Separate Representatives (Qld)

In Queensland, child protection matters are governed by the Child Protection Act 1999 and heard in the Children’s Court. Child protection matters involve the Department of Communities (Child Safety) and the child’s family. Matters are initiated when the department is concerned that a child is at risk. In some child protection matters, a legal representative known as a separate representative is appointed to represent the best interests of the children to the court. This page deals with the role of separate representatives in child protection matters.    

Legislation

Under section 99Q of the Child Protection Act 1999, the court may order the appointment of a separate representative if it considers it is in the child’s interests to do so. When this occurs, the court will ask Queensland Legal Aid to appoint a person to act as the separate representative for the children.

What is a separate representative?

A separate representative is a lawyer who is a party to a child protection proceeding. The separate representative must speak to the children and assess what is in their best interests. They must then act in the best interests of the children and present their views and wishes to the court.

The role of a separate representative is different to the role of a lawyer who is acting on a client’s instructions. A lawyer who acts for a client, for example, the mother in a child protection matter, acts on their client’s instructions and advocates for the outcome that the client instructs them to advocate for. In contrast, a separate representative acts in the best interests of the child. This means that the separate representative may or may not advocate for the outcome that the child wants.

In some cases, the separate representative may form a view as to what is in the best interests of the child that is different to the child’s view. For example, the child may wish to live with a parent who the separate representative does not consider to be a safe or a suitable carer. In this situation, the separate representative will convey the child’s views and wishes to the court but make submissions that are not in line with what the child has indicated they want to happen.

In other cases, the child may be too young to express views about the matter. If that is the case, the separate representative will have to arrive at their own assessment as to what is in the child’s best interests.

What information can they access?

Separate representatives are entitled to information about the children they represent. However, they will not be provided with departmental files, material that is subject to legal privilege or material whose disclosure would endanger a person’s safety or psychological health.

How do they assess what is in the child’s best interests?

A separate representative will make an assessment based on all the information that is available to them. This will include the information they are provided by Child Safety, their conversations with the child, and their conversations with others who have been involved with the child such as teachers and counsellors. The separate representative may also request reports from other professionals such as social workers, psychologists or psychiatrists where this is appropriate.  They may also request a social assessment report.

Social assessment reports

A social assessment report is a report prepared to help the court understand the child’s family situation. It is prepared by a social worker or psychologist after interviewing the child and members of their family.

Child protection hearings

If a child protection matter proceeds to a final hearing, the separate representative will participate in that hearing in the same way as the lawyers for the other parties. This may include Child Safety and any members of the child’s family who are opposing the application. The separate representative may cross-examine witnesses called by other parties, call witnesses to give evidence, and make submissions as to the orders the court should make. These submissions may or may not align with the submissions made by one or more of the other parties.

Legal representation of children

Under section 99S of the Child Protection Act 1999, a child who is represented by a separate representative may also be represented by a lawyer. This means that a child may have a lawyer who acts on their instructions as well as a separate representative, who represents their best interests. However, in practice, this is uncommon.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.