Guide to court processes involving children and young people
Includes changes to court processes as a result of Keep Them Safe, Criminal matters in the Children's Court, and Victims Services
The Children's Court
The Children’s Court deals with matters related to the care and protection of children and young people, applications for Compulsory Schooling Orders and matters where children and young people are charged with committing a criminal offence.
The role of the Children’s Court is to:
- hear and determine applications for care orders relating to children and young people
- hear and determine matters where the child or young person has been charged with a criminal offence
- hear and determine applications for compulsory schooling orders with respect to the parents of a child, and in some cases the child, who has not been attending compulsory schooling
- ensure that the best interests of children and young people are the paramount consideration in care proceedings
- ensure that children and young people’s views are heard by providing them with an opportunity to participate in care proceedings.
Care proceedings in the Children’s Court are conducted with as little formality and legal technicality as possible. The Magistrate can obtain information by asking questions rather than just hearing the arguments and evidence provided by the parties.
The Court may consider any statement, document or information that will assist it to make decisions and generally, the rules of evidence do not apply. However, in criminal proceedings the rules of evidence apply to ensure that allegations against a child or young person are fairly tested and the accused is afforded due process.
A Magistrate will usually hear the matter, but sometimes matters are heard by the President of the Children’s Court, who is a Judge.
This section contains information about:
- attending the Children’s Court
- participation of children and young persons
- Court etiquette
- legal representation
- special assistance and support agencies or persons
- witnesses and expert witnesses
- attendance at Court by the media.
Attending the Children’s Court
The Children’s Court is a ‘closed court’. Anyone, even people connected to the matter, can be excluded from the Court if the Magistrate decides their presence is not in the best interests of the child or young person. Depending on the matter, the media may also be excluded from the Court. The general public cannot attend Children’s Court hearings.
In relation to criminal proceedings the prosecutor and accused person has a right to appear and be legally represented. In relation to care and protection cases the following people have a right to appear and be legally represented in the Children’s Court:
- the child or young person
- each person having parental responsibility for the child or young person
- the Director-General of the NSW Department of Family and Community Services
- the Minister for Family and Community Services.
‘Appearing’ is a technical term used to describe the act of attending or presenting at court for a particular matter. If a person appears in person they can address the Magistrate or Judge directly. Being legally represented means that you have a solicitor who will appear on your behalf and will address the Court on your behalf. If someone is legally represented, all communications with the Court or other persons will be made via the legal representative.
If, in the Children’s Court’s opinion, there are other people with a genuine concern for the safety, welfare or wellbeing of the child or young person they can be granted leave to appear.
If a person has been served with an application relating to the child or young person and has been given notice of when to attend Court, but does not do so, then the application might proceed and be heard in their absence.
There are legislative rules concerning the attendance of witnesses and other persons in court proceedings and the production of documents to the Children’s Court.
These rules provide information on attendance at court, the issuing of subpoenas for the appearance of a person to give evidence before a court and production of documents. The person named in the subpoena must attend court on the specified date and time.
Participation of children and young persons
Participation of children and young people is a key principle of the Children’s Court. The Court has the responsibility to ensure:
- the child or young person has the opportunity to be heard and participate in the proceedings
- their age and developmental capacity is taken into account so that they understand the proceedings and their implications
- procedures and rulings are fully explained to them if they ask for an explanation.
While participation is encouraged, in relation to care and protection matters a child or young person is usually not required to attend unless specifically requested to do so by the Court.
If a child or young person subject to care proceedings does attend, the Court may direct them to leave the Court room if circumstances arise or evidence is to be given that might be considered harmful to them.
In regards to care and protection matters, Community Services is required to assist the child or young person in meeting their solicitor before Court, so that they can have the proceedings explained and express their views and where appropriate, give instructions.
While the Children’s Court is conducted with less formality than other Courts, it still follows general Court practices and conventions, which are:
- being punctual when attending
- turning off mobile telephones in the Court room
- not eating or drinking in the Court room
- not talking unnecessarily in the Court room
- not wearing a hat inside the Court room
- bowing when the Magistrate enters or leaves the Court room
- remaining standing until the Magistrate is seated
- standing when the Magistrate leaves the Court
- bowing to the Magistrate as you enter or leave the Court room, while Court is in session
- not approaching the Magistrate directly unless specifically asked to do so
- where a person is represented by a solicitor, not talking to the Magistrate directly, as all conversations while at Court are conducted through the solicitors, unless the Magistrate requests otherwise
- if asked to speak to the Magistrate (besides when giving evidence in the witness box) stand and move to the front of the row of seats and ensure that you show respect and courtesy at all times
- addressing the Magistrate as ‘Your Honour’
- asking permission of the Magistrate before handing over documents to the Court officer
- not entering or leaving the Court room when a person is taking the oath/affirmation
- not walking between the bench and the bar table unless directed to do so by the Court .
The Children’s Court may appoint a legal representative to act for a child or young person in care and protection matters. If a child or young person is old enough (usually 12 or over) or capable of giving instructions, the legal representative will act as a direct legal representative. If a child or young person is not able to give instructions the legal representative will act as an independent legal representative.
If a guardian ad litem has been appointed (see below) the independent legal representative will act on the instructions of the guardian ad litem.
A direct legal representative should ensure that:
- the Children’s Court hears the views of the child or young person
- all relevant evidence is available to the Children’s Court
- they act on the instructions given by the child or young person.
The independent legal representative should also ensure that the child or young persons’ views are heard by the Court and that all relevant evidence is available to the Court. The independent legal representative does not have to take instructions from the child or young person and must act in the child or young persons best interests, even where this is different from what the child or young person might want.
The Children’s Legal Service is a specialist unit of Legal Aid NSW. Legal Aid solicitors provide advice and represent children and young people under the age of 18 who are involved in criminal matters in the Children’s Courts. Their aim is to ensure that children and young people have access to professional, face-to-face or telephone-based legal advice at any stage of their legal proceedings.
Children and young people who need advice about criminal law problems are encouraged to contact the:
- Youth Hotline on 1800 101 818,
- Bidura Children’s Court on 02 9219 5120
- Parramatta Children’s Court on 02 8688 3800
- Aboriginal Legal Service (NSW/ACT) Ltd on 02 8303 6600
Sometimes the Court will also appoint a person other than a solicitor to look out for the best interests of the child or young person during proceedings. This person is known as a guardian ad litem, meaning a guardian for the lawsuit.
A guardian ad litem is usually appointed in special circumstances where age, disability or illness is a factor and their role is to instruct the solicitor (acting for the child or young person) in accordance with the child or young person’s best interests.
In some matters a guardian ad litem is appointed to safeguard the interests of the parent/s and to instruct the parent/s solicitor.
Special assistance and support agencies or persons
It is important to recognise that all children and young people may require general assistance when involved in a Children’s Court process. The Court operates under a legal structure which may be confusing for children and young people.
In addition, a child or young person may require special assistance:
- with language, via the services of an interpreter
- if the child or young person is Aboriginal or from a culturally or linguistically diverse background
- because of a physical, intellectual or learning disability or cognitive impairment.
A support person can attend the Children’s Court to assist, but does not typically appear on behalf of people appearing in court. A support person’s attendance will generally not be allowed if:
- the proposed support person is a witness
- the child or young person opposes the support person’s presence
- there is another reason to deny permission, such as where the support person’s presence is considered against the best interests of the child or young person.
A support person must comply with any direction given by the Magistrate during the hearing or other Court attendance. A support person is not allowed to give instructions to a solicitor at the hearing, but may act as an interpreter if the Court agrees. It is important that the support person or agency maintains a focus on the best interests of the child or young person who is the subject of the proceedings.
Witnesses and expert witnesses
Professionals or workers from government and non-government organisations may be called upon to give evidence in care proceedings. The role of these witnesses is to assist the Court to gain as thorough an understanding as possible of the family or child’s situation.
Professionals and workers from government and non-government organisations can provide information about the services that have been provided to a family and in most circumstances, evidence will be submitted to the Court in affidavit form. The Court can require witnesses, who have sworn or affirmed an affidavit, to give further oral evidence in Court.
Professionals or workers who may be able to assist the Court in this way include community health workers, family doctors, counsellors, early intervention workers and, where a child is placed away from their parents, contact workers or designated agency workers.
Expert witnesses may be called on to provide an expert’s report or to give opinion evidence in proceedings before the Children’s Court.
Expert witnesses are generally engaged to assess the child, family, or another party once the Court proceedings have started. Expert reports can be ordered by the Court, or a party may call their own “expert witness”.
Expert witnesses are different to other witnesses in that they are not limited to describing events, actions or situations but are required to provide an opinion on an issue or a number of issues relevant to the proceedings, such as a person’s capacity to care for a child or the nature of a child’s injuries.
Expert witnesses are engaged because they have particular skills, experience and expertise in relation to an area of knowledge which enables them to provide a report or form an opinion which the Court can use to assist in making its decision. For example, the Children's Court Clinician, who provides independent expert clinical assessments of children, young people and their families, is an example of an expert witness. Other people who may be called as expert witnesses include paediatricians, psychiatrists and other medical experts.
An expert witness’s duty is to assist the Court impartially and not to act as an advocate for any party.
An expert witness’s conduct must be guided by the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules 2005.
Attendance at Court by the media
The media generally has a right to attend Court and report on proceedings, but in any report, article etc cannot identify any child or young person:
- who is the subject of the matter
- who gives evidence in the matter
- who is mentioned in the matter.
The Court can direct that the media be excluded for some or all of the proceedings.
If for some reason the media wish to publish identifying details, they need to obtain consent from:
- the Children’s Court, if the child is under the age of 16
- directly from the young person in question, if they are aged 16 or over
- the Director-General, if the child or young person is under the Minister’s parental responsibility.
The rules of non-identification apply before, during, and after any court or non-court proceedings until the child or young person reaches 25 years of age. They also cease to apply if the child or young person dies before the age of 25.
If the media does not comply with these rules and a child or young person is identified without appropriate consent, then a criminal offence has been committed.