The Representation of Young Children in the Family Division of the Children’s Court in Victoria
Andrew McGregor is manager of Victoria Legal Aid's Youth Legal Service, which provides representation for children and young people in the Family and
Children's Courts."
This article first appeared in DCI-Australia’s Australian Children’s Rights News (No. 24)
I have been invited to respond to issues raised in the article by the Honourable John Fogarty A.M. entitled “The Representation of Young Children in Court Proceedings in
Victoria”. Constraints imposed by the brevity of my article will lead to some necessary over-simplification of the issues. I also should declare my interests in two of the matters
mentioned in the preceding article:
- I appeared as a witness in the proceedings referred to, G v Victoria Legal Aid, 20 December 1999, Victorian Civil and Administrative Tribunal; and
- I was a member of the reference group which advised the project consultant who wrote the Victoria Law Foundation publication, “Guidelines for Lawyers Acting for Children and Young People in
the Children’s Court”.
First, to clarify the current Victoria Legal Aid guidelines for granting assistance, aid may be provided if the child is mature enough to instruct. Children aged seven and above are assumed to
qualify. Under seven, assistance may be provided where a Magistrate, representative of the Department of Human Services, or Children’s Court duty lawyer expresses the opinion that the
child has sufficient maturity to instruct.
These guidelines are based on two considerations. Section 20(9) of the Children and Young Persons Act 1989 (Vic) is quoted in full in the preceding article. It states that representation
is to be on instructions, having regard to the maturity of the child. The age of seven is used solely as a guide in terms of the age at which it is likely for the child to have developed
maturity sufficient to instruct, and is based on expert opinion provided by the Director of the Children’s Court Clinic, Dr Pat Brown.
The practice of representation provided by practitioners appearing in Melbourne Children’s Court is founded on the proposition that if you do not appear to present your client’s
instructions, you do not appear at all. There would seem to be no legislative foundation for any other model. It is not appropriate to import a brand of representation from some other
jurisdiction such as the child representative role in the Family Court to “fill the gap”.
Models of representation in the two jurisdictions are different for a reason. The Family Court model of child representation operates in a jurisdiction in which, in the main, two parents contend
for care of the child. The child representative communicates to the Court the child’s wishes, and presents what the child representative assesses to be in the child’s best
interests. In general, if the child representative did not present the best interests case, it is possible that no other party would do so.
In the event that the child’s wishes and the child representative’s view of the child’s best interests do not coincide, the child representative may be obliged to pass on the
child’s desire for one outcome, and present a case for the opposite. The child is spared witnessing this by the simple expedient of not attending the proceedings. This is to avoid the
undesirable feature of children being placed in the position of publicly and in the presence of the parties having to chose between parents.
In the Children’s Court the contest is between the carer and the state. Often, proceedings determine whether the child remains within the family or is removed to foster care. Children
attend court unless they choose not to. They participate as fully as they wish to in proceedings. Legal representation on an instructions basis facilitates this participation. Rather
than a decision between two carers, proceedings require the Department of Human Services to present the case for minimal state intervention in a family’s life. This intervention must seek
to achieve an outcome in the best interests of the child. The best interests case is therefore presented by the Department.
The rigour and clarity of the instructions model of child advocacy are its essential strengths. For an amplification of the operation of the model I recommend the Victoria Law Foundation
publication, “Lawyers Acting for Children and Young People in the Children’s Court”.
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