Legal aid - advice
This advice provides information regarding legal aid representation in the Children’s Court. Document ID number 2206, version 3, 20 November 2019.
This advice provides child protection practitioners and managers with guidance about:
- Parents' rights to seek legal advice and representation for Children's Court proceedings.
- The requirements for child protection practitioners to advise parents of the availability of legal representation in court.
- Legal Aid’s criteria for providing funding for legal representation.
The child protection practitioner should advise parents of the availability of legal aid assistance and encourage and assist them to obtain legal representation. In matters proceeding by notice, parents should be encouraged to seek legal advice prior to the first mention date. Parents can be directed to Victorian Legal Aid (VLA), which can either represent them or refer them to private practitioners for advice and representation. Aboriginal parents may be directed to the Victorian Aboriginal Legal Services (VALS) or Djirra (formerly known as the Aboriginal Family Violence Prevention and Legal Service) prior to the mention date. VALS or Djirra may either represent them or refer them to private practitioners or VLA for advice and representation if a conflict exists. For parents who are incarcerated, they may see a legal practitioner in prison, as negotiated with the prison authorities.
Child protection practitioners will need to have completed the court report in a timely way to allow parents to discuss the report with their legal representative before the mention date.
In matters proceeding by emergency care, practitioners should direct parents to the VLA coordinator or court registry to obtain legal representation on arrival at court unless there are worker safety issues. In which case, arrangements should be made through the departmental legal representative. Practitioners should also alert the VLA coordinator of any new matters at court and the need for parents (or children) to be seen by a solicitor.
Legal representatives for parents will provide advice to their client and act on their instructions.
Who may be represented?
All parents are entitled to be legally represented in matters before the family division of the children's court by a lawyer, or they may 'appear in person'; that is they may represent themselves.
Legal practitioners availability
There are duty solicitors from VLA and private legal practitioners at all children's courts in the Melbourne metropolitan area and on mention days at all other children's courts in Victoria. They are available for parents of children in family cases that need legal advice or representation in court. Duty lawyers are only available on the first day the application is before the court, after that parents need to make a formal application for a grant of legal aid or arrange to privately fund their case. The duty solicitor will discuss this with their client.
Legal aid funding
Grants of legal assistance are means tested and assessed against a set of VLA guidelines. VLA considers the merits of the matter and the parent’s ability to pay for or contribute to their own legal costs. More detailed information can be found at the Legal Aid website.
Protection application proceedings
VLA will only provide a grant of legal assistance to parents in protection application proceedings where the parent is seeking to retain or re-gain primary care of the child who is the subject of the application.
Interim accommodation contests
Except in cases where the child is under two years of age, VLA will only fund interim accommodation order contests (both fixed and standby) which are related to questions of placement. Questions of placement include such matters as where and with whom the child is to live and the exclusion of parents from the residence in which the child is to live.
Where interim accommodation order contests relate to issues other than questions of placement, parents will need to self-represent or make other arrangements for legal representation.
Detailed information relating to legal assistance is located on the VLA website.
Role of the solicitor
The parent's solicitor is responsible for:
- providing their clients with legal advice
- acting on clients' instructions
- advocating on behalf of their clients.
Adjournments for parents to obtain legal representation
Section 524(1)(c), CYFA, provides that if a parent is unrepresented during proceedings in the family division, at any stage during proceedings the court may adjourn the hearing to enable the parents to obtain legal representation.
Discussion with parent's solicitor
Child protection will be legally represented at court. All discussions and negotiations are to occur between the legal representatives who are ethically bound to not converse directly with parties who are legally represented.
At court the parent's solicitor may want to discuss the child protection practitioner's assessment and recommendation with the practitioner. In most situations this direct discussion is not appropriate and would require the agreement and presence of the departmental legal representative. If the department legal representative is unavailable, the discussion must be limited to matters contained within the court report. Practitioners should be aware that these discussions may later be subject to cross examination. Child protection practitioners should not approach parents at court to discuss the proceedings without the prior agreement of the parent's solicitor.
Parents who are incarcerated and legally represented may attend court hearings on a goal order obtained by their legal representative.
For parents who are not legally represented, the child protection practitioner should obtain a gaol order on behalf of the parent to attend court. See Gaol order for tasks that must be undertaken.
Considerations for good practice
Encourage and support parents to obtain legal advice in advance of initial mention dates for all by notice applications.