Care and protection in NSW: celebrating 50 years of child representation

Today’s regime for the representation of children in matters under the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Family Law Act 1975 (Cth) started in 1975 and has developed over the last fifty years.

When the Family Law Act was passed in 1975, it contained, for the first time, a specific provision for the appointment of a separate representative for a child in family law proceedings. Section 65 did not provide guidance as to when a representative should be appointed or how they should perform that role.

Although the relevant NSW legislation did not include the same kind of provision, in recognition of the growing need for children to be independently represented in matters before the Children’s Court, the Law Society of NSW established the first ever scheme for the representation of children, in both care and crime.

Over fifty years, child representation in both care and family law has grown and evolved, with the care jurisdiction often mirroring developments in family law. There is now an expectation that children will participate and have their voices heard in all cases which affect them. One important way this happens is through an independent lawyer, acting either on the child’s instructions or in their best interests.

The Law Society will soon launch the fifth edition of the Representation Principles for Children’s Lawyers (‘Principles’). The revised Principles draw on the expertise of social scientists and experienced child representatives. The Principles reflect the way in which the role has changed and contain useful guidance for those undertaking this important work.

The history of child representation in NSW

The scheme created by the Law Society in 1975 comprised a roster of private solicitors willing to provide direct representation for children across NSW. The scheme was ‘an imaginative use of interest earned from solicitor’s trust funds and represented the biggest single advance in the juvenile area in at least forty years’ (Rod D Blackmore, The Children’s Court and community welfare in New South Wales (Longman, 1989) 42 (‘Blackmore’)). Prior to the scheme, the representation of children in matters before the Children’s Court was rare.

By 1977, the scheme was extended to cover all children and young people being dealt with by the Court under the Child Welfare Act 1939 (NSW). At that time, practitioners grappled with questions about the age at which a child could be considered capable of providing instructions and how to manage situations where the child’s instructions might differ to the views of their parents (P E Powell, ‘Children’s Court Legal Aid Scheme’ (1977) 15(1) Law Society Journal 29).

In 1979, the scheme came under the umbrella of a commission, now called the Legal Aid Commission of NSW. The following year, a committee inquired into the operation of the scheme. A further review and report in 1985 and ’86 led to the establishment of a pilot program at Cobham, with a lawyer, a social worker and rostered members of the private profession.

In 1987, in the case of J v Lieschke [1987] HCA 4, the High Court commented favourably on the scheme at Cobham. Wilson J said there was ‘every reason to suppose that the scheme makes a valuable contribution to the administration of justice’ (at [3]). Further, he said there was no reason why a child who had the capacity to instruct a lawyer should not avail themselves of the services of the duty lawyer. Where a child lacks capacity to instruct the duty lawyer, the court could authorise the appearance of the duty solicitor as amicus curiae to represent the interests of the child in so far as they can be objectively determined from the documents (at [3]).

A few months later, the Children (Care and Protection) Act 1987 (NSW) came into effect, replacing the Child Welfare Act. For the first time, the Children’s Court was given a specific power to appoint a guardian ad litem or separate representative for a child (section 66). In the Supreme Court of NSW decision, De Groot & Anor v De Groot & Ors (1989) 13 Fam LR 292, Newman J grappled with the differences between appointing a guardian ad litem for a child and a legal representative, preferring the appointment of a legal representative so as not to ‘stifle’ the child’s views. Blackmore reports that it became the policy of the Children’s Court to appoint a separate representative for a child in every case (Blackmore at 322).

In 1990, Australia ratified the United Nations’ Convention on the Rights of the Child (‘UNCROC’), recognising the rights of children and young people to participate in proceedings relevant to their care (Article 9) and to make their views known in relevant administrative and judicial proceedings (Article 12).

Alongside the care and protection jurisdiction, some important things were happening in the family law jurisdiction. In 1989, the Family Law Council released a report about the representation of children in family law proceedings, and the Family Court (as it was then called) delivered some important judgments setting out the role of a separate representative for a child, including In the Marriage of Bennett [1990] FamCA 148 and In the matter of P and P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) [1995] FamCA 44.

In 1997, the report from the Review of the Children (Care and Protection) Act 1987 (NSW) (the ‘Parkinson Report’) was released. The report recommended new care and protection legislation be implemented with overarching principles reflecting, amongst other things, that children should be given an opportunity to express their views, those views should be given appropriate weight and children should participate in decision making affecting them, as per Australia’s obligations under the UNCROC.

In 1998, the Children and Young Persons (Care and Protection Act) 1998 (NSW) (‘Care Act’) was passed, adopting the recommendations of the Parkinson Report. In 2007, the Care Act was amended, raising the minimum age for children to provide direct instructions to their legal representative, from 10 to 12 years. This means that, currently, children under 12 years are represented by a lawyer acting in their best interests (an independent legal representative) and children aged 12 and over provide direct instructions to a lawyer (a direct legal representative), provided they have the capacity to do so.

The role of the children’s lawyer in a care and protection proceeding

Whether acting as an independent or direct legal representative, lawyers acting for children and young people are tasked with ensuring the court has evidence of the child or young person’s wishes and views (section 99D(a)(i) and (b)(v) of the Care Act). Lawyers must also make sure that all relevant evidence is adduced and, where necessary, tested (s 99D(a)(ii) and (b)(vi)). Discharging these functions requires lawyers to meet with children and young people throughout the proceedings and explain, in an age-appropriate way, what is happening in court and what decisions the court will make.

Child representatives are expected to gather evidence in a careful and proactive way. In practice, this means carefully reviewing the material to identify potential sources of information and evidential gaps. Proactive evidence gathering will often mean lawyers will talk with people who know the child well, like teachers and therapists. When necessary, lawyers will issue subpoenas. They will also identify appropriate experts to prepare reports to assist the court to determine the arrangements that are in the child’s best interests.

Child representatives are expected to closely review documents and carefully consider the adequacy of permanency and care plans for the children and young people they represent (sections 83 and 78 of the Care Act). For example, lawyers are expected to carefully examine the contact arrangements for children with their family, kin and community, and assess whether, based on the evidence, children can be safely restored to the care of their parents or family. In addition, lawyers representing First Nations children are expected to consider proposed arrangements in terms of how they support the child’s connection to family, community, culture and Country.

Children’s lawyers will carefully consider the most appropriate arrangements for meeting with a child according to their individual needs. What may work for one child may not work for another, even where it may appear so on paper. They will consider meeting locations, cadence and the best way to communicate during and between meetings.

Unlike in criminal proceedings, children and young people do not always attend court when the proceedings that affect them are being determined. The Care Act allows the court to require their attendance, but in practice this power is rarely used. A child or young person is not required to give evidence (section 96).

There are a variety of ways in which children and young people can participate in proceedings and/or have their views heard. The way in which a child or young person participates is ultimately determined by the court but is informed by the child’s views and wishes, and supported by the lawyer representing them.

Children and young people can participate by attending court and dispute resolution conferences, writing letters or preparing videos. In some cases, judges and magistrates will hear directly from children and young people (see, e.g., Re Kara (No 3) [2020] NSWSC 1292). In other cases, they will meet with them and sometimes may have them give evidence (see, e.g., H v AC [2024] NSWSC 40). Lawyers may also prepare a ‘views and wishes’ statement setting out the child’s views. Often, a young person’s views will be set out in reports from their treaters or experts and may underpin the way in which their lawyer runs their case.

Specialist training and support for children’s lawyers

Legal Aid NSW is responsible for ensuring all children and young people subject to care and protection proceedings are represented by highly skilled and experienced legal practitioners, a large proportion of whom are private practitioners.

Lawyers representing children and young people in care proceedings must have five years of post-admission experience in care and protection work, and undertake specialist training through Legal Aid NSW to equip them with the skills to meet with children and discharge their obligations to the court to a high standard. This involves learning from experienced child representatives, registrars, magistrates and Children’s Court clinicians.

While much has changed in fifty years, the regime for the representation of children in care and protection proceedings still relies heavily on the availability, expertise, commitment and determination of the private profession, right where it began.

Kerri Phillips is a principal at Phillips Levy Bennett Legal and Katie Kelso is the executive director of family law at Legal Aid NSW.