Last updated 8 January 2018
Legal Aid Queensland has developed best practice guidelines for working with children and young people.
It must be understood, however, that taking instructions from, and working with, children and young people is not the same as for adults. It is important to understand individual young people’s circumstances and situations as well as the more general context of brain, physical and emotional development.
Presence of adults at interviews
As the child is the client, wherever possible the child should be given the opportunity to be interviewed alone, in the absence of the parents or anyone else. There may be some things the child is unwilling or reluctant to talk about in the presence of a parent or other person, which may therefore hinder the lawyer’s ability to obtain full instructions.
Further, the parent or other person may tend to take over the interview, to speak on the child’s behalf, or to put words into the child’s mouth.
Nevertheless, some children, particularly younger ones, feel they need a parent or other person present during an interview as a support person. In such a situation it is suggested that the interview start in the presence of the other person with an explanation of the court process and of the lawyer’s role. If sufficient understanding and rapport can be built up with the child in that time, it might then be suggested to the child that the parent or other person(s) leave the room prior to the taking of specific instructions.
There are situations where the child will continue to prefer the presence of a parent or other person, and times when this may be of assistance to the practitioner in building rapport and gaining understanding of the case. The practitioner must use their own judgment in deciding on the occasions when the presence of another person may be appropriate. In many cases they can provide valuable information and insights.
Where parents or others are kept waiting outside the interview room, it is often a good idea to bring them into the interview room at the conclusion of the interview so that the process, and any decisions arrived at, may be explained to them. This should be with the concurrence of the child.
Children’s understanding of the legal process
Young people need to know that the lawyer takes instructions from the child, not from parents, police, youth justice services or any other adult. The lawyer is there to advocate on behalf of the child, to enable the child to have their say and their side of the story told. The lawyer has a duty of confidentiality, which means that nothing said by the child will be revealed or passed on to anyone else, including the court, police and parents, without the permission of the child.
Interviews should not be rushed. The lawyer should avoid legal jargon and language should be kept simple, but not patronising. Some young people are inarticulate and have difficulty in talking about and explaining even simple events. Furthermore, they may not understand the type of information required of them. It is useful to check from time to time that the client has an understanding of what is being explained or asked of them. One way to do this is to get them to explain in their own words what has just been said.
It is important when taking instructions that lawyers do not impose or imply moral judgments on what the child may have done. Reactions of shock or disgust may dissuade a child from giving full and accurate instructions. It is not the role of the lawyer to judge. However, the range of penalties available to the court should be thoroughly explained.
No interview should be concluded without giving the client proper opportunity to ask questions.
It frequently happens that children come out of court without any idea, or with the wrong idea, of what has happened. It is important that the lawyer ensures the child understands what has taken place in court on that occasion, if and when the child must come back to court, any bail conditions and, where appropriate, the penalty and its implication.
The Youth Advocacy Centre has child-friendly information sheets that explain court process and sentences, which may be accessed by lawyers.
Details of the events in question should be obtained to the same extent as if the client were an adult. Particular care should be given to exploring the circumstances surrounding any admissions or statements made by the client to police, whether at a police station or elsewhere.
Prior criminal history
The child should carefully check this record for accuracy. It is often useful to get particulars from a child about the nature of any prior matters on the record. Prior cautions and police-referred community conference agreements should not be referenced.
One of the most common problems in obtaining bail for children is the lack of stable accommodation. While homelessness is not a reason for refusing bail, the courts are often reluctant to grant bail if the child has nowhere to live. In such circumstances, the lawyer should explore the possibilities of the child returning home or residing with a relative. If this is not possible, the option of obtaining independent or refuge accommodation should be explored. This may be done through the youth justice services of the Department of Child Safety, Youth and Women or directly by the lawyer. In the greater Brisbane area, lawyers can contact the Youth Advocacy Centre’s Youth Bail Accommodation Support Service.
With respect to bail conditions, while for some children this may be the only way to convince the court to grant bail, courts should not be allowed to impose conditions as a matter of course and should not make them so stringent that it will be virtually impossible for the child to comply.