12. Introduction to Part C

12.1 In this Part, the Inquiry addresses children’s involvement in formal legal processes, that is, those legal processes that relate to litigation. Part C focuses on children’s involvement in legal proceedings either as the subjects of applications, as parties or as witnesses. However, it is the Inquiry’s view that much of this interaction is closely related to the administrative processes discussed in Part B. For many children contact with formal legal processes is a culmination of contact with administrative processes, particularly where these administrative processes fail to heed early warning signs or to adequately support or assist the children involved.[1] Therefore, the recommendations in this Part should not be considered in isolation from the recommendations in Part B.

12.2 In addition, some children may be involved in more than one litigation process, often stemming from a single incident. A child may be involved in Family Court proceedings or children’s court proceedings as the subject of a care and protection application and also in criminal court proceedings as a witness. A child may also take civil action and/or apply for criminal injuries compensation. The drift of some children in care to juvenile justice systems means that these children are involved simultaneously in both legal processes.[2] The chapters in Part C address children’s participation in the different legal proceedings and where appropriate draw attention to the links between these legal processes.

12.3 Chapter 13, Legal representation and the litigation status of children, addresses children’s litigation status and the provision of legal representation to those children who are directly involved in legal processes. During the course of the Inquiry, significant concern was expressed about the models of representation available to children who were subjects of care and protection and private family law proceedings. This chapter focuses on the representation of children in these jurisdictions. Recommendations are also made in relation to civil proceedings. The recommendations in this chapter attempt to ensure that children are represented by appropriately trained legal advocates, a vital element for children’s effective participation in formal legal processes.

12.4 Chapter 14, Children’s evidence, makes recommendations regarding the investigative, judicial and administrative processes through which children participate in a number of different legal processes as witnesses. Although the discussion in this chapter often focuses on child witnesses in criminal proceedings, interactions between legal processes — and particularly between the criminal jurisdiction and both private and public family law — mean that many recommendations concerning children’s evidence cross jurisdictional boundaries and are applicable to a variety of federal, State and Territory legal processes.

12.5 Chapter 15, Jurisdictional arrangements in family law and care and protection, details the interaction between two specific areas of law — private and public family law — and the problems that current jurisdictional divisions between the Family Court of Australia and State and Territory children’s courts create for children involved in these legal processes. Often matters relating to essentially the same circumstances must be litigated in more than one court or in an inappropriate court as a result of the current jurisdictional arrangements. The Inquiry presents a number of options for reform, including an extended cross-vesting scheme.

12.6 Chapter 16, Children’s involvement in family law, and Chapter 17, Children’s involvement in the care and protection system, then make detailed recommendations to improve processes for children involved in private family disputes and those involved in care and protection systems. As the experience of being in care is not restricted to court processes, Chapter 17 includes discussion of investigation and pre-court processes involving child welfare departments and post-court administrative processes for children in care.

12.7 The terms of reference required consideration of the treatment of children and young people convicted of federal offences. In Chapter 18, Children’s involvement in criminal processes, Chapter 19, Sentencing, and Chapter 20, Detention, the Inquiry makes recommendations regarding children’s involvement in criminal law processes and the juvenile justice system as the accused. However, the discussions in these chapters are not restricted to children’s involvement in federal offences. As a party to CROC, the Commonwealth has made a commitment that all children involved in juvenile justice systems, including those in State and Territory systems, will be treated fairly and in accordance with international law.

[1] See paras 4.36-41.

[2] See paras 4.42-50.