There are contrasting legal contexts in which children are represented in court.
The Family Court deals with private matters at a federal level where parents are the disputing parties, whereas the Children’s Court deals with state based public law matters.
The main focus of the Family Court is on the safe relationship of children and their parents. There is a dynamic environment throughout the proceedings where new issues and crisis situations are continually evolving and being managed by the Court. Orders pertaining to children made in the Family Court must ensure the safety and protection of the child.
By contrast, the Children’s Court deals with matters such as criminal cases, compulsory schooling orders, and care and protection matters pertaining to child abuse or neglect.
Matters are about facts with discreet, static events that do not change over time.
Children rarely, if ever, present as witnesses in the Family Court, whereas they frequently appear as witnesses in the Children’s Court.
Children are allocated their own court appointed lawyer in each court jurisdiction to represent them. However, the allocation of an Independent Childrens Lawyer in the Family Court is at the Court’s discretion and assessed on the gravity of each matter.
The role of the Independent Children’s Lawyer in the Family Court is not to take instructions from the child but to represent the child’s best interest to the Court with the aid of expert reports submitted to the Court. The Court then determines the orders to be made.
By contrast, in the Children’s Court the young person may be represented by a Direct Legal Representative or an Independent Legal Representative. A Direct Legal Representative must act on the child’s instructions, whereas an Independent Legal Representative forms their own view of the child’s best interests for submission to and determination by the Court.
Lawyers representing children require specialist training to be appointed as such.
