How would a child make an application to the children’s court?

"Firstly this would depend on the child’s age. For example a child who is 12 years of age or older is assumed to have the capacity to instruct their legal representative to make an application to the Children’s Court. If the child is under 12 years of age, it may be considered that the child does not have the capacity to direct their legal representative and therefore the legal representative would not be bound by the child’s instructions.

 There are different pathways that might lead to a child making a section 90 application on their own behalf, these might include but are not limited to:

  1. Where a Section 82 report has been ordered by the Children’s Court and the child’s legal representative is not satisfied that proper arrangements have been made for the care and protection of the child; the child’s legal representative may consult with the child and seek instructions as to whether the child wishes to file an application to withdraw or vary the current care orders.
  2. Where the child (or other person) is of the opinion that there has been a significant change in any relevant circumstance since the care order was made; the child may seek legal advice on whether there are grounds to withdraw or vary the current orders.

 Where a child is under the parental responsibility of the Minister; a Caseworker from Community Services may give the child information in relation to how the child might make their own application to withdraw or vary a care order, this may involve facilitating the child’s access with their Lawyer. 

 If a child approached the Caseworker about a section 90 application, and the caseworker agreed, then Community Services would also be able to make the application on behalf of the child.

Note: Section 90(3A) discusses the situation where an application is made to the Children’s Court by a person (other than the Director-General of Human Services, Community Services), to withdraw or vary a care order (other than a contact order) in relation to a child [i.e. where the child makes the application]. Under these circumstances, if the application seeks to change the parental responsibility for the child or aspects of parental responsibility involved in having care responsibility for the child; and the Director-General is not a party to the proceedings, the applicant [child] must notify the Director-General of the application, and the Director-General is entitled to be a party to the proceedings. The Director-General may oppose the child’s application to withdraw or vary the care orders."

Jeevani Korathota - A/Director, Legal Services
(DoCS Ashfield Office).

 

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