Practice Note - Lawyer for the Child: Selection, Appointment and Other Matters

1. BACKGROUND

The terms of this Practice Note have been settled in consultation with the Ministry of Justice and the Family Law Section of the New Zealand Law Society.

2. CONTENTS

The Practice Note covers the following matters:

separate representation of children - legislative provisions;
process for appointment;
Children, Young Persons and their Families Act 1989 – review procedures;
reports;
content of referral;
process for selection;
criteria for selection;
review of the list;
levels of remuneration;
administration of the list;
complaints; and
removal from the list.

3. INTRODUCTION

This Practice Note replaces all previous Practice Notes pertaining to the selection, appointment and payment of lawyer for the child.

This Practice Note will take effect from 8 March 2007.

4. TERMS AND DEFINITIONS

In this Practice Note:

References to ‘(the) lawyer,’ unless otherwise stated, means a barrister and/or solicitor appointed by the Court for any child/young person.

References to ‘report writer’ means any social worker or specialist report writer from whom a report has been requested under section 132 or section 133 of the Care of Children Act 2004 or under section 178, section 186 or section 187 of the Children, Young Persons and Their Families Act 1989 (CYPF Act”). ‘Report’ has a corresponding meaning.

The term ‘child’ includes both ‘child’ and ‘young person’ as defined in the CYPF Act.

5. SEPARATE REPRESENTATION OF CHILDREN

Section 7(1) of the Care of Children Act 2004 authorises the Court to appoint a lawyer to act for a child who is the subject of, or who is a party to, proceedings under that Act. Section 7(2) of the Care of Children Act requires the Court to appoint a lawyer to act for a child (unless it would serve no useful purpose) in proceedings where the day-to-day care of the child or contact with the child are an issue and the matter appears likely to proceed to a hearing. Section 60 of the Care of Children Act requires the Court to consider as soon as practicable, whether to appoint a lawyer to act for a child under section 7(1) in proceedings involving allegations of violence.

Section 162(1)(b) of the Family Proceedings Act 1980 authorises the Court to appoint a barrister or solicitor to represent any child who is the subject of, or who is otherwise a party to, any proceedings under that Act if the Court is satisfied that appointment is necessary or desirable.

Section 159 of the CYPF Act requires the Court to appoint a barrister or solicitor to represent any child or young person who is the subject of any proceedings under Part 2 (care and protection of children and young persons) or Part 3A (Trans Tasman transfer of protection orders and protection proceedings) of that Act and, if the Court thinks desirable, for such other purposes (including any other proceedings under that Act or any other enactment) as the Court may specify.

Section 81(1)(b) of the Domestic Violence Act 1995 authorises the Court to appoint a lawyer to represent the child in any proceedings on an application for a Protection Order (or in any proceedings relating to or arising out of a Protection Order) made on the child’s behalf.

Section 37A of the Property (Relationships) Act 1976 authorises the Court to appoint a lawyer to represent children of the marriage or de facto relationship or civil union in any proceedings under that Act if there are special circumstances that render appointment necessary or desirable.

Section 226(1)(b) of the Child Support Act 1991 authorises the Court to appoint a barrister or solicitor to represent any child who is the subject of, or who is otherwise a party to, any proceedings under that Act if the Court is satisfied that appointment is necessary or desirable.

6. PROCESS FOR APPOINTMENT OF LAWYER FOR THE CHILD

6.1 (a) Appointments must be made by the Court. The Judge is responsible for settling the brief for the lawyer. This will usually be done in consultation with the parties’ solicitors. The initial brief (and any extensions approved by the Court) will cover the span of the appointment of the lawyer up until the time of any hearing.

(b) As far as possible, the brief for the lawyer should be settled at the time the decision is made to appoint the lawyer.

(c) Unless any risks to the children are identified earlier, appointments under section 7(2) of the Care of Children Act generally will not be made until a mediation conference has identified the matters that are really in issue between the parties and, whether proceedings involving the role of providing day to day care for, or contact with, the child appear likely to proceed to a hearing.

(d) Where the lawyer for either party considers that an appointment should be made before a mediation conference, an application can be made to the Court through the Registrar.

6.2 The Court will consider, in allocating the brief to the lawyer, the following factors:

match of skills to case requirements;
availability of the lawyer;
current workload of the lawyer; and
equitable distribution of work among lawyers on the list.

6.3 Every brief should include:

a description of the issues to be addressed and, if appropriate, the task/s to be undertaken;
any reporting requirements both written and otherwise;
the time and funding allocated to carry out the brief; and
the timeframe for completion of the tasks.

6.4 The role of the lawyer is referred to in detail in a separate Practice Note - Lawyer for the Child: Code of Conduct.

6.5 Once the Court has settled the brief for the lawyer, the Registrar will negotiate an estimate for time and cost for undertaking the outlined brief with the proposed lawyer. This will include payment of any disbursements. Once an acceptable arrangement has been reached, the Judge will sign a Minute of Appointment.

6.6 A bill of costs should be rendered in a form usually acceptable to the Legal Services Agency and should be calculated in accordance with an agreed hourly rate of remuneration.

6.7 Where, during the course of the work, it becomes clear that the estimate of time does not cover the work required for the proper discharge of the lawyer's function, the lawyer should report that fact to the Court with reasons. The lawyer should use best endeavours to report before the estimate is exceeded. Similarly, where the nature of the assignment changes and the lawyer believes a different payment level should apply, the lawyer should report to the Court as soon as practicable. Where the lawyer and the Registrar cannot agree on any additional cost, the matter should be resolved by the procedures set out in section 131 of the Care of Children Act.

6.8 Upon delivery of judgment, the lawyer’s appointment will continue for 28 days in order to advise on the merits of an appeal, and to give the advice required by section 55(4) of the Care of Children Act.

6.9 Each Court will maintain a register, listing each appointment of a lawyer, the date of appointment, the estimate of fees and actual fees paid the type of case and the date on which the appointment terminates.

6.10 The record will be available for the regular monthly management meeting of each Family Court.

6.11 In areas such as Auckland, where several Courts use one pool of lawyers, there should be inter-Court communication to ensure that, as far as possible, there is a spread of assignments to all listed lawyers.

7. CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989 - REVIEW PROCEDURES

7.1 The lawyer’s appointment will continue after the initial proceedings have been finalised or have subsequently been reviewed with a further review to follow. Though the lawyer’s appointment continues in this way, no active work is to be undertaken until the time of the review, unless specifically authorised by the Court or issues arise unexpectedly or urgently.

7.2 Because the appointment continues, the lawyer becomes a person who has to agree to the reviewed plan. Early consultation will be required by the person preparing the plan (refer section 132(1)(b) and section 135(3)(e) of the CYPF Act).

7.3 If there is no dispute about the reviewed plan and the direction in which the proceedings are to go, those preparing the reviewed plan should obtain the formal consent of all parties as required. The consent forms should indicate whether parties wish to attend a hearing or whether they consent to the review being conducted without a hearing. The Judge should be advised of any dispute when the plan is filed.

7.4 After filing, the plan will be placed before a Judge to consider release of the report and any other steps to be taken, and whether orders can be made on the papers.

7.5 The intention of this procedure is to reduce to a minimum any disruption to the lives of children, foster parents and others by having them attend the Court, but at the same time to protect all parties’ rights under the CYPF Act. This is particularly appropriate where everyone agrees that the status quo should continue. It is also intended to lead to significant savings in time and cost.

8. REPORT FROM LAWYER FOR THE CHILD

8.1 Reports are provided as specified by the brief or as directed by a Judge.

8.2 Copies of the reports must be forwarded to the lawyers for the parties, or if they are unrepresented to the parties directly.

8.3 The report should summarise steps taken by the lawyer and results that have been achieved. It should then outline further steps to be taken or recommended. The report should be short, factual, and informative, but should be couched in neutral terms and should not introduce any material that ought to come to the Court's knowledge only by way of evidence. Further steps recommended may include one or other of the following:

that the parties be referred back to counselling;

that a mediation conference be held;

that a pre-hearing conference be held;

that the matter proceed to a hearing;

that a report be prepared under section 132 or section 133 of the Care of Children Act or section 178, section 186 or section 187 of the CYPF Act. Reasons for such a report should be stated;

that no steps need be taken and that the matter be left in the hands of the lawyer for a further specified period.

8.4 Because circumstances differ so much from case to case, Judges have been reluctant to approve a set form or model to be used as a basis for reports required from the lawyer. Nevertheless, the following draft is included as a useful guideline. It focuses attention:

on relevant issues;
the point that has been reached by the parties;
the input to date by the lawyer; and
advice to the Court on initiatives that may be appropriate.

8.5 Reports should be comprehensive, but concise and to the point. In an appropriate case the lawyer may refer in a neutral way to issues settled or still to be determined.

The Registrar
Family Court

Re: B Family - day/month/year

Thank you for your letter of [date] advising of my appointment as lawyer for the children.

This is my report of my attendance to date.

Summary of Issues:
1. The future of Mr and Mrs B's marriage;
2. Day to day care of three children;
3. Occupation of a state rental home.

Situation:
1. Mr and Mrs B and their children presently occupy the home.
2. There are three children directly affected by the dispute
(a) G - pupil Wellington College
(b) R - pupil Wellington College
(c) P - a child with an autistic spectrum disorder (A.S.D.) and an intellectual disability. P attends a Special School.
3. Mr and Mrs B have attended counselling.
4. A mediation conference was held on Friday 11 July. However, the problems have not been resolved, and an urgent hearing has been sought.

My attendances on the child/ren to date:
1.
2.
3.
4.

Other attendances to date:
1. Read Court documents.
2. Formulated an approach.
3. Spoke on telephone and attended on the parties' lawyer.
4. Conference with Mrs B.
5. Conference with Mr B.
6. Conference with Principal, Special School.
7. Telephone conference with school counsellor, Wellington College.
8. Telephone conference, social worker, Wellington Hospital.
9. Attended mediation conference.
10. Conference with school Principal preparing affidavit.
11. Conference with school counsellor preparing affidavit.

It appears that the only and most appropriate means of resolution is an urgent Court hearing. I have, at this stage, decided to call witnesses to give evidence at the hearing and, to that end, am in the process of preparing affidavits.

I intend to speak to ……………..of the Ministry of Educationas she/he has completed an assessment of P. I will also be speaking to G and R and intend to meet further with Mr and Mrs B and their solicitors prior to the hearing.

I have to date spent X hours on the case as detailed by my interim bill, which is enclosed.

Yours faithfully,

9 PROCESS FOR SELECTION OF LAWYER FOR THE CHILD

9.1 In each Court there will be a list of lawyers who are available to accept appointments from the Court as lawyer for the child and from which the lawyer may be appointed in individual cases.

9.2 The Registrar will convene a Panel to consider applications for inclusion in the list of lawyers for the child available to undertake Family Court appointments. This Panel will consist of a Caseflow Manager or a Family Court Co-ordinator as chair, two nominees from the Family Law Section of the New Zealand Law Society, and a Family Court Judge nominated by the Regional Administrative Family Court Judge. The Panel should normally sit with four people, but a panel of three may be convened in some circumstances (for example, where an interview would be unable to be arranged within a reasonable timeframe). Any Panel of three must include a Family Court Judge, a nominee from the Family Law Section and the Caseflow Manager or Co-ordinator.

9.3 Panels will be convened as required but no less than twice a year, if there are applications waiting to be considered and a need for a lawyer to be appointed.

9.4 The following appointment process should be followed:

(a) The lawyer must submit an application form to the Registrar in the Court region in which they wish to practise, nominating the particular Court or Courts where they wish to be on the list. The application is referred to a Panel convened by the Registrar.

(b) The application should be in form PSFC L4C 1 which is available from the Family Court website or any Family Court. The application should be accompanied by any references or testimonials that the applicant would like the Panel to consider and the names of other referees who can provide professional, confidential comment.

(c) The Registrar shall give copies of the application and any supporting documentation on the Regional Administrative Family Court Judge who shall be given 7 days to make any comments in writing relating to the application.

(d) Panel members may make such inquiries as may be needed for them to be informed about the applicant’s ability to meet the criteria including inquiries of referees.

(e) On completion of its inquiries the Panel may arrange an interview with the applicant at such time and place as may be determined by the Registrar.

(f) Not less than 7 days prior to the interview the Registrar shall forward a report to the applicant detailing the inquiries made by the Panel including details of any response that is adverse to the applicant. In the event of there being insufficient time available to consider the application the Panel may adjourn the interview or otherwise arrange a hearing to consider the application.

(g) The role of the other members of the Panel is to advise the Judge. The Family Court Judge on the Panel makes the appointment to the list.

(h) An unsuccessful applicant shall be provided with reasons for not being included in the list.

(i) The Registrar will advise the applicant, the Court, and the Family Law Section, in writing, of the recommendation and in the event that the application is successful, the National Office of the Ministry of Justice.

9.5 The lawyer should meet the following criteria:

(a) Have a current Practising Certificate;

(b) Ability to exercise sound judgment and identify central issues;

(d) Have proven experience in running defended cases in the Family Court;

(e) Have a sound knowledge of the Care of Children Act 2004;

(f) Have an understanding of, and an ability to relate and listen to, children of all ages;

(g) Have good people skills and an ability to relate and listen to adults;

(h) Sensitivity and awareness of gender, ethnicity, sexuality, cultural and religious issues for families;

(i) Relevant qualifications, training and attendance at relevant courses;

(j) Personal qualities compatible with assisting negotiations in suitable cases and working co-operatively with other professionals;

(k) Independence; and

(l) Knowledge and understanding of the Practice Note - Lawyer for the Child: Code of Conduct and Best Practice Guidelines for Lawyer for the Child.

9.6 The lawyer will be able to transfer their approval from one Court region to another.

10 REVIEW OF LAWYER FOR THE CHILD LISTS

10.1 A review of lawyer for the child lists must be undertaken at intervals of not more than three years. The Registrar in each Court must ensure that lists of approved lawyers are reviewed at such intervals. Where several Courts use one pool of lawyers, the Registrars in those Courts may choose to review the lists of approved lawyers together.

10.2 The Registrar shall give notice of the triennial review to all lawyers who are currently on the list. Such notice will include a requirement for all lawyers whose names appear on the list to indicate, within a period of not more than 28 days:

(a) whether they wish to continue to receive lawyer for the child appointments;

(b) whether they wish to withdraw from the lawyer for the Child list; or

(c) whether they have any matters relating to present or past appointments, which they wish to draw to the attention of the Panel.

10.3 The Panel shall meet as soon as practicable and reconstitute the list of lawyer for the child. The Panel shall also consider any matters raised by lawyer that relate to the administration of the list.

10.4 The name of a lawyer may only be deleted from the list at the lawyer’s request or as a result of the lawyer’s failure to respond within the stipulated time. The Panel shall notify all lawyers on the reviewed list whether their names have been retained or deleted from the list, as the case may be, as well as specify the reasons for any deletion.

10.5 The Registrar shall send the reviewed list, with any revisions, to the National Office of the Ministry of Justice and the Family Law Section.

11. LEVELS OF REMUNERATION

11.1 Until regulations are made fixing levels of remuneration, the Court notes the levels of remuneration agreed between the Ministry of Justice and the New Zealand Law Society:

Level 1

$130 to $155 per hour (GST inclusive).

Range to be used in cases where the practitioner appointed has only recently been approved or where no approved lawyer is available and the lawyer appointed is not on the list of approved lawyers.

Level 2

$155 per hour (GST inclusive). This fee will be used in the majority of cases.

Level 3

$155 to $170 per hour (GST inclusive). This range will be used to calculate fees:

– in cases where superior skills are required;
– in cases of extreme urgency;
– in cases where there are grave concerns about the immediate safety of children;
– in most Hague Convention cases;
– in cases where there are allegations of sexual abuse.

11.2 The Ministry of Justice has reminded Registrars that they have discretion to exceed the rate in exceptional circumstances.

11.3 Disbursements are not included in the rates set out above. Disbursements such as reasonable travelling expenses, toll calls, faxes etc shall be paid by the Registrar on receipt of an itemised account from the lawyer. Extraordinary expenses, such as long distance travel, should be approved in advance.

11.4 Where there are unresolved differences between the lawyer and the Registrar, the lawyer should do the work, submit an account, and the provisions of section 131 of the Care of Children Act will then apply, i.e. taxation by the Registrar and judicial review where necessary. It is envisaged that this procedure will rarely have to be used. Proper recourse to this procedure will not prejudice the position of lawyer in relation to future appointments.

11.5 This Practice Note shall continue to apply following the making of regulations fixing levels of remuneration to the extent that it is not overtaken by the same.

12. COMPLAINTS

12.1 Any complaints about the lawyer, while proceedings are pending should be referred to the presiding Judge. If the party making a complaint is represented, that party's lawyer should make the complaint in writing on the client’s behalf.

12.2 Copies of the complaint should be sent to the lawyer for the other parties and directly to any party that is not represented.

12.3 Complaints about the lawyer after proceedings have been concluded should be referred to the Regional Administrative Family Court Judge responsible for the Court in which the proceedings were filed.

12.4 Where, after making such enquiries as the Administrative Judge may see fit, the Administrative Judge forms the view that a substantial issue appears to arise, the Administrative Judge shall refer the complaint to a Panel to determine whether the lawyer should be removed from the list, in which case the provisions of paragraph 13 shall apply. If the complaint is unjustified the Administrative Judge shall dismiss the complaint.

12.5 It is not intended by this Practice Note to limit the jurisdiction of the Court to do whatever it considers to be appropriate in the circumstances or otherwise limit the right of the Law Society or other statutory authority to consider any complaint about a lawyer.

13. REMOVAL FROM THE LIST OF LAWYER FOR THE CHILD

13.1 The lawyer may be removed from the list and this shall occur by the like process to selection of the lawyer in paragraph 9 with all necessary modifications.

13.2 Grounds upon which lawyers can be removed shall be as follows:

(a) professional misconduct in carrying out duties as the lawyer; or

(b) demonstrable failure to abide by the Practice Note - Lawyer for the Child: Code of Practice and Best Practice Guidelines for Lawyer for the Child; or other failure to carry out duties responsibly and competently.

13.3 The Panel shall advise the lawyer in writing that it is considering removing his or her name from the list.

13.4 The notice from the Panel to the lawyer shall:

(a) specify the reasons why the Panel is considering the removal of the lawyer from the list;

(b) state the right of the lawyer to make submissions or representations within 21 days from the date of service of the notice; and

(c) set out the intention of the Panel to consider removing the lawyer from the list at the expiration of 21 days unless the lawyer indicates, in writing, that he or she opposes removal.

13.5 Upon the expiration of the 21-day time period the Panel shall convene to consider whether or not the lawyer should remain on the list. In the event that the lawyer has made submissions or representations opposing the removal, the Registrar shall convene a hearing.

13.6 At any defended hearing, the lawyer shall be entitled to be represented and shall be entitled to call witnesses in support.

13.7 The Registrar shall advise the Regional Administrative Family Court Judge, the lawyer, the relevant Court, the Family Law Section and the National Office of the Ministry of Justice, in writing, of the decision.

COMMENCEMENT DATE

This Practice Note is issued in Wellington this 8th day of March 2007.

This Practice Note commences in its effect as at 8th March 2007.

Judge P F Boshier
PRINCIPAL FAMILY COURT JUDGE