The Children’s Court is a division of the Magistrates Court. It determines child protection matters, including care and protection orders and assessment orders. The information on the Children’s Court website provides useful information for the parents or guardians of children involved in child protection matters.
A child and the child’s guardians are entitled to access all the evidence behind the allegation that a child is ‘at risk’. For instance, there may be statements from people or other evidence of a failure to supply necessary food, supervision and medical treatment. As a matter of practice, the Department of Health does supply to the child, their guardian or their legal representative, statements of witnesses outlining the evidence each witness will give. This is especially important in the case of an expert witness, for example a doctor or psychiatrist.
Failure to supply the statement (or ‘proof of evidence’) of an expert before a hearing starts is a ground to delay the hearing (also called ‘an adjournment’) of the hearing after the evidence is given during the hearing. This gives the other party an opportunity to prepare cross-examination of that witness and consult other experts on the evidence given. If a statement of an expert witness is supplied before the hearing date, then consideration should be given to consulting another expert on its contents. A request should also be made to the Department (if the child is in its care) for any expert proposed to be called on behalf of the guardian or child, to examine the child where this is appropriate (for example to test the opinion presented by the Department’s psychiatric expert). The Department will usually co-operate with such a request.
When the court proceeds on the appointed day to hear the case in full, witnesses for the Department are called and the child or its guardians have the right to cross-examine this evidence. The Department has the right to re-examine those witnesses to clear up any matters raised in cross-examination.
After the Department’s witnesses have given their evidence, the child or its guardians have the right to give evidence and call witnesses to support their opposition to the application. It is important to have legal representation to assist in deciding what evidence to call and who should give it.
Rules of Evidence
While the rules of evidence do apply in proceedings under this Act, they are not applied inflexibly. The court has some discretion and will not apply the rules of evidence where it would prejudice the best interests of the child (s63, CYPFA). Accordingly, it is possible to have hearsay evidence admitted into evidence that ordinarily would be inadmissible (not accepted by the court). An example of this might be a witness who tells the court what a parent said or admitted to in relation to the child or children subject to the hearing.
Parties to applications under this Act include the Secretary of Department of Health, the child and each guardian of the child (s64). The court may hear and determine an application for an order in the absence of a party to the application (s66). It may also join a person who is not a party to the proceedings where it intends to make an order binding upon that person (s67). If the court dismisses an application under this Act by the Secretary, the court may make such order for costs against the Crown in favour of any other party to the proceedings as the court considers appropriate (s68).
Importantly, the Act expressly provides that the court must not proceed to hear an application unless the child is represented by a lawyer (s59(1)(a)) or the court is satisfied that the child has made an informed and independent decision not to be so represented (s59(1)(b)). Occasionally the hearing will proceed without a lawyer however in using its discretion the court must be of the opinion that it is in the best interests of the child (s59(2)). The court may decide to order that a child be separately represented to better serve the interests of the child.