What are the different types of representation by lawyers for children and young people?

There are two main types of legal representation for children and young people:

Direct representation

What is it?

This is where a lawyer receives and acts on instructions from the child or young person and they owe the same duty of confidentiality that they would to an adult.

A direct representative generally becomes involved when they have been directly asked for help by you (like at court through the duty lawyer).

You need to be of an age and level of maturity that would allow you to form sound and reasoned judgments and understand the consequences of your decisions to provide instructions.

Where do you find it?

Mainly in criminal law (where you are charged with a criminal offence).

But it does also happen in child protection law (where the Department of Communities (Child Safety Services) is concerned about your safety and wellbeing) and family law (where your parents are trying to decide how to take care of you when they have broken up).

Best interests representation

What is it?

This is where a lawyer must put your views or wishes before the decision maker but does not have to follow what you want. They must look at all the evidence and make recommendations to the decision maker about what is in your 'best interests'. What they think is in your best interests can sometimes be different to what you want.

A best interests representative generally becomes involved when they have been appointed by the court (e.g. Children's Court or family court) or a tribunal (Children Services Tribunal).

Where do you find it?

Mainly in child protection law (where the Department of Communities (Child Safety Services) is concerned about your safety and wellbeing) and family law (where your parents are trying to decide how to take care of you when they have broken up).

In child protection law these Best Interests Representatives are called Separate Representatives.

In family law they are called Independent Children Lawyers (they used to be called Child Representatives).

For example: you may want to go and live back with your parents but there may be evidence to show that it is not safe for you to do that just yet - it is the best interests' representatives job to tell the court what you want but they may recommend to the court that what you want (to return home) is not in your best interests (because it is unsafe).

When is a child or young person old enough to get legal advice or get their own lawyer?

There is no clear rule that sets an age about when you can seek your own legal advice or instruct your own lawyer.

But generally you will need to be of an age and level of maturity that would allow you to form sound and reasoned judgments and understand the consequences of your decisions to provide instructions. The lawyer you talk to will have to decide whether you have the ability to instruct them directly.

Whether you can have your own lawyer will also depend on the type of matter it is.

The best way to find out is to contact a lawyer and talk it through.

You can ring Legal Aid Queensland on 1300 651 188 for free legal advice to find out. This will cost you the cost of a local call from a landline, mobile phone costs will depend on your provider.

When can you sue someone?

If you are under 18 you can't sue another person without a 'litigation guardian'.

A 'litigation guardian' is an adult whose name appears on the court documents and who is liable to pay the court costs if they are ordered to be paid by the child. Usually a parent can act as the litigation guardian.

Time limits relating to claims that you may have, generally start when you turn 18. However, time limits can be shorter in some actions involving personal injuries.

When can you be sued?

Whether or not you can be held liable (or responsible) for the consequences of a wrongful act will depend on the degree of reasonable care required in the particular situation. That standard of care will be what would normally be expected of a child that age.

All people are expected to act with 'reasonable care'. What is 'reasonable' depends on how old you are and how capable you are of understanding the consequences of your actions. Each case will be different depending on the maturity of the young person involved. If you did not exercise reasonable care, you are said to have been negligent. If you are found to have been negligent and your negligence caused injury or loss to another person, you may have to pay damages to that person.

When appearing or defending an action you need a litigation guardian (an adult who has agreed to act as such). The litigation guardian is not personally liable for costs unless guilty of some misconduct.

A parent will not be liable in tort (a legal wrong which is not an offence, but which may give rise to a liability for civil compensation) for the action of a child unless it can be shown that the act was done with the authority of the parent or that the parent did not exercise adequate control or supervision of a child.

Acknowledgement - Prepared using factsheets which are copyright to the National Children's Law Centre.