Guide to representing children in the Criminal Division
of the Children’s Court
Assessing capacity and taking instructions from very young,
traumatised and/or intellectually disabled clients
June 2017
Suzanne Bettink, Professional Support Lawyer – Youth Law
Legal Practice – Victoria Legal Aid
© 2017 Victoria Legal Aid. Reproduction without express written permission is prohibited. Written requests should be
directed to Victoria Legal Aid, Corporate Affairs, Level 9, 570 Bourke Street, Melbourne Vic 3000.
Disclaimer. The material in this publication is intended as a general guide only. The information contained should not be
relied upon as legal advice, and should be checked carefully before being relied upon in any context. Victoria Legal Aid
expressly disclaims any liability howsoever caused to any person in respect of any legal advice given or any action taken
in reliance on the contents of the publication.
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Contents
1.
Introduction ................................................................................................................................. 2
Capacity in the criminal division ......................................................................................................... 2
Take your time .................................................................................................................................... 3
Overview ............................................................................................................................................. 3
2.
At the beginning ......................................................................................................................... 3
Who you are ....................................................................................................................................... 3
Your role ....................................................................................................................................... 4
Confidentiality ............................................................................................................................... 4
Tools for assessment and instruction taking ...................................................................................... 4
Discuss the players in the court process ...................................................................................... 4
3.
Avoid leading questions ................................................................................................................ 5
Assessing capacity to instruct and gauging general comprehension levels ...................... 5
Why are they going to court? .............................................................................................................. 5
Initial information about the offence .............................................................................................. 5
Guilty or not guilty? ....................................................................................................................... 6
Fitness to plead, doli incapax and mental impairment ....................................................................... 6
Fitness to plead ............................................................................................................................ 6
Doli incapax .................................................................................................................................. 7
Mental impairment ........................................................................................................................ 8
Sentencing .................................................................................................................................... 8
Summarise instructions ...................................................................................................................... 9
Talking to parent/carer/social worker .................................................................................................. 9
4.
Concluding the interview ........................................................................................................... 9
Application for aid ............................................................................................................................... 9
Any questions ............................................................................................................................. 10
5.
Make sure they understand how to get in touch with you .......................................................... 10
Conclusion ................................................................................................................................ 10
Acknowledgments ............................................................................................................................. 10
Resources ......................................................................................................................................... 10
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1.
Introduction
The first thing that all lawyers who represent children in Children’s Court proceedings in either
Division should do is read the Guidelines for lawyers acting for Children and Young People in the
Children’s Court draft second edition 2012 available on the Acting for children in the Children’s Court
youth law and practice intranet page, and in the ‘Representing Children’ folder of the Youth Law
Resources DropBox folder (contact Suzanne Bettink in person, by email
[email protected] or by phone on (03) 9269 0650 to arrange access to the document
or this folder if you do not already have it).
This paper goes beyond those guidelines and covers the basics of how to assess capacity and take
instructions from very young children (under 14), and children with learning or intellectual disabilities,
in the context of facing charges in the Criminal Division of the Children’s Court of Victoria.
Capacity in the criminal division
It is important to recognise that the issue of children’s capacity to give instructions in the criminal
division – which can include issues of fitness to plead, doli incapax and mental impairment - is very
different to the capacity assessment process in the Family Division of the Children’s Court.
In relation to fitness to plead the key issues (set out in s. 38K Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 (s. 38K)) are whether the child’s mental processes are disordered or
impaired to the extent that the child will be:
 unable to understand the nature of the charge, or
 unable to enter a plea to the charge, or
 unable to understand the nature of the hearing, or
 unable to follow the course of the hearing, or
 unable to understand the substantial effect of any evidence that may be given in support of the
prosecution, or
 unable to give instructions to his or her legal practitioner.
In contrast, children in the Family Division of the Children’s Court do not need to be able to
completely understand and follow the proceedings, all that is required is that the child understands
the general role of the court and the reason for the proceedings.
Since a child is required to understand less of the technicalities in a family division matter, rather
than in a criminal case, correspondingly less is required of them in terms of their instructions to their
representative also.
However, in all cases lawyers need to take into account s. 534(1B) Children, Youth and Families Act
2005 which provides that the assessment of a child’s maturity to give instructions involves a
consideration of:
 the child’s ability to form and communicate their own views, and
 the child’s ability to give instructions in relation to the primary issues in dispute, and
 any other matters the court considers relevant.
Essentially, while the whole defence of a criminal case turns on the accused’s ability to understand
the case and to instruct, in the Family Division of the Children’s Court the child’s instructions are
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simply a factor to be considered by the court. They are not determinative. This totally different
context means that the criteria for assessing the capacity to give instructions in the Criminal Division
of the Children’s Court are very different to that in family division cases.
Take your time
One of the most common problems faced by inexperienced lawyers in taking instructions from
children is to assume that an interview with a child, even one with a learning or intellectual disability,
can follow the same lines as that with an adult.
Many assume that if a client looks at them blankly that this means that there is a problem with
capacity to give instructions and therefore fitness to plead will be an issue, then automatically seek
an expert opinion.
However, with a careful approach to explaining roles and processes, experienced lawyers are able
to get meaningful instructions from a substantial number of young clients without any need for
psychological or psychiatric assessment.
This paper sets out suggestions for a careful approach, including information about checklists and
other practice tools.
Overview
The basics:
 the child is your client – always interview the child on their own at the outset
 explain roles, including confidentiality, and processes with discussion of these to ensure the
client’s comprehension of your explanations before moving into detailed instructions
 avoid leading questions – with obvious exceptions such as going through witness statements
 ask questions in logical sequence
 use plain/simple language
 be prepared to re-frame questions
 avoid repetitive questioning (the child may think that a different answer is required leading to
contradictory or false responses)
 when asking for instructions, have the client explain the impact of varying instructions to be
sure that they have a clear understanding of the consequences
 use the checklists and other practice tools referred to in this guide.
2.
At the beginning
Who you are
Start by giving them a business card so that they can see your name in writing (if they can read).
Ask them if they have a special place where they can put it because there might be a time between
now and when they grow up that they might like to ring you (or if you’re not there, someone in your
office who could help them).
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Your role
Explain that you are there to:
 make sure they understand why they are going to court
 help them understand the court process
 do the talking for them in court (or arrange for someone else to do the talking).
Explain that this means that you need to find out from them what they think about what the police
say that they did, although you might not be doing that today. This covers the possibility that you will
need to get the full police brief, watch the police interview and/or consider issues such as doli
incapax, fitness to plead or mental impairment before considering this level of instructions.
Make sure that they understand that while the appointment might have been arranged by their
parent/carer/social worker, you do not work for the parent/carer/social worker – you work for the
kids. Explain that kids don't need to feel that they should tell us what they think anyone else wants to
hear.
After the explanation of your role ask:
So, now I’d like you to tell me what my job is as your lawyer…
then fill in any gaps they may have forgotten or misunderstood.
Confidentiality
Explain that they are our boss and we have to keep their secrets. This means that we won’t tell
anybody else what they have said without their permission.
Tell them that most other people they talk to do not have to keep their secrets – including their
parent/carer/social worker – so they should be careful what they say to them. If in doubt, suggest
that they talk to you before saying anything about court to anyone else.
Tools for assessment and instruction taking
Discuss the players in the court process
Ask them to tell you about their understanding of the court process.
If there are problems getting them to talk, or repeat back in their own words your explanations of the
process, then consider having them draw pictures. If they draw the pictures themselves then they
are more likely to absorb and retain memories of the discussion than if pictures are drawn for them.
Subject matter for pictures (on separate pieces of paper where possible) at an initial interview,
where you explain the role while they draw, can include:
 them
 you
 the informant (the police officer who charged you)
 the prosecutor (the police officer who has your police file and tells the court what they say you
did)
 any co-accused (anybody else who the police say did any of this stuff with you)
 parents/carers/social workers
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 the judge/magistrate (perhaps ask ‘have you seen a judge on TV?’ and use this as a
discussion point to consider what might apply to their case – for example, very little of what
Judge Judy does – and what might not)
 the court room, including where all the above sit, the court clerk and the witness box.
It can be useful to keep these drawings in an envelope on file in cases where there are doubts about
capacity. On subsequent interviews, they can be used as a way of establishing how much advice
about your role and the system has been retained through asking the client to remind you who the
people pictured are and how the system works.
In later interviews, especially when getting into fitness to plead/mental impairment and sentencing
issues, additional drawings can be helpful including:
 the local child protection office (if they are on a protection order or there has been a referral for
protective investigation or into the need for a therapeutic treatment order)
 the local youth justice office
 the Children’s Court Clinic (if relevant)
 Parkville Youth Justice Precinct (PYJP) or any other location where they or their co-accused
might be sent
 Thomas Embling Hospital/Forensicare (even though no kids have yet been sent there).
Again, retaining these drawings can be an important way of checking the level of
understanding/retention of memory of advice in later interviews.
Avoid leading questions
In order to be sure that the client is understanding our role and advice, and that they comprehend
the court process, it is vital that they explain it all back in their own words without any leading
prompting.
Leading questions should also be avoided when taking instructions because they can be a form of
covert pressure - for example:
 Yes: do you want to plead guilty or not guilty? – involves an open choice (assuming you have
already explained the meaning of ‘guilty’ and ‘not guilty’)
 No: do you want to plead guilty? – may be perceived as suggesting that this is what they
should do.
3. Assessing capacity to instruct and gauging general
comprehension levels
Why are they going to court?
Initial information about the offence
Please tell me why the police are taking you to court (just what they are saying – not your
version at the moment)
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Note that there is no need for the client to have an intricate understanding of the elements of the
offence, just a general understanding of the fact that they have been charged with having committed
an offence, the role of the court, the impact of court decisions and possible consequences.
At lower ages or with intellectual disabilities their understanding of the reason for being charged and
time periods etc may be limited – ask them to tell you what the police say they did and take your
lead from them. Fill in gaps with just a few words to encourage them to continue in their own words.
Their explanations will help to give you a sense of their level of understanding.
Frequent reference back to the pictures they have drawn can be helpful in reinforcing roles and
processes and assessing the development of their knowledge and memory retention.
At this stage it is important not to ask questions about the allegations that could compromise a
thorough investigation of all of the issues in the case. There may even be some cases where this
whole topic is left until you are have not only seen the full police brief but have watched the police
interview and obtained all necessary reports about capacity.
Guilty or not guilty?
It would be rare that the question of guilt or otherwise would be settled at an initial interview with a
young (under 14) or intellectually disabled client, especially if they have not previously appeared in
the criminal division.
Usually the lawyer will need to explain that before advice can be given it will be necessary to:
 get the police brief to check what the police and witnesses are saying
 watch the police interview DVD to check what the client said to the police
 get reports from any professionals already involved with the client (social workers, disability
services, paediatricians etc)
It will then be necessary to get the client back in to talk about both the brief and the interview – and
to talk about whether there is a need for a forensic assessment to consider fitness to plead, doli
incapax and/or mental impairment.
Again, using the original drawings can be helpful in checking retention of understanding of
processes.
Fitness to plead, doli incapax and mental impairment
Fitness to plead
The first issue to consider with very young and/or learning or intellectually disabled children is
whether or not they are fit to plead with reference to s. 38K.
 can the client understand the nature of the charge
 can the client enter a plea to the charge
 can the client understand the nature of the hearing
 could the client follow the course of the hearing
 could the client understand the substantial effect of any evidence that may be given in support
of the prosecution
 can the client give instructions?
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If the answer to any of these questions is no, then fitness to plead is an issue.
However, fitness to plead could involve a a complex process and an outcome that is not satisfactory
(see Fitness to stand trial and mental impairment in the Children’s Court: representing potentially
unfit and/or mentally impaired children by Julia Munster, Danielle McKeown and Michael Sharkey
(‘Munster paper’)).
Usually – if enough time is allocated for the interview and the pictures are used and re-used with
patient explanations and active listening to the client’s discussion of their understanding of the
process – it is possible for the client to develop enough of a knowledge of the court process and the
evidence to be able to give adequate instructions. This is especially the case if the consequences of
fitness to plead form part of the discussion to see if the client can comprehend the difference
between a criminal penalty and an order made as a result of being found unfit to plead and then not
guilty because of mental impairment (potentially including custodial or non-custodial supervision).
If this is not the case, then a forensic assessment will be required to support a fitness to plead
argument. Checklists and practice tools to assist with this process are available and are linked in the
Munster paper.
It is important to understand that the lawyer is then acting as a friend of the court, not on
instructions, although there is an expectation that they keep the accused and their guardian/s as
informed as possible.
However, if the young person was under 14 at the time of the offence, logic indicates that it is
arguable that somebody who is unfit to plead for general cognitive reasons that applied equally to
both the time of the offence and the present time would by definition be doli incapax. The expert
report should address both fitness to plead and doli to confirm that this is the case.
This would mean that it could arguable that it would be an abuse of process for the prosecution to
proceed because even if the accused were fit to plead there would be no case to answer. The court
should therefore be asked to strongly suggest to the prosecutor that the charge/s be withdrawn.
Ethical note: if you have an expert opinion saying that a client is incapable of giving instructions
and is unfit to plead for that reason then you are not able to purport to take instructions from the
client to proceed with a guilty plea without receiving an expert opinion to the contrary. This situation
could constitute misconduct.
The only exceptions would be withdrawal, withdrawal for a caution or withdrawal for diversion that
will not involve a finding of guilt although even diversion could pose a problem unless there is an
opinion that they would be fit to instruct to enter a plea of guilty.
When seeking the expert opinion it is important to ask that the expert consider whether there are
any circumstances under which the client would be fit to plead (for example, a plea of guilty to a lowlevel charge) or instruct consent to diversion.
Doli incapax
The common law principle of doli incapax applies to charges against young people aged under 14
years at the time of the offence.
It requires the prosecution to prove, as an element of the offence, that the accused knew at the time
of committing the offence that what they were doing was seriously wrong, not just naughty.
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Many young people, even those of reasonably normal intelligence, are able to successfully use doli
incapax on their first and sometimes second or third appearances, especially if these involve
different kinds of offences.
When interviewing the client about this issue it is important to ask them to try to remember what they
were thinking at the time of the offence – what they knew about police involvement and
consequences at that time, not at the time of the interview or when you are taking instructions.
It is not uncommon for the police interview with a young person to include the question ‘do you know
that what you did was wrong’ – thinking that this question is sufficient to cover the element in court.
However, it is not sufficient for three reasons – which also need to be kept in mind for lawyers’ own
interviewing of the client:
 It is a leading question, and answers given to police leading questions are either of little
probative value or are actually able to be excluded on voir dire
 It is in the present tense, meaning the answer relates to the state of mind of the young person
at the time of interview, not at the time of the offence
 It only refers to ‘wrong’ not ‘seriously wrong’ – just knowing that what they did was wrong and
would get them into trouble (with parents, teachers etc) is not enough.
This principle is strictly only applicable in relation to offences committed before the fourteenth
birthday. It does not apply to any offences committed from the fourteenth birthday, even if the
client’s ‘mental age’ is assessed as being under 14.
Further information, checklists and practice tools are available in the Working with young offenders
in the Children's Court: a practical guide to running an effective doli incapax matter by Youth Crime
Program Manager Anoushka Jeronimus and Senior Public Defender Julia Munster.
Mental impairment
Mental impairment in the Children’s Court is usually based on a learning or intellectual disability in
those who were at least 14 years old at the time of the offence (if under 14 then doli incapax would
apply).
There are some rare cases where the defence is based on mental illness. These need to be
considered on a case by case basis, in a similar way to that for adults with mental illness, See
Working with young offenders in the Children's Court: a practical guide to running an effective doli
incapax matter by Youth Crime Program Manager Anoushka Jeronimus and Senior Public Defender
Julia Munster which includes links to checklists and practice tools.
As with doli incapax the focus of the interview with the client in this situation should be on what they
were thinking at the time of the offence, not how they view it in retrospect.
Unlike doli incapax the mental impairment process is a defence with the burden being on whoever
raises it on the balance of probabilities: s. 38ZB Crimes (Mental Impairment and Unfitness to be
tried) Act 1997.
Sentencing
Sometimes young and intellectually disabled children can become more fixated on potential
outcomes of cases than most other clients. They can become very worried that they are going to be
locked up when that is far from likely.
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Some lawyers like to show young clients a pre-prepared sentencing hierarchy chart, but with these
younger/intellectually disabled clients this will not necessarily be reassuring because they may give
undue weight to seeing that being locked up is there as an option.
Instead, it is highly recommended that with these clients there be a simple discussion based around
the various penalties that are most likely to occur:
There are a lot of orders that the Children’s Court can make, including locking kids up in
really bad cases, but in your case I think that the worst that would be likely to happen would
be…
with a table drawn on the spot (and kept on the client’s file for future discussions) showing the
highest likely outcome and lower options within range.
With these clients it is only recommended that the full hierarchy be discussed where there is a real
possibility that the client might be sentenced to detention.
It is important to always consider whether a caution of diversion may be appropriate. Precedent
letters to the police are available which include prompts about the sort of information to include in
making a request.
It may be possible to negotiate referral to a diversion program through the Children’s Court Youth
Diversion Service (but note the ethical issue raised under Fitness to plead).
It might even be possible to negotiate that low-level charges be withdrawn and replaced with a
caution in appropriate circumstances.
Summarise instructions
Go through a summary of instructions with the child:
You've told me that you want to plead guilty to the charges. When you told me about your
family you said X, Y, Z. You said I could tell the court X and Z but not Y. Etc
Then ask them to tell you in their own words what is likely to happen to make sure that they really
have understood your advice and the varying consequences.
Talking to parent/carer/social worker
When the interview is largely concluded, talk to the client about whether they are ok with you talking
to their parents (usually in their presence so that they can see you aren’t saying anything behind
their back). If they agree, then talk about whether there are any limits to what you can say.
When bringing in the adult, initially stress that your role is to represent the child, but that the child
has agreed with you letting them know what is going on.
If the matter is to proceed as a plea then you will need to confirm some of the information provided
by the client and carefully seek additional useful information to pass on to the court.
4.
Concluding the interview
Application for aid
A young child, especially one with an intellectual disability, should ordinarily not be signed up for
anything because they generally haven't got a clue what they're signing or the importance of their
signature.
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For a grant of legal assistance most of the legal aid application form does not need to be completed
because young people are always eligible for aid as long as they are a ‘child’. However, a signature
is needed on the form which can be explained by saying that
It is so that Victoria Legal Aid can spend money for you to have a lawyer. You do not need to
worry about the cost of having your own lawyer. It is free.
Remember to give your address as their postal address so that they don’t receive the standard
grants letters – but warn them that they might get a letter from someone at legal aid telling them
about stuff like ‘grants of aid’ and ‘conditions for the grant of aid’. Tell them that if they get a letter
they do not understand to ring you.
Tell them that when they get a letter from you it is a good idea to keep it in case they want to read it
again later. It’s also another place where they can find your phone number.
Any questions
Do they have any questions before they go? If they think of anything after they've gone they can ring
you, especially if they change their mind about anything or they think of something they think you
should know that they haven't mentioned.
Make sure they understand how to get in touch with you
Finally, make sure they still have the business card (believe it or not, some can lose it in that short
space of time!) and that they will put in a safe place.
Also let them know that if they lose the card they can just ask a grown up to help them 'ring their
lawyer at legal aid' and that should be able to be organised. Also, they'll get a letter from you telling
them any new court date, or what happened in court and that will have your phone number etc.
Double check that they know how they could ring you:
How would you ring me at my office if you have any questions or worries?
If they think that their parents/carer would not let them ring, talk about alternatives such asking a
teacher at school, or some other relative/support person referred to in the reports.
5.
Conclusion
If there are any questions about the information contained in this guide, please contact the author
Suzanne Bettink in person or by email at [email protected].
Acknowledgments
Thanks to the then Youth Crime Managing Lawyer Jeremy Cass for his assistance with an earlier
version and Youth Crime Program Manager Anoushka Jeronimus for her assistance in the
preparation of this guide.
Resources
Most resources are available on the VLA website at Information for lawyers > Practice resources >
State children, youth and families law > Youth crime.
‘KC’ codes refer to VLA’s precedent numbers applicable to in-house lawyers.
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Precedents and resources that are not on the website are available to private practitioners on the
section 29A panel – contact the author Suzanne Bettink by email at [email protected].

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Guide to giving pre-interview advice to children in police custody by Suzanne Bettink
Working with young offenders in the Children's Court: a practical guide to running
an effective doli incapax matter by Youth Crime Program Manager Anoushka Jeronimus and
Senior Public Defender Julia Munster
Fitness to stand trial and mental impairment in the Children’s Court: representing potentially
unfit and/or mentally impaired children by Julia Munster, Danielle McKeown and Michael
Sharkey
KCCRM5010 Record of instructions – pre-interview advice
KCCRM5020 Record of instructions – duty lawyer advice
KCCRM5050 Record of assessment of capacity
KCCRM5090 Record of assessment of doli incapax
KCCRM5080 Record of assessment of mental impairment
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