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Wednesday, 31 October 2012 00:00

A & B v Children’s Court of Victoria (Supreme Court) – October 2012

A judicial review of a Children's Court determination that two children (aged 9 and 11) were not mature enough to be represented on a direct instructions basis. The case raised the proper interpretation of the legal representation provision of the Children, Youth and Families Act 2005 (CYFA) (section 524) compatibly with the rights of children to protection in their best interests, the right to equality and the right to a fair hearing.

The Commission intervened under the Charter to make submissions on:

  • the scope of the children's right in s 17 of the Charter and the importance of considering children's rights when determining whether an action is in their best interests
  • the scope of the rights to equality and a fair hearing and that these rights require the Children's Court to assess the particular child's stage of development and not make a decision about their maturity solely based on their age
  • the interpretation of the Children, Youth and Families Act compatibly with these rights (allowing a child to have direct instructions representation where they are mature enough to give instructions on any material issue and not necessarily all issues)
  • the application of the fair hearing right and equality right to the Children's Court.

Consistently with the relevant rights in the Charter, the Supreme Court held that, in assessing whether a child is mature enough to give instructions requires considerations of more than just a child's age and must also assess the child's development and capacity to give instructions. Children may be mature enough to give instructions on some matters and not others.

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