Research at the intersection of psychology, law and social justice

Thesis abstract

Section 10 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (hereafter ‘the Act’) sets out the principle of participation, which affords children in New South Wales (NSW) care and protection matters the right to express their views, and for these views to be heard and considered in decisions that affect their lives. Children in NSW care proceedings do not attend court and have limited opportunities to communicate their views directly; children depend on professionals such as court-appointed experts, also known as authorised clinicians, to communicate their views to the court.

Under the Act, the NSW Children’s Court may appoint authorised clinicians to conduct comprehensive clinical assessments of children and their caregivers. These assessments typically address the child’s views, wishes, preferences, developmental capacity, psychosocial needs, and relationships with their caregivers. In this context, clinician reports provide an important channel through which children’s views are communicated to the court. Judicial decisions are strongly guided by clinicians’ recommendations, especially those concerning the child’s views, capacity, the weight to be given to their views, as well as children’s safety and needs. As such, these reports play an influential role in decisions about a child’s safety, welfare, and wellbeing.

Despite the considerable influence of clinicians’ recommendations on judicial outcomes and decisions, there is limited empirical research examining how clinicians facilitate child participation in NSW court-appointed assessments. Further, the extent to which court-appointed experts meaningfully engage children in care-related expert assessments remains underexplored, both in Australia and internationally. This thesis addresses these empirical and conceptual gaps by examining clinicians’ views and participation processes. Specifically, it investigates how authorised clinicians contracted by the NSW Children’s Court facilitate child participation in care and protection matters.

Employing a mixed-methods design, the study drew on two data sources: (1) semi-structured interviews with 13 authorised clinicians contracted by the NSW Children’s Court Clinic in 2020 and (2) a review of 70 clinician reports submitted as evidence to the court between 2017 and 2020. This thesis was underpinned by two theoretical frameworks, including Nancy Fraser’s (1996) integrated theory of justice and Axel Honneth’s (1996) theory of recognition, to critically examine the extent to which clinicians demonstrated respect for, and recognition of, children’s participatory rights. Predictive analysis identified key factors influencing clinicians’ facilitation of child participation, including child-specific characteristics (age, verbal ability, and capacity) and clinicians’ professional orientations (paternalistic, protective, or partnership-based). Clinicians’ assessment of children’s capacity and their professional orientation emerged as mediating factors. The findings revealed that clinicians’ beliefs about children’s capacity and their attitudes toward the value of child participation strongly shaped the application of participatory principles in assessment processes. This research contributes to the limited empirical literature on child participation relevant to care proceedings and sheds light on the nuanced ways in which clinicians balanced protecting children whilst demonstrating recognition and respect of children’s right to participation within NSW care and protection assessments.