ZA v Director-General, Community Services Directorate (No 3)

The Supreme Court of the Australian Capital Territory considered an application by the children's representative seeking to be excused from attending the remainder of care and protection proceedings. The application arose in the context of an appeal from a decision of the Supreme Court, with prior interlocutory proceedings having occurred in the Court of Appeal. The children's representative argued that they had no further role in the appeal, as their position regarding the children had been set out in previous written submissions and no useful purpose would be served by further submissions.

The central legal issue before the Court was whether the children's representative should be excused from attending the proceedings, and more broadly, the proper constitution of the proceedings and the appeal. This involved considering the status of the children as parties under the *Children and Young People Act 2008* (ACT), the provisions for representation of children under the *Court Procedures Act 2004* (ACT), and the requirements for joining parties to an appeal under the *Court Procedures Rules 2006* (ACT). The Court also had to determine if the application fell within the scope of section 73 of the *Court Procedures Act 2004* (ACT), which allows a court to excuse a child or young person from attending proceedings.

The Court reasoned that there was significant uncertainty regarding the procedural irregularities in both the original Supreme Court proceedings and the constitution of the appeal to the Court of Appeal. Specifically, it was unclear how the children were formally constituted as parties in the original proceedings and whether they had been properly joined as respondents to the appeal, as required by rule 5404(1) of the *Court Procedures Rules 2006* (ACT) if they were directly affected by the order under appeal. Given these unresolved procedural issues, the Court determined it was inappropriate to grant the application to excuse the children's representative. Instead, the Court considered it essential that the proceedings be properly constituted, which might necessitate further submissions from the parties and the children's representative to clarify the procedural status and determine any necessary orders.

Consequently, the application by the children's representative to be excused from attending the remainder of the proceedings was dismissed. The Court indicated that the children's representative's role might be limited to ensuring the proceedings are properly constituted and procedural uncertainties are resolved, and that an order excusing the children and their representative might be made at a later hearing of the appeal, even if the children are formally joined as parties.