Australia

Australia[1][print]

Last edited:  May 2005

Summary and Analysis

Australian children are protected from abuse and neglect by a complex structure of federal and state systems.  The Australian Constitution gives the federal government jurisdiction over marriage, divorce, and child custody.  The states and territories have jurisdiction over child protection (abuse and neglect).  Despite the division of responsibility between the federal and state governments, there are increasing overlaps between the two systems, which arise when allegations of child abuse and neglect are made within federal Family Court proceedings.

Each of the eight states and territories has its own law on child protection; each was passed or amended after Australia’s ratification of the United Nations Convention on the Rights of the Child in 1990, and the federal Family Law Act was substantially amended in 1995.  These nine laws demonstrate clear consensus on two issues: the child has a right to express her views, and the child must have some access to some type of legal representation.   However, there is significant disagreement over the appointment and role of child representatives.  Some states mandate appointment of a representative in most cases; other states give the Court discretion to appoint a representative.  Some states give require the attorney to be a direct representative, representing the child’s wishes; others require the attorney to represent the child’s best interests.

Federal Family Court

Australian Capitol Territory

The Australian Capitol Territory (ACT) has codified the child’s right to express her views and mandates appointment of an attorney in all cases except when a child chooses not to be represented and the Court believes the child’s interests can be represented without a lawyer.  The representative’s role varies based on the child’s ability to give instructions; if the child can give instructions, the lawyer follows the child’s instructions as a direct representative, and if the child cannot, the lawyer pursues the child’s best interests.

New South Wales

New South Wales has adopted a detailed “principle of participation” for children in child protective proceedings that ensures children have an opportunity to give their views. Appointment of a representative is entirely within the discretion of the Court; children are represented by lawyers when the Court thinks such representation is necessary.  The representative’s role varies based on the child’s ability to give instructions; if the child can give instructions, the lawyer follows the child’s instructions as a direct representative, and if the child cannot, the lawyer pursues the child’s best interests.

South Australia

South Australia has codified the child’s right to express her views and mandates representation for children in child protection proceedings unless a child does not wish to be represented.  The representative’s role varies based on the child’s ability to give instructions; if the child can give instructions, the lawyer follows the child’s instructions as a direct representative, and if the child cannot, the lawyer pursues the child’s best interests.

Northern Territory

The Northern Territory codifies the child’s right to express her views and establishes that children may participate in child protective proceedings, but provides very little

information about child representation. The appointment of child representatives is completely within the discretion of the court, and the statute does not specify what role an appointed representative should fill.

Tasmania

Tasmania’s child protection law codifies the child’s right to express views and mandates the appointment of a representative to every child unless the child chooses not to be represented or the Court feels it would be in the child’s best interests not to be represented.  The statute does not specify the role of the representative. 

Queensland

Prior to passage of the Child Protection Act in 1999, Queensland had no statutory provision for child representation in child protection proceedings, and children were rarely represented.  The statute codified the child’s right to express her views and provides for discretionary appointment of attorneys for children based on the Court’s determination that representation is in the child’s best interests. However, the Court must consider appointing a representative if the proceeding is contested.  An appointed attorney always advocates for  the child’s best interests, rather than the child’s expressed wishes.  

The Children’s Services Tribunal Act establishes a special tribunal to review certain decisions of the Children’s Court.  The Act specifies that the child shall be allowed to participate in proceedings at the Tribunal and may be represented if it is in her best interests.

Victoria

Victoria has a detailed, complex statute that codifies the child’s right to express views, mandates extensive child representation, and provides information to children.  In 2001, Victoria amended its statute to mandate that all children who are able to instruct a lawyer must have a lawyer in child protection proceedings, and all lawyers must act on the instructions of their child clients.  The Children’s Court follows a default rule whereby lawyers are appointed for children seven years of age and older, but the Court may appoint a lawyer for a younger child or decide not to appoint a lawyer for an older child, depending on the child’s capacity to instruct an attorney.

Western Australia

In 2004, Western Australia passed a new statute mandating that children have an opportunity to express their wishes in child protection proceedings.  The previous child protection statute made no provision for the appointment of attorneys for children.  The new statute allows the Court to appoint a legal representative if it believes representation is necessary.   The representative’s role varies based on the child’s ability to give instructions; if the child can give instructions, the lawyer follows the child’s instructions as a direct representative, and if the child cannot, the lawyer pursues the child’s best interests.

Sources of Law (In Order of Authority)

Federal Statutes

Federal Family Court

Family Law Act[2]

§68F(1) How a Court Determines What is in a Child’s Best Interests

The court must consider: (a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes … .

§68H Children Not Required to Express Wishes

Nothing in this Part permits the court or any person to require the child to express his or her wishes in relation to any matters.

§68L(2) Court orders for separate representation

If it appears to the court that the child ought to be separately represented, the court may order that the child is to be separately represented, and may also make such other orders as it considers necessary to secure that separate representation… .

Federal Cases

Re K [3]

In the Matter of P and P [4]

[Role of the separate representative is to:]

1. Act in an independent and unfettered way in the best interests of the child.

2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.

3. Inform the court by proper means of the children’s wishes in relation to any matter in the proceedings.  In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child’s expressed wishes to the attention of the court.

4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the court.

5. Test by cross examination where appropriate, evidence of the parties and their witnesses.

6. Ensure that the views and attitudes brought to bear on the issues before the court are drawn from the evidence and not from a personal view or opinion of the case.

7. Minimise the trauma to the child associated with the proceedings.

8. Facilitate an agreed resolution to the proceedings.

Territorial Statutes

Australian Capitol Territory

Children and Young People Act[5]

§12 General Principles

(1) In making a decision or taking action under this Act in relation to a child or young person, … (a) the best interests of the child or young person should be the paramount consideration … .

(2) In making a decision under this Act about a child or young person, the following general principles are also to be applied: … (b) if the child or young person can form and express views about his or her wellbeing – those views should be sought and considered, taking into account his or her age and maturity… .

§22 Entitlement to Take Part

A child or young person has a right to take part in a proceeding under this Act in relation to the child or young person.

§23 General Representation of Child or Young Person

(1) In a proceeding under … chapter 7 (Children and young people in need of care and protection) in relation to a child or young person - (a) the child or young person may be represented by a lawyer or litigation representative, or both; and (b) a representative of the child or young person must ensure that views or wishes stated by the child or young person are put to the Children’s Court … .

§24 Legal Representation of Child or Young Person §24

[Describes the circumstances under which the Court will appoint a lawyer.]

§272 Opportunity for Child or Young Person to be Heard

The Children’s Court must allow a child or young person who is the subject of a proceeding [relating to care and protection] a reasonable opportunity to give his or her views or wishes personally to the court as to his or her ongoing care and protection unless satisfied that the child or young person is not capable of doing so.

§274 No Requirement to Express Views or Wishes

Nothing in this part permits the Children’s Court or a person to require a child or young person to express his or her views or wishes in relation to a matter.

New South Wales

Children and Young Persons (Care and Protection) Act[6]

§9 principles to be Applied in the Administration of the Act

The principles to be applied in the administration of this Act are as follows:

(a)  In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.

(b)  Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances… .

§10 Principle of Participation

Describes the steps the Court shall take to ensure that child or young person has “the opportunity to express his or her views freely, according to his or her abilities.”

§95 Court to Explain Proceedings to Children and Young Persons

(1)  The Children’s Court must take such measures as are reasonably practicable taking into account the age and developmental capacity of the child or young person to ensure that a child or young person in proceedings before it understands the proceedings …

(3)  Without limiting the generality of subsection (1), the Children’s Court must ensure that the child or young person has the fullest opportunity practicable to be heard, and to participate, in the proceedings.

§98 Right of Appearance

(1)  In any proceedings with respect to a child or young person: (a)  the child or young person and each person having parental responsibility for the child or young person …

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

§99 Legal Representation

[This section establishes that the role of the legal representative is to act on the instructions of the child if the child is capable of giving instructions and to act on the basis of the child’s best interests if the child is incapable of giving instructions.  The section describes the rebuttable presumption that a child not less than 10 years of age is capable of giving proper instructions.]

§100 Guardian Ad Litem – Child or Young Person

(1)  The Children’s Court may appoint a guardian ad litem for a child or young person if it is of the opinion that: (a)  there are special circumstances that warrant the appointment, and (b)  the child or young person will benefit from the appointment.

(2)  Special circumstances that warrant the appointment of a guardian ad litem may include that the child or young person has special needs because of age, disability or illness.

(3)  The functions of a guardian ad litem of a child or young person are:

(a)  to safeguard and represent the interests of the child or young person, and

(b)  to instruct the legal representative of the child or young person.

(4)  A legal representative of a child or young person for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem.

Northern Territory

Community Welfare Act[7]

§39(3) Representation of Child

At the hearing of an application [that a child be found in need of care], where the Court is of the opinion that the child the subject of the proceedings needs legal representation and that such representation has not been arranged by or on behalf of the child, it may, by order, make such provision for the legal representation of the child as it thinks fit.

§41 Attendance of Child Before Court

(1) The child the subject of an application under this Part must attend the Court in person and remain in attendance during the hearing of the application unless the Court makes an order that the child is not required to attend the hearing or part of the hearing.

…

(5) If the Court makes an order that the child is not required to attend the Court, the Court may proceed to hear and determine the application during the absence of the child and, in doing so, may give the directions or make the orders it considers appropriate, including a direction or order for – (a) taking a written deposition or statement from the child; or (b) receiving an oral or written report in relation to the care of the child made by an authorized person or person appointed by the Court to make the report… .

§43(1) Findings of Court

In proceedings in relation to a child in relation to whom an application under this Part is made, the Court shall consider – (a) the need to safeguard the welfare and development of the child; (b) having regard to the age and comprehension of the child, the reactions of the child to the proceedings and the child’s wishes in relation to the outcome of the proceedings … .

Queensland

Child Protection Act[8]

§5 Principles for Administration of Act

(1) This Act is to be administered under the principle that the welfare and best interests of a child are paramount.

(2)(d) [P]owers conferred under this Act should be exercised in a way that is open, fair and respects the rights of people affected by their exercise, and in particular, in a way that ensures - … (ii) the views of the child and the child’s family are considered; and (iii) the child and the child’s parents have the opportunity to take part in making decisions affecting their lives …; (h) if a child is able to form and express views about his or her care, the views must be given consideration, taking into account the child’s age or ability to understand … .

§59 Making of a Child Protection Order

(1) The Children’s Court may make a child protection order only if it is satisfied – … (d) the child’s wishes or views, if able to be ascertained, have been made known to the court

… .

§106 Court to Ensure Parties Understand Proceedings

(1) In a proceeding for a child, the Children’s Court must, as far as practicable, ensure that the child’s parents and other parties to the proceeding (including the child if present) understand the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court.

§108 Right of Appearance and Representation

In a proceeding on a application for an order for a child, the child, the child’s parents and the other parties may appear in person or be represented by a lawyer.

§110 Separate legal representation of child

(1) If, in a proceeding on an application for an order for a child, the Children’s Court considers it is necessary in the child’s best interests for the child to be separately represented by a lawyer, the court may – (a) order that the child be separately represented by a lawyer; and (b) make the other orders it considers necessary to secure the child’s separate legal representation.

(2) Without limiting subsection (1), the court must consider making orders about the child’s separate legal representation if – (a) the application for the order is contested by the child’s parents; or (b) the child opposes the application.

(3) The lawyer must – (a) act in the child’s best interests regardless of any instructions from the child; and (b) as far as possible, present the child’s views and wishes to the court.

§111 Legal Representation of More Than One Child

(1)   A lawyer may represent more than 1 child in the same proceeding.

(2) However, if the court considers a lawyer should not represent more than 1 child because of a conflict of interest, or a possible conflict of interest, the court may order that a child be represented by another lawyer.

Children’s Services Tribunal Act[9]

§68 Separate representation of children

(3) The tribunal must consider whether it would be in the child’s best interests for the child to be separately represented under this section before the tribunal by a lawyer (a “separate representative”).

(4) If the tribunal considers it would be in the child’s best interest’s [sic] for the child to be separately represented under this section before the tribunal by a lawyer, the tribunal must order that the child be represented by a separate representative.

(5) A separate representative may represent more than 1 child in the same proceeding.

(6) A separate representative must – (a) act in the child’s best interests having regard to any expressed views or wishes of the child; and (b) as far as possible, present the child’s views and wishes to the tribunal.

§92(2) Child’s right to express views to tribunal

Whether or not the child is a party to the review or appears as a witness before the tribunal, the child has the right to express his or her views to the tribunal about matters relevant to the review.

§104(1) Separate representative must not be called to give evidence

A separate representative must not in any proceeding be called to give evidence, and if called must not give evidence, about a communication between the representative and the child for whom the representative was appointed… .

South Australia

Children’s Protection Act[10]

§4 Principles to be Observed in Dealing with Children

(1) In any exercise of power under this Act in relation to a child – (a) the safety of the child is to be the paramount consideration; and (b) the powers must always be exercised in the best interests of the child… .

(3)  If the child is able to form and express his or her own views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the child’s age and maturity… .

§48 Legal Representation of Child

(1) The Court must not proceed to hear an application under this Act unless— (a) the child is represented in the proceedings by a legal practitioner; or (b) the Court is satisfied that the child has made an informed and independent decision not to be so represented, (but whether or not the child is represented by a legal practitioner, the child must be given a reasonable opportunity to give his or her own views personally to the Court as to his or her ongoing care and protection unless the Court is satisfied that the child is not capable of doing so).

(2) If the child is to be represented by a legal practitioner, but is not capable of properly instructing the legal practitioner, the legal practitioner must act, and make representations to the Court, according to his or her own view of the best interests of the child.

Tasmania

Children, Young Persons and their Families Act[11]

§8 Principles to be Observed in Dealing with Children

(2) In any exercise of powers under this Act in relation to a child –     (a) the best interests of the child must be the paramount consideration; and … (c) the powers, wherever practicable and reasonable, must be exercised in a manner that takes into account the views of all persons concerned with the welfare of the child.

(3) In any exercise of powers under this Act in relation to a child, if a child is able to form and express views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the child’s age and maturity… .

§55 Determining what is child’s best interests

(1)In determining what is in the child’s best interests, the Court must consider the following matters: (a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court considers relevant to the weight it should give to the child’s wishes … .

§56 Allowing opportunity for child to express wishes

Whether or not the child is represented by a legal practitioner in any proceedings under this Act, the Court must allow the child a reasonable opportunity to give his or her own views personally to the Court as to his or her ongoing care and protection unless the Court is satisfied that the child is not capable of doing so.

§58 Children not required to express wishes

Nothing in this Act permits the Court or any person to require the child to express his or her wishes in relation to any matter.

§59 Court orders for separate representation of child

(1)The Court must not proceed to hear an application under this Act unless – (a) the child is represented in the proceedings by a legal practitioner; or (b) the Court is satisfied that the child has made an informed and independent decision not to be so represented.

(2) Subsection 1 does not apply if the Court is of the opinion that it is in the best interests of the child to proceed with the hearing in the absence of the child’s representative.

[The section outlines the circumstances in which the Court may appoint a representative for the child.]

Victoria

Children and Young Persons Act[12]

§18(1) Procedural Guidelines to be Followed by Court

As far as practicable the Court must in any proceeding— … (b) seek to satisfy itself that the child understands the nature and implications of the proceeding and of any order made in the proceeding; and (c) allow— (i) the child … to participate fully in the proceeding; and (d) consider any wishes expressed by the child … .

Child’s Wishes

§87(i) [In considering protection application or an irreconcilable difference application, the Court] must consider any wishes expressed by the child and give those wishes such weight as the Court considers appropriate in the circumstances … .

§112(1)  [Court may make permanent order if] the wishes and feelings of the child have been ascertained and due consideration given to them, having regard to the age and understanding of the child.

§20 Legal Representation

(2) If a child who, in the opinion of the Court, is mature enough to give instructions is not, subject to section 83, separately legally represented in a proceeding referred to in section 21(1) …, the Court must adjourn the hearing of the proceeding to enable the child to obtain legal representation and, subject to sub-section (3), must not resume the hearing unless the child is legally represented… .

(4) With the leave of the Court, more than one child in the same proceeding may be represented by the same legal practitioner… .

(9) A legal practitioner representing a child in any proceeding 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.

§21 Proceedings in which child is required to be legally represented

[This section lists the cases in which a child must be legally represented.]

Western Australia

Children and Community Services Act[13]

§8(1) Child’s Wishes or Views

In determining for the purposes of this Act what is in a child’s best interests the following matters must be taken into account – … (f) any wishes or views expressed by the child, having regard to the child’s age and level of understanding in determining the weight to be given to those wishes or views … .

§10 Principle of child participation

(1) If a decision under this Act is likely to have a significant impact on a child’s life then, for the purpose of ensuring that the child is able to participate in the decision-making process, the child should be given – … (b) The opportunity to express the child’s wishes and views freely according to the child’s abilities … .

(2) In the application of the principle set out in subsection (1), due regard must be had to the age and level of understanding of the child concerned.

§148 Legal representation of child

(2) If, in protection proceedings, it appears to the Court that the child ought to have separate legal representation, the Court may order that the child be separately represented by a lawyer.

…

(4) A lawyer who represents a child in protection proceedings must act on the instructions of the child if the child – (a) has sufficient maturity and understanding to give instructions; and (b) wishes to give instructions – and in any other case must act in the best interests of the child.

(5) Any question as to whether a child has sufficient maturity and understanding to give instructions is to be determined by the Court.

Additional Resources and Links

Australian Legal Information Institute

http://www.austlii.edu.au

Guidelines for Lawyers Acting for Children and Young People in the Children’s Court (Victoria Law Foundation 1999)

Representation Principles for Children’s Lawyers (Law Society of NSW, 2d ed. 2002), available at http://www.lawsociety.com.au/uploads/filelibrary/1038355147282_0.5690935283305489.pdf

Katie Pollock, Australia and Article 12, available here, and also as .pdf Document, and also as Word Document.

Children’s Court of Victoria, Family Division

http://www.childrenscourt.vic.gov.au/CA256CA800017845/page/Family+

Division?OpenDocument&1=20-Family+Division~&2=~&3=~

Australian Law Reform Commission, Report No. 84, Seen and Heard: Priority for Children in the Legal Process §3.20 (1997)

http://www.austlii.edu.au/au/other/alrc/publications/reports/84/ ALRC84.html

Australian Law Reform Commission, Issue Paper 18, Speaking for Ourselves: Children and the Legal Process §7.24 (1996)

http://www.austlii.edu.au/au/other/alrc/publications/issues/18/ ALRCIP18.html

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[13] Children and Community Services Act, 2004 (W. Austl.), available here, and also as .pdf Document, and also as Word Document.