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 be defined through the lived experience and expressed preferences of the child. The presentation will review the history of appointing lawyers for current laws in the U.S. and elsewhere which define the role, ethics for representing children and propose a model which centers the child client and their expressed preferences.

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.

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.