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(9)). Therefore the legal representative will need to form a view about the child's level of maturity.
Children's Court - Family Division
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
Children are not required to attend the court unless: they express a wish to do so; are ordered by the court to attend; or are required by the CYFA to attend. If a child aged 10 years or more does not wish to attend court and is not otherwise required to, alternative arrangements are to be made to enable the child to provide legal instructions outside the court setting.
In addition, the court may determine that a child under 10 years, or a child aged 10 years or more whom the court has determined not to be mature enough to provide instructions, may, in exceptional circumstances, be provided with ‘best interests’ representation. See adviceLegal representation for children.
Lawyers acting for children, parents and other parties in the Children's Court are required to act upon instructions from their client and cannot act on a 'best interests of the child' model unless this has specifically been ordered by the court.
Legal representation in accordance with instructions
Victoria Legal Aid provides a duty lawyer scheme and will allocate a legal representative to interview and represent the child. The child's legal representative must test and examine the facts and assessments presented to court by the other parties in light of instructions given or wishes expressed by the child. The representative is an advocate for the child's wishes and has a responsibility to make sure 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 instruction and examine the court reports in full.
In accordance with the provisions of the CYFA, the child protection practitioner must lodge with the court the original court report and must deliver copies of the court report to all parties no later than three days before the hearing. This applies to all types of court reports (s. 554, CYFA).
This will provide opportunity for children to be seen outside the court precincts by their legal representative.
Legal representation in accordance with the best interests of a child
Under s. 524(4) of the CYFA, if in exceptional circumstances, the court determines that it is in the best interests of a child under 10 years, or a child aged 10 years or more whom the court has determined not to be mature enough to provide instructions to be legally represented, it may adjourn for legal representation to be obtained. In these circumstances, the legal practitioner acts in the child's best interests rather than acting on instruction.
See Legal representation for children- advice
Children's Court - Criminal Division
The material provided by Magistrate Power on the Children's Court website also states that: As no young person under the age of 10 can be charged with a criminal offence, it is therefore accepted that, unless there is clear evidence to the contrary, young clients in the Criminal Division are capable of giving instructions.
In criminal matters, of course, it is essential to assess younger clients in relation to any argument that they did not have the capacity to form the necessary criminal intent (known as a doli incapax assessment).
There is a common law presumption that a child under the age of 14 does not have the mental capacity to distinguish between right and wrong. To rebut this, the prosecution must prove beyond reasonable doubt that the child knew that the conduct was wrong.
The model of child representation in the Family Courts is different from that found in the Children's Court. In the Family Courts the child will usually be allocated a 'separate representative' (lawyer). The lawyer is not bound by their client's instructions in this court. Rather, the lawyer must put to the court evidence of where their clients 'best interests' lie and is not bound by their client's instructions; however they usually inform the court of their client's wishes.
Conflict of interest
Sections 524(5)-(6) of the CYFA provide that the court will only permit lawyers to act for more than one child in the same proceeding where no conflict of interest will arise.
When a lawyer is asked to represent more than one child in the same proceedings, they must be aware of the possibility of a conflict arising. 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.
Note: If you are concerned about the possibility of a conflict of interest arising and the lawyer has not addressed this issue, discuss the matter with your Child Protection Litigation Office (CPLO) or divisional legal representative.
The CPLO is a legal unit within the Department of Health and Human Services. The CPLO has lawyers and non-legally qualified court officers and briefs barristers when required. The CPLO provides a direct client service to child protection practitioners within the department.
It is the role and responsibility of the solicitors, barristers and court officer staff to provide representation to practitioners within the department's metropolitan regions in all child protection matters that come before the Children's Court at Melbourne. Where a matter is to be contested, the practitioner will be represented by a barrister engaged by the CPLO.
It is also the role of the solicitors and barristers to conduct litigation in a range of other jurisdictions including the Family Court, County Court, Supreme Court and VCAT.
Role of the CPLO representative in court
The role of both solicitors and court officers is to act on the instructions of the child protection practitioner and advise on all legal aspects of the case.
Solicitors and barristers will have full conduct of contested matters and provide guidance on the relevant law.
The CPLO will also engage a barrister or solicitor to represent the department in alternative jurisdictions. The solicitors may also act as instructors and assist in the preparation of documentation as appropriate.
It is important to remain focused on why child protection has bought the matter before the court and what the child protection practitioner is trying to achieve. It is the role of the child protection practitioner to present their professional assessment to the court. A magistrate will hear this evidence and the evidence of others involved in the case. It is the role of the magistrate to then make a judgment.
As a child protection practitioner, there are a number of roles and responsibilities that should be fulfilled. The main ones are listed below:
Eliciting the views and wishes of children
All children aged 10 years and over should be asked whether or not they wish to attend court. While there is usually no legal requirements to attend unless the child expresses a wish to do so, the child protection practitioner should advise the child that they must still provide instruction to a legal representative. The practitioner should make arrangements for the child to give instruction to the legal practitioner away from the court.
For children aged under 10 years, it is the child protection practitioner’s responsibility to elicit the views and wishes of the child, to the extent possible given their age and stage of development, regarding the application before the court and the various possible outcomes.
Conveying the child’s views and wishes to the court
When a case proceeds to the Children’s Court the child protection practitioner will be required to convey the views and wishes of the child to child protection’s legal representative or the magistrate, even if the views are different from those held by the child protection practitioner.
Child protection is required to present all relevant material about a child and their family to the court, not just that which is persuasive to the child protection argument.
A child’s expressed views and wishes may be contrary to child protection’s assessment and proposed case plan. Child protection must inform the court in a clear manner of what is known about the child’s views and wishes. When providing an assessment and opinion, child protection may, in some circumstances, argue acting upon the child’s wishes would not be in the child’s best interests. This is the case whatever the age of the child.
It is important for child protection to distinguish between the views and wishes of a child and the assessment and opinion of child protection which is informed by multiple sources of information including the child’s views and wishes. It is then a matter for the court to determine what weight they will place upon the child’s views and wishes.
Child protection may be called upon to articulate the child’s views and wishes at any stage of court proceedings. This may occur through instructions to child protection’s legal representative, court reports or verbal evidence to the court by a child protection practitioner.
In the case of emergency care proceedings child protection should seek to speak with the child about what they would like to happen before the court proceeding commences. If this is not possible the child protection practitioner may be called upon by the court to explain why the views and wishes of a child have not been obtained.
In other court matters there will be more time available to engage with the child. It is preferable that meeting the child and obtaining their views and wishes should occur in an environment that is comfortable to the child, prior to planned court dates.
Children’s expressed views and wishes may well change over time. Child protection will need to meet regularly with the child and update their understanding of the child’s views. The views and wishes of the child, whether they are static or evolving, need to be incorporated in any update given to the court, or in the court report prepared by child protection, including advising the court when the child’s views have altered. The court report should reflect how child protection has considered the child’s views and wishes in their decision making.
Preparing children and families for court attendance
Child protection practitioners have an important role to play in preparing their client and the family. Children and families require orientation to the legislative framework, the CYFA and court processes and procedures. Practitioners should talk to the child and family using plain rather than technical terms and language, about the court process, what will happen and what child protection is trying to achieve.
Child protection practitioners should keep in mind that court action will have different significance for children depending on their development, their feelings or views about the harm they have suffered, and their place in the family.
A child is not required to attend court in Family Division proceedings, unless the child expresses a wish to attend, the court orders that the child attend, or the CYFA otherwise requires (s. 216A, CYFA).
When a child does attend, it is usual for the practitioner to transport their client to court if they are placed in out-of-home care, although this is sometimes arranged with a caregiver.
Children are not always required to remain at court for a whole day, so arrangements to return the child to their placement or school should also be made. The practitioner should speak to their own legal representative about the best way to handle this situation.
Dates, time and location of the hearing should be confirmed with the child and the family.
The parents or caregiver should already be aware of why the matter has been taken to court. In most situations (apart from emergency care applications) they should also have been engaged in preparing the court report and the case plan and have been provided with a copy of the court report at least three days prior to the hearing date. The child protection practitioner is required to advise the family of their right to legal representation and be informed about Legal Aid, if needed.
It is important that practitioners reflect on what the court action may mean for the child and family they are working with. It should never be assumed that they understand a process because the process is familiar to the practitioner. Also, practitioners should never assume an understanding of the child and family's feelings and responses during the court process. Court can be a threatening and bewildering environment for many people, regardless of the role an individual might have or the reason they are there. Good preparation by the child protection practitioner with the child and their parents may increase the chances of consensus being reached and help maintain a good working relationship with the family following court action.
In accordance with s. 524(12) of the CYFA, when any process is served on a child or the parent of a child requiring them to attend court in a proceeding in the family division, the child protection practitioner must give them a notice:
- setting out the circumstances in which a child is required to be legally represented
- stating the desirability of obtaining legal representation
- explaining how legal representation may be obtained.
Engaging with lawyers
Apart from crisis situations (for example, a protection application hearing by emergency care) the child protection practitioner should arrange for any child who is represented (aged 10 years or over) to see a duty lawyer prior to the hearing.
In matters involving urgent applications, the child protection practitioner should ensure the Legal Aid coordinator is aware the child will require representation and whether the child will be attending court.
In metropolitan Melbourne, arrangements are in place between key stakeholders for children to provide legal instructions at Melbourne, Moorabbin and Broadmeadows Children’s Courts. Memorandums of Understanding are in place relating to Melbourne and, Moorabbin Children’s Courts. See Melbourne Children's Court and Moorabbin Children's Court protocols.
Divisions have developed separate arrangements for rural court matters. The child protection practitioner should consult with the team manager for further procedural advice.
Once the child protection practitioner arrives at court it is not appropriate for the practitioner to discuss the case with the family during this time, nor is it appropriate for legal representatives who are acting on behalf of other parties to approach the practitioner for discussions without their legal representative being present. To be safe, once you are at court, all matters pertaining to the case should be left to the lawyers to discuss.
Additional role of the rural child protection practitioner in the Children's Court
The role and responsibilities of a rural area child protection practitioner encompasses all of the previous material, but some rural area practitioners will have an additional role to that of the metropolitan area practitioner.
In some rural areas, the child protection practitioner will need to present uncontested matters to the court. That is, the rural area practitioner is sometimes both applicant in the application and representative of the department before the court. While the Melbourne, Moorabbin and Broadmeadows Children's Courts have court and legal officers from the CPLO to represent cases, this is not the case in all rural areas and practitioners are, at times, called upon to represent the department and draft appropriate orders where matters resolve.
Apart from presenting the uncontested matters in court, in rural areas child protection practitioners may still have further additional roles and responsibilities to those practitioners in the metropolitan areas (for example, if a parent is not represented, the practitioner should make sure they have a copy of any report on which the practitioner intends to rely in court, advise them of the current position with the case and tell them in which court the matter will be heard).
Court can be a highly emotive place for many children and families and the circumstances which led to court action may have triggered a range of emotions in those who attend, some of which practitioners may not be aware of. Practitioners may become concerned about the level of anger or animosity and feel that parties to the proceedings are being verbally or physically threatening, intimidating or violent, or have the potential to react that way.
For this reason it is important for practitioners to take responsibility and be aware of security at court, both emotionally and physically. There are a number of strategies practitioners may employ to reduce the risk of feeling, or being, unsafe. For example, taking another practitioner with them to court and talking to them about their concerns and movements, ensuring their supervisor is fully briefed on their feelings about attending court and the potential behaviour of the child or family members present. Practitioners should consider where they choose to sit, who is present when talking to the family, the emotional state of the parties involved, and ensure adequate support during the court process is available.
The Melbourne Children's Court has a room designated for child protection practitioners. Rural area court locations also have separate rooms that are shared by other court personnel.
Melbourne Children’s Court security
Melbourne Children's Court employs security officers. Where there is a known or anticipated risk of violence to a child protection practitioner or another person in the court proceedings, the practitioner can request the attendance of a security officer via the registrar's office. The practitioner will need to brief them about the risk issues.
Contact should be made with the principal registrar or the deputy registrar at the court prior to the day of the court hearing, wherever possible. This will assist in ensuring additional preparation can be made to manage the situation effectively. The number for Melbourne Children’s Court is 8638 3300.
On the morning of the hearing, if additional security is required and the practitioner has not contacted the court previously, upon arrival at court the practitioner should immediately speak with the principal registrar or the deputy registrar at the second floor counter. Wherever possible, child protection practitioners are urged to consult with the registrar or deputy registrar prior to the hearing date.
Other metropolitan courts
Moorabbin and Broadmeadows Children’s Courts have similar arrangements to Melbourne Children’s Court and similar advice applies.
Rural court security
Rural court locations are able to alert police if security issues arise. Rural area practitioners should familiarise themselves with the specific security provisions relating to the local court. It is important for child protection practitioners to have this information prior to an incident requiring security to ensure they have a security plan in place for themselves, their clients and others in the court building.
It is important for practitioners to inform their supervisor, legal representative or court security of any threats made against them, another person or property.
If a child protection practitioner is subject to any form of assault at court, including threats and verbal abuse, they must use the department's incident reporting system, DINMA and incident reports.
- Good preparation of the child and their family by the child protection practitioner may increase the chances of consensus being reached and help maintain a good working relationship with the family following court action.
- When new applications are brought before the court, the child protection practitioner should advise the Legal Aid coordinator of the need for representation for the child and of the status of legal representation for the parents prior to arriving at court
- Prior to arrival at court, in most circumstance the child protection practitioner should have already explained to the family why the matter has been taken to court. In most situations (apart from emergency care applications) they should also have been engaged in preparing the court report and the case plan. Additionally, the court process and what child protection is trying to achieve should have been explained.
- Check that the family has the means to get to the court and provide assistance if required. It is customary for the practitioner to transport the child to court, or an alternative venue if they elect not to attend court if they are placed out of the parent’s care, although this is sometimes arranged with a caregiver.