2.1 Children

Legal aid is available to children and young people for all criminal matters in the Children’s Court.

This includes but is not limited to:

  • defendants in matters initiated by court attendance notice;
  • applications for annulments under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW);
  • applications under the Crimes (Forensic Procedures) Act 2000 (NSW) where the applicant is a suspect;
  • committal proceedings;
  • parole hearings.

Note: This policy applies to adult defendants up to the age of 21 years appearing in criminal matters in the Children’s Court over which the Children’s Court has jurisdiction.

Note: Legal aid is available to children and young people in compulsory schooling order proceedings under the Education Act 1990 (NSW) in the Children's Court, where the order is directed at the child (as opposed to the parent): see Family policy 3.1.2.13 - Compulsory schooling order matters - for children and young people.

Note: Legal aid is available to children and young people for driving and traffic offences in the Local Court: see Crime policy 2.2.3.2 Driving and traffic offences.

Legal aid is available to children and young people in apprehended domestic violence order (ADVO) proceedings under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Where the applicant for legal aid is seeking to make an ADVO application:

To be eligible for legal aid the applicant must be:

  • a victim of domestic violence, and
  • permitted to bring the proceedings on their own behalf under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). For example: a child under 16 years of age is not able to commence proceedings for an ADVO on their own behalf.
Where the applicant for legal aid is defending an ADVO:

Legal aid is available to defend an application for an ADVO against a child.

Legal aid is not available for ADVO matters if:
  • Legal Aid NSW is satisfied that the application for an order is frivolous or vexatious, or
  • There are no reasonable prospects of success, or
  • For an applicant in ADVO proceedings, if the application for the order is made by a police officer.

Legal aid is available to children and young people in apprehended personal violence order (APVO) proceedings under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Where the applicant for legal aid is seeking to make an APVO application

To be eligible for legal aid:

  • there must be exceptional circumstances (examples may include, but are not limited to, where the applicant has a disability or lives with the proposed defendant in a detention centre), and
  • the applicant is permitted to bring the proceedings on their own behalf under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). For example: a child under 16 years of age is not able to commence proceedings for an APVO on their own behalf.
Where the applicant for legal aid is defending an APVO:

Legal aid is available to defend an application for an APVO against a child.

Legal aid is not available for APVO matters if:
  • Legal Aid NSW is satisfied that the application for an order is frivolous or vexatious, or
  • There are no reasonable prospects of success.

Legal aid is available to children and young people in proceedings to vary or revoke a bond or probation order under the Children (Criminal Proceedings) Act 1986 (NSW).

Where the applicant for legal aid is the respondent to an application to vary or revoke

Legal aid is available to respondents in applications to vary or revoke a bond or probation order.

Where the applicant for legal aid is seeking to make an application to vary or revoke

Legal aid is available to make an application to vary or revoke a bond or probation order.

To be eligible for legal aid the applicant must satisfy:

Note: see Crime policy 2.2.3.5- Applications to vary or revoke a Community Correction Order or a Conditional Release Order and Crime policy 2.2.3.6- Breach of a Community Correction Order or a Conditional Release Order for when legal aid is available in the Local Court in relation to an application to vary or revoke a Community Correction Order or a Conditional Release Order made under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legal aid is available to children and young people who are participating in a restorative justice program where the court makes an order in relation to Youth Justice Conferencing pursuant to the Young Offenders Act 1997 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • that it is appropriate in the circumstances that the applicant has legal representation.

Note: Crime guideline 2.6 sets out the criteria for determining whether it is appropriate that the applicant has legal representation.

Legal aid is available to children and young people for appeals to the District Court, the Supreme Court, the Court of Criminal Appeal and the High Court of Australia.

To be eligible for legal aid the applicant must satisfy:

Legal Aid NSW officers authorised under the Delegation Instrument clause 9 can determine applications for legal aid in these matters.

Legal aid is available to children and young people for trials and sentence matters in the District and Supreme Court.

Legal aid is available to children and young people in applications for bail to the Supreme Court.

To be eligible for legal aid the applicant must satisfy:

Legal aid is available to children and young people to respond to an application for an order made under Part 4 of the Mandatory Disease Testing Act 2021 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the definition of “vulnerable third party” under the Mandatory Disease Testing Act 2021 (NSW).

Note: These applications are administered as criminal law grants of aid.

Note: Under the Mandatory Disease Testing Act 2021 (NSW) a “vulnerable third party” means a third party who—
(a)  is at least 14 years of age but under 18 years of age, or
(b)  is suffering from a mental illness or mental condition, or is cognitively impaired, within the meaning of the Mental Health (Forensic Provisions) Act 1990 (NSW), which significantly affects the vulnerable third party’s capacity to consent to voluntarily provide blood to be tested for blood-borne diseases.