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THE LAW REFORM COMMISSION OF HONG KONG - page 148 / 360

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5.66Nielson suggested that the role of Counsel for the Child is a very powerful one which “in effect ... usurps the role of both parents.  For women, it represents a further loss of control which is sanctioned by the Family Court.”662  She argued that: “many lawyers and women claim that it is very difficult to have these counsel removed, even if they prove to be totally inappropriate in specific cases”.663

Guardian ad litem

5.67Flatley recommended the adoption of the English system of guardian ad litem from his experience of working as a family lawyer in England and New Zealand.  The guardian ad litem is trained in child psychology, behavioural and educational development.  The guardian brings information from all the institutional carers together.  Flatley argued that, in general, this multi-disciplinary decision making is absent from Family Court proceedings in New Zealand.

Women and children’s perspective of the Family Court

5.68An interesting perspective is given by Neilson664 on her experience of working with women and children who are consumers at the Family Court.  She suggested that the court and lawyers worsen the situation by “explicitly or implicitly threatening women with the loss of their children” if they try to set limits to access.  The responsibility for ensuring that access is successful is left on the primary parent.  Officials at the Family Court “often ... fail to challenge men’s assumption that they have the right to own and control the children.  Men who abused their power in the marriage see the children as the means by which contact with the mother is maintained”.665

5.69Many women do not feel that they are heard by professionals in the Family Court system, including their own lawyers, who prefer to listen to another professional’s interpretation of the problem.  Often decisions are made by the court and custody or access arrangements are imposed without any attempt to establish whether these actually work or not.666  The challenge for all professionals attached to the Family Court is the tendency to pigeonhole clients in categories that are predetermined by their experience and their training.  They may interpret a client’s behaviour as being difficult and obstructive to access rather than sensing the underlying fear that is genuine.

5.70There is also a risk that professionals with strong views about joint parenting will fail to identify signals that indicate that there is a power imbalance or sufficient dysfunction that will predict difficulties with access arrangements or potential violence at access pickup times.  The professionals must identify predictors of behaviour that will show the likelihood of protracted conflict around access arrangements, which will influence them in creative orders such as, no order for access temporarily until one or both parents get anger management training or

662 Neilson, “Women as Family Court consumers”, in Rights and Responsibilities; papers from  Symposium on Rights and Responsibilities of the Family, Wellington, October 1994, 156 at 158.

663 Supra at 158.

664 Idem.

665 Ibid at 157.

666 Idem.

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