Early legal advice
This advice provides information regarding the aims of seeking early legal advice from the Child Protection Litigation Office (CPLO).
Document ID number 2205, version 6, 30 June 2022.
The CPLO offers a model of early legal advice. This is a location based legal consultation service in metropolitan offices and a phone based service for both rural and metropolitan practitioners. The service is committed to assisting child protection practitioners to achieve desired court outcomes through the provision of legal advice at the earliest opportunity of statutory intervention.
Legal practitioners in CPLO and Regional Offices have access to a modified training package on the SAFER risk assessment.
Aims of providing early legal advice to child protection practitioners
The purpose of providing early legal advice to child protection practitioners is to support:
- positive court outcomes for children
- improved experience of child protection practitioners at Children’s Court in Victoria
- earlier and more consistent involvement of solicitors in decision making and case presentation to improve child protection practice and performance in court
- child protection practitioners in legal proceedings
- child protection practitioners' understanding of court processes, procedures and expectations
- child protection practitioners' preparation for court
- additional training on court and legislative processes
- the links and relationships between the CPLO and divisions.
Early legal advice will be provided on matters prior to issuing an application and in contested matters and hearings. This includes:
- protection applications by notice and emergency care, including withdrawal of a protection application
- temporary assessment orders
- interim accommodation orders
- breaches and revocations
- contested matters including conciliation conferences and directions hearings
- sexual abuse and likelihood of sexual abuse cases
- infants requiring an infant intensive response
- likelihood of abuse cases
- Family Court matters
- internal review and VCAT matters
- appeals to County Court and Supreme Court.
Child protection staff (practitioners and managers) should seek legal advice with the CPLO solicitor in their division prior to an application being issued or hearing date to:
- ensure the investigation is conducted in a way that optimises the gathering of relevant evidence in order for any subsequent application to be successful
- ensure that there is sufficient evidence for the application
- ensure the application and recommendation align with the risk assessment
- identify if a temporary assessment order is appropriate
- identify if additional evidence is required, such as medical reports, school reports
- determine the appropriate legal intervention, through examination of the merits and deficits of an application, issues of dispute and options for settlement in achieving timely outcomes for children
- ensure that the appropriate court process and procedures are undertaken according to legislative requirements and practice standards by child protection practitioners
- ensure child protection practitioners are clear about the issues and rationale for the initial application and recommendations
- ensure child protection practitioners are prepared for giving evidence
- initiate contact with the legal representatives of other parties to obtain information on the matters that are being contested and to negotiate contested matters prior to the hearing, where appropriate.
Child protection practitioners and managers can make a referral to the Court Practice Advice and Support (CPAS) team to support the model of early legal advice. The benefits of accessing this dual practice and legal service are:
- Positive court outcomes for children.
- Increased confidence in court processes, procedures and expectations.
- support to demonstrate behaviour consistent with Model Litigant Guidelines.
- Strengthened evidence and case presentation.
- Legal strategy and assistance in resolving matters.
- Improved practitioner experience in the Children’s Court.
Legal services to AHCPES
The provision of legal advice to AHCPES is available during normal business hours with the solicitor attached to the East Division.
To ensure the successful integration of the model, it is essential that differences be addressed as soon as possible after they arise.
The procedure for handling a concern is as follows:
- The solicitor and child protection practitioner discuss the issue. Where a concern relates to a case specific court matter and points of negotiation, the legal officer may contact the team manager.
- If the matter remains unresolved, the issue should be managed up to the senior solicitor and team manager.
- In the event that the matter has not been resolved at this level, involvement of the CPLO/Jurisdictional partnerships manager and relevant child protection manager may be necessary.
Considerations for good practice
- Court can be a challenging phase of child protection work. Being well prepared and confident in your presentation can go a long way to making court a less stressful event and increases the likelihood of obtaining a better outcome for children. The model of early legal advice should be utilised with this in mind.
- The SAFER children framework supports linking what is known, the information and evidence from the essential information categories (EIC’s) and impact of harm identified in the risk assessment to formulate recommendations made before the Court that reduce the risk of harm and increase safety. Ensuring the EICs are kept up to date and reviewing the risk assessment as required provides strong evidence for the Court to understand the risk and need for legal intervention.
- Consider providing your legal representative a copy of the SAFER risk assessment when seeking legal advice, as it will assist in being able to articulate the risk in a way that is informed by the information and evidence which will be required in Court if/when an application is issued.
- The Court Practice Advice and Support (CPAS) team is a referral-based service designed to support preparation for Court. CPAS also offers reflective discussions about practitioner experiences in the Children’s Court. For more information about CPAS including how to make a referral, visit the CPAS SharePoint site.