In this section
START OF Policies and procedures
START OF Best practice guidelines
END 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.
The terms lawyer and representative are used interchangeably. Where not specified or made clear from context, this should be taken to mean a lawyer acting either as independent children’s lawyer or separate representative (best interests advocate) or direct representative (direct instructions advocate).
Direct representative is used to describe a lawyer acting on instructions of a client who is a child and the subject of intervention pursuant to the Child Protection Act 1999. While an independent children’s lawyer refers to a lawyer appointed pursuant to s 68L of the Family Law Act 1975 and a separate representative refers to a lawyer appointed under s 110 of the Child Protection Act 1999.
Both the Family Law Act 1975 and the Child Protection Act 1999 define a child as a person/an individual under 18 years. As such, the term child is used in this guide to refer to any person under 18. It is acknowledged that older children may identify as a young person rather than a child, however child is used consistently for readability and to remove confusion.
This guide sets out some tips and traps for 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 lawyers 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.
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 of an adult if they need help.
Some things to consider:
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.
Warning: Be aware that some videoconferencing technology may be able to be used to record without your consent. Familiarise yourself with the user guidelines and privacy terms of the technology platform before proposing or agreeing to it.
Be conscious of how the child is coping with the meeting. When you meet a child in person, you can get cues from their body language which can indicate if they are uncomfortable. You may need instead to ask the child how they are feeling throughout the meeting and tell them they can leave the meeting if they wish to or need to.
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.
Warning: If you are concerned about what may happen to the drawing after your meeting then perhaps avoid this or discuss with the child whether they have a way of privately disposing of it.
Warning: Make sure all confidential information is hidden from view and your background is clear of files and folders with client case details or whiteboards with confidential information. Some videoconferencing apps like Microsoft Teams allows you to blur your screen background.
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:
Explore all viable meeting options (for example, meeting in person at the child’s school or meeting via technology).
It is generally good practice to meet in person with the child, especially for the first meeting.
However, there are circumstances (for example, large geographical distance, COVID-19 lockdown) where it is reasonable for a lawyer to prefer a meeting via technology.
There is no expectation that an in-person meeting take place if the representative feels uncomfortable due to personal health and safety concerns.
If a lawyer decides they want to meet a child via technology and 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.
If agreement about how the meeting should occur cannot be reached, you may need to apply to the court to seek an order about this issue. In doing so you need to be able to articulate to the court, the parties and legal representatives a sound basis for your preferred method of meeting. Communication is key.
Last updated 8 September 2021