Victoria denies lawyers for children

Tuesday 21 May 2013 5:30PM (view full episode)

We've been hearing a lot lately about the Legal Aid crisis gripping Australia.

In Victoria, judges have blasted Victoria Legal Aid for not adequately resourcing major criminal trials. In the Family Court there are worries about self-represented litigants cross-examining each other in court, even when there are allegations of domestic violence.

Now there are concerns in the Victorian Children's Court after recent changes that see children under the age of ten being barred from legal representation in child welfare cases.

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Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you. First, a question of basic access to justice. We've been hearing a lot lately about the Legal Aid funding crisis all around Australia. In Victoria, Supreme and County Court judges have blasted Victoria Legal Aid for not adequately resourcing major criminal trials. In the Family Court there are worries about self-represented litigants cross examining each other in court, even when there are allegations of domestic violence that involve those very same parties.

Now there are also concerns in the Victorian Children's Court after it was recently decided that children under ten can no longer have their own lawyers in child welfare proceedings. Child welfare proceedings usually involve disputes between parents and the Department of Human Services about who is best able to care for vulnerable children. This decision to cut back on legal representation for kids is not in response to severe funding restrictions, but rather it's a deliberate policy of the Victorian government.

Howard Draper: Well, in December Legal Aid decided to stop paying for lawyers of children under the age of ten, unless they had some special circumstances I suppose. They essentially said if you're under the age of ten we're not going to give you funding to represent a child.

Damien Carrick: Howard Draper is a Victorian lawyer with 30 years experience in the Children's Court.

Howard Draper: So those of us who worked there agreed that we would represent such children essentially on a pro bono basis, and we did that until the legislation was changed in March and that legislation change was that a child under the age of ten essentially doesn't have a lawyer anymore unless there are exceptional circumstances and the court appoints a lawyer to act as an independent children's lawyer.

Damien Carrick: In the Children's Court lawyers act on the instructions of their child clients. The lawyers put to the court what the child wants. In contrast, lawyers in Family Court disputes don't put to the court what the child wants but rather what they determine is in the best interests of that child.

In January 2012 an enquiry into protecting vulnerable children, led by Justice Philip Cummins, handed down an extensive report. The Victorian government and Legal Aid Victoria both say that the March legislation implements Justice Cummins' recommendations regarding this distinction between acting on instructions and acting in the best interests. But Howard Draper sees it differently. He thinks the legislation overturns a long-standing view of the court that children should have their voices heard.

Howard Draper: The court felt that around the age of seven was the sort of age where a child was capable of giving those instructions. They formed that view on the basis of expert evidence or opinion given by the Children's Court clinical psychologist there many, many years ago, I think 20, 25 years ago. So that has been the tradition, that a child of the age of seven or a particularly capable child even younger than that, six-and-a-half or six even who is capable of giving instructions would be represented by a lawyer.

Damien Carrick: So up until now children as young as seven have been having their own legal representatives, but that situation has just changed in Victoria. What changes have been introduced?

Howard Draper: Look, the Cummins enquiry…Justice Cummins conducted a very thorough enquiry and looked at all the issues, and he made a recommendation, number 53, which was that essentially all children under the age of ten should cease to be represented on the instructions model and be represented on the best interest model. We've considered that and essentially we accept that. If that is what the government did, we would be saying that's what Justice Cummins recommended, that's a fair enough approach to take because there are difficulties in acting for children under the age of ten. In fact there are difficulties acting for anyone, quite frankly, but the younger they are the more difficult it can get because clearly young children perhaps don't understand the issues, perhaps aren't all that realistic sometimes, and if Justice Cummins has made that recommendation we are quite prepared to accept that.

The difficulty now is that the government has taken away the right completely, unless there are exceptional circumstances, and my experience so far is that exceptional means exceptional, like one in 50 or whatever, one in 100. We believe that if you are going to adopt Justice Cummins' recommendations you should adopt all of them, which is that every child under the age of ten should be represented on the best interest model.

Damien Carrick: Now, can you tell me about some of your clients and why you think this change to the law would not be in their best interests?

Howard Draper: As a lawyer I have a fundamental problem with taking away the right to representation because the current legislation still says that the court has to satisfy itself that the child can participate in the proceedings and understand the proceedings, understand the orders made and participate fully in the proceedings. Without a lawyer they can't do that, and at this stage…I mean, the court is doing absolutely nothing to satisfy itself that the child is able to participate or understand or have any idea of what's going on in court, they are simply shut out entirely.

Damien Carrick: Howard Draper says many of his young clients are feeling the effects of these changes.

Howard Draper: We're not just talking about children who have recently been appointed a lawyer. I have clients that I might have represented for one, two or three years because I started representing them when they were six-and-a-half or seven and they are now nine-and-a-half, nearly ten, and I have to say to them, sorry, you might have had a lawyer all this time, you don't have one now, sorry, your older brother and sister may have a lawyer but you don't get one. I can't even do it pro bono, I can't even do it as a friend of the court, I just can't do it.

Damien Carrick: Tell me about some of your clients, in a de-identified way.

Howard Draper: Well, for instance I had a situation where I represented three children from one family, two girls who were older, they were 16, one was a little boy about the age of nine. It was a situation where there was domestic violence. The father had been abusive to the mother in the presence of the children. The older girls said to me, well, yes, there are problems, mum and dad shouldn't be together, we don't want to live with both of them, they are separated now, but we don't mind seeing dad, he is okay with us, he treats us well, we want to go and visit him, stay with him. That's all good.

The little boy on the other hand said, well no, I'm scared because of what dad has been doing in front of me to my mother, I'm scared to even see him at all, let alone in a supervised capacity. Now, the reality is that I had to represent the two girls' interests because they were 16 and they still had a lawyer and I had to abandon the little boy and he didn't have a voice in court. So there was no one in court to tell the court what his fears were, what his concerns were. The court was going to hear that the 'children' wanted to see their father, they weren't going to hear that the nine-year-old was scared of their father.

Damien Carrick: And what happened in that case?

Howard Draper: Well, luckily he turned ten before any final decisions were made, so he got a lawyer, and I kind of manipulated it so that that would be the case. I adjourned it long enough so that he would turn ten, he could get a lawyer and he could say that. So that wasn't so bad, but if he had have been eight it would have been so bad, in my view. Sure, the mother and whoever might have said to the court, hang on, the little boy is not the same as the older sisters, but it's much better if he's got his own lawyer who can say those things and ensure that the appropriate orders are made.

Damien Carrick: And presumably there are a lot of kids who are not on the cusp of turning ten.

Howard Draper: Absolutely. I've got a little girl who has been placed out of the care of her mother a long time ago because her mother had drug issues, mental health issues and all the rest of it, she is living with her aunt. That aunt developed her own mental health issues and drug issues, she was removed from the care of her aunt. Her father is either dead or off the scene completely, I can't remember, there are no other family members. So this little girl was placed into foster care.

Her mother doesn't have a voice, her aunt doesn't have a voice in the sense that they don't come to court to put any point of view, they are so dysfunctional they are not coming to court. So this little girl is going through the system without any lawyer to say what she wants or what she doesn't want, whether she is happy where she is, whether there are other family members she could live with, whether she would like to go back to the aunt if the aunt just got some treatment for her mental health issues, and so on and so forth. She's just sitting back wondering what is going on.

Damien Carrick: As, what, Department of Human Services caseworkers tell the court what they think is in her best interests?

Howard Draper: Correct.

Damien Carrick: Maybe the argument could be put that they are best placed to tell the court what the options are and what her best interests are.

Howard Draper: You'd hope so but unfortunately it's not always the case. They are busy, they've got a high workload, they've got to talk to a lot of people. If they do an apprehension, for instance, which means they take a child into custody and bring it to court and say the child has to be removed from the family, they might have to talk to 20 people in the course of one evening—the police, the family, the grandparents, the aunts, the uncles, the parents themselves, whoever, the school, the doctors, everything—and the child often comes a distant third or fourth or 20th in the list of people that they really take proper instructions from. And it's a very highly emotional time, a crisis time, and everyone is upset. It's very hard to get a clear view from a young child as to what they want.

I can tell you of a specific example, it wasn't me but it was a colleague of mine who was asked to speak to a child when we were doing a pro bono, the child was eight, the department's view was that she was too scared to even come to court, she was so scared of her parents because of the domestic violence and everything that had happened recently. My colleague went to the DHS office, spoke to the child who not only said, 'No, I'm not actually scared of my mother anyway, I want to live with and I miss her greatly and I'd be very sad if I wasn't placed with my mother.' My colleague went back to the court, had to run a contest because the department said the child should be out of the parents' care. He ran the contest, the child went back to the care of the mother and by all accounts it has worked out very well for everybody. Now, without that voice, that child would most certainly have been placed in foster care and most certainly the mother would still be trying to get the child back into her care and most certainly it wouldn't have worked out very well.

Damien Carrick: Do you have clients who are in foster care as well?

Howard Draper: Oh yes, lots and lots. I couldn't tell you the numbers.

Damien Carrick: Foster care is somewhere which is designed to be safe, away from perhaps dysfunctional families, but do you have clients who tell you otherwise?

Howard Draper: Oh yes. If you want another example of a child under the age of ten, I saw him recently, he'd just turned eight, I saw him on a pro bono basis a little while ago. He said to me, 'Well, as a matter of fact I'm very, very, very unhappy where I am. I am scapegoated, they wash my mouth out with soap, they do all sorts of nasty things to me, I'm very unhappy at school, no one is doing anything about it, my siblings bully me, no one is doing anything about it.' The best I could do in that situation was alert the department to the issues, which I did at court. They've done a quality of care assessment. They say that they are working on the situation and it's a lot better than was described to me by my client a couple of months ago. And the next thing I can do is write to the Children's Commissioner and raise those issues, because one of his roles is to look at children in care. Again, if that child hadn't spoken to me, no one would know anything.

Damien Carrick: And as of March you can't act for him and you can't instigate proceedings in the Children's Court.

Howard Draper: Correct. But I can tell you of another example of a child who was placed in foster care, and that child…it hasn't been proven but from what the child says and what my understanding of what the investigation is that she was probably sexually abused in foster care. If a child doesn't have a voice, the child can't talk to their lawyer about what's happening, isn't it more likely to happen than if the child does have a lawyer?

Damien Carrick: Why is this happening? Is it simply a question of resources?

Howard Draper: The short answer is we don't really know. There has been a push from certain powers that be, I guess, in government areas, like the department and perhaps other areas, to say that children under the age of ten shouldn't be represented because they don't really understand what's happening.

Damien Carrick: There's a sense, isn't there, that perhaps lawyers acting for children complicate a situation, they just make the situation a lot more litigious and difficult and it's not the best way of resolving a problem or working out the best solution.

Howard Draper: Lawyers, we are not litigious because we think it's amusing, we are not litigious because we think it makes us more money, we desperately try to resolve matters in a collaborative fashion. The court has a system of new model conferences. Why are they new? Because the old model wasn't that good, they brought in a new model and we participate in them, and we work to resolve matters. Lawyers only litigate something when we have to. We only litigate something or argue about something if our client expresses to us that they have a genuine issue that needs to be resolved, and if the other parties aren't prepared to talk about it we will try and force them to talk about it through mediation, and if necessary we will take it to contest.

Damien Carrick: Realistically there is not a big bag of money which is about to be thrown at Legal Aid.

Howard Draper: No.

Damien Carrick: Do you see this changing at all?

Howard Draper: Well, Justice Cummins would like it to change. He said funding has to be increased dramatically, and I've got to say the Legal Aid funding deficit is around $3 million this year I believe, that's what they say.

Damien Carrick: In the Children's Court?

Howard Draper: No, all over, everywhere, in the whole state, which isn't much, quite frankly. I don't know what Justice Cummins' report cost the state of Victoria. I do know that it wasn't the only report. There was a Law Reform Commission report, there has been other reports. I'm guessing those reports in total over the last two or three years have cost far in excess of the $3 million. $3 million is a drop in the ocean. Anyway, having said that, no, no one is going to throw money at us because it doesn't seem to be of any political advantage to anybody.

Damien Carrick: Howard Draper, a lawyer who has been working in the Victorian Children's Court for the last 30 years.

I'm Damien Carrick and you're listening to the Law Report, broadcast each week on RN, ABC News Radio and Radio Australia.


Howard Draper
Victorian lawyer with thirty years' experience in the Children's Court


Damien Carrick
James Pattison

Comments (7)

Add your comment

  • me :

    22 May 2013 12:52:17pm

    Thankyou for your continuing coverage of Legal Aid & CLC funding disaster.
    What a cruel & false economy it is to take representation, phone advice & systemic advocacy from the most vulnerable in a complex & alienating system. Piling injustice on injustice will blow up in our face &/or pull us down into the depths of cracks full of despair so complete it is death.

      • Marney MacDonald from ALECOMM. :

        23 May 2013 8:48:49am

        i couldn't have said it better myself. and thankyou too ABC for this coverage.

        NSW is much the same. Women only receive 26% of the funding of legal aid, and many of these women are being denied representation in child proteciton proceedings, even when they have won their cases to have children returned home.

        If child protection had 50% of funds cut and given to the parents for legal aid, instead of the workers it would be a much fairer system and many children would benefit as a result.

      • crank :

        31 May 2013 9:59:35am

        The plain truth is that each new generation of Rightist regimes, here in the states and with Abbott to come and overseas, particularly in the Anglosphere, is more hate-ridden and vengefully vicious than those that came before. The targets of this positive lust to harm others and do them ill are principally welfare recipients, environmentalists, refugees, unionists, the low-paid etc, but a little sally to harm the interests of litigants in our fraudulent 'injustice' system brings its own peculiar pathopsychological rewards. And we ain't seen nothing yet-when Tony 'Mr Austerity' Abbott and his henchmen are finished, you will not recognise this country, unless you've been to the UK or USA lately.

  • Paul McDonald :

    23 May 2013 10:02:40am


  • Charles Bellis :

    24 May 2013 3:15:47am

    With the legal aid funding crisis, now might be a good time to examine new and different ways of dealing with the laws relating to children. The present adversarial system is already highly disadvantageous to parents, it rarely reaches conclusions in the best interests of children, and is a hugely costly process. In Family Law cases parents are thrown immediately into high conflict by the system, rather than seeking conciliation and cooperation, and children are denied a reasonable opportunity to participate in the decision-making processes which will determine their future lives.
    Replacing it with a Inquisitorial system would have many advantages, particularly for the children and young people involved and would be far less costly by minimising legal representation and the engagement of pseudo-professional expertise.

      • crank :

        31 May 2013 10:06:02am

        Charles, the 'adversarial' system is central to Rightwing psychopathology. In their perverted and desructive worldview, all social and inter-personal relations are adversarial. Their ideal society is the 'bellum omnium contra omnes', with everybody divided into 'winners' and 'losers'. That's why they worship competition and loathe co-operation and collaboration. Competition doesn't bring the best results-it divides people into the victors and the vanquished. It justifies the growing and deepening inequality seen in all late capitalist societies, of wealth, income, opportunity and general well-being. The Right prefer this system, and have been relentless in destroying any other types of social arrangements that have appeared on earth throughout history, because they fear and hate others.

  • Allan Gardiner :

    31 May 2013 8:08:33am

    Given the fact that a child below the age of 10 in Australia cannot be charged with a criminal offence, one can so easily draw the inference that the Victorian government, in attempting to redress the balance somewhat, has now -- by the same tok_en'joined --determined that its authority won't be offended against by being charged with fees.

    This predicament of children below the age of 10 in Victoria now no longer being represented by a lawyer will definitely not endure as does always a sound law proven, and accordingly, I can only grant the Victorian legislators a minimal mark well below 10 out of ten_tative.