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Whatsapp Critics of the legislation say many children will have no voice in child walfare cases.

In the past, children under ten in Victoria were entitled to a lawyer who could advocate for their interests in court. Now, a new state government decision means vulnerable children will only have voice in Children's Court under exceptional circumstances. Damien Carrick spoke to a veteran lawyer in the field who says children now have no agency in some of the most important decisions in their lives.

As of March children under ten in the Victorian Children's Court no longer have their own lawyers in child welfare proceedings, unless there are exceptional circumstances. 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.

In the Children's Court, lawyers act on the instructions of their child clients. The lawyers put to the court what the child wants. Up until March, children as young as six were deemed capable of giving a lawyer instructions and could be assigned lawyers. 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.

Childrens court 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... She's just sitting back wondering what is going on.

In January 2012 an inquiry 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.

Howard Draper is a Victorian lawyer with 30 years experience in the Children's Court. He is not critical of the Cummins report but he is very critical of what he regards as a twisting of the recommendations by government.

'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…. If that is what the government did, we would be saying that's what Justice Cummins recommended, that's a fair enough approach.'

‘The difficulty now is that the government has taken away the right completely, unless there are exceptional circumstances, and my experience so far, exceptional means exceptional, like one in 50 or 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.'

Mr Draper says many of his young clients are feeling the effects of these changes. He says he represented three children from one family, two 16-year-old girls and their 9-year-old brother. There was domestic violence in the home. The father had been abusive to the mother in the presence of the children. The older girls told Mr Draper that now that their parents had separated they were happy to see spend time with their father and stay at his house.

The little boy however did not want to see his father. He remained frightened of his father and did not want to see him.

'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.' Mr Draper was able to delay a final decision until the boy turned 10. This meant Mr Draper was able to convey the boy’s views to the court.

Mr Draper says in the future, such children will have no voice. He is acting for a girl who has been removed from her mother because of mental health illness and drug use.

'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, there are no other family members. So this little girl was placed into foster care.'

'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….She's just sitting back wondering what is going on.'

Mr Draper does not believe that Department of Human Services caseworkers can replace the role of lawyers in ascertaining the views of children and conveying them to the court.

'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.'

Children removed from abusive families are placed in foster care. However, on occasion foster homes can also be dysfunctional. Mr Draper says an eight-year-old boy in foster care recently told him:

'"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.' As of March Mr Draper will no longer be able to intervene in such cases.

There is a perception that lawyers acting for very young children can complicate a situation, make a difficult situation more litigious. This view was expressed in a number of submissions made to the Cummins inquiry.

Mr Drapers rejects this view. '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… We only litigate 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.'

Find out more on the Law Report.