The Representation of Young Children in Court Proceedings in Victoria
An article by the Honourable John Fogarty AM, Advisory Board Member of DCI – Australia. Mr Fogarty served as a Justice of the Family Court of Australia for over 20 years prior to his recent
retirement.
This article first appeared in DCI-Australia’s Australian Children’s Rights News (No. 24)
The article in the November 1999 edition of Australian Children’s Rights News - “Involving young children in decision making” - causes me to draw attention to what appears to be a
significant difference between the Family Court of Australia and the Victorian Children’s Court in the practice and perhaps legal principles relating to the representation of young children in
those Courts. In the latter Court the general practice, and perhaps the requirements of its legislation, appear to produce the result that only in a minority of cases are children under the age
of eight represented in proceedings in the Family Division of that Court. On the other hand the Family Court draws no age distinction in the representation of children, and it may be said as a
generality that in many cases it places emphasis upon the representation of children who are too young or immature to be able to articulate their wishes or perceptions.
To explain this apparent inconsistency it is necessary to provide some brief background.
Section 68L of the Family Law Act 1975 (Cth) empowers the Family Court (and any other court exercising jurisdiction under that Act, including State Magistrates Courts) in most proceedings relating
to a child to order that that child be separately represented.
In the Family Court these orders are frequently made. Whilst the question whether an order for representation should be made can be determined by the Court at any stage of the proceedings, the
practice is for that to be determined at an early stage of the management of the particular case. The Court makes a number of important initial decisions for the proper handling of children cases,
including whether the child should be represented and/or whether a family report should be prepared, as well as orders for confidential counselling and other more routine orders aimed at both
controlling and expediting the proceedings. The making of any of those orders, and in particular here an order that the child be separately represented, is determined having regard to the best
interests of the child: see sections 60B, 65E and 68F. Section 68F sets out a list of factors to be considered in any decision relating to a child, including the wishes of the child and the
child’s maturity and level of understanding.
In a number of cases the Full Court of the Family Court has emphasised the importance of representation and the responsibilities of the child representative, and has also provided a wide but
non-exclusive list of categories of case where child representation order “should normally be made”, see; re K (1994) FLC 92-461 and P v P (1995) FLC 92-615. These are well-known and important cases which do not need further analysis in this brief article. It is sufficient for present purposes to point out that these categories include young and immature children.
Both the well recognised authorities and the daily practice of the Family Court in relation to the representation of children make clear that there is no criterion of age or maturity as a limitation
on representation. Rather, the practice is to recognise that children in proceedings before the Court may require representation and that it is imperative that the Court have regard to the need for
children to be represented, whatever their age. Indeed, the younger the child the more likely it may be that the child may require representation.
In the earlier history of the Court orders for separate representation were less commonly made, but the experience of the Court over almost a quarter of a century now has demonstrated the importance
of separate representation and the risk of unsatisfactory outcomes if the child is not represented. This is especially so in the sort of cases that were referred to in re K and the general importance of young children, particularly those who cannot speak for themselves, being heard.
The major limitation on an approach of virtual universality of representation in at least significant cases is that in practice separate representation is almost always funded by legal aid, in
Victoria through Victoria Legal Aid (V.L.A.). Budgetary restrictions place limitations on the number of orders which V.L.A. will finance. In March 1999 V.L.A. indicated to the Melbourne Registry of
the Court a policy of appointing up to 600 child representatives in a twelve month period. This limitation of numbers is based solely upon budgetary restrictions. In matters under the Family
Law Act 1975 (Cth), neither the Commonwealth guidelines nor the administration of legal aid by V.L.A. impose any restriction or limitation based upon the age or maturity of the child.
This appears to be in sharp contrast with V.L.A.’s guidelines in relation to representation of children in the Children’s Court. Although the guidelines have changed to a small degree over
the years, broadly speaking it may be said that from 1993 until June 1997 the guidelines were that a child would be separately represented through the V.L.A. “if the child is mature enough to
give instructions (usually age seven or more)”. Then from June 1997 it was “if the child is over the age of seven and mature enough to give instructions”.
In April 1998 this latter guideline was added by providing that legal aid “may” be granted to a child under the age of eight if the magistrate “has found or expressed the opinion
that the child is mature enough to give instructions and adjourns the hearing for the child to seek legal representation.” This addition to the guideline is a reference to section 20 of
the Children’s Young Persons Act 1989 (Vic) which is referred to later in this article.
Space does not permit me to delve into the difficult question of “maturity” and all of the ramifications involved in either the ascertainment of that, and by whom, the usefulness of it as
a criterion for representation. The critical point for present purposes is that whilst in the one Court concerned with children V.L.A. imposes no age or maturity restriction on representation,
in another Court dealing perhaps with the same child and certainly with analogous cases there is a rejection of representation based on the grounds of age and maturity.
However, it is said that this is no arbitrary determination by V.L.A. or one based on budgetary considerations and that what would otherwise seem, at least to me, to be a clear aged based
discrimination within the Equal Opportunity Act 1994 (Vic) is justified, perhaps required by the relevant legislation or is otherwise reasonable.
The legislative provisions are to be found in the Children and Young Persons Act 1989 (Vic). That establishes two divisions of the Children’s Court – the Family Division and the
Criminal Division. We need not be concerned in this article with the Criminal Division. That relates to children aged between ten and seventeen who are facing criminal proceedings. Whilst there
may be difficulties in particular cases about the maturity of a child in that age category to give instructions, nevertheless, having regard to the age range and the nature of the proceedings, it is
obvious that the representative of that child would proceed on the basis of representing his/her wishes and perceptions.
The Family Division is concerned essentially with protective proceedings. That is, proceedings by the State seeking orders about the future of that child arising from the view of the child
protection department that the child is in need of protection. In this context the child could be at any age from newly born to under eighteen. As the Children’s Court has in recent
years dealt with approximately 2500 such applications each year obviously a significant percentage of those proceedings would relate to children under the age of eight.
Section 87 of the Children and Young Persons Act 1989 (Vic) sets out a list of matters which the Court must consider when determining whether or not to make a protection order. It is clear,
particularly from the amendments to that section in 1994, that the paramount consideration is “the need to protect children from harm and to protect their rights and to promote their
welfare”. Amongst the other matters which the Court is required to take into account is that it “must consider any wishes expressed by the child and give those wishes such weight as
the Court considers appropriate in the circumstances”. (So far this seems little different from the Family Law Act 1975 (Cth) structure. In this jurisprudence “best
interests” and “welfare” are treated as interchangeable.).
The question of legal representation of children is dealt with in sections 20 and 21 of the Children and Young Persons Act 1989 (Vic). Section 21 is straightforward. It provides that
“subject to Section 20, a child must be legally represented in proceedings in the Family Division”. Section 20 is a relatively complex provision having regard to the essentially
basic matter with which it is dealing. Subsection (1) provides that if in such proceedings “a child” is not separately represented the Court may adjourn the proceedings for the child to
obtain legal representation. It is to be noted that this relates to any child independently of age or maturity. Subsection (2) provides if the child is “mature enough to give
instructions” but is not represented the Court must adjourn the proceedings for the child to obtain representation.
The complexity surrounding this issue appear largely to arise from section 20(9) which provides :
“Counsel or a solicitor representing a child in any proceedings in the Court must 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.” (underling added)
As I understand the procedures when a child is involved in protective proceedings in the Family Division, an application for representation is made directly to V.L.A., an officer of which will grant
the application if the child satisfies, inter alia, its guidelines referred to above, namely maturity and aged over seven years, but will refuse the application if the guidelines are
not complied with. On the other hand, if the Court makes an order under section 20(1) V.L.A. “may” grant legal representation independently of the age or maturity of that child. It
appears that that step is taken by the magistrates of the Court from time to time but not as a generality. Hence, the overall circumstance that by and large children under eight are not
represented.
The primary justification for that appears to be in terms of section 20(9) referred to above. In the Victorian Law Foundation’s recent publication – “Guidelines for Lawyers
acting for Children and Young Persons in the Children’s Court” – it is said that “whilst there has been some confusion about how this should be interpreted, the generally
accepted view is that the nature of the relationship is the same as for adult clients – that is, the lawyer should act on the client’s instructions”. Hence, apparently, the
conclusion that if the child is not old enough or mature enough to give “adult” instructions the child should not be represented at all.
I agree with the Guidelines that section 20(9) is confusing but I must say that I would not have given it that interpretation against the strong presumptive background of representation of children in
proceedings important to their future. I would have thought that subsection (9) means no more than it says, namely that representatives shall act in accordance with instructions “as far as it
is practicable” having regard to the maturity of the child, but it says nothing about the case of a child who, whether above or below the age of eight, lacks sufficient maturity to give
worthwhile instructions.
On more general grounds of principle, some (although one would think not many) may attempt to justify this approach on the basis that the child protection workers involved in the particular case (and
behind them the department) would adequately represent the best interest or welfare of the young child. Whilst I do not wish to criticise the hard working protection officers in their difficult task,
experience in Victoria (and interstate and overseas) demonstrates that in many cases this would be an unsafe assumption upon which to proceed.
It also appears that this approach may also be based upon a wider misunderstanding. In the Law Foundation’s Guidelines immediately after the quotation referred to above, it is said that
“This is quite different from the role of the Separate Representative in the Family Court, who acts ‘in the best interest of the child’ ”. This approach seems to suggest
that there is a dichotomy between “best interest” and “wishes”, whereas they are integral components of the same exercise. That is, the wishes of a child are an important
part of that child’s best interests.
It also appears to misunderstand the approach of the Family Court where the child is mature enough to express his or her wishes or perceptions. That evidence will be presented to the Court by the
child representative and by the family report (and the parties). The increasing tendency of the Court has been to give significant weight to such wishes. Happiness and contentment are critical
aspects of a child’s life. However, cases can arise where the child’s wishes or perceptions may not appear to be in his or her best interests and in that case the child
representative would be expected to present material on both of those aspects. The Court will then determine the matter by regarding the best interests (which include the child’s wishes)
as the paramount consideration. I must say for my own part that I have difficulty in seeing that the approach to protective proceedings in the Children’s Court would be any different: see the
terms of section 87 referred to above.
It is only an accident of federation that these jurisdictions relating to children are divided in Australia between the Family Court and the State Children’s Courts. In most other countries they
are exercised by the one court which applies the same principles to both aspects of the jurisdiction. It seems to me that it is undesirable that there should be any difference in Australia.
Postscript
Since writing the above, a decision of significance on this issue has been delivered by the Victorian Civil and Administrative Tribunal (G v Victorian Legal Aid; 20 December
1999). The facts and issues are too complex to discuss in any detail in this short article. In addition, in view of my criticism of an important aspect of this decision, I should declare an
interest. I was a witness in those proceedings, primarily directed to the legislation and practice about separate representation in the Family Court.
For present purposes this case may be summarised in this way. It related to alleged discrimination within the Equal Opportunity Act 1994 (Vic) arising from a number of refusals by V.L.A. to
grant legal aid for the separate representation of a child in protective proceedings in the Children’s Court whose age varied from under six years to over seven years at the relevant times.
The Tribunal concluded that V.L.A. had discriminated against the child on three occasions on the basis of age. But it also concluded that it was “reasonable” for V.L.A. to impose
a requirement “that the child in question be of sufficient maturity to give instructions”. The basic reason for that latter conclusion was that “it is intrinsic to the
relationship between a client and his or her legal representative that the client be able to instruct the legal representative”; and that in this type of case “the question is whether the
particular child is capable of giving instructions, and so be able to utilise that assistance”. This latter conclusion is not expressed as being based on the provisions of the Children
and Young Persons Act 1989 (Vic) , but seems to be asserted as if this was and is a self-evident (“intrinsic”) proposition. This approach raises issues of great significance in the
representation of children generally and their right to be heard. With appropriate respect to the detailed and careful judgment of the senior member constituting the Tribunal, they are views
with which I profoundly disagree.
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