Attending the Children's Court

If you are going to the Children's Court, you can expect to see:

• the magistrate
• someone from Communities and Justice (DCJ)
• lawyers.

The person up front is called a magistrate (or judge). The magistrate wears ordinary clothes and doesn’t wear a wig. Magistrates get the final say and make the decisions in the Children's Court.

The magistrate will hear from DCj staff first. DCj will provide the court with an initial report explaining the reasons they are concerned about your child's safety and wellbeing. You will be provided with a copy of the initial report.

When do I get to have my say?

After the DCJ workers finishes, the court will give you time to respond to the things that have been said about you and your family.

You will have a chance to tell the magistrate what you think should happen to your child. This is usually done through your solicitor.

Care proceedings in the Children’s Court are conducted with as little formality and legal technicality as possible and the magistrate can obtain information by asking questions rather than just hearing the arguments and evidence provided by the parties.

The court makes big decisions about kids. Any parent would feel scared or angry if they had to cope with that, and there may be times when it all feels too much. It can help to keep thinking about how you can show your concern for the child, and the ways in which you can act to keep them safe.

Talking to a solicitor

You may be eligible for a free solicitor. You can talk to the duty solicitor at the court the first time your child’s case goes to court. A different solicitor will be responsible for your child.

The solicitor can speak in court for you. They will talk to you about what you think the court needs to know about you, and will explain the law and your options.

You or your solicitor will get copies of court papers and reports that the magistrate will read.

It can be hard to read that stuff, but if you want to understand what is happening in court you need to know what the court is being told. If you can’t understand the reports, ask someone you trust - for example your solicitor or a worker-  what they mean.

Planning ahead and staying calm

Going to court is stressful and you may have to wait a long time. Take some food because it can be hard to get out to the shops. There’s not much for kids to do, so you might want to take some toys.

Before court you may feel like having a drink or taking something to help you stay calm. It is important that you don’t drink or take drugs. If you do, it is likely that people will think that you can’t look after your children.

In relation to criminal proceedings the prosecutor and accused person has a right to appear and be legally represented.

In relation to care and protection cases the following people have a right to appear and be legally represented in the Children’s Court:

• the child or young person
• each person having parental responsibility for the child or young person
• the Director-General of the NSW Department of Communities and Justice
• the Minister for Communities and Justice.

‘Appearing’ is a technical term used to describe the act of attending or presenting at court for a particular matter.

If you appear in person, you can address the magistrate or judge directly. If you are being legally represented, you have a solicitor who will appear on your behalf and will address the court on your behalf. If someone is legally represented, all communications with the court or other persons will be made via the legal representative.

If, in the Children’s Court’s opinion, there are other people with a genuine concern for the safety, welfare or wellbeing of the child or young person they can be granted leave to appear.

If a person has been served with an application relating to the child or young person and has been given notice of when to attend court, but does not do so, then the application might proceed and be heard in their absence.

There are legislative rules concerning the attendance of witnesses and other persons in court proceedings and the production of documents to the Children’s Court. These rules provide information on attendance at court, the issuing of subpoenas for the appearance of a person to give evidence before a court and production of documents.

The person named in the subpoena must attend court on the specified date and time.

Children often don’t attend court every time.

While participation is encouraged, in relation to care and protection matters a child or young person is usually not required to attend unless specifically requested by the court.

The law says children should be told what is happening at court, and about the court’s decisions in a way that fits with their age and understanding.

The court has the responsibility to ensure that:

• the child or young person has the opportunity to be heard and participate in the proceedings
• their age and developmental capacity is taken into account so that they understand the proceedings and their implications
• procedures and rulings are fully explained to them if they ask for an explanation.

If a child or young person subject to care proceedings does attend, the court may ask them to leave the room if circumstances arise that might be considered harmful to them.

Communities and Justice (DCJ)  is required to assist the child or young person in meeting their solicitor before court, so that they can have the proceedings explained and express their views and where appropriate, give instructions.

It is important to recognise that all children and young people may require general assistance when involved in a Children’s Court process. The court operates under a legal structure which may be confusing for children and young people.

In addition, a child or young person may require special assistance:

• with language, via the services of an interpreter
• if the child or young person is Aboriginal or from a culturally or linguistically diverse background
• because of a physical, intellectual or learning disability or cognitive impairment.

A support person can attend the Children’s Court to assist, but does not typically appear on behalf of people appearing in court. A support person’s attendance will generally not be allowed if:

• the proposed support person is a witness
• the child or young person opposes the support person’s presence
• there is another reason to deny permission, such as where the support person’s presence is considered against the best interests of the child or young person.

A support person must comply with any direction given by the magistrate during the hearing or other court attendance. A support person is not allowed to give instructions to a solicitor at the hearing, but may act as an interpreter if the court agrees. It is important that the support person or agency maintains a focus on the best interests of the child or young person who is the subject of the proceedings.

Professionals or workers from government and non-government organisations may be called upon to give evidence in care proceedings. The role of these witnesses is to assist the court to gain as thorough an understanding as possible of the family or child’s situation.

Professionals and workers from government and non-government organisations can provide information about the services that have been provided to a family and in most circumstances, evidence will be submitted to the court in affidavit form. The court can require witnesses, who have sworn or affirmed an affidavit, to give further oral evidence in court.

Professionals or workers who may be able to assist the court in this way include community health workers, family doctors, counsellors, early intervention workers and, where a child is placed away from their parents, contact workers or designated agency workers.

Expert witnesses

Expert witnesses may be called on to provide an expert’s report or to give opinion evidence in proceedings before the Children’s Court. They are generally engaged to assess the child, family, or another party once the court proceedings have started. Expert reports can be ordered by the court, or a party may call their own “expert witness”.

Expert witnesses are different to other witnesses in that they are not limited to describing events, actions or situations but are required to provide an opinion on an issue or a number of issues relevant to the proceedings, such as a person’s capacity to care for a child or the nature of a child’s injuries.

Expert witnesses are engaged because they have particular skills, experience and expertise in relation to an area of knowledge which enables them to provide a report or form an opinion which the court can use to assist in making its decision. For example, the Children's Court clinician, who provides independent expert clinical assessments of children, young people and their families, is an example of an expert witness. Other people who may be called as expert witnesses include paediatricians, psychiatrists and other medical experts.

An expert witness’s duty is to assist the court impartially and not to act as an advocate for any party. An expert witness’s conduct must be guided by the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedures Rules 2005.

The media generally has a right to attend court and report on proceedings, but in any report, article etc cannot identify any child or young person:

• who is the subject of the matter
• who gives evidence in the matter
• who is mentioned in the matter.

The court can direct that the media be excluded for some or all of the proceedings.

If for some reason the media wish to publish identifying details, they need to obtain consent from:

• the Children’s Court, if the child is under the age of 16
• directly from the young person in question, if they are aged 16 or over
• the Director-General, if the child or young person is under the Minister’s parental responsibility.

The rules of non-identification apply before, during, and after any court or non-court proceedings until the child or young person reaches 25 years of age. They also cease to apply if the child or young person dies before the age of 25.

If the media does not comply with these rules and a child or young person is identified without appropriate consent, then a criminal offence has been committed.

People at court are expected to show respect, so you will see some people bow when they leave the court.

While the Children’s Court is conducted with less formality than other courts, it still follows general practices and conventions, which are:

• being punctual
• turning off mobile phones in the court room
• not eating or drinking in the court room
• not talking unnecessarily in the court room
• not wearing a hat inside the court room
• bowing when the magistrate enters or leaves the court room
• remaining standing until the magistrate is seated
• standing when the magistrate leaves the court
• bowing to the magistrate as you enter or leave the court room, while court is in session
• not approaching the magistrate directly unless specifically asked to do so
• where a person is represented by a solicitor, not talking to the magistrate directly, as all conversations while at court are conducted through the solicitors, unless the magistrate requests otherwise
• if asked to speak to the magistrate (besides when giving evidence in the witness box) stand and move to the front of the row of seats and ensure that you show respect and courtesy at all times
• addressing the magistrate as ‘Your Honour’ or  ‘Your Worship’
• asking permission of the magistrate before handing over documents to the court officer
• not entering or leaving the court room when a person is taking the oath or affirmation
• not walking between the bench and the bar table unless directed to do so by the court.