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Care and Protection Conference 2019

Join us at the Care and Protection Conference 2019 to learn about reclaiming the voice of the child through independent and direct legal representation. Explore the principles and standards of child representation in care proceedings under the Children and Young Persons (Care and Protection) Act 1988. Gain insights from Legal Aid NSW, the Children's Court of NSW Practice Note 5, and the Law Society of NSW Representation Principles for Children's Lawyers.

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Care and Protection Conference 2019

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  1. Care and Protection Conference 2019

  2. Reclaiming the voice of the child Through best practice child representation: As Independent Legal Representative and Direct Legal Representative

  3. Child representation in care proceedings Children and Young Persons (Care and Protection) Act, 1988 Children’s Court of NSW Practice Note 5 Legal Aid NSW Care and Protection Practice Standards Law Society of NSW Representation Principles for Children’s Lawyers

  4. Children and Young Persons (Care and Protection) Act

  5. Section 9 • 9 Principles for administration of Act • (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. • (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows: • (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

  6. Section 10 The principle of participation • (1) To ensure that a child or young person is able to participate in decisions made under or pursuant to this Act that have a significant impact on his or her life, the Secretary is responsible for providing the child or young person with the following: • (a) adequate information, in a manner and language that he or she can understand, concerning the decisions to be made, the reasons for the Department's intervention, the ways in which the child or young person can participate in decision-making and any relevant complaint mechanisms, • (b) the opportunity to express his or her views freely, according to his or her abilities, • (c) any assistance that is necessary for the child or young person to express those views, • (d) information as to how his or her views will be recorded and taken into account, • (e) information about the outcome of any decision concerning the child or young person and a full explanation of the reasons for the decision, • (f) an opportunity to respond to a decision made under this Act concerning the child or young person. • (2) In the application of this principle, due regard must be had to the age and developmental capacity of the child or young person. • (3) Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following: • (a) plans for emergency or ongoing care, including placement, • (b) the development of care plans concerning the child or young person, • (c) Children's Court applications concerning the child or young person, • (d) reviews of care plans concerning the child or young person, • (e) provision of counselling or treatment services, • (f) contact with family or others connected with the child or young person.

  7. (3) Decisions that are likely to have a significant impact on the life of a child or young person include, but are not limited to, the following: • (a) plans for emergency or ongoing care, including placement, • (b) the development of care plans concerning the child or young person, • (c) Children's Court applications concerning the child or young person, • (d) reviews of care plans concerning the child or young person, • (e) provision of counselling or treatment services, • (f) contact with family or others connected with the child or young person.

  8. Section 98 • Right of appearance • (1) In any proceedings with respect to a child or young person: • (a) the child or young person and each person having parental responsibility for the child or young person, and • (b) the Secretary, and • (c) the Minister, • may appear in person or be legally represented or, by leave of the Children's Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings. • (2) However, if the Children's Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

  9. Section 99 Appointment of legal representative by Children's Court • (1) The Children's Court may appoint a legal representative to act for a child or young person if it appears to the Children's Court that the child or young person needs to be represented in any proceedings before it. • (2) A legal representative for a child or young person who has not been appointed by the Children's Court may appear only with its leave. • (3) The Children's Court may withdraw its leave at any time and for any reason (including the child or young person informing the Children's Court that he or she does not wish to be represented by the legal representative).

  10. Practice Note 5 - Deemed appointment • Clause 10.1 The appointment of a legal representative to act for a child or young person under section 99(1) of the Care Act shall be deemed to have been made to a solicitor or barrister employed or engaged by Legal Aid NSW on the filing of a care application.

  11. 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

  12. Presumptions about capacity 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.

  13. 99D Role of the Direct Legal Representative • 99D Role of a legal representative • Without limiting the role of a legal representative for a child or young person in proceedings before the Children's Court: • (a) the role of a direct legal representative includes the following: • (i) ensuring that the views of the child or young person are placed before the Children's Court, • (ii) ensuring that all relevant evidence is adduced and, where necessary, tested, • (iii) acting on the instructions of the child or young person, and

  14. s99D Role of the Independent Legal Repesentative • b) the role of an independent legal representative includes the following: • (i) if a guardian ad litem has been appointed for the child or young person--acting on the instructions of the guardian ad litem, • (ii) interviewing the child or young person after becoming the independent legal representative, • (iii) explaining to the child or young person the role of an independent legal representative, • (iv) presenting direct evidence to the Children's Court about the child or young person and matters relevant to his or her safety, welfare and well-being, • (v) presenting evidence of the child's or young person's wishes (and in doing so the independent legal representative is not bound by the child's or young person's instructions), • (vi) ensuring that all relevant evidence is adduced and, where necessary, tested, • (vii) cross-examining the parties and their witnesses, • (viii) making applications and submissions to the Children's Court for orders (whether final or interim) considered appropriate in the interests of the child or young person, • (ix) lodging an appeal against an order of the Children's Court if considered appropriate.

  15. Legal Aid NSW Care and Protection Standards Responsibilities to Clients • 2.1 Children and Young People • A lawyer representing a child in a care and protection matter will: • 2.1.1 Comply with Practice Notes and court directions. • 2.1.2 Not act as both a direct legal representative and an independent legal representative in the same matter.

  16. As a Direct Legal Representative • 2.2.2 Maintain a lawyer-client relationship with the child throughout the proceedings. In doing so, the lawyer must: • (i) Meet with the child as soon as possible after the lawyer has been appointed and maintain ppropriatecontact with the child or young person throughout the course of proceedings. • 2.2.3 Communicate with the child and seek his or her instructions on all relevant issues in the matter. In doing so, the lawyer must: • (vi) At the first available opportunity, explain to the child the solicitor-client relationship, including that the lawyer owes the child the same duty of confidentiality as would be owed to an adult client. • (vii) At the first available opportunity, write to the child using plain English to confirm the lawyer’s advice as to the lawyer-client relationship and as to the pending care proceedings. • (ix) Communicate with the child immediately following all relevant court appearances to explain the result and any orders made by the court. • 2.2.4 Participate in any court proceedings, including alternate dispute resolution, as instructed or, where instructions have been provided only as to the desired outcomes, in such a way as to advocate for the outcomes instructed by the child.

  17. As Independent Legal Representative A lawyer appearing as an independent legal representative in a care and protection matter will: 2.3.2 Maintain a relationship with the child throughout the proceedings. In doing so, the lawyer must: • (i) Meet with the child, except in circumstances where the child is not as yet of school age. 2.3.3 Communicate with the child at relevant points in the matter, taking into consideration the child’s age, maturity, education, cultural background, possible disability (physical or intellectual) and language proficiency. When communicating with the child, the lawyer must: • (i) At the first available opportunity, explain the role of the independent legal representative. • (iv) Encourage the child to ask questions and answer those questions appropriately. 2.3.4 Participate in any court proceedings in such a way as to advocate for the best interests of the child. • (i) Act in an independent and unfettered way in the best interests of the child(

  18. Law Society Representation Principleshttps://www.lawsociety.com.au/sites/default/files/2018-03/Representing%20Children.pdf

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