Legal representation for children - advice

This advice provides information regarding legal representation for children in the Family Division of the Children’s Court.

Introduction

In summary:

  • Children who are 10 years and older are almost always separately legally represented in proceedings in the Family Division of the Court.
  • A child’s legal representative is required to act in accordance with the instructions given or wishes expressed by the child, having regard to the maturity of the child, except if ordered by the Court to represent a child on the basis of their best interests.
  • There are certain circumstances in which the court can make determinations about legal representation for a child as specified below.
  • Child protection will almost always be responsible for conveying the views and wishes of children under 10 years of age to the Court.

Legal representation for children

All children who are aged 10 years or more will be legally represented in proceedings in the Family Division of the Children's Court, except where the court determines that the child is not mature enough to provide instructions.

In determining maturity of a child aged 10 years or more, the Court is to consider, along with any other matter it considers relevant:

  • the child’s ability to form and communicate their own views, and
  • the child's ability to give instructions in relation to the primary issues in dispute.

Section 524(1A) of the CYFA provides that if a child aged 10 years or more is not legally represented the Court must adjourn the proceeding to enable the child to obtain legal representation unless it determines that the child is not mature enough to give instructions.

Best interests representation

Under s. 524(4) the Court, in exceptional circumstances, may adjourn a proceeding if it determines that it would be in the best interests of a child aged under 10 years or a child aged 10 years or more who is not mature enough to give instructions, to be legally represented to enable legal representation to be obtained. In these circumstances, the legal practitioner is required to act in accordance with the child's best interests rather than on the child's instructions (s. 524(11)).

Representation by another person or a parent

Other than where the Court has determined that it is in the best interests of a child to be represented by a legal practitioner, the Court may grant leave for a child to be represented by a person who is not a legal practitioner or the child's parent. Such leave may be granted under s. 524(8).

Where a child does not have legal representation

It is likely that most children under the age of 10 years will not be legally represented. It is also possible that a very small number of children over the age of 10 years will not have legal representation.

This places an increased emphasis on the role of child protection to elicit the views and wishes of children, and convey them to the Court. The views and wishes of a child who is not legally represented must be conveyed to the Court irrespective of whether they accord with child protection’s views of what is in the best interests of the child and the outcome being sought. See advice Roles and responsibilities in court proceedings.

Role of the child's legal representative

The CYFA requires a legal representative to 'act in accordance with any instructions given or wishes expressed by the child so far as it is practicable to do so having regard to the maturity of the child' (s. 524(10)).

When representing a child who is providing instructions, a legal practitioner must test and examine the facts and assessments presented to the Court by the parties in light of the instructions given or wishes expressed by the child. The legal practitioner is an advocate for the child and has a duty to ensure that all matters relevant to the child's wishes and instructions are before the Court.

The legal representative will wish to meet the child in person to take instructions. It will assist the legal representative to have the court reports prior to meeting with the child. Child protection practitioners should in all cases comply with the legislative requirement to complete and distribute court reports to the Court and parties at least three days prior to the hearing date. This will facilitate children being seen outside the court precinct by their legal representatives.

Where, in exceptional circumstances, the Court has ordered that a child be represented on a best interests basis, the legal practitioner representing the child must act in accordance with what he or she believes to be in the best interests of the child and, to the extent that it is practicable to do so, must communicate to the Court the instructions given or wishes expressed by the child.

Victoria Legal Aid, Victorian Aboriginal Legal Service, Aboriginal Family Violence Prevention and Legal Service or private legal practitioner

VLA gives priority to children for legal assistance and will act on behalf of children wherever possible. However, if VLA determines that it has a conflict of interest, it will be unable to act for the child and the child will be referred to a private legal practitioner for representation. A conflict of interest may arise as a result of VLA having previously acted on behalf of another party, such as a parent of the child in another legal proceeding.

The Court has a duty legal aid system. The legal aid coordinator will allocate a lawyer to interview the child and represent the child before the Court.  The coordinator may also arrange representation by a private (but VLA funded) lawyer for the child's parent or parents.

On the first day that a VLA lawyer or a legally aided private solicitor acts for a party on a 'duty lawyer' basis, the cost of representation is free. Thereafter, a party must formally apply for a grant of legal aid and must satisfy both a means and a merits test.

Aboriginal children may be represented by the Victorian Aboriginal Legal Service (VALS) or the Aboriginal Family Violence Prevention and Legal Service (FVPLS). If VALS or FVPLS determines that there is a conflict of interest, they will be unable to act for the child and the child will be represented by VLA or referred to a private legal practitioner.

Private legal practitioners practicing in the Children's Court may act for children and apply for a grant of legal aid from VLA to meet the costs of representation.

Sibling groups

One legal practitioner may represent a number of children of the same family with leave of the Court. However, if the legal practitioner determines that there is a conflict of instructions or interests amongst the children, for example if the children give conflicting instructions or have conflicting interests. If a conflict arises between two or more of the children, the lawyer must consider whether they can continue to act for any of the children involved in light of the information already received.

Considerations for good practice

It is preferable for children to be seen by their legal representatives prior to all hearings. Child protection practitioners should facilitate this where possible.

Where children are the subject of a family reunification order, a care by Secretary order, or long-term care order or an interim accommodation order out of a parent's care, child protection practitioners should make necessary arrangements for the children to be brought to court where required, see advice Child attendance at court.

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