The Charter and the child’s right to a fair hearing

A & B v Children’s Court of Victoria & Ors [2012] VSC 589 (5 December 2012)


The plaintiffs were two sisters aged nine and 11 who made an application to the Supreme Court of Victoria seeking to quash orders of the Children’s Court that they lacked maturity to provide instructions to lawyers and denying them leave to be represented by the same legal practitioner. The main issue was the meaning of the expression “maturity to give instructions” under the Children, Youth and Families Act 2005 (Vic).


The plaintiffs were the subject of protection applications under the Act. An Interim Accommodation Order permitted them to live with their maternal aunt until the applications could be heard. Over a period of five months, the plaintiffs were represented by lawyers who considered them as having the capacity to give instructions. There was no evidence that either of the plaintiffs had developmental issues, and a report provided to the Court by an officer of the Department of Human Services described the plaintiffs as being “mature for their years in terms of the language they use and their insight into their childhoods”. Separately and on several occasions, the plaintiffs expressed that they wanted to continue living with their aunt, that they did not want any contact with their mother and that they wanted to be able to see their maternal uncle, against whom their mother had made sexual abuse allegations.

At the interim hearing, the magistrate ruled that the plaintiffs were not of an age where they could give instructions and were not mature enough to give instructions, particularly in relation to the serious allegations about their maternal uncle. The magistrate also did not grant leave under the Act for the plaintiffs to be represented by the same lawyer.


Issue on appeal

The issue was the proper construction of the phrase “mature enough to give instructions” in section 524(4) of the Act, which provides:

If, in exceptional circumstances, the Court determines that it is in the best interests of a child who, in the opinion of the Court is not mature enough to give instructions, for the child to be legally represented in a proceeding in the Family Division, the Court must adjourn the hearing of the proceeding to enable that legal representation to be obtained.

Justice Garde of the Supreme Court of Victoria considered that the scheme of representation contemplated by this provision for a child who is mature enough to give instructions is direct legal representation. However, the provision also contemplates that where a child is not mature enough to give instructions, the child should be represented by a lawyer who must act in accordance with what he or she believes to be in the child’s best interests. The question then becomes, when would a child be mature enough to give instructions?

The plaintiffs argued that the expression “maturity to give instructions” required an individual assessment of each child’s capacity to give instructions and that chronological age was not the sole factor. The plaintiffs also argued that there is a presumption of statutory interpretation that the provision should be determined consistently with international law.

Section 32 of the Charter

The Victorian Equal Opportunity and Human Rights Commission intervened in the proceedings arguing that section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) required section 524(4) to be interpreted compatibly with human rights and consistently with the purpose of the provision. The applicable Charter provisions were the right to equality before the law (section 8(3)), the right of a child to protection as in his or her bests interests (section 17(2)) and the right to a fair hearing (section 24(1)). Justice Garde considered the Commission’s submissions concerning international law in construing statutory provisions, and particularly article 12 of the Convention on the Rights of the Child, which provides, inter alia, that a child has a right to have an opinion and to have that opinion heard.

On the effect of section 32 of the Charter on statutory interpretation, Justice Garde followed the High Court’s decision in Momcilovic v R (2011) 245 CLR 1, which required statutes to be construed against the background of human rights and freedoms set out in the Charter. If the wording of a statute is clear, the court must give them that meaning. However, if the words are capable of more than one meaning, the court should give them the meaning which best accords with human rights.

Approaching the construction of “mature enough to give instructions” in accordance with its ordinary meaning, Justice Garde held that the phrase requires a court to have regard to factors other than the child’s age and that it is sufficient that the child be mature enough to give instructions on one or more issues that may arise. Such a construction would be consistent with international law and with the Charter.

On this basis, the magistrate made an error of law appearing on the face of the record, amounting to a jurisdictional error, in interpreting “maturity to give instructions” solely by reference to chronological age. In so misconstruing the phrase, the finding about “maturity to give instructions” was made in the absence of relevant evidence. The plaintiffs also succeeded in their arguments of denial of procedural fairness. Justice Garde held that the plaintiffs were denied procedural fairness, given that they had been directly represented at court on several occasions and it was never suggested at these previous hearings that their legal representation was an issue. When the issue arose at the hearing, the plaintiffs were not given an opportunity to give evidence about their maturity. In addition, the order refusing leave to allow the plaintiffs to be represented by the same lawyer received almost no consideration at the hearing.


The case provides a useful analysis of domestic and international jurisprudence on the right to legal representation of children. It is also a good example of the interplay between the principles of statutory interpretation, international human rights law and the Charter.

This decision can be found online at:

A blog post by Paula Gerber and Melissa Castan on the decision and mooted law reform can be found at:

Diana Nestorovska is a solicitor at King & Wood Mallesons.