Australian and New Zealand Journal of Family Therapy 2015, 36, 450–464

doi: 10.1002/anzf.1126

Ethical and Legal Considerations When

Counselling Children and Families*
Catherine Ford Sori1 and Lorna L. Hecker2
1
Governors State University, University Park, Illinois
2
Purdue University Calumet, Hammond, Indiana

There are numerous unique legal and ethical concerns that clinicians should consider when counselling children,
adolescents, and their families. These, however, are not generally emphasised in most ethics courses in graduate
training programs. While ethical codes vary among professional organisations (e.g., marriage and family therapy,
counselling, social work, psychology), this article addresses many subjects that are common across disciplines, such
as (1) informed consent, (2) types of confidentiality, exceptions, and reporting issues, (3) sharing information
revealed to the practitioner to parents, and (4) subpoenas. Other important topics are the importance of counsel-
lor competencies, multicultural considerations, and special topics including the use of touch and the role of the
professional in divorce situations. Additionally, the role of computing and social media can enhance relationships
for children, or be sources of stress or trauma. Lastly, laws, which typically supersede ethical codes often vary from
state to state and nation to nation, and it is imperative that clinicians are cognisant of those in their jurisdiction.

Keywords: ethics, children, families, confidentiality, reporting issues, subpoenas, informed consent, touch, multicul-
tural

Key Points

1 When working with children, issues of privacy, confidentiality, and legal privilege can be challenging due to
competing interests of parents and children, as well as other stakeholders.
2 When records are subpoenaed, counsellors must be cognisant of legal and ethical threats to confidentiality,
and respond appropriately in ways that are in the best interests of young clients.
3 There are numerous considerations which counsellors should consider before sharing information with par-
ents, which could impact the course of therapy.
4 Family counsellors need to understand laws and ethical codes in getting informed consent to treat minors.
5 Special ethical issues in treating families with children include how to work with children of divorce, level of
competency, multicultural considerations, and the use of touch.

The Intertwining of Ethical and Legal Issues with Child Counselling

There has been little guidance in mental health literature about ethical issues that
may arise in counselling minors outside a school setting. Even popular ethics text-
books mention issues related to treating minors only briefly, with the exception of
breaking confidentiality to report child abuse (Lawrence & Kurpius, 2000). Yet the
potential legal and ethical issues when treating children in families are numerous.
Common concerns relating to child treatment include the child’s right to confiden-

Address for correspondence: Lorna L. Hecker, Professor, Marriage, and Family Therapy Program,
Purdue University Calumet, Hammond, Indiana 46323, USA. [email protected]
*This article was originally published as a book chapter (Sori & Hecker, 2006) with the publishers
giving permission to use it.

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 Ethical and Legal Considerations

tiality, informed consent, children and divorce, the use of touch, counsellor compe-
tency, and multicultural issues.

Privacy, confidentiality, and privileged communication

Privacy. Privacy refers to clients’ right to choose who has access to information about
them (Thompson & Rudolph, 1996). Legally, parents of minors typically make all
privacy-related decisions for them. This includes signing consent, releases of informa-
tion, and access to medical and psychotherapy records. Decisions about protecting
children’s privacy and confidentiality in counselling must be examined from both
legal and ethical lenses.

Confidentiality. The foundation on which counselling is built lies in the ethical obliga-
tion to keep information learned in counselling private from others. All codes of ethics
in the mental health professions address confidentiality. Clinicians should not share
any information with others without authorisation in the form of a written release
signed by the client(s). What to include in releases is typically dictated by state mental
health statutes. In addition, there are limitations to confidentiality dictated by state
law, professional ethical codes, common law, and case law (Bartlett, 1996). However,
laws are open to interpretation, so one must use careful judgment in making ethical
decisions, especially about breaching confidentiality (Thompson & Rudolph, 1996).
Access to an attorney familiar with mental health law is a wise investment.

Privilege. Privilege is the legal right owned by the client and protecting them from
having their private therapy information divulged in judicial proceedings. Privilege is
established by state statutes. Not all clients hold privilege; it depends upon the type
of mental health discipline that is covered in state law. Some states allow privilege to
adolescents at the age of 16 for specific issues (Reid, 1999). The legal right to privi-
leged communication can only be waived by the client, although in the process of
legal discovery (e.g., in child custody cases), attorneys often subpoena counsellors or
their records. Unless the client (or potentially the client’s parent or legal guardian)
has waived privilege, the counsellor is obligated to appeal to the court to uphold state
statute and keep the counselling information confidential.
There are legally prescribed conditions for which the counsellor is not subject to
prosecution for withholding information needed by the court in litigation (Bartlett,
1996). State laws typically allow exceptions to privilege which may include client con-
sent; treatment emergencies; duty to warn; duty to protect (see below); if the counsel-
lor is sued for malpractice; mandatory report statutes (child abuse, elder abuse,
disabled adult abuse); if a counsellor seeks a restraining order against a former client;
or when a client’s mental health status is in the legal forum (e.g., child custody cases,
civil commitment hearings, competency to stand trial, or civil cases in which the
plaintiff claims injury and a judge compels testimony).

Confidentiality When Working with Minor Children

One of the most confounding ethical issues that counsellors face when seeing children
is what and how much information to share with parents (Lawrence & Kurpius,
2000; McCurdy & Murray, 2003; Thompson & Rudolph, 2000). For most counsell-
ing issues, parents have the legal right to know what occurs during their child’s coun-

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selling (Corey, Corey, & Callanan, 2002; Lawrence & Kurpius, 2000), though the
degree of this right varies from state to state. Ethically, however, many believe minors
should be guaranteed the same confidentiality as is promised to adults (Hendrix,
1991). The setting in which counselling occurs may also influence issues of confiden-
tiality (Taylor & Adelman, 1989). For example, school counsellors may not have to
disclose the content of individual sessions with minor children to parents, according
to the Federal Education Rights and Privacy Act of 1994 (Corey et al., 2002). In
states that allow mature minors to access treatment, counsellors still have an obliga-
tion to notify parents or guardians when it is in the best interests of the minor
(Roberts & Dyer, 2004). In some situations, even though minors are legally able to
access therapy for mental health treatment, they may not possess the right to authorise
the release of information to third parties. In states where parents also have access to
case records, in many situations providers can limit what is divulged to the parent if
the information would be harmful to the child if disclosed (Roberts & Dyer, 2004).

Breaching confidentiality: Duty to protect, reporting issues of abuse and neglect

Counsellors often must breach confidentiality when mandated by law to act as an
agent of social control. Confidentiality must be broken when there are threats of
harm to oneself, threats of harm to another, or when it is learned (or in some states
merely suspected) that a child or elder is a victim of abuse or neglect.

Harm to self. Any child or adolescent who may be at risk for depression should be
interviewed to ascertain if they have any suicidal thoughts, have a plan to harm them-
selves, and have the means to carry out such a plan. The counsellor has a duty to
inform parents of the child’s suicidal thoughts or intent, and to work with them to
take appropriate action. This may include having the child assessed at a hospital, hav-
ing family members maintain a 24-hour suicide watch to ensure the safety of the
child, or a referral to a psychiatrist for an evaluation for the possible use of medica-
tion. Care should be taken to document steps taken to protect the child, and clini-
cians are advised to consult with other professionals to be sure appropriate treatment
is undertaken.

Harm to another. The landmark case of Tarasoff v. Board of Regents of University of

California forever changed the landscape of counselling confidentiality. In 1968, the
counsellor in this case notified the campus police at University of California that his
client, Prosenjit Poddar, had threatened to kill another student, Tatiana Tarasoff.
Although she was not named, she was ‘readily identifiable.’ The police warned Poddar
to stay away from Tarasoff, and proceedings to have Poddar evaluated by a psychia-
trist were initiated. Meanwhile, Tarasoff was given no warning regarding the danger
to her life. Subsequently, Poddar stabbed and killed Tarasoff, and her parents filed
suit against the university for not confining Poddar and for not warning Tarasoff of
the threat against her life.
This case gave rise to what is commonly known today as a counsellor’s duty to
warn (sometimes also known as duty to protect). Duty to warn occurs when the fol-
lowing three conditions are met (Tarasoff v. Board of Regents of University of Cali-
fornia, 1974, p. 346): (1) Likelihood of harm. The counsellor has established that
there is likelihood that the client will cause physical harm, and believes the client is a
threat. Some states have statutes requiring that a threat actually be communicated;

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 Ethical and Legal Considerations

most do not. (2) A ‘special’ relationship exists. Generally a person does not have a duty
to control the conduct of another, but counsellors have a special obligation due to
the nature of their profession. (3) There is a foreseeable victim. (Some states have
broadened this condition to include unknown victims.)
Counsellors must take reasonable steps to satisfy the duty to warn, which always
includes warning the intended victim. Counsellors may also notify local law enforce-
ment agencies, contact relatives or friends who can apprise the potential victim of
danger at hand, or initiate voluntary or involuntary commitment. The failure to warn
an individual of a potential threat against his or her life may result in an ethical viola-
tion (Thompson & Rudolph, 1996) and is legally actionable.
A more unique aspect of duty to warn arises with issues related to human immun-
odeficiency virus (HIV) (McCarthy & Sorenson, 1993). While the ethical codes of
mental health professionals deal with duty to warn, HIV leads to a grey area in
breaching confidentiality. Only the ethics code of the American Counseling Associa-
tion (1995) directly addresses breaching confidentiality in regard to communicable,
contagious, and fatal diseases. Even so, with the advanced pharmacology available
today, one could argue HIV is no longer a fatal disease. Counsellors must analyse the
ethical and legal aspects of duty to warn when seeing a seropositive client. While
some believe that a HIV positive client who is having sex or IV drug use with an
unsuspecting other meets the criteria for duty to warn, this is a complex issue, both
legally and ethically. Schlossberger and Hecker (1996) argue that counsellors do not
have the same fiduciary duties as physicians, therefore reporting mandates for physi-
cians are not applicable to counsellors. Some states, however, do have laws regarding
HIV transmission as a crime. So unless a state has a specific law mandating reporting
of HIV, or if there is a state law making HIV transmission a crime, the counsellor is
left to decide whether or not to breach confidentiality solely on ethical grounds.

Abuse. State laws require professionals to report any child abuse or neglect, and in
most states failure to do so can result in criminal penalties (Kalichman, 1993; Lawr-
ence & Kurpius, 2000; Thompson & Rudolph, 1996). Clinicians are mandated by
law to immediately report child abuse or neglect; some state laws even require report-
ing of ‘suspected’ abuse or neglect. While there has been a significant increase in the
number of cases of suspected child sexual or physical abuse, Kalichman reports that
there are also a substantial number of professionals who fail to report. This con-
tributes to child maltreatment being underestimated, according to Alvarez, Kenny,
Donohue, and Carpin (2004).
Many clinicians may hesitate to report abuse because it can permanently damage
the therapeutic alliance, both between counsellor and child, as well as between coun-
sellor and parents. However, failing to report when a child is neglected or abused
denies the child the right to be protected and to receive intervention services that may
be crucially needed (Alvarez et al., 2004). These ethical decisions often place the
counsellor in the difficult position of choosing to obey the letter of the law against
the potential additional harm that may befall a child who may or may not have been
abused.
Another problematic issue for counsellors is the emotional abuse of a child.
Although this type of abuse can severely damage a child, there are few legal resources
to address it. While it can be reported, overwhelmed child protective agencies are
unlikely to act on the report; some will even refuse to take such a report.

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Subpoenas as a threat to confidentiality

When a counsellor receives a subpoena, no confidential information should be
released to an attorney just for the asking. Here are a series of steps in responding to
a subpoena: first, read the subpoena thoroughly. Is the attorney asking for specific
information, for a case file, for testimony via court, or a deposition? Second, talk with
the client (or the client’s attorney with a written release) with regards to how he or
she wants you to handle the subpoena. If the client is amenable to the information
being made privy to the attorney, the counsellor may release the information with
written consent of the client. If the client does not want the information revealed, let
the attorney know that the information is confidential (and/or privileged), and that a
signed court order is needed to reveal the information. Third, talk to both parents
and the child regarding the dispensation of the information. If confidentiality has
been promised to the child and he or she does not want to have this promise violated,
the clinician has an ethical obligation to the child to ask the judge to protect the
counselling information. If the child consents, the legal parent or guardian must sign
the consent to release information. If any others were involved in counselling, do not
release any information about them without their written consent. Fourth, a judge
may order information to be revealed, in spite of the clinician’s stated rationale for
why the information should be kept private. Some courts may allow counsellors to
share privileged information with the judge privately to determine if the information
is necessary to the proceeding, or if public disclosure would be too hurtful to those
involved, such as children (Bartlett, 1996). Finally, do not take case records to court
unless they are specifically requested in the subpoena. Counsellors should inform cli-
ents why it is necessary to break confidentiality, explain what will be revealed, and
invite them to participate in this process (Mappes, Robb, & Engels, 1985).
While most states have laws regarding privilege, Thompson and Rudolph (1996)
caution that in states where clients do not hold privilege, the counsellor has ‘no
recourse except to reveal the information if subpoenaed’ (p. 511). Finally, Bartlett
(1996) states, ‘Failure to observe confidentiality measures may result in a professional
liability lawsuit. The counsellor must become aware of the myriad of threats to client
confidentiality and implement appropriate safeguards’ (p. 290). Counsellors can avoid
misunderstandings if care is taken in the initial session to explain the process
(Thompson & Rudolph, 1996).

HIPAA laws and minors

The Health Insurance Portability and Accountability Act (HIPAA) that many coun-
sellors must abide by, depending on the nature of their practice, may affect minors.
According to HIPAA regulations, parents have access to children’s health information
with the exception of ‘psychotherapy notes’, which the regulation specifically defines.
Adolescents are treated the same as young children (Roberts & Dyer, 2004). How-
ever, if state law is more stringent than HIPAA regulation greater privacy protections,
state statute should be followed instead of HIPAA (Chaikind et al., 2003).

Sharing information with parents

There is dissent among counselling professionals related to sharing information with
parents of children who are seen in individual counselling, or seen individually within
the context of family counselling. Because there may be contradictory expectations

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between regulations and one’s code of ethics, it is wise to get these permissions in the
informed consent or in a special client–counsellor contract. Generally, information is
shared with parents when it is in the best interests of the child (Roberts & Dyer,
2004). However, if state law is silent on the issue, determining the best interests of
the child is left up to the discretion of the counsellor in consultation with the parents
and child.
There are various options for managing confidentiality with minors. Hendrix
(1991) describes four possible positions counsellors can take regarding this issue of
sharing information with parents; we have added two additional positions to Hen-
drix’s conceptualisation of confidentiality options. The first confidentiality alternative
is to promise minors complete confidentiality (with the exception of what a profes-
sional is mandated by law to report, such as abuse, suicidality, or homicidality). The
second is limited confidentiality which, according to Lawrence and Kurpius (2000),
‘requires the minor to waive, in advance, the right to know what will be revealed to
the parent or guardian’ (p. 134). Informed forced consent is the third approach, which
occurs when a child has no voice in what is disclosed, but is informed before the dis-
closure is made. This is a more moderate stance where counsellors inform children,
teens, and parents up front that they will bring pertinent information back to
parents.
The fourth is when no guarantee of confidentiality is made to a child. Secrets that
are held by a counsellor can impede individual and family work. In using this
approach it is vital that children and parents be told this at the onset of therapy, both
verbally and in writing. This increases parents’ trust that the counsellor respects their
rights to know important facts about their child, while also educating them that the
child does need privacy in order to talk about whatever concerns he or she has. The
child can be assured that not everything talked about will be shared, and that if some-
thing does come up that the counsellor decides the parents should know, the coun-
sellor will work with the child on how to share the information and to minimise any
negative consequences that may result (Taylor & Adelman, 1989).
If this occurs, the counsellor could spend time discussing the child’s fears in shar-
ing the information, brainstorming, and role playing ways for the child to tell the
parents, and discussing how to handle fallout after the disclosure. Lawrence and Kur-
pius (2000) recommend counsellors can motivate reluctant children to share informa-
tion with parents that is deemed to be potentially helpful by explaining the probable
benefits and the importance of disclosing. The success of these efforts often depends
on the degree of trust and the quality of the professional relationship between coun-
sellor and child.
In addition to these, a fifth position is that the counsellor may work with the par-
ents and child to come to a mutual agreement regarding confidentiality as to what will
be disclosed to parents and what will not. For example, some parents will want to
know about an adolescent’s sexual activity, others will not. Use of alcohol may not
need to be disclosed, but what if the counsellor learns that the adolescent client is
drinking and driving? If the parents and adolescents cannot agree, the parental rights
typically prevail, unless state law is contrary to this position. Written contracts can be
used to solidify agreements, and help protect the therapeutic relationship by transpar-
ency in potential actions that may need to be taken by the counsellor.
Finally, some counsellors will set up a ‘best interests’ agreement with the child and
parents. The limits to confidentiality in this agreement are set up by the counsellor

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him or herself, and the children and parents leave the decision to share information
solely with her. It is agreed that confidentiality will be maintained unless the coun-
sellor believes that the child’s best interests are not being served in relation to his or
her health, welfare, or significant relationships. If any of these areas are seriously
impaired the counsellor uses his/her judgment to decide if confidentiality should be
breached. Again, a written agreement can solidify the contract between all stake-
holders.
There are advantages and disadvantages to each type of agreement. The more
broad the disclosure policy is with regard to what the counsellor shares with others,
the less likely the child or adolescent will reveal important information in therapy.
The more narrow the disclosure policy, the more the counsellor risks becoming thera-
peutically immobile if there is important information that parents should know. If a
child or adolescent has been promised complete confidentiality, the counsellor may be
unsure of the ethics of proceeding in therapy with information that may upset parents
if they learned of it. Examples may include pregnancy, sexual activity, risky sexual
activity, or other risky behaviours, especially if the minor client insists that the coun-
sellor not tell her parents.
Isaacs and Stone (1999, 2001) suggest that there are two factors that counsellors
should consider in deciding whether to breach confidentiality: the age of the child
and how serious the behaviour is in which the minor child is engaging. Less serious
behaviours might include smoking or breaking curfew. According to Roberts and
Dyer (2004, p. 124), potential high risk behaviours might include substance abuse,
sexual activity, truancy, gang involvement, irresponsible driving behaviour, extreme
religious practices, unorthodox dieting procedures, fascination with guns or other
weapons, or illegal behaviour. Roberts and Dyer advocate for a clear description by
the counsellor as to what constitutes dangerous behaviour. Agreements reached should
be clearly detailed to avoid undermining trust in the therapeutic relationship between
the counsellor, parents, and child.
When the counsellor has to force disclosure, children can be allowed to decide if
they want to tell their parents, if they want the counsellor to tell in their presence, or
if they want to wait in the hallway while parents are told. Children can also be reas-
sured that the counsellor will be available to help the child and parents work through
the problem. It is important to prepare parents, reminding them that no one should
be punished for anything said in counselling, and to point out that in telling them
the child shows courage and trust in the parents.

Group confidentiality
Although confidentiality is vital in establishing trust among participants in group
counselling, there are inherent problems, especially in children’s groups (Thompson
& Rudolph, 1996). Complete confidentiality in group counselling is harder to attain
(McCarthy & Sorenson, 1993). Time and care must be taken to explain the concept
of confidentiality, and to be certain that each child understands the concept, as well
as to explore how children might be harmed if participants discuss what is talked
about outside the group. Children should be encouraged to consider the potential
limits of confidentiality before disclosing very personal information during group
counselling. Salo and Shumate (1993) also advise counsellors to explain to group
members that privileged communication may not apply to discussions that take place
in a group format. Cant (2002) notes confidentiality limitations need to be clarified

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when working with children in a residential setting, where many staff have access to
children’s records.

Informed Consent to Treat Minors

Informed consent ‘is the formal permission given by a client that signals the begin-
ning of the legal, contractual agreement that allows treatment to be initiated’ (Lawr-
ence & Kurpius, 2000, p. 133). Clients need to give informed consent freely, after
being appraised of the risks and benefits of treatment. (See Jensen, McNamara, &
Gustafson, 1991 for the results of a study on what to include when discussing
informed consent with parents.) Minors may contract for professional counselling
either by having parental consent, involuntarily (at the insistence of a parent), or
involuntarily through a court order. Informed consent in all of these cases can allevi-
ate any misunderstandings and decrease counsellor angst and potential liability issues.
Twenty states allow mature minors (see later) to provide consent to access mental
health treatment (Roberts & Dyer, 2004). In addition, in some jurisdictions, minors
are allowed to consent to treatment without parental knowledge, often when they are
facing situations for which they would not access treatment if parental consent was
required. Some states may not require parental consent to treat minors for issues such
as drug abuse, pregnancy, or birth control counselling, sexually transmitted diseases,
or following a sexual assault on a minor 12 or older (Lawrence & Kurpius, 2000).
Exceptions to parental consent typically include the mature minor exception,
emancipated minors (see below), and for emergency treatment. Court-ordered treat-
ment also is an exception (Gustafson & McNamara, 1999; Plotkin, 1981).
Emancipated minors typically have the rights and obligations granted to adults.
Emancipation may occur in several ways, depending upon state law. Typical emanci-
pating actions include: by parental permission, by court order, when the minor mar-
ries, has a child, is able to support oneself and live independently, or enlists in the
armed forces (Dickson, 1998). Emancipated minors are over the age of 14 or 15 (but
under 18). Differences exist by state statute. Emancipated minors are treated as adults
with regard to confidentiality and typically privilege, as well. They do not need paren-
tal consent for treatment (Bartlett, 1996; Lawrence & Kurpius, 2000).
One important criterion to consider regarding the need for parental consent is the
age of the minor child. Bartlett (1996) describes a mature minor as one who is
thought to be capable of making informed decisions as well as adults. Mature minors
may give informed consent for treatment, and may authorise the release of confiden-
tial information (see Morrissey, Hofman, & Thrope, 1986). Mature minors are gener-
ally children over the age of 16 (Lawrence & Kurpius, 2000), but the age may vary
as this status is defined by state statute.
Young minors are usually those under 14 years old, and for these children ‘the par-
ent or guardian is the legal decision-maker and can legally obtain information about
the diagnosis, prognosis, therapy, and so on’ (Bartlett, 1996, p. 280). Although some
states allow young minors to grant their own informed consent in the case of an
emergency when their health or life appears to be endangered, parental consent
should still be procured as quickly as possible (Lawrence & Kurpius, 2000).
While there is no general rule that explicitly requires counsellors to obtain written
permission from parents for children to receive counselling, ‘obtaining parental con-
sent is good practice for counsellors unless potential danger to the minor exists. . . .

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The law generally supports parents who forbid counselling of their minor children
unless there are extenuating circumstances’ (Thompson & Rudolph, 1996, p. 509). It
is wise to prevent problems by communicating early with parents, and parents should
be made aware their child has sought counselling and be asked to provide informed
consent at the onset of treatment. An exception to this may be schools that have poli-
cies that allow a child to see a school counsellor for a few sessions before parents are
informed and asked to give consent.

Obtaining consent to treat a minor

Counsellors should ask parents to sign an informed consent form giving their permis-
sion to treat the minor children at the first session where children are seen. At this
time, release forms allowing communication with other professionals involved in the
treatment of the child (e.g., physicians, school counsellors) also may be obtained.
Counsellors always must obtain signed permission from the parent who has legal (not
physical) custody of the children, and should insist on being given written proof as to
who retains legal custody of the children (Thompson & Rudolph, 1996). It is wise to
know state law regarding the rights of noncustodial parents. According to Bartlett
(1996), ‘Only a custodial parent can authorize treatment or release of confidential
information’ (p. 280). Divorced parents can be polarised on the issue of counselling,
with one parent advocating for individual or family counselling, and the other
demanding the right to be informed and/or give consent.
Obtaining informed consent can become a contentious issue if the parents are
recently separated and custody of the children has not yet been decided (Bartlett, p.
280). There is typically a provisional order outlining temporary custody. Barring a
specific court order to the contrary, both parents have the right to consent to treat-
ment for their child. Clinicians should ask for a copy of this provisional order, as well
as a copy once a final divorce decree has been issued. If there is joint legal custody
and one parent is against treatment, this parent would be hard pressed to explain
their rationale to the judge to have a court order barring treatment. While this might
take care of the legal issue involved in this dilemma, the clinical issues abound.
Involvement of the noncustodial parent, as well as loyalty issues for the child about
treatment will be difficult.

Special Ethical Issues When Working with Children

Psychotherapy with children raises numerous ethical issues that are specific to working
with this population. The remainder of this chapter discusses several of these issues
that warrant special consideration.

Role of the psychotherapist in working with children of divorce

One area in which counsellors are most vulnerable to charges of ethical misconduct is
when working with children and families of divorce. Often parents are locked in
ongoing bitter legal battles over child custody, visitation, support payments, and myr-
iad other postdecree issues. Divorce and postdivorce situations are often emotionally
charged, and pull children into destructive loyalty conflicts. In addition, lawyers work
within an adversarial system, and counsellors work in a collaborative system. These
differing systems can lead to misunderstandings and frustrations for both professions.

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 Ethical and Legal Considerations

Counsellors can play many potential roles in custody cases. Due to the potential
litigation that surrounds custody evaluations, it is wise for counsellors to clearly define
their roles when working with the child and his or her family. These roles as outlined
by Woody (2000, p. 74) include: (1) the treating counsellor for the child, parents or
family (this could occur before, during, or after the divorce); (2) the evaluator in the
custody dispute, evaluating the psychological characteristics of the relevant adults; (3)
the guardian ad litem for the child or children; (4) the mediator to resolve the disputes
between the parents; or (5) the expert critic, who evaluates the validity of the testi-
mony given by other mental health professionals.
Bartlett (1996) has several suggestions for counsellors working with children of
divorce. First, it is vital to clarify your role with the child and the parents. Identify
who the real client is, and specify if your role is to provide individual or family treat-
ment, to do a custody evaluation, be a guardian ad litem, or perform mediation with
the parents. For example, if your role is to do family counselling you should not offer an
opinion in court regarding the custody of the children. Make this clear to the family or
you risk family members ‘positioning’ to look good, rather than focusing on keeping
the children’s interests primary to therapy. Second, emphasise to parents the impor-
tance of focusing on the child’s welfare, and clarify who you will communicate with
and how. Explain that you will not take sides, and that harm is done when a child is
caught in the middle of parental conflict (also see Hecker & Sori, 2003). Third,
establish ground rules and, if doing an evaluation, discuss to whom it will be sent. If
permitted in your state, Bartlett suggests asking parents to sign a waiver of the right
to subpoena your records. We suggest doing this whenever families with children are
seen, as any couple could decide to divorce at some future date and attempt to sub-
poena records of past counselling. Such a waiver discourages parents from attempting
to negate a child’s confidentiality in the throes of a legal battle, though such waivers
are not legally binding.

Competencies
All mental health professional codes of ethics prohibit professionals from practicing
outside their area of competence (Thompson & Rudolph, 1996). Counsellors need to
be well trained and follow what is legally referred to as an appropriate standard of care
(Hecker, 2003), in which a counsellor acts in ways that most counsellors would treat
a case under similar circumstances. Practicing outside one’s area of competence is one
of the most common types of malpractice claims (Stromberg & Dellinger, 1993).
Special skills and techniques are necessary to work with children individually or in
a family setting (Sori, 2006; Sori & Sprenkle, 2004). Lawrence and Kurpius (2000)
point out that a counsellor who is skilled and effective in working with adults may
not have the same level of effectiveness when treating children or adolescents, which
requires ‘areas of knowledge and skills that are unique to working with children’ (p.
132). Certain disorders, such as separation anxiety disorder, reactive detachment dis-
order, oppositional defiant disorder, enuresis, encopresis, ADHD, and trichotilloma-
nia, for which parents often seek professional help, mostly affect children. As
Lawrence and Kurpius point out, one cannot apply an understanding of adult issues
to children’s problems. ‘Because minors are a special, diverse client population, ethical
practice mandates distinct education, training, and supervised practice before com-
mencing independent practice that includes minors’ (Lawrence & Kurpius, 2000, p.
133). (See Sori for an in-depth discussion of the training necessary to prepare coun-

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 Catherine Ford Sori and Lorna L. Hecker

sellors to work with children and families.) Therefore, counsellors who have not had
adequate training to treat children are not meeting an appropriate standard of care.

Use of touch
There is little in the literature regarding ethical considerations about the occurrence
of nonerotic touch in therapy. McNeil-Haber (2004) contends that it is difficult to
counsell young children without some form of touch. Touch is natural and develop-
mentally appropriate for young children, and is a major component in children’s play.
When touch is initiated by a child in counselling, it presents an opportunity to dis-
cuss personal boundaries and differences in how people feel about being touched.
However, care must be taken when discussing child-initiated touch that children don’t
feel shamed or rejected when the counsellor is setting appropriate boundaries.
McNeil-Haber (2004) offers the following guidelines in making case by case ethi-
cal decisions (p. 128):
 What are the possible benefits of touch? Touch can be reinforcing and calming.
 How might this child perceive the touch? It could enhance self-esteem or make the
child feel powerless to comment on it.
 What considerations are related to the counsellor? Whose needs are being met? Is
touch genuine?
 What safety issues are related to the child? Is it harmful to the child? Does this
child have a history of abuse? If so, touch could be alarming. (Abused children have
trouble separating fact from fantasy.)
 What in this child’s family background might be an issue?
 What are some practical considerations? Culture should be considered, as people
from different cultural backgrounds have different attitudes toward using touch as a
means of emotional expression, or in socialising children.
At the onset of therapy, counsellors should discuss touch with children, inform
parents about the use of touch, and ask permission to use touch when appropriate.
Parents should be informed as to how touch might be used (e.g., a hug at the end of
a session, to prevent a child from harm, or for encouragement). In addition, because
a child may act out during session to the degree that the counsellor needs to intervene
to prevent harm from the child, self, or property, parents should be consulted before
individual treatment to explore their wishes with regard to in-session discipline.

Multicultural considerations when seeing children in families

When seeing children and their families, the context of culture should be assessed
before making therapeutic judgments and interventions. Cheung and Hong (2004)
note several value differences that may occur when seeing families from other cultures.
First, most family therapy models emphasise individualistic orientation, helping
members to achieve independence, individuation, identity and self esteem. Other
non-European-American cultures are collectivistic and ‘value mutuality and collective
welfare, the closeness between parent and children, dependence of children on their
parents, and a firm family hierarchy’ (Cheung & Hong, 2004, p. 14). In addition,
dissimilar cultures may embrace different familial values, norms and roles, calling for
understanding counsellors who have a willingness to examine the constructs of our
established theories (Cheung & Hong, 2004, p. 15) and to be sensitive to the values
of each culture.

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 Ethical and Legal Considerations

Conclusion
There is much to consider in avoiding the numerous potential pitfalls that could
inadvertently result in legal and ethical problems. Of note is the difference between
parental and children’s rights in treatment. Children have few rights, except those
bestowed by state statute, and counsellors must work to protect the sanctity of the
counselling relationship. Counsellors should remain cognisant of the vulnerability of
children and adolescents, have a broad repertoire of developmental and topical
information regarding children, work with the larger systems within which children
are embedded (e.g., families, agencies, and schools) and seek education, consulta-
tion, and advice (Roberts & Dyer, 2004).
It is important for counsellors to review their professional code of ethics regularly,
and to refresh their ethical skills and knowledge by gaining continuing education in
ethics and legal issues. This training can keep clinicians abreast of new federal laws,
state statutes, and case laws. Many professional organisations offer such training at
conferences or via home study, and some liability insurance companies provide
reduced rates to those who take advantage of additional ethics training. Although cli-
ent welfare and risk management must be carefully balanced when counselling chil-
dren, numerous benefits to working with this population can be seen in the child, his
family, and, ultimately, the future of our society.

Author Commentary and Update

This article was originally published as a book chapter in Sori and Hecker (2006).
The issues facing counsellors working with children and their families remain the
same, though families and issues continue to evolve as society changes. We are now
seeing more developmental fallout from children from prolonged divorce conflict,
especially when dealing with child alienation issues (see Hecker & Murphy, this
issue). Children benefit when family counsellors are willing to wade into this conflict,
and examine individual, relational, and systemic issues involved, which includes the
courts as part of the family’s larger system. Divorce mediation may be a legal option
to reduce child-centered parental conflict and its deleterious effects on children.
Counsellors who are not trained in potential iterations of divorce dynamics and par-
ental alienation, risk mis-stepping in therapy with potentially disastrous consequences.
Too many counsellors have made a pronouncement about the wellbeing of a child
while being ill-informed concerning individual or systemic dynamics at play. Addi-
tionally, remarried parents continue to create step-families, and step-roles are gradu-
ally becoming commonplace; every counsellor must learn to manage ambiguity about
family roles in stepfamilies as they form and evolve.
The role of computing and social media can enhance relationships for children, or
be sources of stress or trauma. While social media can help bridge the ‘generation
gap’ between counsellors and minors, additional concerns may arise regarding clini-
cians’ decisions to share any concerns gleaned online with parents.
People are marrying less often, and we are seeing more serial monogamy, where
children in a family may have just one common biological parent. Counsellors need
to be cognisant of how this affects children in terms of roles, multiple losses, and abil-
ity to trust the stability of relationships. Special efforts should be made to procure
consent to treat minors from all biological parents and, when appropriate, involve

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 Catherine Ford Sori and Lorna L. Hecker

them in treatment. The ethically responsible practitioner also is aware of cultural

beliefs and practices, and uses this knowledge to avoid pathologising families from
non-majority backgrounds. There has also been recent attention to the unique needs
and concerns of military families both during and after deployment. Counsellors who
elect to treat members of the armed forces for PTSD should have additional training
and supervision, especially due to the high suicide rate among returning servicemen
and women.
In the US, there has been an alarming increase in the suicide rate and suicidal
ideation among children and adolescents (Cash & Bridge, 2009). Suicide is the third
leading cause of death in youth aged 10–19 years. Counsellors must be aware of risk
factors that include mood disorders (especially depression), substance abuse, family
factors (parental psychopathology, family history of suicidal behaviour, parental loss
due to death or divorce, family conflict, poor parent–child relationships), sexual and
physical abuse, frequent moves, and same-sex orientation. Bullying, including cyber
bullying, is prevalent and has led to well-publicised incidents of adolescent suicide.
Also, there are hundreds of Internet sites that provide information on how to commit
suicide (Cash & Bridge, 2009). We have found that adolescents are more forthcom-
ing in revealing suicidal ideation in individual sessions with a caring and trustworthy
counsellor, and then subsequently become amenable to sharing this information with
parents and psychiatrists. Managing suicide ideation or intent can be an ethical mine-
field, and requires special training and counsellors who stay current on this topic (see
Sori, Hecker, & Bachenberg, 2015 for treating the above issues).
As a field, we need to continue to evolve to support all types of families in our
global society, and nurture a move away from heteronormative ideas about mar-
riage in order to best support children from myriad backgrounds. Ethical treatment
of children means respecting and supporting the structure of their families, that is,
parents.

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