Session 08.2 Assisting Child Participation
Tracks
Track 2: Room LG18
Tuesday, July 29, 2025 |
4:00 PM - 5:30 PM |
LG18 - The David Li Kwok Po Lecture Theatre |
Overview
Individual papers
Chair: Janise Mitchell, CEO of the Australian Childhood Foundation
Representing Children: Voice, Choice and Change in Family Court
Professor Kara Finck, University of Pennsylvania, USA
The role of court-appointed experts in facilitating child participation in Australian child protection proceedings
Ms Peiling Kong, University of Sydney, Australia
Rhetoric, Risk, and the Role of the Independent Children's Lawyer
Ms Eliza Tiernan, Victorian Bar, Melbourne, Australia
Speaker
Ms Janise Mitchell
CEO
Australian Childhood Foundation
Chair: Assisting Child Participation
Biography
Janise Mitchell is the CEO of the Australian Childhood Foundation and Director of the Centre for Excellence in Therapeutic Care. She is also an Adjunct Associate Professor, School of Arts and Social Sciences with Southern Cross University.
Janise has more than 38 years’ experience in the field of child trauma. She completed a Master of Social Work (Research) in 2008 in therapeutic foster care having been instrumental in the implementation of therapeutic care for more than 21 years. Janise is a founding Board member of the National Centre for Action on Child Sexual Abuse and Board member of the Centre for Excellence in Child and Family Welfare.
Janise has extensive experience in the development of innovative therapeutic programs for traumatised children and young people. Janise has provided consultancy to many governments on the issue of therapeutic services for children and young people and regularly participates on state and national Advisory Groups seeking to address the needs of children and young people in the child protection, out of home care, secure care and youth justice sectors. Janise has a commitment to evidence informed practice and believes strongly in the participation of young people in the development of services, policies and programs that seek to support them.
Janise has presented nationally and internationally and has a range of publications including:
The Handbook of Trauma-Transformative Practice: Emerging Therapeutic Frameworks for Supporting Individuals, Families or Communities Impacted by Violence: Edited by Joe Tucci, Janise Mitchell, Stephen W Porges and Ed Tronick, 2024, London: Jessica Kinglsey Publishers.
The Handbook of Therapeutic Care for Children: Evidence-Informed Approaches to Working with Traumatized Children and Adolescents in Foster, Kinship and Adoptive Care edited by Janise Mitchell, Joe Tucci and Ed Tronick, 2019, London: Jessica Kingsley Publishers.
Professor Kara Finck
Practice Professor of Law
University of Pennsylvania Carey Law School
Representing Children: Voice, Choice and Change in Family Court
4:00 PM - 4:30 PMAbstract
Protecting children’s rights in court proceedings is a critical component of ensuring justice for families, and challenging practice which disproportionately impacts and separates families of color. Decades of conflating the conditions of poverty and the legal standard for neglect resulted in poor families being penalized and marginalized by conditioning the provision of supportive services for their families on court oversight. Lawyers for children are integral to challenging this by ensuring the best interest of the child and holding courts accountable for prioritizing the child’s right to family autonomy. Given the critical nature of ensuring that the child’s voice is represented, one would assume a consensus on the best practices and models for representing children. Yet the laws surrounding models for child representation vary widely both within and across countries. For example, older youth in the United States may have either a guardian ad litem (GAL)—an attorney or lay representative who substitutes their own judgement for the minor’s—or an attorney for the child who is directed by their client, depending not on the child’s age or capacity to understand the court proceedings, but rather on where they live. Furthermore, research suggests that legal models for representing children often fall short of their goals to promote the best interest of the child and instead embed structural racism and classism through the GAL substitution of judgment. Scholars and practitioners must rethink the role of the child’s attorney in protecting children’s rights and best interests which should be defined through the lived experience and expressed preferences of the child. The presentation will review the history of appointing lawyers for children, current laws in the U.S. and elsewhere which define the role, ethics for representing children and a proposed model which centers the child client and their expressed preferences.
Biography
Kara R. Finck directs the University of Pennsylvania Carey Law School’s Interdisciplinary Child
Advocacy Clinic. Previously, she was the Managing Attorney of the Family Defense Practice at The
Bronx Defenders, where she created a groundbreaking interdisciplinary legal practice for parents in Family Court. Her areas of scholarship include child welfare, parents’ rights, interdisciplinary practice and preventive lawyering models. She has presented widely on best practices in child advocacy, collateral consequences of child welfare involvement, immigrant families and the ethics of interdisciplinary collaboration. Her scholarship includes the textbook Social Work Practice and the Law (Springer Publishing, 2011) and Youth and Families Matter: Reconstructing the System One Youth at a Time From the Expertise of Youth Advocates (Columbia Journal of Race and Law, 2022) co-authored with youth advocates in foster care.
Ms Peiling Kong
PhD candidate, clinical psychologist
Sydney Law School, University of Sydney
The role of court-appointed experts in facilitating child participation in Australian child protection proceedings
4:30 PM - 5:00 PMAbstract
Children in child protection matters in Australia do not attend court proceedings and have to rely on their legal representative and court-appointed clinicians and experts who ascertain, assess and relay their views via expert reports to the court. These reports provide recommendations about the best interests of the child and present the child’s views, as well as the weight to be accorded to the child’s views; interviews with magistrates indicate that these reports are generally valued and accepted.
Despite the considerable influence of these expert reports, there is little research on how these experts engage with, assess, and support children’s participation and their understanding of how their views will be relayed and used by the court.
This study seeks to provide clarity and understanding about the role of court-appointed experts in facilitating child participation in New South Wales, Australian child protection matters. It uses a mixed-methods design involving semi-structured individual interviews with 13 experts in New South Wales, and review and thematic analysis of 70 expert reports.
The findings indicate that experts provided children with opportunities for child participation; however, children’s views rarely influenced experts’ recommendations. Various factors including the child’s demographic variables (e.g., the child’s age, verbal competency, cultural background, and capacity) and the experts’ professional orientation (such as paternalistic, protective, and partnership) predicted experts’ facilitation of child participation in court-directed assessments. Best practice recommendations are put forward to provide guidance on how experts could better accommodate children’s views and respect their right to participation when making recommendations to the court.
Despite the considerable influence of these expert reports, there is little research on how these experts engage with, assess, and support children’s participation and their understanding of how their views will be relayed and used by the court.
This study seeks to provide clarity and understanding about the role of court-appointed experts in facilitating child participation in New South Wales, Australian child protection matters. It uses a mixed-methods design involving semi-structured individual interviews with 13 experts in New South Wales, and review and thematic analysis of 70 expert reports.
The findings indicate that experts provided children with opportunities for child participation; however, children’s views rarely influenced experts’ recommendations. Various factors including the child’s demographic variables (e.g., the child’s age, verbal competency, cultural background, and capacity) and the experts’ professional orientation (such as paternalistic, protective, and partnership) predicted experts’ facilitation of child participation in court-directed assessments. Best practice recommendations are put forward to provide guidance on how experts could better accommodate children’s views and respect their right to participation when making recommendations to the court.
Biography
Pei is a clinical psychologist and a PhD candidate at the Sydney Law School, University of Sydney. Her PhD research investigates the role of court-appointed experts in facilitating child participation in child protection proceedings in New South Wales, Australia. Pei is a research assistant within the University of Sydney and a practicing clinical psychologist. Pei’s research interests include promoting therapeutic jurisprudence and advocating for children’s rights through social justice frameworks. Her clinical psychology experience includes assisting a court-appointed expert in conducting expert assessments over the last 12 years. She has special interests working with culturally diverse and ethnic minority clients.
Ms Eliza Tiernan
Barrister
Victorian Bar
Rhetoric, Risk, and the Role of the Independent Children's Lawyer
5:00 PM - 5:30 PMAbstract
What do we do when the best interests of an arguably Gillick competent child, and the child’s own statements regarding their wishes, are in direct conflict?
How do we address risk to a child, as a prospective consideration per Isles & Nelissen [2022] FedCFamC1A 97, when the child uses their voice to advocate on behalf of the parent who (the independent evidence suggests) directly poses a risk to them?
How can a child’s voice be appropriately heard when there is the possibility that the child’s voice may have been manipulated, corrupted, or otherwise compromised?
And how can we improve the system to best support such children, ensuring their voices are heard, while protecting them – even when that means protecting them from themselves?
In this paper, I will examine the role of the Independent Children’s Lawyer (ICL) in the Australian family law system, including analysis of the changes to that role following the amendments to the Family Law Act 1975 (Cth) which commenced operation in May 2024, and the way in which children’s voices are represented, interpreted, and interrogated, in Australian family law proceedings.
Following this legislative analysis, a series of recent pertinent cases will be discussed (including Swan & Swan (No 3) [2023] FedCFamC1F 1095 and Bannerman & Bannerman (No 3) [2023] FedCFamC2F 969) from the perspective of counsel who appeared for the ICL, by way of engaging with the practical application of the legislation and case law, and discussion of scenarios in which such issues need be addressed and resolved.
How do we address risk to a child, as a prospective consideration per Isles & Nelissen [2022] FedCFamC1A 97, when the child uses their voice to advocate on behalf of the parent who (the independent evidence suggests) directly poses a risk to them?
How can a child’s voice be appropriately heard when there is the possibility that the child’s voice may have been manipulated, corrupted, or otherwise compromised?
And how can we improve the system to best support such children, ensuring their voices are heard, while protecting them – even when that means protecting them from themselves?
In this paper, I will examine the role of the Independent Children’s Lawyer (ICL) in the Australian family law system, including analysis of the changes to that role following the amendments to the Family Law Act 1975 (Cth) which commenced operation in May 2024, and the way in which children’s voices are represented, interpreted, and interrogated, in Australian family law proceedings.
Following this legislative analysis, a series of recent pertinent cases will be discussed (including Swan & Swan (No 3) [2023] FedCFamC1F 1095 and Bannerman & Bannerman (No 3) [2023] FedCFamC2F 969) from the perspective of counsel who appeared for the ICL, by way of engaging with the practical application of the legislation and case law, and discussion of scenarios in which such issues need be addressed and resolved.
Biography
Eliza Tiernan was called to the Victorian Bar in Australia in 2016. She holds a First Class Honours degree in Arts and a Juris Doctor degree in Law from the University of Melbourne, where she was awarded the Melbourne Law School Prize for Legal Research.
In 2017, together with solicitor Louise Cooney, she presented their paper "Certain Unions Are Not Marriages: Predicting Outcomes on Separation for Same-Sex Couples Married Overseas" at the World Congress on Family Law and Children's Rights in Dublin.
Eliza is frequently briefed to appear in matters involving all aspects of family law, including the provision of written advice, and appellate work. She has a particular interest in high conflict parenting matters, including international relocation cases and briefs to appear for the Independent Children’s Lawyer, as well as complex property matters. Eliza is a member of the Victorian Family Law Bar Association, and the Women’s Barristers’ Association.
