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Stage two - Interim hearings

Assessment criteria

For aid to be granted for an interim hearing the following tests must be satisfied:

Parties to proceedings:

Non-parties:

Direction representation:

 

Decision makers of a higher delegation

Party / Non-party

Requests for aid for solicitor at interim hearings will be referred to a senior grants officer for consideration.

Direct representation

Requests for aid for solicitor at interim hearings will be referred to a grants manager for consideration. 

Documentary requirements

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 along with:

  • Details of the interim order being sought, and
  • The Director of Child Protection Litigation’s (DCPL) position towards your client’s proposed interim order, and
  • When the final hearing is likely to be held (if applicable), and
  • Copy of the social assessment report (if available).
  • For non-parties - a copy of the s113 order allowing the non-party to participate in proceedings (if not already provided). 
  • The appropriate checklist.

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

 

Interpretation

Guideline 1.4 – child protection

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 1.3 – 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 DCPL, 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 includes:

  • where the applicant party 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 Children’s Court Rules (r68(3)) that Legal Aid Queensland consider giving legal assistance to the party.

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.

Merits test

When applying the merits test in the context of an interim hearing consideration will be given to:

  • Whether the applicant for aid is applying for or responding to an application in proceedings.
  • Whether there has been a material change in circumstances since the court made the assessment or interim order.
  • If the issue is sufficiently urgent so that it is essential that the issue is resolved prior to the next scheduled court date.
  • When the final hearing is likely to be held.
  • Whether the issue could be resolved by way of a case plan review meeting.

Grant(s) of aid

The interim hearing grants of aid available to parties, non-parties with a s113 order or children (direct representation) are:

  • CP7 – Interim hearing – solicitor (child protection)

This is a maximum fee grant of aid that allows for solicitor preparation and attendance at the interim hearing.

Extension(s) of aid

Attendances

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 two 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

Counsel

An extension of may be available for counsel at interim hearing if the nature and extent of funding criteria are met.

Other extensions

If the matter proceeds beyond stage two, 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).

 

Related links and information

Last updated 26 October 2018

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