All children 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. Where this is the case, children will only be legally represented in exceptional circumstances, where the Court decides it would be in their best interests.
Children are not required to attend court unless the child expresses a wish to do so, or the Court orders that the child attend or the CYFA requires that the child attend (s. 261A of the CYFA). See advice Legal representation for children.
All children are to be given the opportunity to decide whether or not to attend court (unless the Court has otherwise ordered). Children aged 10 years and over are to be advised that arrangements will be made for them to provide instruction to a legal representative, even if they choose not to attend court.
The child protection practitioner should support the child to make an informed decision about whether or not to attend.
When a child decides not to attend, the child protection practitioner is to make arrangements for the child to give instruction to the legal representative away from court.
In applications by notice it is preferable to arrange for a child to see their legal representative prior to the first mention date.
Phone instructions may be provided with the prior agreement of the child's legal representative.
Where the child expresses a wish to attend court, or is otherwise required to attend, practitioners can help children prepare for court by giving them accurate information about what will happen at court and by being open and honest in responding to any questions the child may have.
Information that is likely to be helpful for children includes:
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who will be at court including their family, lawyers, court staff
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the role of each of the people in court, for example, the magistrate, the clerk
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what the department is recommending and why
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what will be expected of them
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how long the process may take.
Practitioners may also discuss with children some strategies to cope with court, to avoid the child feeling stressed, pressured, confused or bored. These may include taking quiet activities to court such as colouring or reading, telling their lawyer if they are feeling pressured and reminding children that they are not responsible for the department bringing the matter to court.
For proceedings involving Aboriginal children, see advice Responding to Aboriginal children.
Check the child’s age to ensure that they are appropriately represented. Some children may turn 10 during proceedings. Once 10, they should be legally represented.
Completing and providing court reports in accordance with the legislative requirement (three days prior to the hearing) should provide sufficient time for children to see a lawyer prior to the first hearing.
Gather information from children under 10 years to convey their views and wishes of the child to the Court.