The United Nations Convention on the Rights of the Child recognizes the right to Childrens Representation :
- To have and express a view
- To have those views respected, considered and taken seriously
- The right not to be removed from their family without their consent, and not without Judicial proceedings, and a fair process
- The right to appropriate legal advice and representation
- The presumption of innocence and the other remedies available to adults to satisfy “due process” requirements if accused of criminal offences; and
- The right to special consideration, and the protection of adults and the State, because of their vulnerability and dependency arising from their status as children.
If a child commits an offence, if their parents and guardians cannot or are unable to defend their rights and freedom, then this child may end up ensnared in the administrative and legal system that ironically have been set up to protect them in the first place.
Children are particularly disadvantaged if they find themselves in this predicament.
How Childrens Representation works in the Family Court
In practice, children are often the subject of disputes rather than the ones initiating the action in family law. Often a child’s representative will be appointed to represent a child separately upon the Family Court’s own initiative, or on the application of a party to the proceedings. These lawyers are known as ‘independent children’s lawyers’, or ICL’s.
Representatives are required to abide by what in their judgment is in the child’s best interests. A child therefore cannot instruct the representative on what to do or that they follow their wishes. The relationship is not the same as an adult and their legal counsel.
Care and protection systems in Australia
In Australia, care and protection systems follow various modes of representation, such as the best interest and direct instructions model. In care and protection proceedings, a child is likely to be represented by a legal practitioner, although there have been rare instances when a lay or social science trained representative took on that role.
In New South Wales representation of children is provided for in all kinds of cases. A child’s representative is usually drawn from a roster of duty solicitors that are in private practice. The role of the representative, although not defined in legislation, is in practice similar to that of a child’s representative that a Family Court might appoint to represent the best interests of the child.
In Victoria, a different legislation exists. It requires that children—who are mature enough to provide instructions—shall be represented in all cases involving issues of care and protection.
In Queensland, no law exists with regard to representation of children in care and protection cases. To this day, children in Queensland are rarely, if ever, represented.
Rachel Stubbs and Associates is a specialised Family Law firm located in Camden, Wollongong and Bowral. Rachel Stubbs and Associates act in Family Law matters involving; property settlements, divorce applications, children’s matters, for both defacto and married couples. More information can be found on our website stubbslaw.com.au for Family Law matters or austdivorce.com.au for online divorce applications. Location directions can be found on our site rachelstubbs.net.au.
DISCLAIMER
This article remains the property of Rachel Stubbs and Associates and can only provide basic information only and is not intended to be a substitute for legal advice. This information can not be relied on as a substitute of legal information and it is only general by nature. This information was generally correct at the time of writing but changes in legislation or procedure may change the accuracy of this article. Should you require any specific legal advice in relation to your situation please contact Rachel Stubbs and Associates for specialist Family Law advice at stubbslaw.com.au or phone on +612 46555366. You can email us on info@stubbslaw.com.au.
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