Lawyer for Child’s role in FDR – to attend, or not to attend? That is the question!
Written by Will Story
Following the implementation of the Family Court (Supporting Children in Court) Legislation Act 2021, the Family Dispute Resolution (FDR) process now has the great benefit of the Child Specialist role offering children the opportunity to participate. This is all very well where there are no Court proceedings at play.
But what happens when there is a Court referral to FDR, where a Judge has directed the parties to attend FDR pursuant to the Court’s jurisdiction under section 46F of the Care of Children Act 2004? This question has been asked of us a few times recently, and the answer is not straight forward. I have endeavoured to summarise a few of the key challenges with Lawyers for Child attending FDR mediation in this article.
1. The jurisdiction question
Lawyer for Child is a statutory role, fulfilling a statutory function. In the Family Court, the Judge owns the process. In mediation, the process is owned by the Mediator. Since FDR came into existence, there has always been some ambiguity around the place of Lawyers for Child in FDR mediation. Can Judges direct an Officer of the Court to attend a process that is not overseen or controlled by the Court? On a practical level, Lawyers for Child are sometimes directed to attend FDR (we certainly see this often enough).
On a technical level, the recent amendment to section 11(2) of the Family Dispute Resolution Act 2013 would suggest that lawmakers have yet to turn their mind to this issue. Section 11(2)(ba) compels the FDR provider (the Mediator) to “ensure that the children who are the subject of the dispute are given any reasonable opportunities to participate in the decisions affecting them that the FDR provider considers appropriate.” Clearly, the law intends the decision on whether or not the child participates in FDR to be one made by the mediator, not a Judge – regardless of whether FDR takes place before or after the commencement of proceedings. But perhaps the law has completely overlooked the case of section 46F referrals for now, which doesn’t particularly help us in managing these cases.
Associated to a degree with the jurisdiction issue is the practical consideration of costs – and who meets them? Lawyer for Child’s costs are met by the Court consolidated fund. At the closure of Court proceedings there are legislative obligations on Judges to consider recouping costs from the parties. This can be done by making costs awards against parties where a case may have been completely unmeritorious or one party’s conduct through the proceedings is called into question. As FDR is separately funded, Lawyer for Child’s attendance at FDR is going to add to the overall cost of the Court proceedings (although if a successful resolution is reached one could argue that this cost pales into insignificance compared to the cost of the matter being heard by a Judge). Notwithstanding this, the additional cost factor is something Judges still need to consider.
So where does this leave parties who wish for their children to have a voice?
From time to time, where parties are directed to attend FDR and wish for their child to participate (in the broadest sense), we have reached out to the Lawyer for Child on the case inviting them to attend FDR. Some have declined, on the basis that they have no business in FDR, which possibly indicates a lack of clarity around the extent of the role and how it fits with FDR. Other Lawyers for Child have noted that they have already met with the child and provided an interim report, so naturally are hesitant about meeting with the child again. While the logic is sound, it ignores section 11(2)(b) which was enacted not just to give the child a voice, but the opportunity to participate in the FDR process. Therefore, while a lawyer may have already met with the child in the Court proceedings, that may not be sufficient if the child was not supported to participate (if appropriate) in FDR.
While the jurisdiction issue is one which would benefit from further discourse and wider direction, on a practical level if you are involved in proceedings where the Judge is making a direction for the parties to attend FDR, having the Judge record in their Minute that Lawyer for Child is authorised to attend (and any other detail as to how the standard brief is extended) can be immensely helpful and avoid any confusion around the matter.
2. What capacity do they attend in? Advisor or advocate? Or approver?
In the Court process, Judges rarely make Directions that do not accord with Lawyer for Child’s recommendations, as an advocate for the child’s welfare and best interests – the touchstone of all Care of Children Act matters. In this sense, Lawyers for Child can be called upon to approve of any agreements reached within that process.
When Lawyer for Child attends FDR mediation, conversely, they are attending a process that is driven by the parties. In this respect, what happens if Lawyer for Child doesn’t agree with arrangements which the parties may have arrived at themselves? Do Lawyers for Child hold the trump card? How does a mediator manage these dynamics? Mediators have the skills and training to manage the parties and their representatives (legal or support persons), but conventionally they are not usually acquainted with managing expert witnesses or advocates as a Judge might in an adversarial context.
It is possible that parties reach an agreement through FDR that does not accord with the Lawyer for Child’s recommendations. This could be problematic – particularly where parties end up back in Court later down the track.
That said, it would be unusual for parenting arrangements agreed upon at FDR to not accord with Lawyer for Child’s recommendations, or to not be approved by Lawyer for Child, and in those rare cases where Lawyer for Child may have concerns the appropriate avenue would be to address them by way of Memorandum to the Court following the conclusion of the FDR process.
3. The without prejudice and confidentiality aspects
So what then, when a matter does return to Court? Naturally, the Court will look to appoint the same Lawyer who has previously met with the child/ren.
This, in my view, is one of the most contentious aspects of Lawyer for Child’s attendance at FDR. When a Lawyer for Child attends FDR (a self-determining process), they are essentially being asked to remove their Lawyer for Child hat for a moment in time. Despite being a fly on the wall to completely confidential and without prejudice negotiations between parties, a Lawyer for Child may then have to carry on representing the child as an advocate in a context where evidence is being tested with intimate knowledge of any disclosures made or information revealed by parties during the FDR process. This could result in a tension between their duty to the Court, and fiduciary duty to the parties and mediator which they signed up to by attending FDR. This, in my view, is problematic. The issues around professionalism and ethics surrounding this are worthy of consideration and could well put lawyers off feeling confident that they could successfully manage any conflict which may arise.
That said, these risks could successfully be mitigated by Lawyer for Child attending only the beginning of the mediation to provide the child’s views, following which they may leave. This would accord largely with how a Child Specialist or Voice of Child delivers information in the FDR setting. This would of course depend on the Lawyer for Child agreeing to be bound by the mediator’s ground rules.
4. But what about over-interviewing?
If as a Lawyer for Child, you have hesitations (perhaps for one of the above reasons) about attending FDR, this is only going to mean that another professional may be selected (a Child Specialist or Voice of Child) to enable the child to participate in FDR – right? And this is ethically questionable too, as it could lead to over-interviewing – right?
While over-interviewing is an important consideration, there are equally important considerations which might indicate that it is valuable for a child to have access to a Child Specialist or Voice of Child in the FDR process. When I approached one of our Child Specialists on the subject, they had the following observation:
“The term “interviewing” itself creates a perception of an adult sitting opposite a child and asking a series of questions. If we think instead of “meeting with” children in a child focused way, this changes the picture. Child Specialists and Voice of Child have specialist skills in working with children in ways which are non-intrusive, child-focused and safe. So, a child meeting might involve a child playing a card game to get to know the Child Specialist, drawing a picture to show who is in their family and how they get along with various family members and using child friendly card sets to describe how they feel about their living arrangements. Ultimately, the aim is for children to leave a Child Meeting having enjoyed themselves and also feeling heard and acknowledged by the Child Specialist/Voice Of Child who has met with them. If nothing else is achieved, they will have had the undivided attention of a safe and interested adult which is a positive experience for all children.”
The facilitation of a child meeting with a professional who is trained in child development and has experience of working with children who have complex difficulties in assessment or intervention settings also allows that professional to make sense of the child’s experience not simply based on what they say but also on how they communicate that information by paying attention to their non-verbal behaviour. Understanding and formulating the core experience of children within a developmental framework is a vitally important role for the Child Specialist and provides parents and caregivers with valuable information to inform their decision making at FDR.
While over-interviewing is always of concern, in the context of FDR and child-inclusive mediation children will always have the opportunity to assent to meeting with a Child Specialist or decline, both prior to the meeting and at any stage during the meeting. For children who have met with many professionals and do not wish to meet with someone else, they can simply say that they do not want to participate in a child meeting or indicate this during the meeting and the Child Specialist will respond to this sensitively and wrap up the meeting. The Child Specialist I spoke to further observed that “Children are often used to decisions being made for them by adults particularly in relation to contact with professionals and this approach provides them with safety and an opportunity to have active control over the process.”
5. But as a Lawyer for Child, I often convene successful roundtable meetings between parties. Can’t I continue doing that?
This is something we hear often. While roundtable meetings are nothing new, there is a sense that they have risen in popularity and usage since FDR’s inception. Roundtable meetings can be very valuable to bring Counsel (the busy professionals) together, first and foremost, to reach agreement on procedural matters with the benefit of having clients and their up-to-date instructions present in the room. However, it cannot be overlooked that roundtable meetings are often, if not always, chaired by Counsel (usually Lawyer for Child) who has a clear role as an advocate in the process. There is an inherent conflict of interest in this. There is also an issue around lack of mediation accreditation with non-trained mediators leading these meetings. With lawyers present, roundtable meetings can also be quite directive which does not accord with mediation principles.
By contrast, FDR mediators are trained and accredited with one of the Approved Dispute Resolution Organisations - AMINZ, Resolution Institute, MĀADRO and the New Zealand Law Society. FDR mediators do not have an advocacy role, and being bound by strict rules of ethics, must be objective and non-partisan. There are clear benefits of the FDR process, and risks of roundtable meetings, which need to be borne in mind.
Summary
Following the implementation of the Family Court (Supporting Children in Court) Legislation Act 2021, there are a few questions unanswered by law as to how Parliament intends the interplay between FDR and Court child-inclusive processes to work. Until there is clarity around this, if as Lawyer for Child you are in a quandary as to whether you ought to attend FDR mediation or to leave the parties to work with an FDR Child Specialist, it is not simple and there are many factors to be considered as set out above. If you wish to talk with us, any of our Child Specialists would be happy to offer guidance where they can – just reach out to us!
About the author
Will Story BA LLB (will.story@fairwayresolution.com) is an experienced family lawyer (not practising) and Operations Manager of Family Services at Fair Way.