Last updated 9 July 2024

It is possible to start civil proceedings against a child and on behalf of a child.

Starting proceedings on behalf of a child

A person who commences legal proceedings is called the plaintiff or applicant. Tribunals, such as the Queensland Civil and Administrative Tribunal, allow children to start legal proceedings if they have capacity. If a child does not have capacity, they will require an adult to start proceedings in a tribunal as their litigation guardian. In order to commence proceedings in a court, whether they have capacity or not, a child must have a litigation guardian – they cannot commence proceedings themselves, in their own name. A litigation guardian must be an adult such as a child’s parent or guardian. The litigation guardian will be named on any court documents. If a child is ordered by a court or tribunal to pay costs, the child’s litigation guardian will be liable for these costs.

There are time limits within which people are required to start legal proceedings. Different time limits apply for different types of proceedings. Generally, time limits will not start until a child turns 18. However, there may be circumstances in personal injury matters where notice is required to be given before a child turns 18. For more information, see the Accidents and Injury chapter of this handbook.

If a child starts proceedings or has the right to commence proceedings before they turn 18, they cannot agree to any settlement proposed out of court unless they receive permission from the court.

If a court awards a child any money as part of legal proceedings, this money must be paid into court unless the court decides otherwise. It is possible to apply to the court for payments to be made that are in the interest of the child. The Public Trustee may be involved in managing any money awarded to a child and they can also make payments to the child.

Starting proceedings against a child

A person who has legal proceedings brought against them is called the defendant or respondent. Legal proceedings can be brought against a child. If a court orders, a child can be served with proceedings, however, in all other circumstances proceedings will be served on the child’s parent or guardian or other carer.

Under the Uniform Civil Procedure Rules 1999 (Qld), when a child needs to defend legal proceedings or appear in court, they must have a litigation guardian. This litigation guardian must be an adult, such as a parent or guardian and they must consent to being the litigation guardian. Unlike when starting legal proceedings, a child’s litigation guardian will not be liable to pay any costs a court orders against a child unless there is misconduct involved.

Children giving evidence

In Queensland, children are presumed to be competent to give evidence in courts. However, parties to legal proceedings may ask the court to decide whether a child is competent to give evidence and whether a child can give sworn evidence.

Queensland courts can make a number of changes or provide a range of support to allow children to give evidence in court under the Evidence Act 1977 (Qld). What changes a court may need to make or what support may be required will be different in each case depending on the child’s age, the type of case, the child’s intelligence and maturity. Evidence may be given to the court about the child’s intelligence in deciding whether the child can give evidence.

Evidence in court is generally given on oath or affirmation. If a child is capable of understanding the nature and consequences of the oath or affirmation, they can give evidence on oath. Otherwise, the child can give unsworn evidence as long as the child understands the importance of telling the truth.

Other changes that a court may make in appropriate circumstances include allowing children to give prerecorded statements to the court or sitting behind a screen while giving their evidence so they cannot be seen by other people in the courtroom.

There are support workers available in Queensland courts to help children during the court process. Support workers can help to explain the court process and can be with the child when they are giving evidence.