Specific issues for care and protection proceedings

13.119 Issues in the representation of children in family law and care and protection proceedings are similar. However, the requirements of children in the two jurisdictions differ. In particular, many care and protection orders require the continuing involvement of the court or of the department and continuing representation of the child may be needed. Extensions of orders and reviews of orders and case plans[233] also point strongly to the need for a continuing relationship between the child and the representative.

13.120 For these reasons, all children in care and protection litigation should be provided with a legal representative. Once again, preference should be given to the representation of a child on the basis of the direction given by the child. Where the child is too young or is unwilling to express a view to a lawyer the court may decide that representation is nevertheless necessary because of the position taken by the department or the likely need for continuing representation. In those cases the representative should advocate in accordance with an assessment of the best interests of the child.[234] The representative should take care to consult with a verbal child at each new contact to determine whether the child has become able or willing to express a view as to the direction of the proceedings.[235]

13.121 Generally care and protection jurisdictions have limited independent advice from social scientists to assist the court and the representatives in the assessment and determination of the best interests of a child. A Children’s Clinic attached to the Melbourne Children’s Court employs social scientists to assess the families and children who are the subject of care and protection applications. Initially the clinic was operated by the court but currently it is run by the care and protection department. This change has been the subject of some criticism on the basis that it may limit the independence of the clinic. Nevertheless, the clinic generally is well regarded and functions efficiently. One submission to the Inquiry noted

…in the Victorian Children’s Court, clinicians work with the magistrates themselves, and not with the child’s legal counsel (although there is communication with counsel and also, in protection matters, with the Department of Human Services). This follows a “direct instruction with supplementary Court Report” model and appears to work well. Therefore, different models may be appropriate for different courts…[236]

13.122 Each State and Territory children’s court would benefit from a clinic. Clinics should be the responsibility of the courts and should have sufficient resources.

Recommendation 82. All children who are the subject of a care and protection application in the States and Territories should be provided with a lawyer as early as possible. The ethical principles and standards for representation are outlined at recommendations 70-76.

Implementation. The national care and protection standards proposed in recommendation 161 should include provisions to this effect.

Recommendation 83. Clinics similar to the Melbourne Children’s Court Clinic should be attached to children’s courts and adequately resourced to provide the court and legal representatives with expert advice on the best interests of the child.

Implementation. The Attorney-General through SCAG should encourage the States and Territories to introduce these clinics.

[233] See paras 17.75-86, recs 178-180.

[234] In which case, rec 72 applies.

[235] See rec 70.

[236] Australian Psychological Society IP Submission 131. See also M Rayner ‘The right of the child to be heard and to participate in legal proceedings: Article 12 of the UN Convention on the Rights of the Child’ Paper 1st World Congress on Family Law and Children’s Rights Sydney 5–9 July 1993.