Canberra parents in child protection matters fighting against teams of territory lawyers

It is at odds with a system that is supposed to support children remaining with their families where it is safe to do so.

Robinson and McGuinness Family Law Director Kevin Robinson worked for the government in care and protection legal department until 2011. Now, he acts as a children's representative in court.

"The parents involved in these cases are usually not people that have a great deal of financial means," Mr Robinson said.

"There is a disconnect between the money that's invested in prosecuting the case on behalf of the director-general compared to the legal resources made available to the parties and the child representative."

"The reason this jars is because the principles of the Act are directed towards supporting children remaining with their families, where is is safe for that to happen."

Mr Robinson said reviews including the 2016 Glanfield Review sought to provide pathways for more transparent decision making. He said if the government worked in accordance with those principles by being proactive rather than reactive, it would save many cases of children being removed in emergency action that then turns into a "litigation vortex".

Legal Aid ACT chief executive officer John Boersig said child protection matters are not generally matters in which barristers would be briefed pursuant to the Legal Aid Act, unless the proceedings were particularly complex.

Mr Boersig said the directorate-general, on the other hand, will almost always brief barristers in a hearing in such matters.

He said one of Legal Aid's aims is to ensure "equality of arms" in the courtroom.

He said while in most matters solicitors ably represent clients, funding is a major constraint that limits the ability of Legal Aid ACT to fund barristers in some matters.

But Mr Boersig pointed out that money isn't the sole issue.

He said it seemed the department was, at times, "harshly adversarial" in care and protection matters. He said it could be improved if the directorate general was willing to consider a more collaborative approach with the parties' legal representatives to ensure

"[It] could be improved if the directorate general was willing to consider a more collaborative approach with the parties' legal representatives to ensure those matters that are able to be resolved by consent without the need to final hearing do so at an earlier stage in the proceedings."

Barrister Philip Walker said it would have cost at least $200,000 to privately run two appeals for a mother who had her five children removed from her. In the end, after five years of fighting for their return, the court found the decision to take them away was wrong.

Normally, someone who wins a civil case in court would have their costs reimbursed. However, in child protection matters this is not the case. Even if a party (for example the mother in this scenario) wins her case, her lawyers - legal aid or private - have to prove exceptional circumstances were at play to have their costs paid. Even if it is proven there were exceptional circumstances, only about half of the costs incurred are eligible to be paid.

Mr Walker said this is why many lawyers would not take on such cases. He and fellow barrister James Haddock took on the case pro-bono. They estimate for the first Supreme Court case, where the judge found the children should not have been removed but did not make recommendations for what should happen next, and the second case in the Court of Appeal where the bench found the children should be returned, conservatively would have cost $200,000. The directorate eventually agreed to settle on the costs of the first two cases, the details of which remain confidential.

For the third case, when the director-general took the case back to court to try to have the children remain with their foster carers, Mr Walker and Mr Haddock received about $7000 in Legal Aid fees.

It would have cost their firm about $130,000 to run the case privately, based on commercial rates.

ACT Liberals spokeswoman for families, youth and community services Elizabeth Kikkert said it isn't fair for a family with limited legal representation to be "pitted against" a team of government barristers.

"The best interests of the child require a level playing field," Ms Kikkert said.

"Under the current system, justice is only available to those who aren't intimidated by the enormous expense of going to court, which could be fixed by providing access to external merits review."

A government spokeswoman said timely, accessible and transparent legal assistance was particularly important in matters affecting children.

"The government recognises the need for high quality legal assistance for parents and carers in care and protection matters. This is why the ACT government supports legal service providers with funding that enables them to represent the families," the spokeswoman said.

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