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Stage one - Vary or revoke a child protection order

Assessment criteria

For legal aid to be granted for parties, non-parties or children (direct representation) to apply for, or respond to an application to vary or revoke a child protection order, the following tests must be satisfied:

Parties to proceedings:

Non-parties:

Direct representation:

Documentary requirements

Parties and non-parties seeking a grant of legal assistance should forward all of the following documents for assessment:

  • A completed and signed Legal Aid Queensland application form.
  • Proof of income and assets (refer to the means test).
  • A copy of the Child Protection Order
  • A copy of the current case plan (if applicable).
  • The applicant should also provide further information about the case for example:
    • Details of any change in circumstances since the protection order was made
    • Brief details surrounding the child protection history and why the child/ren was / were placed into care.
    • Details of the steps taken by the applicant to address any issues raised by the department in the current case plan (if applicable).

Children (direct representative) seeking a grant of legal assistance should forward all of the following documents for assessment:

  • A completed and signed Legal Aid Queensland application form.
  • A copy of the child protection order.
  • A copy of the current care plan (if applicable).
  • The applicant should also provide further information about the case for example:
    • Details of any changes in circumstances since the child protection order was made.
    • Whether the Director of Child Protection Litigation is agreeable to the protection order being varied or revoked.
    • Details of the orders being sought.
    • If the order is due to expire shortly, has the Director of Child Protection Litigation given any indication that they are intending to apply for a further order.

Applications received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance must electronically submit an application via Grants Online with the appropriate checklist and include the following:

  • Parties and non-parties to proceedings
    • Proof of income and assets (refer to the means test)
    • An opinion as to the applicant’s prospects of success and details about the case for example:
      • A copy of the child protection order and reasons for judgment.
      • Details of any changes in circumstances since the protection order was made.
      • Brief details surrounding the child protection history and why the child/ren was/ were placed into care.
      • Details of the orders being sought.
      • A copy of the current care plan (if applicable).
      • Details of the steps taken by the applicant to address any issues by the Department in the most recent care plan
      • An opinion regarding the prospects of success
  • Children (direct representation)
    • An opinion as to the applicant’s prospects of success and details about the case for example:
      • Details of any changes in circumstances since the child protection order was made.
      • Brief details surrounding the child protection history and why the child/ren was/ were placed into care.
      • A copy of the current care plan (if applicable).
      • An opinion regarding the prospects of success

 The following documents may be submitted or retained on file but may be requested by Legal Aid Queensland:

Interpretation

Guideline 1.4 – child protection (non-parties)

In order to satisfy guideline 1.4, an order has to have been made under s113 of the Child Protection Act 1999 allowing the applicant for aid to participate in the proceedings.

Non-parties

s113 of the Act allows the court to join as parties to a proceeding, significant people in the child's life. The court has discretion to make an order allowing these people to participate as a 'non-party'. 

The order must indicate how and when the person will take part. For example, a non-party may be allowed to participate in the whole of the proceedings or only a specified part. The order may also provide that a non-party be treated as a party for some or all provisions under the Act. 

When considering the merit of funding a non-party for an interim hearing, consideration is given to any conditions contained within the s113 order, in relation to how the person may take part and whether that participation is allowed until the proceedings end, or only to a stated part of the proceedings.

Guideline 1.5 – child protection (direct representation)

Competent to provide instructions

In considering an application for legal assistance by a child, the age of the child is not a determining factor as to whether the child is competent to provide instructions.

Legal Aid Queensland considers in line with the authority in Gillick, that an applicant child is competent to provide instructions when:

  • They have an understanding of the impact of any decisions they are making.
  • They are willing to give instructions to a lawyer.
  • The child has sufficient intellectual capacity and emotional maturity to understand the basis of their application.

In making a determination as to the competence of an applicant child to provide instructions to a lawyer, Legal Aid Queensland will take into consideration the opinion provided by the practitioner who provided the initial advice to the applicant child.

Allocation of a solicitor

Direct Representation matters

Representation for children in child protection proceedings will be provided on an in-house basis unless there is a conflict of interest.

The in-house practice will make a determination as to the competence of a child to provide instructions to a solicitor under the legal advice scheme, unless there is a conflict of interest.

If a conflict of interest exists, Legal Aid Queensland will provide funding to a preferred supplier to meet with the child, assess their ability to provide instructions and provide them with initial advice and representation.

Grant(s) of aid

The initial stage one grant of aid available to parties, non-parties with a s113 order, or children (direct representation) is CPR1.

The CPR1 grant is a maximum fee grant of aid that allows for:

  • reading of material
  • providing advice
  • preparation of material
  • attendance at a court mention

Extension(s) of aid

The CP2 grant of aid is available if a practitioner is required to attend a Family Group Meeting or Case Plan Review Meeting.

The CP3 grant of aid is available if a practitioner is required to attend at more court attendances than provided on any existing grants of aid.

The CP3 grant of aid allows for appearances at a further 2 attendances and can be issued more than once if required.

Court attendances include appearances at court for a mention, hearing, or attendances to inspect subpoena material.

An extension of aid may be available for additional preparation during stage one if the nature and extent of funding criteria are met.

If the matter proceeds beyond stage one, extensions of aid may be available to continue representation at the following stages:

Decision makers of a higher delegation

Requests for aid to vary or revoke a protection order will be referred to the grants manager for consideration.  If the grants manager approves aid to vary or revoke an order, grants officers can assess all extension of aid requests in accordance with standard tests.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the External Review Officer (refer to review of decisions).

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