This article was produced by the Commission and appeared in the November 2010 issue of the Law Institute Journal.
Victorian Attorney-General Rob Hulls tabled the VLRC's Protection Applications in the Children’s Court: Final Report, in Parliament on 5 October 2010. The background to this reference was discussed in the July VLRC column (July 2010 84(7) LIJ, p80).
This report was the product of seven months of intensive examination of the statutory child protection system in Victoria and elsewhere. The VLRC consulted widely with people with an interest in child protection law, including legal practitioners who specialise in the area.
The VLRC has suggested that Victoria’s child protection jurisdiction should move away from procedures that closely resemble those used in summary criminal prosecutions. VLRC chair Professor Neil Rees said that the processes used in child protection matters 'should be designed specially for this unique jurisdiction which is neither criminal nor civil in nature’.
He commented that ‘much can be drawn from experiences elsewhere in the legal system to guide procedural changes that may minimise disputation while maintaining a focus on the best interests of children’.
The Children’s Court of Victoria endorsed this approach in its submission to the VLRC, accepting that ‘the Court should be an option of last resort’ and supporting the use of best practice alternative dispute resolution (ADR) being conducted prior to applications in court where appropriate.
In its final report, the VLRC presented the Attorney-General with five options for reform. Each contained a number of detailed proposals that sought to advance the underlying aim of the child protection system to protect children in Victoria from abuse and neglect, and to promote the best interests of children.
All five of the reform options could be adopted, but they are not presented as a single integrated scheme. They comprise a range of possible reforms. One, some, all, or only parts of the options may be chosen to bring about a new system for dealing with child protection matters. The five options outlined in the report are:
- Option 1 – 'A new system: processes for achieving appropriate child-centred agreement';
- Option 2 – 'A new system: enhanced court practices and processes';
- Option 3 – 'The Office of the Children and Youth Advocate (OCYA): a new multi-disciplinary body to advance children’s interests';
- Option 4 – 'Representing DHS: a role for the Victorian Government Solicitor in protection matters';
- Option 5 – 'Broadening the role of the Child Safety Commissioner'.
The first two options involve no change to the overarching structure of the current system. They do involve significant changes to the way in which protection applications are conducted in the Children’s Court and to the steps that should occur before an application is commenced. Options 1 and 2 overlap and are preferably adopted together.
Option 1 proposes that a graduated range of supported and structured agreement-making processes—similar to some alternative dispute resolution (ADR) mechanisms—should become the principal means of determining the outcome of child protection matters.
The VLRC suggests that one of those processes—family group conferences (FGCs)—could become the primary decision-making forum in Victoria’s child protection system.
An FGC is a process that emphasises family decision-making in child protection cases. FGCs commenced in New Zealand over 20 years ago and draw from both the restorative justice and ADR movements.
“Victoria should join the more than 150 jurisdictions worldwide that systematically use FGCs in child protection matters,” Professor Rees said.
Family group conferences are sometimes conducted informally in Victoria but do not form part of the child protection legislative scheme and differ in many respects from the model proposed by the VLRC.
Option 2 contains a number of separate, connected proposals for change, comprising new processes for Children's Court protection application procedures. Its 24 proposals deal with matters such as new emergency intervention procedures, the participation and representation of children in protection proceedings, and a new ‘no fault’ ground for finding that a child is in need of protection.
Option 3 proposes that the Office of the Children and Youth Advocate (OCYA) be established to represent and promote the best interests of children at all stages of the child protection process.
OCYA could convene family group conferences, represent children and young people in child protection matters, and provide specialist expertise to the Children’s Court.
Option 4 deals with a new system for conducting cases on behalf of the Department of Human Services in the Children’s Court. It proposes that the Victorian Government Solicitor should be primarily responsible for conducting proceedings on behalf of the state in the Children's Court.
Option 5 proposes that additional functions be given to the Child Safety Commissioner and that the independence of this office be strengthened.
The report is available online at www.lawreform.vic.gov.au.