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START OF Best practice guidelines
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The outbreak of COVID-19 across Australia has created risks related to in-person contact that could potentially have serious consequences. However, even when you can’t meet a child in person you can and should communicate with them.
Many children are very familiar and comfortable with technology with much of their education and communication taking place online. Many older children have access to their own devices.
There are various platforms available to lawyers to facilitate communication with a child via technology.
Meeting high school aged children via technology may be appropriate in a significant proportion of cases. Dependent on the maturity of the child, their familiarity with technology and current home situation, there may be upper primary children who it would also be appropriate to meet remotely. While there may be some exceptions, there will generally be some major limitations and risks incurred when conducting meetings via technology with younger children, and considerable caution needs to be exercised when this is undertaken.
This guide sets out some tips and traps for independent childrens lawyers and separate representatives when communicating with a child via technology. Every case should be assessed on its merits based on the issues,complexity and practical realities of communicating with children. The aim of this guide is to encourage solicitors to consider the option of ruling in rather than ruling out alternative forms of communication.
Before deciding to meet with a child you should seek relevant information to help you in deciding whether it might be possible and/or appropriate to meet the child via technology.The factors that should be explored/considered include the:
Decisions on the location and technology platform to be used for your meeting with children should be assessed on a case by case basis. How we set the meeting up will influence how comfortable the child feels and how willing they are to share with you.
Without the opportunities available in a waiting room before a face-to-face meeting to prepare parents/carers and the child for the meeting, you can still create a virtual waiting room environment. You can do this by sending the parents/carers and the child resources about your role. Meeting with children remotely, may mean they are not in'neutral' territory. For example, they may be in a parent/carer’s home. It also means you will not have as much control over the environment the child is in and this includes being less able to support the child.
Ensure you are available to answer questions and address concerns about the process.
Independent childrens lawyers and separate representatives need to pre-empt concerns that may arise from the selection of location for their meeting and any concerns about the technology platform being proposed for the meeting. To avoid exposure to criticism from the parties, to structure the meeting and support the child as much as possible, it might be useful to consider the following things.
Video technology is the preferable platform when meeting a child. It can be a useful tool for you for many reasons:
If the child’s school is raised as an option, whether for an in person or via technology meeting, you will first need to speak with the principal to ask whether they would be willing to facilitate the meeting and whether they have the facilities and equipment required for the meeting to take place.
Video technology such as Skype, Facetime (on compatible devices) and software apps such as Microsoft Teams are all options. Microsoft Teams allows the child to attend the meeting using a computer, tablet or smart phone.
Where possible, the child should be facilitated to use their own device and the meeting link and instructions should be provided to the child directly if they have their own email address. This reduces the likelihood of parental interference. In many matters,this will not be possible, and parents will need to play a role in receiving the meeting invitation and setting up the meeting.
If the child is not able to manage the technology platform and if a parent/carer is required to help the child during the meeting, how might this work? For example, is it possible to reach agreement beforehand about what you would like the parent/carer to do once they have set up the technology and checked it is working, connected head phones to the device for the child to listen through etc? It is important parents/carers know they will need to leave the room and allow the child to speak privately with you.You can communicate directly with older child to gauge the best options for them and ensure they have the support ofan adult if they need help.
What options are available to the child at the proposed location?
As you plan out the platform, this is also a good time to explain to parents and children the confidential nature of the meeting and the lawyer’s need to see the child alone and in private. Should any of the parties object to the location or technology platform proposed for the meeting, where reasonable and practicable, an alternative meeting location or technology could be proposed and agreed to by the parties.
Consider starting your meeting with all of the children together to introduce yourself.
Your body language and tone might not translate the same way as it does in an in-person meeting, but it is just as important in a videoconference meeting and is part of how you build rapport.
Most meetings will end naturally. You should discuss with a parent/carer in advance what will happen when the meeting ends.Make sure you discuss whether another meeting will take place and set out the rules for the next meeting when communicating with the parents.
One meeting may not be enough when meeting via technology. Be careful not to put too much pressure on yourself and the child to cover everything in one meeting.It may be unrealistic to expect a child will share openly with you on your first meeting and this may be more so if they are meeting you for the first time via video.Consider having ongoing shorter meetings to check in with the child instead of having one long meeting to cover everything, especially if:
It is generally good practice to meet in-person with the child especially for the first meeting. However, during the COVID-19 pandemic it is reasonable for an independent childrens lawyer or a separate representative to prefer a meeting via technology. There is no expectation that an in-person meeting take place if the independent childrens lawyer and separate representative feels uncomfortable due to health and safety concerns.
If a party or child insists on an in-person meeting, it is not unreasonable to ask they articulate the reasons for an in-person meeting and why a meeting via technology would not be appropriate.
Explore all other viable meeting options, such as a meeting via technology or at the child’s school.
If there are no other alternative options, you may need to apply to the court to seek an order that you meet with the child in person. In doing so you need to be able to articulate to the parties and legal representatives a sound basis for the request. Communication is key.