Stage five - Appeal an interim or final child protection order

For legal aid to be granted for parties, non-parties or children (direct representation) to appeal an interim or final order the following tests must be satisfied:

Parties and non-parties to proceedings:

• the applicant meets the means test, and
• the applicant meets Guideline 1.9.1 – child protection, and
• the applicant must be named on the final order, and
• the applicant meets the merits test

Direct representation:

• the applicant meets Guideline 1.5 – child protection, and
• the applicant meets Guideline 1.9.1– child protection, and
• the applicant must be named on the final order, and
• the applicant meets the merits test

For legal aid to be granted for parties, non-parties or children (direct representation) to respond to an appeal initiated by the Director of Child Protection Litigation or the Office of the Child and Family Official Solicitor, the following tests must be satisfied:

Parties and non-parties to proceedings:

• the applicant meets the means test, and
• the applicant meets Guideline 1.9.2 – child protection, and
• the applicant must be named on the final order.

Direct representation:

• the applicant meets Guideline 1.5 – child protection, and
• the applicant meets Guideline 1.9.2– child protection, and
• the applicant must be named on the final order.

Requests for aid for parties, non-parties or children (direct representative) to directly appeal a decision by the Children’s Court for a child protection matter will be referred to a grants manager for consideration.

Requests for aid for parties, non-parties or a direct representative to respond to an appeal will be determined by a grants officer. 

Documentary requirements

Application received from client

Applicants to an appeal:

Applicants seeking a grant of legal assistance to initiate an appeal 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) – not applicable for direct representation matters.
• A summary (copy where available) of the reasons for judgment.
• Why you believe the decision made is wrong and what order you are seeking.

Respondents to an appeal:

• A completed and signed Legal Aid Queensland application form.
• Proof of income and assets (refer to the means test) – not applicable for direct representation matters.
• A copy of the Notice of appeal.
• A copy of the Child Protection Order.

Application received from preferred supplier or in-house practitioners

Applicants to an appeal:

Practitioners seeking a grant of legal assistance to initiate an appeal must electronically submit an application for aid via the Grants Online system along with:

• A summary (copy where available) of the reasons for judgment.
• A copy of the Child Protection Order.
• Details as to why an appeal is sought and what order the applicant is seeking, and
• An opinion in relation to the applicant’s prospects of success, and
• For direct representation matters – an opinion as to competence of the applicant child to provide instructions.
• The appropriate checklist.

Respondents to an appeal:

• A copy of the Notice of Appeal.
• A copy of the Child Protection Order.
• The appropriate checklist.

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

• A completed and signed Legal Aid Queensland application form.
• Proof of income and assets (refer to the means test) – not applicable for direct representation matters.
• All documentation as outlined in part G of the case management standards - family law and case management standards - civil law.
• A copy of the final order.

Interpretation

Direct representation matters

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 and attend at day one of an appeal a child protection order in the Children’s Court of Queensland (solicitor and counsel) is CPA.

Extension(s) of aid

The grant of aid to appear at additional days of an appeal of a child protection order in the Children’s Court of Queensland (solicitor and counsel) is CPA1.

Additional preparation

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

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

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).