By Paula Gerber and Melissa Castan

Two sisters aged 9 and 11 have just won a Supreme Court case in which they were claiming that they had the right to instruct their own lawyer. In A & B v Children’s Court of Victoria, the sisters were the subject of protection applications after one of them sustained a bloody nose following a physical assault by their mother. The other sister witnessed the assault and experienced significant distress as a result. The children were removed from their mother’s care and began living with their aunt. They each gave instructions to a solicitor from Victorian Legal Aid that they wanted to continue living with their aunt and to have no contact with their mother. They told the solicitor that they “do not want to see her, talk to her on the phone or receive any correspondence from her.”

The Children’s Court found that the two girls were not mature enough to give instructions to a lawyer and therefore should be represented by a lawyer who acted in accordance with what the lawyer considered to be in the best interest of the children, rather than according to the children’s express wishes. Such representation prioritises what an adult considers to be in the best interests of a child over the child’s own wishes.

The Honourable Justice Garde, in a landmark ruling, overturned the decision of the Children’s Court, stating that in assessing whether children are mature enough to give instructions the court is required to:

“have regard to considerations wider than the child’s age alone  … [and] requires an assessment of the child’s development and capacity to give instructions. This is dependent on whether the child can understand the nature of some or all of the issues in the proceedings and is able to appreciate the consequences which may follow from the instructions that are given, and the decisions being made.” [para 104]

His Honour found that the sisters had the capacity, insight and language to be able to give instructions to a lawyer on many of the issues in the case, and that the Children’s Court erred in assessing their maturity on the basis of their chronological age alone. Further, the fact that they may not have been mature enough to give instructions on some matters (relating to allegations of sexual abuse and drug usage) should not impact on their capacity to give instructions on the key issue of whether they wished to have any contact with their mother.

The decision of the Victorian Supreme Court is consistent with the UN Convention on the Rights of the Child which recognises that children have a right to be heard and participate in decisions that affect them. Justice Garde referred to the Convention and international case law surrounding it extensively in his judgment. Article 12 provides that:

1.States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The UN Committee on the Rights of the Child has issued a General Comment elaborating on exactly what Article 12 means. In this General Comments they explicitly discourage governments and courts “from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him”. They also make it clear that a lawyer representing a child should act on the basis of the child’s instructions, not on the basis of what they perceive to be in the best interest of the child.

In light of this international human rights norm and Justice Garde’s decision in A & B v Children’s Court of Victoria, the Victorian Government’s reported plans to remove the right of children under 10 to be represented by lawyers in child protection cases, is a concern. The Government appears to be doing exactly what Justice Garde and the UN Committee on the Rights of the Child have both cautioned against, that is, assessing children’s maturity based solely on a chronological number, rather than a wider consideration of their capacity, maturity and wishes.

Children have a right to be heard in decisions that affect them and the Victorian Government should reconsider its plans to deny children under the age of 10 the right to instruct a lawyer to represent them in child protection cases. When it comes to children, it is clear that one size does not fit all, and assessments should be made on a case by case basis as to whether a child is mature enough to instruct a lawyer, rather than according to an inflexible rule based on arbitrary factors such as the child’s age.