13.1 Article 12 of CROC is of great significance. It states

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

13.2 Most legal problems children face are not dealt with by children directly but by their parents or other adults acting on their behalf. Parents are often the most effective advocates for children. However, there are occasions when children are directly affected by and involved in legal processes. The extent to which children are able to express views freely in those processes depends in part on the age of the child, the nature of the decision and the forum in which it is made. It also depends on the form and quality of representation available and accessible to the child. This chapter reviews the various models of representation available for children. It recommends changes to the form of representation of children in family law and care and protection jurisdictions and the adoption of standards of representation for all lawyers acting for children. Quality representation of children is of crucial importance for effective decision making concerning children and for assuring children a say in decisions that affect them.

13.3 A general rule of legal advocacy is that the client sets the goals of representation. Lawyers are instructed by the client and, subject to their professional judgment and their duty to the court, advance the case in accordance with the wishes and directions of the client.[1] A lawyer acts as adviser and advocate — ensuring that the client is informed of relevant considerations and is assisted, through discussion of those considerations, to provide informed instructions. However, the decisions concerning the case are ultimately those of the client and the representative may be required to advocate a position with which he or she disagrees. Lawyers are encouraged to exercise their forensic judgment concerning their advocacy but are not required to critically assess the soundness of the judgment of the client.

13.4 In many cases involving children this general obligation of a representative to act upon instructions is modified. Children traditionally lack the legal capacity to instruct. The law presumes that a child cannot assert rights or form a judgment.[2] Younger children lack the developmental capacity to provide direction. However, as a matter of practice, many children are involved in litigation. A child can be charged with a criminal offence, have a civil cause of action that should be pursued during the child’s minority or be the subject of proceedings in the family law or care and protection jurisdictions. Lawyers are often seen to have a protective, rather than a representational function. In many cases this means that the representative determines and advocates for the child’s best interests rather than acts on instructions. This best interests model of advocacy has strongly influenced all representation for children, even where the child is taken at law to be a full party to proceedings.

13.5 The standard model of representation is most common in juvenile justice matters where the child is taken to have the competence to instruct a representative directly. The model may not be fully implemented in practice, however, because some children, particularly younger children, may have difficulty providing satisfactory instructions to their lawyers. Many lawyers may have difficulty accepting instructions from children.[3] The following is an example of a young person’s experience of being represented by a duty solicitor in a children’s court in a regional Queensland town.

He was being represented by the duty solicitor on this particular day and Carlos wanted to have his own solicitor represent him. He asked the duty solicitor to request bail for him. The duty solicitor refused and replied that he did not have a chance of getting it. Halfway through the solicitor’s submission to the court, Carlos stood up and said “Excuse me, your Highness, if it pleases the court I would like to speak”. The Magistrate granted Carlos’ request. Carlos said, “If it pleases the court I would like to sack my lawyer as I not [sic] think that he is acting in my best interests, actually I do not think he is doing me any good at all. If it pleases the court, I would like to ask for bail myself.” If Carlos had been an adult client would the solicitor have ignored his instructions for a bail application? I should think not.[4]

There are problems in ensuring children have access to legal advice and representation in juvenile justice matters soon enough following coming to police attention to enable them to be advised and represented properly. These issues are dealt with in Chapter 18. The Inquiry heard no major criticism of the direct representation model of children in juvenile justice beyond these issues and representation in juvenile justice matters will not be discussed further in this chapter.

[1] The NSW Bar Association Rules note that ‘[a] barrister must not act as the mere mouthpiece of the client…and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client’s…desires where practicable’: r 18.

[2]Dey v Victorian Railway Commissioners (1948–49) 78 CLR 62. See B Cairns Australian Civil Procedure 4th ed LBC Information Services Sydney 1996, 351. At common law, children have traditionally been considered to be under a disability: see Halsbury’s Laws of England 4th ed Butterworths London 1993 vol 5(2) 337.

[3] See G Murray ‘Brisbane Youth Advocacy Centre — Providing access to justice for young people'(1997) 1 Flinders Journal of Law Reform 261, 262–263. This raises the necessity for training of representatives of children in this jurisdiction. See paras 13.123–132.

[4] G Murray ‘Brisbane Youth Advocacy Centre — Providing access to justice for young people’ (1997) 1 Flinders Journal of Law Reform 261, 261–262.