License article

Justice fear as Legal Aid cuts bite

CHILDREN who are entitled to free representation in child protection cases are relying on the generosity of pro-bono lawyers because Victoria Legal Aid can no longer afford to help them, says the president of the Children's Court.

Until recently, children deemed mature enough to instruct a lawyer were automatically given a grant of legal aid.

But Judge Paul Grant said changes to Victoria Legal Aid's guidelines - which scrap funding for maturity assessments and automatic representation for children under 10 - could mean children had less access to justice.

''We are now in a position where the court is making orders that take into account the best interests of the child, whereas Victoria Legal Aid may be making decisions based on how much money they have got,'' he said.

Judge Grant said lawyers had stepped in to assess the maturity of seven, eight and nine-year-olds since the widest-ranging changes to VLA guidelines came into effect last Monday. But he said their generosity could not go on forever.

''I want to publicly record my gratitude to the private lawyers for assisting the court in this way.''


He said he was concerned VLA would not fund the representation of children who the court believed were mature enough to give instructions.

''They may decide not to fund the case and this forms a real difficulty for the courts. There is a real question about the future management of that case and that is what is so concerning for me … what flows from the failure to represent a child is not clear at this stage.''

Last week, five matters were adjourned after the court deemed seven, eight and nine-year-olds mature enough to give instructions and waited to hear if VLA would fund their legal representation.

In December, Judge Grant wrote to VLA and asked them to defer their decision to cut funding for children under 10 until changes were made to the Children, Youth and Families Act.

''I think it is unfortunate that they have elected to reduce funding in cases for seven, eight and nine-year-olds who in the opinion of the court are mature enough to give instructions.''

Following recommendations in Protecting Victoria's Vulnerable Children inquiry, the state government announced it would change the law so the age at which children were automatically presumed mature enough to give direct instructions to a lawyer increased from seven to 10.

Judge Grant said while the proposed move was sensible, until the law changed, the court was required to follow a judgment handed down in December that found children aged seven and over may have the capacity to give instructions.

''If the law changes we might be in a different position but given the current law, I think we have a problem.''

He also said if child protection applications continued to rise at their current rate, as a result of stronger state government policies against family violence, the Children's Court would not be able to cope with its caseload.

''The main issue confronting the Children's Court is the rising demand in child protection applications. Our courts, which are already overcrowded, are becoming more overcrowded.''

A government spokesman said the Coalition was consulting widely about proposed reforms to the family division of the Children's Court to ''prioritise the interest of neglected and abused children when decisions are being made about their future.''

A Victoria Legal Aid spokeswoman said it had received requests from the Children's Court for children under 10 to be legally represented but no decisions had been made.

She said the change to the guidelines was in line with the Cummins inquiry into protecting vulnerable children. ''We have to make thoughtful decisions about who gets legal aid as Legal Aid funds are finite and we must set priorities for spending those limited funds.''