Advice Leaflet 5: Changes to Legal Aid
In February 2012 Legal Aid NSW amended their policy to remove the Merit Test for care and protection proceedings in the Children's Court where the legal aid applicant is a person who has parental responsibilty for a child or young person or has had an aspect of parental responsibility removed by a court order.
However, before funding a grant for a final hearing Legal Aid NSW must be satisfied that the legally assisted person has reasonable prospects of achieving a better outcome than that which is in the care plan.
(Legal Aid NSW policy bulletin no. 2/12)
Implications for parents
The implication of this change of policy seems to be that parents with a Legal Aid grant and representation through the early stages of the court proceedings will loose their representation before a final hearing.
Unless parents have private means and can hire a lawyer they may be unrepresented at the hearing.
Parents without legal representation will be able to sit at the Bar table and represent themselves but they will be severally disadvantaged as they are likely to be unfamiliar with the Children and Young Persons (Care and Protection) Act 1998 as well as being unfamiliar with the working of the Children's Court and the rules that govern the proceedings of the Court.
The FaCS will always be represented by a lawyer.
The children will also be represented by a lawyer supported by a Legal Aid grant.
What can parents themselves do if legal aid is refused?
Parents can appeal to the Legal Aid Commission against a decision to refuse legal aid but an appeal may not be dealt with quickly. During this time the Children's Court proceedings will continue.
Section 90 Rescission or variation of care orders
Legal Aid is refusing to fund most s 90 applications. This is the section of the Children and Young Persons (Care and Protection) Act 1998 where parents can make an application for a re-hearing of their case on the grounds that there have been 'significant change in relevant circumstances' since the original order was made. This application can be refused or granted. In essence a merit test is applied to determine the outcome of the application. The Legal Aid Commission's refusal to support an s 90 application means that parents will have to represent themselves, unless a lawyer is prepared to provide services on a pro-bono basis. In representing themselves parents will be severely disadvantaged.
Recent research has shown that where the FaCS opposes the parents s 90 application that parents are rarely successful in their application for rescission or variation of a care order.