For legal aid to be granted for parties, non-parties or children (direct representation) at a contested final hearing the following tests must be satisfied:
Parties to proceedings:
The delegation for consideration of preparation for final hearing for direct representation of a child is the Grants Manager.
Extension requests received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance must electronically submit an extension request via Grants Online attaching the appropriate checklist and include the following (if applicable):
- A copy of the social assessment report
- A copy of the psychologist report
The following documents may be submitted or retained on file but may be requested by Legal Aid Queensland:
Guideline 1.3 – different outcome
For the purposes of guideline 1.3 the applicant or their representative must verify that it is more likely than not that with representation the applicant will obtain a different outcome to that sought by the Director of Child Protection Litigation, for example an intervention without a formal order (parental agreement or care agreement) or a different type or duration of order.
There are four main types of child protection orders:
- ‘Directive orders’ - require the parent to do or not to do something directly related to the child’s protection. For example, a direction that the parent take the child for medical treatment. Other common directions concern contact. For example, the parent is only allowed to have supervised contact with the child.
- ‘Protective Supervision Orders’- allow the child to remain at home but also allow the Department of Child Safety to check on the child and have contact with the child and the parents.
- ‘Custody orders’ - give a suitable person or the department the right to day to day care of the child and to make decisions about the child’s daily care. In practice this decision making responsibility is usually delegated to the person caring for the child however the department will oversee them. For example, the carer will make the day to day decisions about what the child will eat each day, what clothes the child will wear and what daily activities the child will participate in, however the department will be responsible for ensuring those decisions are in the child’s best interests.
- ‘Guardianship orders’ - give a suitable person or the department custody of the child as well as all the powers, rights and responsibilities in relation to the child that a parent would have. For example the right to make long-term decisions about the child’s care, welfare and development including decisions about where the child will go to school, the child’s name, what religion the child will be and whether the child needs ongoing medical treatment.
Guideline 1.3 – assistance to the court
Guideline 1.3 may also be met if it is determined that legal representation is required to assist the court in deciding a child protection application.
Circumstances where Legal Aid Queensland may consider the provision of legal assistance is required to assist the court include:
- where the applicant has difficulty understanding the nature, purpose and legal implications of the proceedings, orders or rulings.
- the party has a disability (i.e. mental health issue, intellectual disability or cognitive impairment), or difficulty communicating in English.
- where the court has made a direction under the Childrens Court Rules (r68(3)) that Legal Aid Queensland consider giving legal assistance to the party.
Guideline 1. 5 – 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.
Grant(s) of aid
The grant of aid to prepare for a contested final child protection hearing (solicitor only) and appear at two court attendances is CP9.
Extension(s) of aid
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.
Family group meetings / Case plan review meetings
The CP6 grant of aid is available if a practitioner is required to attend a further family group meeting or case plan review meeting during stage three of proceedings.
This is a maximum fee grant of aid that allows for:
- preparation and attendance at a subsequent family group meeting or case plan review meeting
- attendance at a further court mention
An extension of aid may be available for counsel to prepare for a contested final hearing and additional preparation for counsel if the nature and extent of funding criteria are met.
If the matter proceeds beyond stage three, extensions of aid may be available to continue representation at the following stages:
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).