New legal aid guidelines may breach children’s rights
A national human rights body has claimed Victoria Legal Aid’s (VLA) new eligibility guidelines, which took effect on Monday (7 January), could violate international law.
Stephen Keim (pictured), president of Australian Lawyers for Human Rights (ALHR), told Lawyers Weekly that VLA’s move to limit funding of parents in child disputes to trial preparation, providing representation only when the other party has a lawyer, could breach Australia’s obligations under the Convention on the Rights of the Child.
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The Convention states that all public decision making that concerns children must have “the best interests of the child” as a primary consideration. Further, governments are expected to take all appropriate steps to achieve compliance with this requirement.
“The impact of [the VLA changes] is that the courts [will] have to struggle through the fog of poorly-presented information to try to achieve the best available decision in terms of the best interests of the child,” he said.
Those who do qualify for funding are unlikely to engage a barrister, continued Keim. The absence of specialist advocates can also hinder the court in reaching the “right” decision, he added.
“While some solicitors doing this work have a considerable amount of experience, that does not always extend to advocacy, including the need to carefully cross-examine parents who may be either the subject of, or themselves be making, allegations that the child’s interests are at risk.”
The guideline changes, which were announced after around 200 lawyers held a protest rally against proposed funding cuts, also limit a significant portion of aid grants for children accused of criminal offences to guilty pleas. This increases the risk that children will be wrongly convicted, claimed Keim.
“[Children may] choose to plead guilty and be represented rather than defend the case without professional assistance.”
VLA reported a deficit of more than $3.1 million for the 2011-12 financial year. Since 1997 the Federal Government’s percentage of funding to the VLA has dropped from more than half to around one third.