Last updated 16 August 2016
Special procedures must be followed to bring an action in a court against a child or on a child’s behalf.
Child as plaintiff
A person under 18 cannot 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 young person. Usually, the parent of the young person acts as the litigation guardian. Time limits relating to claims that a child may have generally commence when that child turns 18. However, this time limit is shorter in some actions involving personal injuries (see the chapter on Accidents and Injury).
Child as defendant
An action against a child need not describe the defendant as a child. Service of the proceedings is normally effected on the parent(s) or guardian of the child. If the child has no parent or guardian, then the proceedings will normally be served on the person with whom the child resides or on the person who cares for the child (r 108 Uniform Civil Procedure Rules 1999 (Qld) (UCP Rules)). However, the court may order that service on the child is good service. A child, when appearing or defending an action, does so by a litigation guardian (an adult who has consented to act as such). The litigation guardian is not personally liable for costs unless guilty of some misconduct. If a child has been served with court proceedings and has not entered an appearance or a defence within the relevant time, the plaintiff cannot continue to pursue their action without the court making an order that some proper person be appointed as litigation guardian (r 96 UCP Rules).
Proceeds of successful claims
A claim made by or on behalf of a child cannot be validly settled out of court unless the settlement is sanctioned by the Supreme Court or, in the appropriate case, the District Court, Magistrates Court or the Public Trustee. This applies whether an action has been commenced or not (r 98 UCP Rules).
Where an amount has been awarded to a child by a court, the money must be paid into court unless the court orders otherwise. However, application can be made to the court for payments to be made which the court considers are in the interests of the child. In the same way, the Public Trustee has power to discharge or reimburse any expenses reasonably incurred by or on behalf of the child (s 59 Public Trustee Act 1978 (Qld)).
Unlike courts, most tribunals do not require children to be represented by a litigation guardian. Children who have the capacity to act for themselves or to instruct a lawyer directly may usually do so in a tribunal. Many tribunals also allow parents or guardians to bring actions on behalf of children who are too young to bring an action themselves. A tribunal must not award costs against a child but may make an order for costs against the child’s representative in certain circumstances (ss 101, 103 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)). There are also specific provisions for dealing with children as special witnesses (s 99 QCAT Act).
Evidence in court
The way in which children may give evidence in court differs depending on a range of factors, such as their age and the nature of the case. Children may give evidence on oath if they can understand the nature and consequence of the oath. If the child does not understand the oath, unsworn evidence may be given if the child understands the importance of telling the truth.
A court may hear expert evidence as to the level of intelligence of a child under 12 years before determining whether to admit the child’s evidence under s 9C of the Evidence Act 1977 (Qld) (Evidence Act). The Evidence Act provides protection for those deemed to be special witnesses (which includes children under 16 years) and children who are complainants or witnesses in criminal or civil proceedings (including sexual assault cases). These protections, which include the way a child gives evidence (e.g. prerecorded statements or from behind screens), are designed to assist children to give evidence which may otherwise be too traumatic for them to give in the usual way (s 93A Evidence Act).
Support workers are also available to explain to children the nature of the court process, which will often be extremely foreign and intimidating to a child, and they can be available to be present when the child does give evidence (s 21AV Evidence Act).