Swings and roundabouts

The 2012 children’s rights referendum represented a profound change to the constitutional rights of children, although its true impact may not yet be fully recognised.

One of the prime pieces of legislation stemming from the 2012 children’s rights referendum was the Children and Family Relationships Act 2015. That act brought about very significant changes in the area of family law, including substantial amendments to the Guardianship of Infants Act 1964.

One of the significant changes to the 1964 act was the insertion of a new part V by section 63 of the 2015 act. The new part V consists of two new sections, 31 and 32. The new section 31 provides guidance to the courts in determining, for the purposes of proceedings under the 1964 act, what is in the ‘best interests’ of a child, and lists factors and circumstances to be considered by a court in making such a determination.

Section 32 provides for the power of a court to make directions for the purpose of procuring an expert report on any question affecting the welfare of the child, or to appoint an expert to determine and convey a child’s views.

Views of the child

This provision stems from the children’s rights referendum and the insertion of article 42A(4)2, which provides that “provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1 of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child”.

The 2015 act gave the courts the power to make orders for the procurement of two types of reports.

Reports under section 32(1)(b) of the 1964 act, which relate to an expert determining and conveying a child’s views, are essentially limited in nature and largely do not come within the scope of this article. A court may also order an expert to procure a report on any question affecting the welfare of a child on foot of section 32(1)(a).

That section is very much akin to the long-established power in section 47(1) of the Family Law Act 1995 that provides “in proceedings to which the section applies, the court may, of its own motion or on application to it in that behalf by a party to the proceedings, by order give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate”. These are described as ‘social reports’ in the notes to the 1995 act.

Separation or divorce

Subsection 6 of section 47 states that subsection 1 applies to proceedings “under the act of 1964” and “under the act of 1989” – that is, in relation to judicial separation proceedings, later extended to include divorce proceedings.

Orders under section 47(1) are most commonly made in divorce and judicial separation proceedings. However, it is important to note that, in the context of any such proceedings, orders relating to children are generally made on foot of the miscellaneous ancillary orders provisions of the 1995 act and the Family Law Divorce Act 1996. In particular, section 10(f) of the 1995 act and section 15(f) of the 1996 ac, allow the court to make ancillary orders in judicial separation or divorce proceedings, respectively, “under section 11 of the act of 1964”.

In essence, orders relating to children in such proceedings are effectively made on foot of the 1964 act. As a consequence, an order made by the court under section 47 of the 1995 act necessarily involves compliance with the new provisions of section 31 of the 1964 act when an assessment and report are undertaken. By extension, it could be argued that it is now appropriate that any order under section 47 should be made in conjunction with, or be replaced by, an order under section 32(1)(a) of the 1964 act.

Caution

There is one note of caution in relation to the new section 32 provisions. As the section provides for two different types of reports, it might be argued that the separate reporting provisions of section 32(1)(b) limit the scope of an assessor appointed under section 32(1)(a). Specifically, if an assessor is only appointed under section 32(1)(a), can it be argued that the assessor’s function does not then extend to “determine and convey the child’s views”?

No such limitation ever existed in practice in assessments carried out on foot of section 47 of the 1995 act, nor was it probably intended that one section would limit the other.

However, in light of the necessity in appropriate cases to ‘hear the voice of the child’, it may be prudent that an assessor would, in fact, be appointed under both sections, if it is intended that the assessor would undertake a ‘full assessment’ as would be the norm under a section 47 appointment, including hearing the voice of the child. This also points to the importance of the parties and/or their legal representatives turning their minds at the outset as to what exactly the assessor is being asked to undertake, which is one of the requirements of the new guidelines.

Sparse provision

Section 47 of the 1995 act is a sparse provision that does not set out any guidance as to what factors should be considered by the assessor in making recommendations as to, or the court in determining, the best interests of a child. The provisions of sections 31 and 32 of the 1964 act are far more detailed. Section 31(2) sets out factors and circumstances that the court shall have regard to in determining the best interests of the child.

Subsection 3 also mandates the court to consider the impact of ‘household violence’, while subsection 4 provides that a parent’s conduct may be considered to the extent that it is relevant to the child’s welfare and best interests only.

Section 32 of the 1964 act sets out detailed provisions in relation to the power of the court to appoint experts to undertake reports. It includes subsections 10 and 11, allowing the minister to make regulations specifying the qualifications and minimum level of experience of an expert to be appointed, the fees and expenses chargeable by such experts, the minimum standards that shall apply in the performance by an expert of his/her functions under the section, and such other matters as the minister considers necessary to ensure that experts are capable of performing their functions under the section.

These provisions highlight the absence of similar provisions in section 47 of the 1995 act. Perhaps as a consequence, there has never been any regulation in relation to the conduct of assessments and reports prepared under section 47 of the 1995 act.

Guidelines

In recognition of the lack of such regulation, and in view also of the inevitable increase in reports relating to children arising from the passing of the 2015 act, the Family Law Courts Development Committee set about drafting guidelines in relation to the conduct of assessment and preparation of reports under section 47 of the 1995 act and section 32(1)(a) of the 1964 act. In drafting those guidelines, the committee engaged with a number of stakeholders – in particular, representatives of a group of assessors experienced in carrying out such assessments and reports.

The guidelines apply to reports under section 47 of the 1995 act and section 32(1)(a) of the 1964 act. The guidelines are not intended for reports under section 32(1)(b) of the 1964 act, which relate solely to an expert determining and conveying a child’s views.

The guidelines firstly highlight an important issue, which sometimes can be overlooked by practitioners, but in particular by parties to proceedings – namely, that the recommendations in such reports are not binding on a court. The guidelines quote Denham J in JMcD v PL and BM where she stated that “the learned trial judge erred in determining that the section 47 report should be accepted, as a mandatory matter, save for grave reasons, which the court clearly set out”.

Significant disparity

Denham J indicated that this was an incorrect approach, as it would alter the role of the court being the decision-maker. She indicated that the court is required to consider all the circumstances and evidence of a case, and that the section 47 report is simply part of the evidence to be considered by the court. It is therefore clear that a court can and should, where appropriate, depart from the recommendations in a report, in whole or in part.

In practice, there would appear, anecdotally, to be a significant disparity in how judges deal with the recommendations in such reports. While some judges might be very slow to depart from recommendations, it is nonetheless important for both parties and practitioners, and assessors themselves, to be aware of their respective roles and functions in the conduct of such assessments and the preparation of reports.

Very often, the practice of the parties (and indeed of the courts) has been somewhat lax in terms of ordering section 47 and/or section 32(1)(a) assessments, although that practice appears to be changing. The guidelines provide a structure for intended applications to court seeking orders on foot of section 47 and/or section 32(1)(a), the conduct of any such assessment, the preparation of the subsequent report, and its release to the parties by the court.

Specifically, the guidelines provide the following:

• Obligations of the parties and/or their legal representatives,
• Obligations on the assessor,
• General matters,
• Matters for consideration by the court.

Obligations

The guidelines are quite onerous in terms of putting obligations on the parties and/or their legal representatives to undertake detailed steps by way of engagement with any potential assessor in advance of an application for appointment to the court.

That includes:

• An obligation to make enquiries as to the availability of an assessor,
• Bringing to the attention of the assessor any particular urgency in the matter,
• Bringing to the attention of the assessor any difficulties in relation to the parties’ availability, so that the assessor can determine a timeframe within which the assessment can be concluded, and
• Provision of relevant information to the assessor once the appointment is made.

In addition, the guidelines provide a requirement for the parties to determine the nature and extent of the issues to be addressed in the context of the assessment. In cases where the appointment of the assessor is agreed by the parties, it is routinely the case that little effort is made to determine the extent of the issues to be addressed by the assessor and to determine how the process shall be conducted.

The guidelines therefore provide as follows: “The parties, shall, where practicable, not less than one week prior to the hearing date of the application, and in any event prior to the matter coming before the court, identify and exchange in writing the issues to be addressed in the assessment, a draft letter of instruction to the assessor and orders which it is proposed the court may be asked to make. Any such agreed issues/proposed orders (or the respective positions of the parties where no agreement has been reached) shall be provided to the court in writing at the commencement of the hearing of the application.”

The second part of this article will be published in April.