Birth Injury Lawyer
Claim process

Court Approval of Birth Injury Settlements for Children

When a birth injury claim involves a child, a court or similar authority often checks that any settlement is in the child's interests. This page explains the purpose, reports, representation, costs scrutiny and protection of funds.

3 minute read
The starting point

Because children cannot legally agree to settle their own claims, many Australian jurisdictions require independent approval before a child's settlement becomes binding. The approval process examines evidence, legal costs and how funds will be protected. Procedures differ by state and court.

Why approval is often required

A child does not have legal capacity to compromise a claim, and parents may face financial pressure or conflicts of interest. For these reasons, settlements of children's claims commonly need approval from a court or another authorised body before they bind the child. The same protection may apply to adults who lack decision-making capacity.

The exact requirements, forms and decision-makers differ between states, territories and courts, and can depend on whether proceedings have started. A local solicitor needs to confirm the current rules that apply. This page does not describe one national procedure.

Reports usually provided

The decision-maker needs enough information to judge whether the proposed amount is reasonable given the risks of continuing. Material often includes medical and loss evidence, an explanation of liability and causation risks, and an advice on the settlement, often from a barrister or the solicitor, setting out the likely range of outcomes and why the offer is recommended.

  • Current medical and therapy reports about the child
  • Care, equipment and economic loss reports
  • A legal opinion on the merits and proposed settlement
  • Details of any amounts to be repaid to government agencies

Representation of the child

An adult usually acts for the child in the claim, with the title and duties depending on the court. That person must act in the child's interests, not their own. Where parents also have personal claims, for example for their own psychological injury, the approval process may consider whether the division between claims is fair.

Scrutiny of legal costs

Courts approving children's settlements frequently review the legal costs to be deducted. They may ask whether costs are reasonable and proportionate, and in some cases an independent costs assessment may be required. Families should not assume the costs in an agreement will automatically be approved in full.

How funds may be managed

Approval usually addresses where the money goes. Depending on the jurisdiction and amount, funds may be held by a public trustee, a court fund, or a private trustee or manager, sometimes until adulthood or for life. Families can ask how they apply for money for the child's care and needs while the funds are held.

Keep the questions. Gather what you have.

For your next conversation

  • Ask which body approves settlements in your state and court
  • Request copies of the legal opinion supporting the settlement
  • Ask whether costs will be independently assessed
  • Find out who will hold the funds and how withdrawals are requested
  • Confirm how any parent claim is separated from the child's claim

Common questions

Can the court reject a settlement we have agreed to?

Yes. If the decision-maker is not satisfied the settlement is in the child's interests, it may decline approval or ask for further evidence. This can feel stressful, but the process exists to protect the child. Your solicitor can explain what additional material might address the concerns raised.

Will we be able to use settlement money to buy a wheelchair-accessible vehicle?

It depends on how the funds are held and the rules of the manager or trustee. Many arrangements allow applications for expenses directly benefiting the child, supported by quotes and professional recommendations. Ask before settlement how such requests are made and what evidence is expected.

Sources & further reading

  1. Judicial Commission of NSW: persons under legal incapacity (opens in a new tab)

These references support the topic’s starting points. They do not determine the facts, standard of care or law applicable to an individual matter.

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