LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY
MINISTER FOR CHILDREN AND FAMILIES

SERIAL NO. 51 
EXPLANATORY STATEMENT
Care and Protection of Children Amendment (Legal Representation and Other Matters) Bill 2013

GENERAL OUTLINE
This Bill amends the Care and Protection of Children Act (the Act).
The purpose is to improve the representation of children in the family matters court by:
·	clarifying the role of the child representative;
·	clarifying the circumstances in which a child representative should be appointed; and 
·	enabling children with capacity to instruct their lawyer to be directly represented under the “direct representation” model. 

The Bill also enables the Chief Executive Officer to undertake investigations of allegations of abuse of children in care, with a requirement that the Children’s Commissioner be notified of any substantiation of harm to a child in care.
Further, the Bill makes administrative amendments, including to the Authorised Officer’s power to search a child for harmful substances or weapons when the officer reasonably believes it is necessary to prevent the child from harming themselves or others.

NOTES ON CLAUSES

Part 1			Preliminary matters
Clause 1		Short Title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Care and Protection of Children Amendment (Legal Representation and Other Matters) Act 2013.

Clause 2 		Commencement
This is a formal clause that provides that the Act commences on the date fixed by the Administrator by Gazette notice.

Clause 3 		Act amended
This is a formal clause that provides that the Act amends the Care and Protection of Children Act.

PART 2		Amendments about Legal Representation 
Clause 4 		Part 2.3, Division 6A inserted
This clause inserts the new provisions pertaining to legal representation for children. 
New sections inserted include:
143A which specifies that the Court may only appoint a legal representative for a child if the Court considers that doing so is in the child’s best interests and that one legal practitioner may represent more than one child in the same proceedings, for example a sibling group.
143B provides for the shift in the model of child legal representation, namely the hybrid model where children with capacity are able to instruct their representative, whereas children who lack capacity can be provided a legal representative who acts in their best interests, while presenting their views and wishes to the Court.
The new section specifies that a child ten years old and over is presumed capable of instructing their representative, however a child under ten is presumed incapable, although this presumption can be rebutted. 
It also requires the representative to inform the Court in what capacity they are speaking for a child. 
The new 143C specifies the legal practitioner’s duties, specifically to take all reasonable steps to ascertain the child’s capacity to give instructions in relation to proceedings and to either obtain instructions or ascertain a child’s views or wishes.
Importantly, it specifies that there is an active and professional relationship between the child and the representative.
The new 143D specifies the duration of the appointment. It clarifies the legal representative’s role is one of legal representation in Court and not advocacy should the child enter out of home care. 
143D allows for regulations to be made should it become necessary to further clarify the role and standards to be met by child legal representatives.

Clause 5 		Section 146 repealed
This clause repeals the existing provisions pertaining to child legal representation, which are replaced by the above Part 2.3, Division 6A.

Clause 6 		Part 5.6, Division 3 inserted
This clause inserts transitional provisions for child legal representatives, so that the previous model of child representation in 146 continues to apply for proceedings which commenced before the commencement date. This is to avoid matters having to be reheard because of the change in model of representation. 

Part 3 	Amendments about monitoring and investigation of harm
Clause 7 	Part 2.2, Division 4A heading and sections 83A and 83B inserted
This clause inserts a new division which provides for monitoring of the wellbeing of children in the care of the Chief Executive Officer. 
It inserts in 83B the power to conduct inquiries related to a child’s wellbeing, further to the existing power at 84 to carry out inspections.

Clause 8 		Section 84 amended
This clause clarifies the inspection power, so that it is not arguably limited by the existence of a “placement arrangement” under the Act.

Clause 9 		Section 85 replaced
This clause provides for the Chief Executive Officer to conduct investigations where the Chief Executive Officer believes on reasonable grounds that a child in the Chief Executive Officer’s care has suffered or is likely to suffer harm or exploitation.
The new sections 84A, 84B, 84C, 84D are parallel to the Chief Executive Officer’s investigation powers for children who are not already in care, at section 35.

Clause 10 	Section 304 amended
This amends the powers of Police Officers, so that they are afforded the power to conduct inspections for children in care (in circumstances where children in care are in a remote setting and the Chief Executive Officer cannot undertake the inspection) and 85 – the power to apprehend a child to return the child to the place where the child usually resides.

Clause 11 	Section 22 amended
This clause inserts a removal of doubt provision, that clarifies that a person with parental responsibility for a child can include an interstate authority who has placed children in the Northern Territory under its own care and protection orders.

Clause 12 	Section 52 amended
This clause is an administrative amendment to clarify the existing provision. 

Clause 13 	Section 57 amended
This clause is an administrative amendment to clarify the existing provision. 

Clause 14 	Section 60 amended
This clause makes it simpler to search a child for harmful substances or items in circumstances where an Authorised Officer reasonably believes it necessary to prevent the child from being harmed or harming others, while retaining the requirement that a person conducting a search must be of the same gender as the child. 

Clause 15 	Section 63 amended
This clause is an administrative amendment to clarify the existing provision. 

Clause 16	Section 108 amended
This clause is an administrative amendment to clarify the existing provision. 

Clause 17 	Section 135 amended
This clause amends the requirement of a Chief Executive Officer to provide parents of a child under a protection order information about where the child is residing, the child’s care arrangements and providing contact opportunities so that it is only a requirement of the Chief Executive Officer if the Chief Executive Officer holds an aspect of parental responsibility. The Chief Executive Officer cannot logically comply with this requirement unless it has some parental responsibility. 
Clause 18 	Section 204 amended
This clause is an administrative amendment to clarify the existing provision. 

Clause 19 	Act further amended

This clause provides a Schedule of consequential amendments throughout the Act.