The Role of the Child Rep

1. The Role of the Child Rep • By Leanne Wells

2. Discussion points • 1. When the child’s instructions do not align with their best interests. • 2. The brave new DCJ world and what to look for as an ILR • Fresh Care Application • s 82 and s76 reports • Bring your own s90 • Should we involve the OCG?

3. ILR v DLR • ILR - best interests • DLR - direct instructions 99A Legal representative to act as independent legal representative or direct legal representative (1) A legal representative for a child or young person is to act as a direct legal representative if: (a) the child or young person is capable of giving proper instructions, and (b) a guardian ad litem has not been appointed for the child or young person. (2) A legal representative for a child or young person is to act as an independent legal representative if: (a) the child or young person is not capable of giving proper instructions, or (b) a guardian ad litem has been appointed for the child or young person. 99B Child under 12 presumed incapable of giving proper instructions (1) There is a rebuttable presumption that a child who is less than 12 years of age is not capable of giving proper instructions to his or her legal representative. (2) However, the Children’s Court may, on the application of a legal representative for a child who is less than 12 years of age, make a declaration that the child is capable of giving proper instructions. 99C Child 12 or older and young person presumed capable of giving proper instructions (1) There is a rebuttable presumption that a child who is not less than 12 years of age, or a young person, is capable of giving proper instructions to his or her legal representative. This presumption is not rebutted merely because the child or young person has a disability. (2) However, the Children’s Court may, on the application of a legal representative for a child who is not less than 12 years of age, or a young person, make a declaration that the child or young person is not capable of giving proper instructions.

4. Some Tips on how I get instructions from either type of client. • Establish a relationship or common interest • Talk about the things that are important to them. • I use the ‘houses’ technique for ILR matters • For DLR’s I discuss a ‘best 3 choices, or a back up plan’

5. What then iF my instructions do not match the child’s best interests?

6. ILR • If the child’s wishes do not match their best interest, you are not bound by them. • I always explain that it is the adults that make decisions about how to keep kids safe.

7. DLR • If the child’s wishes do not match their best interests, you continue to press for their wishes. • My ‘back up plan’ instructions gives the Court alternative outcomes to consider. • Like when acting for adults, their wishes are not always immediately transferable to orders. Consider seeking that DCJ put in place ‘family therapy’ or experts to work with the children on their wishes and ultimate long term plans. It may be that with therapy their wishes overtime become a possibility.

8. Brave nEw World • For no children in NSW to be in care…

9. Care Application - things to look for • Problems with DCJ Care Applications to look for: • Delay in the bringing of proceedings. • Placements with people who have not had appropriate checks done. • Contact scenarios that present a risk to the child (ren). • Other children not protected by the Care Application.

10. s82, or s76 (4) Reports • Often these reports are highlighting • Permitted drug use • Criminal activity or associations • Dangerous Safety Plans. • Contact arrangements not being followed through with. • Carers who may have passed away or became incapable of caring.

11. S90 Applications • Far too often FACS have commenced restorations without the finding of “NRPOR” being revisited by the Court. • Seeking Guardianship in circumstances where there are problems - ie AVO’S prohibiting any contact between the proposed carer and the parent. • ILRS to bring s90’s.

12. Reported Case *Department of Family and Community Services (DFaCS) and the Prince Children [2019] NSWChC 2 02 May 2019 Magistrate Sheedy • I do not accept the Secretary’s argument that only the representative of the child or young person (be that the DLR or the ILR) can bring an application in relation to the child they represent. If Ms Wells can satisfy the Court of the requisite interest in the other children then s 90 allows her to bring an application. Whether Ms Wells has the requisite interest is, of course, a question of fact. • The evidence establishes that: • Amy lives with her siblings. There is no evidence to suggest that there is anything other than the normal sibling relationship and care and concern siblings naturally have for one another. • Amy and her siblings live together with their mother and her partner. There has been a recent search of their home by police and Mr Vent admits to regular use of cannabis and storing the cannabis in the family home. This raises concerns about the welfare of Amy and the welfare of her siblings. • In addition, the evidence filed raises significant and ongoing concerns regarding the school attendance and health and welfare of Thalia, Elliot and Brendan. • The Court can accept that Amy would have a strong interest in the safety and welfare of her siblings with whom she currently lives. Ms Wells who is in effect the voice of Amy and the person representing her interests must thereby have a sufficient interest in the welfare of Amy’s siblings to bring the application. • In these circumstances I consider that Ms Wells, as Independent Legal Representative of Amy has a sufficient interest in the welfare of each of the siblings as contemplated by s 90(3)(e) and has standing to bring this application.