Going to court and getting a lawyer
What are the different types of representation by lawyers for children and young people?
There are two main types of legal representation for children and young people:
Direct representation
What is it?
This is where a lawyer receives and acts on instructions from the child or young person and they owe the same duty of confidentiality that they would to an adult.
A direct representative generally becomes involved when they have been directly asked for help by you (like at court through the duty lawyer).
You need to be of an age and level of maturity that would allow you to form sound and reasoned judgments and understand the consequences of your decisions to provide instructions.
Where do you find it?
Mainly in criminal law (where you are charged with a criminal offence).
But it does also happen in child protection law (where the Department of Communities, Child Safety and Disability Services is concerned about your safety and wellbeing) and family law (where your parents are trying to decide how to take care of you when they have broken up).
Best interests representation
What is it?
This is where a lawyer must put your views or wishes before the decision maker but does not have to follow what you want. They must look at all the evidence and make recommendations to the decision maker about what is in your 'best interests'. What they think is in your best interests can sometimes be different to what you want.
A best interests representative generally becomes involved when they have been appointed by the court (eg Children's Court or Federal Circuit and Family Court of Australia) or a tribunal (Children Services Tribunal).
Where do you find it?
Mainly in child protection law (where the Department of Communities, Child Safety and Disability Services is concerned about your safety and wellbeing) and family law (where your parents are trying to decide how to take care of you when they have broken up).
In child protection law these Best Interests Representatives are called Separate Representatives.
In family law they are called Independent Children Lawyers (they used to be called Child Representatives).
For example: you may want to go and live back with your parents but there may be evidence to show that it is not safe for you to do that just yet - it is the best interests' representatives job to tell the court what you want but they may recommend to the court that what you want (to return home) is not in your best interests (because it is unsafe).
When is a child or young person old enough to get legal advice or get their own lawyer?
There is no clear rule that sets an age about when you can seek your own legal advice or instruct your own lawyer.
But generally you will need to be of an age and level of maturity that would allow you to form sound and reasoned judgments and understand the consequences of your decisions to provide instructions. The lawyer you talk to will have to decide whether you have the ability to instruct them directly.
Whether you can have your own lawyer will also depend on the type of matter it is.
The best way to find out is to contact a lawyer and talk it through.
When can you sue someone?
If you are under 18 you can't sue another person without a 'litigation guardian'.
A 'litigation guardian' is an adult whose name appears on the court documents and who is liable to pay the court costs if they are ordered to be paid by the child. Usually a parent can act as the litigation guardian.
Time limits relating to claims that you may have, generally start when you turn 18. However, time limits can be shorter in some actions involving personal injuries.
When can you be sued?
Whether or not you can be held liable (or responsible) for the consequences of a wrongful act will depend on the degree of reasonable care required in the particular situation. That standard of care will be what would normally be expected of a child that age.
All people are expected to act with 'reasonable care'. What is 'reasonable' depends on how old you are and how capable you are of understanding the consequences of your actions. Each case will be different depending on the maturity of the young person involved. If you did not exercise reasonable care, you are said to have been negligent. If you are found to have been negligent and your negligence caused injury or loss to another person, you may have to pay damages to that person.
When appearing or defending an action you need a litigation guardian (an adult who has agreed to act as such). The litigation guardian is not personally liable for costs unless guilty of some misconduct.
A parent will not be liable in tort (a legal wrong which is not an offence, but which may give rise to a liability for civil compensation) for the action of a child unless it can be shown that the act was done with the authority of the parent or that the parent did not exercise adequate control or supervision of a child.
Acknowledgement - Prepared using factsheets which are copyright to the National Children's Law Centre.
Do I need legal advice?
You may need legal advice if you
- have been charged with a criminal offence or the police want to interview you
- have concerns about family court matters where decisions are being made about you
- need to know whether you can be sued, or if somebody can sue you.
Get legal advice
Legal Aid Queensland may provide legal advice about many areas of criminal law, family law and civil law. If you aren't sure whether you need a lawyer, you can call Legal Aid Queensland and talk to somebody who can help you.
The following organisations may also be able to give legal advice on your matter.
Youth Advocacy Centre provides a community legal and social welfare service for young people under 17.
Lawmail is a legal advice service for young people that provides free legal advice to people under 18 via email.
YFS Legal provides legal information and advice to young people aged under 25.
Community legal centres give legal advice on a range of topics. Contact them to see if they can help with your matter.
Queensland Law Society can refer you to a specialist private solicitor for advice or representation.
Who else can help?
These organisations may also be able to assist with your matter. They do not provide legal advice.
Kids Helpline provides 24 hour free and confidential telephone, online and email counselling service for children aged 5 to 18 years.
Create is a not for profit organisation helping young people placed in out-of-home care, including young people who are unable to live with their parents and may be in living in foster care, with relatives or community, group homes or some other form of independent living.
Department of Communities, Child Safety and Disability Services is the government department responsible for protecting children and young people from harm or who are at risk of harm, and whose parents cannot provide adequate care or protection for them.
Office of the Public Guardian is an independent body, working to protect the rights and interests of children and young people in out-of-home care (foster care, kinship care), residential care, youth detention and other supported accommodation.
Federal Circuit and Family Court of Australia makes decisions about family law cases and provide general information on family court processes on their website.
Queensland Civil and Administrative Tribunal can review some decisions that have been made about children and young people
Last updated 9 November 2021