United Nations Convention on the Rights of the Child.

These include -

• that children have a right to know and be cared for by their parents
• that children have a right to their identity, name and culture
• that children should be protected from all forms of violence
• that children have a right to say what they think about issues that affect them, or to say nothing if that is what they want
• that decisions about who looks after or has contact with children should be made quickly and according to the child's sense of time

If there is any conflict between these or other relevant principles, the overriding factor is the welfare and best interests of the child.

WHAT CAN THE LAWYER FOR THE CHILD DO IN COURT?

Like any other lawyer who represents someone in court, the lawyer for the child can bring witnesses into the Court to give evidence, cross-examine witnesses brought to the Court by other people, and address the Judge (make submissions) about the evidence, the law that applies to the case, and anything else they feel ought to be brought to the Judge's attention.

WILL THE LAWYER FOR THE CHILD DECIDE THE CASE?

No, the Judge will decide. However, if the case involves a dispute about care arrangements for the child, the parents or other parties to the case can reach their own agreement at any stage before the Judge makes a decision. If they then want the Court to make their parenting agreement into a parenting order, both the Judge and the lawyer for the child must agree with it. If the parents or other parties cannot agree, the Judge will decide.

HOW MUCH WEIGHT IS PUT ON WHAT THE CHILD SAYS?

After hearing from the parents or other parties and from the lawyer for the child, the Judge will decide how much weight should be given to the child's views. But whatever the final decision, the law says the child's views must be taken into account.

THE RELATIONSHIP BETWEEN THE LAWYER AND THE CHILD

DOES THE CHILD HAVE TO TALK TO THEIR LAWYER?

The lawyer must meet with the child unless there are special reasons why this is not appropriate. If the child is reluctant to meet the lawyer, the lawyer will not force them to.

Most children value a chance to talk to someone about what is happening. In a dispute about care arrangements for a child, the parents or other parties should encourage the child to talk with the lawyer so that their views can be taken into account when the Court makes an order or the parties come to an agreement.

WHERE WILL THE LAWYER MEET WITH THE CHILD?

The lawyer may choose to see the child at home, at school, at the lawyer's office, or some other place. The most appropriate place will usually depend on where the particular child feels most comfortable, and this will often depend on their age. The lawyer for the child will usually discuss this with the parents.

IS WHAT THE CHILD SAYS TO THEIR LAWYER CONFIDENTIAL?

Yes. The child's lawyer acts for the child, and cannot tell anyone else what the child has said if the child doesn't allow this (except if the lawyer finds out from the child that they or someone else may be unsafe). The lawyer will explain all this to the child.

WILL THE CHILD'S LAWYER MAKE THE CHILD CHOOSE IF THERE'S A DISPUTE BETWEEN THE PARENTS?

No. It is not the job of the lawyer - or anyone else - to make a child choose between their parents or other caregivers.

However, the lawyer may ask the child what they think about the dispute. The lawyer will probably ask the child if there are any issues the child wants the adults to know about. How the lawyer does this will depend on the age of the child.

CAN THE CHILD'S LAWYER MAKE THEM GO TO COURT?

No. Sometimes the lawyer for the child will ask them if they want to meet the Judge. And sometimes the Judge will ask to meet with the child. Usually neither of the parents or other parties to the case are present if the child does meet the Judge - only the Judge, a Court official, the child and their lawyer will be there.

WHAT IF ONE PARENT THINKS THE OTHER IS TELLING THE CHILD WHAT TO SAY TO THE LAWYER?

If there's a dispute about care arrangements for the child and a parent or other party thinks the other person is "programming" the child about what to tell the lawyer, they should tell their own lawyer and the lawyer for the child. The Court may decide to get specialist help to try to find out if this is happening.

WHAT IF THE CHILD DOESN'T LIKE THEIR LAWYER?

If the child is able to and feels comfortable doing so, they should tell the Family Court Coordinator. Or a parent or other party should talk to the lawyer for the child about what the child is telling them. If that is too difficult, they should talk to their own lawyer or the Family Court Coordinator.

If a lawyer has done something wrong - for example, if they've acted negligently or unprofessionally - a complaint can be made to the District Law Society.

WILL THE LAWYER REPORT BACK TO THE CHILD AT THE END OF THE CASE?

Yes, the lawyer will explain the Judge's decision to the child at the end of the case.

When the Court makes a parenting order to resolve a dispute about care arrangements for a child, the Care of Children Act 2004 says the lawyer for the child must explain to them what the order means, using words that the child can understand. The lawyer must also explain to the child that they can, through their lawyer, challenge the parenting order by appealing to a higher Court. The lawyer will help the child lodge their appeal if this is what they want.

RELATIONS BETWEEN THE LAWYER FOR THE CHILD AND THE ADULTS

DO THE PARENTS OR OTHER PARTIES GET TO SPEAK TO THE CHILD'S LAWYER?

When there's a dispute about care arrangements for children, most lawyers for children make a point of contacting each parent or other party to find out their views on what arrangement will best suit them and their child.

But it is important to remember that the lawyer is acting for the child and not for the adults. The lawyer has to remain independent and keep focused on the child and the child's needs and views.

WHERE WILL THE LAWYER MEET WITH THE ADULTS?

Normally the lawyer for the child meets with each of them in the lawyer's office.

WHAT IF A PARENT OR OTHER PARTY DOESN'T WANT TO TALK TO THE CHILD'S LAWYER?

The adults don't have to talk to the lawyer for the child if they don't want to.

But by talking to the lawyer for the child, the adults may get a better understanding of what the child thinks and wants, and the issues affecting them. They would also get the chance to explain to the lawyer what they think is best for the child. Talking to the lawyer may be a way they can work out options for resolving disagreements.

IS WHAT THE ADULTS SAY TO THE CHILD'S LAWYER CONFIDENTIAL?

No.

DO THE ADULTS FIND OUT WHAT THE CHILD TELLS THEIR LAWYER?

If the child agrees, yes. One of the main purposes of having a lawyer for the child is for that lawyer to act as a voice for the child in any Court case and in any negotiations between parents or other parties about care arrangements.

WHAT IF THE ADULTS DON'T LIKE WHAT THE CHILD'S LAWYER IS DOING?

They should talk to the child's lawyer, their own lawyer, or the Family Court Coordinator about their concerns.

NEED MORE INFORMATION OR ADVICE?

For more information or advice, look on the Family Court website (www.justice.govt.nz/family), or contact a family lawyer (www.familylaw.org.nz), a community law centre, or the nearest Family Court office.

www.justice.govt.nz/family
Courts 007
Jan 06