A child's birth injury claim is brought by an adult acting as their litigation guardian or equivalent. Settlements for children usually require court approval to protect the child's interests, and compensation is often held or managed under supervision until the child is an adult or longer.
Who acts for a child
Courts require an adult to conduct proceedings for a child. The terminology varies, but the role is often called a litigation guardian or tutor. This is usually a parent, though another adult may act if a parent is unavailable or has a conflict, for example where the parent also has their own claim with differing interests.
The representative instructs the solicitor, makes decisions in the child's best interests and may carry responsibility for legal costs in some circumstances. A solicitor should explain these duties before anyone agrees to take on the role.
Evidence
Beyond birth records, a child's claim depends on evidence of how the injury affects their life over time. This includes developmental assessments, therapy reports, school records and care arrangements. Because children's needs evolve, experts may need to reassess at intervals. Families can request health records directly, following the access rights the OAIC describes for public and private providers.
Time limits
Limitation rules for children differ across states and territories and are not always paused until adulthood. A child's representative should have a solicitor check the applicable rules early, even if the claim itself will take years to value.
Court approval
A proposed settlement for a child usually needs court approval before it is binding. The court considers whether the amount and terms are in the child's interests, often with input from the solicitor and independent counsel. This protects the child from an agreement made without adequate scrutiny.
Managing compensation
Approved compensation for a child is commonly paid into a supervised fund or managed by a public or private trustee arrangement, depending on the jurisdiction and the size of the award. Families should also understand how government programs interact. Medicare may seek recovery of past benefits, and NDIS compensation rules can affect future supports; the NDIS calculator estimates this but is not a payout estimator.
- How will funds be accessed for therapy or equipment?
- Who supervises spending and reporting?
- What happens when the child reaches adulthood?
For your next conversation
- Which adult will act as the child's representative, and is there any conflict of interest?
- Do you hold the child's developmental, therapy and school support reports?
- Has the child received NDIS supports, and do you have the current plan?
- Do you have a Medicare history statement covering services related to the injury?
- Have you asked how a settlement would be held and accessed in your jurisdiction?
Common questions
Can we spend our daughter's compensation on a wheelchair-accessible car without asking anyone?
Usually not directly. Compensation for a child is often held under court or trustee supervision, and spending may need approval. A request for an item such as a modified vehicle is commonly considered against the child's needs. Your solicitor can explain the local process.
Why can't we simply accept a settlement offer ourselves?
Settlements for children generally require court approval to ensure the terms protect the child. An unapproved agreement may not be binding. The approval process gives an independent check that the amount reflects the child's long-term needs.
Sources & further reading
- OAIC: access health information (opens in a new tab)
- NDIS: compensation calculator (opens in a new tab)
- Services Australia: Medicare compensation recovery (opens in a new tab)
- 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.