Taken By The State

Lawyers failing children in the Family Court system: survey

A survey from a women and children's rights advocacy group highlights major problems with those appointed to represent children in the Family Court system. Teuila Fuatai reports. 

Lawyers appointed to represent children entangled in Family Court disputes are under fire from a women and children’s rights advocacy group for lying and failing to tell the court what children want.   

A survey undertaken by the Backbone Collective, which asked more than 400 mothers about their experience in the Family Court, highlighted significant information blockages between children and the court. To hone in on the role of the 'lawyer for child' - the barrister mandated with communicating the child’s views and best interests to the court - Backbone also asked the women to report on their children’s experience.

“We were shocked to learn that for so many children, the lawyer for child service is failing to respond well and safely to their experiences of violence and abuse,” Backbone co-founder Ruthe Herbert said.

Participants in the online survey were required to be mothers who had been exposed to domestic violence, and were part of Family Court proceedings.

“All of these children have been directly or indirectly exposed to abuse,” Herbert said.

“Their mothers have been abused and they come to the Family Court for protection from that abuse.  However, while children and mothers believe that lawyer for child should be making the children safer that is not what is happening,” she said.

We’ve got to make sure that it is effective and children’s voices are being heard.

- Minster Andrew Little on 'lawyer for child' 

Feedback showing lawyers failed to meet with 53 children from 37 of the 256 cases they were appointed in reflected the minimisation of children's voices by the court, group co-founder Deborah Mackenzie said.

For the 222 cases that did involve a meeting with the lawyer for child, at least one in four women said the lawyer had lied in their report to the court about what they had been told by a child or children. A similar number of women also said the report failed to include what a child or children had told their lawyer. About two in five women also said the lawyer for child report contained factual errors. Only one in five said the report accurately reflected the child’s wishes, experiences and/or views.

“When the lawyer for child meets with children, it appears that they are not accurately reporting what those children are saying to the court, and this is often resulting in unsafe parenting orders being made,” Mackenzie said.

“It’s one thing to meet with a child, but if the lawyer for child does not have the skills to engage with the child, or respond to violence and abuse safely then that meeting is not going to lead to safer outcomes for that child.”

In response to the survey, Kirsty Swadling -  head of the Law Society’s Family Section - reiterated the complex nature of dealing with children, and their parents, in Family Court disputes.

“Sometimes what a child says to lawyer for child is not what a parent expects,” Swadling said.

“The lawyer is also to address the court on the issue of best interests [and] sometimes these two do not align - a very simple example of the difference between views and best interests might be where a child decides they do not want to attend school.

New Zealand’s legislation in this area is generally very good. The problem seems to be how those working in the Family Court are implementing the legislation.

“Their view is that they want to stay home [however] many parents would agree however that it is in a child’s best interests to go to school,” she said.

When asked whether concerns had been raised regarding the role of lawyer for child among Law Society members, Swaddling said:

“Generally speaking, it has not come to our attention that there have been any significant concerns. The 2014 reforms clearly set out the role in legislation, confirming and codifying it.”

Herbert, who co-authored the Backbone report with Mackenzie, expanded on this point.

“New Zealand’s legislation in this area is generally very good. The problem seems to be how those working in the Family Court are implementing the legislation,” she said.

And while Backbone has been criticised for representing only a minor number of children involved in the Family Court, both Herbert and Mackenzie are adamant that any number of children being put into unsafe situations due to basic failures of the court - like an inaccurate lawyer for child report - was unacceptable.

“Someone has to take action about what is happening to children in the Family Court,” Herbert said.

Justice and Courts Minister Andrew Little, who is due to announce the terms of reference for a review into the Family Court this month, said he had received letters from people who had similar experiences to those outlined in the Backbone survey.

While the role of lawyer for child would continue, “we’ve got to make sure that it is effective and children’s voices are being heard,” he said.

Referencing the UN Convention on the Rights of the Child, Little said the review team would be tasked with getting children’s views, independent of their parents - as is legislated to happen in the Family Court.

Read the full Backbone Collective report here

Read more: Family Court reforms a failure: research

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