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Code of Conduct

Code of Conduct for Legal Representatives in Care and Protection Proceedings in the Children's Court of New South Wales as prepared by the Children's Court of NSW Advisory Committee

In the application of this Code of Conduct, it is recognised that the provisions contained herein cannot override a legal practitioner’s duty at law as contained in the NSW Revised Professional Conduct and Practice Rules 1995 (Solicitor Rules) or the NSW Barrister Rules. In particular, the provisions contained herein cannot override a legal practitioner’s duty at law to his or her client and the legal practitioner’s duty at law to the Court, nor can it limit a lawyer’s obligation of confidentiality to a client.

1. All legal practitioners practicing in the Care and Protection jurisdiction of the Children’s Court will:

1.1. Understand and perform duties in a diligent manner and to a standard of skill and care expected of a qualified, competent, ethical and experienced legal practitioner.

1.2. Understand and work in a manner consistent with the overarching objects and principles set out in Chapter 2, Children and Young Person’s (Care and Protection) Act 1998.

1.3. Encourage clients to promote the best interests of a subject child or young person as the paramount consideration in proceedings before the Court.

1.4. Take all reasonable steps to encourage clients to fully and frankly disclose to the Court and all other parties in a timely manner all information relevant to the case, including information that relates to the safety, welfare and well-being of a subject child or young person, and to take all reasonable steps to assist the client in making that disclosure.

1.5. Promote the right of parents to effectively participate in and be fully informed about court proceedings concerning their child.

1.6. Understand the sensitive nature of records and documents concerning the care and protection of a child or young person and handle them in a way that minimises the impact their use in proceedings may have on the privacy and safety of the individuals connected with those records and documents.

1.7. Assist the parties to reach an appropriate and expeditious resolution of the case, including promoting the use of negotiation and alternate dispute resolution where appropriate.

1.8. Promote the conduct of proceedings that are non-adversarial and with as little formality and legal technicality and form as the circumstances of the case permit.

1.9. Remain familiar with and comply with all current legislation, court procedures and timetables.

1.10. Prepare for and attend, either personally or through a fully appraised agent or counsel, all court events, including mentions, dispute resolution conferences, hearings, as well as other alternate dispute resolution conferences.

1.11. Respond to inquiries, correspondence and offers of settlement in a polite and timely manner.

1.12. Maximise the use of information and communications technology to improve efficiency of service.

1.13. Explain the Court’s role to the client, including how proceedings are conducted and what, if anything, the client may be required to do.

1.14. After meeting with the party and assessing their capacity to provide instructions, raise any concerns with the Court that the practitioner has in relation to their client's capacity to provide proper instructions.

1.15. Maintain continuity of representation where possible, ensuring that where change of legal representation cannot be avoided, the subsequent practitioner receives all information necessary for them to conduct the matter to an appropriate standard and efficiency.

1.16. If circumstances require a party to communicate with the Court in the absence of the other parties, promptly inform the other parties of any communications which passed between the practitioner and the Court.

1.17. Be aware that there may be common law obligations to provide certain information to the court.

1.18. Not to examine or cross-examine witnesses in any proceedings in a way that is oppressive, repetitive or hectoring, unless it is essential in the interests of justice.

1.19. Limit evidence, including cross-examination, to that which is relevant and necessary.

2. Legal practitioners representing Community Services will:

2.1. Understand the Director-General’s duty as a model litigant and current government policy on the duty of a model litigant and represent Community Services consistent with that duty.

2.2. Represent Community Services in a way that protects and promotes the credibility of Community Services and is consistent with its role to provide assistance to children, young people and families in the least intrusive way possible.

2.3. Provide court documents to other parties in a timely manner to allow adequate time for other parties to obtain instructions.

2.4. In accordance with the obligation to fully and frankly disclose to the Court and all other parties in a timely manner all information relevant to the case, including information that relates to the safety, welfare and well-being of a subject child or young person, provide to the Court all relevant material known to the legal practitioner in a complete, fair and impartial manner whether that material is supportive of the Director-General’s case or otherwise.

2.5. Where material is to be redacted or edited to protect the identity of persons in compliance with legislative requirements, take adequate steps to ensure that any redaction or editing is limited to that which is necessary to protect the identity of such persons. Advise Child Protection Caseworkers of their obligation to ensure that any redaction or editing of material is limited to that which is necessary in order to comply with legislative requirements

3. Legal practitioners representing children or young people will:

3.1. Provide competent representation to all children and young people in compliance with the Law Society of New South Wales’ Representation Principles for Children’s Lawyers.

3.2. Except in exceptional circumstances, meet with the child as soon as possible once appointed by the Court and maintain contact with the child or young person at an appropriate frequency throughout the proceedings. Unless the child is pre-verbal, this requirement includes meeting with the child or young person as soon as possible after orders are made for the purpose of explaining the effect of those orders and the prospects of appealing any orders made or seeking a variation or rescission of same in the future. In making a determination as to whether exceptional circumstances exist, practitioners may have regard to whether a child has already been the subject of numerous interviews and / or assessments.

3.3. Engage with the child or young person in a manner consistent with that child or young person’s age, level of education and cognitive capacity, taking into account cultural and other relevant factors. Preference should be given to face-to-face communication with the child rather than communicating by telephone or in writing.

3.4. Ensure that the views and wishes of the child or young person are placed before the Court, except in circumstances where the child or young person is unable to express their views and wishes by virtue of their age, disability or other special circumstance.

3.5. When acting as a direct legal representative, ensure that the views of the child or young person are placed before the Court, ensure that all relevant evidence is adduced and tested and act on the instructions of the child and young person.

3.6. When appointed as a direct legal representative, act on the instructions of the child or young person and actively advocate the child or young person’s position.

3.7. Communicate with a child or young people at a venue which promotes the child or young person’s ability to freely express their views and wishes. If the child or young person requests the attendance of a support person, consider the appropriateness of the presence of the particular support person and take steps to ensure that the support person understands the confidential nature of any communications.

3.8. Make independent enquiries and ensure that all relevant evidence is adduced, including expert evidence where appropriate. The legal representative for a child or young person is to test the evidence of the parties and make submissions about the evidence to the Court.

3.9. Provide the child or young person with advice and information, including where appropriate information about evidence presented to the Court by other parties, relevant to the proceedings so as to facilitate their understanding of and participation in the proceedings.

3.10. Make the Court aware of any conflicts of interest that arise through the practitioner being appointed to represent more than one child or young person subject to the same set of proceedings.

3.11. Act independently of any party to the proceedings other than the child or young person the practitioner has been appointed to represent.

4. Legal practitioners representing parents or other interested parties will:

4.1. Provide advice and competent representation to clients, in a manner which promotes and enhances the constructive involvement of the client in decisions about what is in the best interests of the subject children.

4.2. Ensure that they explain proceedings to clients in a manner commensurate with the client’s level of understanding. In the event that a client does not speak English, the legal representative should ensure that an interpreter is present at all appropriate times, including when instructions are being taken and affidavits are being prepared. In circumstances where a client is illiterate, the legal practitioner is to ensure that all Court documents, affidavits, correspondence and other documents are read to them.

4.3. Only act for more than one parent or interested party where doing so does not create a conflict of interest.



[1] Re Georgia and Luke (No 2)[2008] NSWSC 1387; Re M (A Minor)(Disclosure of Material)[1990] 2 FLR 36; Ramsbotham v Senior (1869) LR 8 Eq 575; Re Bell; Ex parte Lees (1980) 30 ALR 489.