VLRC's report on Protection Applications in the Children's Court

These are the slides from a talk given by the Commission's Chairperson, Professor Neil Rees, to the AIJA Child Protection Conference in Brisbane on 8 May 2011.

 

The VLRC report

  • VLRC report tabled in Parliament on 5 October 2010.
  • VLRC report was the tenth major review of Victoria’s child protection system in the past 35 years:
    • 17 reviews when implementation audits and discrete reviews are included.
    • VLRC was asked to develop options for reform of Children’s Court procedures that ‘may minimise disputation and maintain a focus on the best interests of children’.
    • The new Baillieu Government recently commissioned the 11th major review of child protection—the Cummins inquiry due to report on 4 November 2011.

 

Background

  • VLRC reference—one of previous government’s responses to Ombudsman’s November 2009 report concerning failings in child protection.
    • Ombudsman critical of the Department of Human Services (DHS) and of the adversarial processes in the Children’s Court—suggested consideration of an ‘administrative’ approach.
    • DHS has too many functions and not enough accountability.
    • ‘The current legal system perversely encourages disputation rather than cooperation in the protection of children’.
    • A ‘substantial proportion of the department’s resources’ were being ‘absorbed’ by legal processes in the Children’s Court—high DHS staff turnover because of stressful court processes.
  • First Victorian child protection legislation in 1864:
    • Front line responsibilities originally given to the police.
    • Children’s Protection Society established in 1897—shared front line responsibilities with the police until 1985.
    • Since 1992 a government department (DHS) has been given sole front line responsibilities.
  • The Children’s Court was established in 1906:
    • A separate court which operates as a division of the Magistrates Court—President is a County Court judge.
    • Sits in separate divisions to hear child protection and juvenile criminal matters—38 locations throughout Victoria.
    • Child protection procedures based on a criminal law template.

 

The Victorian legislation

  • The Children, Youth and Families Act 2005 (Vic) (CYF Act) commenced operation in April 2007
    • 607 sections, 4 schedules, 588 pages.
    • Responsibility shared between two ministers and two government departments.
    • Deals with criminal and child protection matters.
    • Gives the Secretary of DHS and the Children’s Court broad discretionary powers in child protection matters.
  • The CYF Act imposes mandatory reporting obligations upon a range of people—doctors, teachers, nurses and others—to report protective concerns to DHS.
  • Secretary of DHS may apply to the Children’s Court for a protection order if satisfied on reasonable grounds that a child is in need of protection.
  • An application may be commenced by notice to the parents (and to the child if over 12) or by taking the child into ‘safe custody’:
    • No express powers of entry—provision for a magistrate to issue a warrant.
    • A child may be taken into ‘safe custody’ if it is ‘inappropriate’ to proceed by notice.
    • Children taken into ‘safe custody’ must be brought before a court within 24 hours.
  • The Children’s Court must determine if a child is in need of protection:
    • Six separate grounds.
    • Two concern being orphaned or abandoned.
    • The remaining four are concerned with whether the child has suffered, or is likely to suffer, significant harm as a result of physical abuse, emotional abuse, sexual abuse or neglect and the parents have not protected, or are unlikely to protect, the child.
  • The Children’s Court has a range of dispositional options if it finds that a child is in need of protection.
  • The Children’s Court has a range of orders if it finds that a child is in need of protection:
    • An undertaking from a parent or custodian.
    • A supervision order.
    • A custody to third party order.
    • A supervised custody order.
    • A custody to the Secretary of DHS order.
    • A guardianship to the Secretary of DHS order.
    • A long-term guardianship to the Secretary of DHS order.
    • An interim protection order.
  • Most orders cannot operate for more than 12 months but can be renewed.
  • Both the Secretary of DHS and the Children’s Court must consider a range of ‘best interests principles’ when exercising their discretionary powers:
    • There are three broad ‘needs’ and 17 ‘relevant considerations’ that must be taken into account when applying the best interests principles.
    • One of these considerations describes ‘the parent and child as the fundamental group unit of society’
    • There are separate best interests principles for Aboriginal children.
    • The Secretary of DHS is also required to consider nine additional decision-making principles when acting.

 

The Victorian Practice

  • Reports by the Boston Consulting Group (BCG) in 2007 and 2010 provide much valuable information:
    • DHS receives approximately 42,000 ‘reports’ per annum and investigates approximately 12,000.
    • The Children’s Court receives about 3000 new protection applications per annum and about 7000 secondary applications.
    • Over 50% of children aged under 7.
    • Applications have grown at the rate of 6% per annum over the past decade.
    • In Melbourne 78% of applications commenced by emergency removal of a child (‘safe custody’).
    • Rate of emergency applications has increased markedly.
    • Victoria has lowest national intervention rate—5/1000 children.
  • The Children’s Court’s processes:
    • Parents legally represented—most represented by private lawyers funded by Victoria Legal Aid (VLA).
    • Child not automatically a party—children over 7 generally represented on an ‘instructions’ basis.
    • Interim accommodation for children taken into ‘safe custody’ determined by a submissions contest if no agreement.
    • Children’s Court estimates that 50% of children returned home at this stage.
    • Most protection applications resolved by agreement—only 3% proceed to hearing.
    • Applications by ‘safe custody’ require 4.9 mentions (on average) before settlement; applications by notice require 3.4 mentions.
  • The Court’s processes are adaptations of summary criminal procedure:
    • Criminal law terminology widely used.
    • Procedures based on the false assumption that most cases proceed to hearing.
    • All ‘parties’ legally represented in a traditional manner—some lawyers act for numerous clients on one day.
    • Limited use of ADR until recently—New Model Conferences an important recent development.
    • Many cases settled in the corridors in an unstructured and unsupported manner.
    • Unemployment, family violence and substance abuse are prevalent among the families involved.

 

Some VLRC observations 

  • When designing procedures for use in child protection matters it is necessary to balance two very different state responsibilities:
    • Protecting vulnerable children from harm as swiftly as possible.
    • Following fair processes before the state intervenes in the life of a family by separation or supervision.
  • Inability to strike an acceptable balance has produced longstanding enmity between key participants.
  • The tension between the competing state responsibilities is well illustrated by section 17 of the Victorian Charter of Human Rights and Responsibilities Act 2006.

Charter of Human Rights and Responsibilities Act 2006

17. Protection of families and children

1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

  • Current Children’s Court processes are ill-suited to this unique protective jurisdiction which is neither criminal nor civil in nature: 
    • Procedures not specifically designed for the jurisdiction.
    • Little debate between key participants about how to balance the very different ‘welfare’ and ‘justice’ perspectives.
    • Determination by ‘administrative’ means as suggested by the Ombudsman not a realistic option.
    • Little debate about the three key interests in every case: the state, the parents and the child.
    • Little debate about the overlapping responsibilities of parents (the family?) and the state in caring for children.
  • The tension between the ‘welfare’ and ‘justice’ perspectives is difficult to resolve:

‘The Children’s Court and the Child Protection service are embedded in an adversarial legal system which has historical and cultural determinants. The professional orientations of the Court and the Child Protection service differ and might not ultimately be reconcilable’ [Kirby, Ward and Freiberg (2004)].

  •  There are lessons from other fields where the ‘welfare’ and ‘justice’ perspectives meet eg, disability.

 

A way forward—The VLRC report

  • The processes used in child protection matters should be designed specially for this unique jurisdiction.
    • Reflect the reality that most cases settle—generally a desirable outcome.
  • ‘Purpose built’ child protection procedures should draw upon the following:
    • A solid evidence base concerning current applications.
    • Successful developments in child protection matters elsewhere such as Family Group Conferences in New Zealand.
    • Important innovations in other parts of the Australian legal system that could be adapted for use in child protection matters, such as ADR and Less Adversarial Trials in the Family Court.

 

A way forward—Guiding principles

  1. [Child protection] processes should actively encourage early resolution by agreement whenever appropriate.
  2. The processes should be child-centred.
  3. The processes should actively encourage inter-professional collaboration so that decision makers have access to the best information on child development and wellbeing.
  4. The processes should actively promote outcomes that involve the least amount of compulsory intervention in the life of a family as required by the circumstances.
  5. When an agreed outcome is not possible, a court should determine whether a child is in need of protection and the intervention required in order to promote the child’s wellbeing.
  6. The Court should be an inquisitorial and problem-oriented decision maker.

 

VLRC options for reform

  • Option 1– A New System: Processes for Achieving Appropriate Child-Centred Agreements
  • 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

 

VLRC options for reform—How they interact

  • Options 1 and 2: No change to the overarching structure of the current system—new processes.  
  • Option 3: A significant change to the overarching structure of the current system—a new authority. 
  • Option 4: A change to the way in which protection applications are conducted on behalf of the Secretary of DHS. 
  • Option 5: A change to the functions and powers of the Child Safety Commissioner—a new accountability mechanism. 

 

Option 1

 A New System: Processes for Achieving Appropriate Child-Centred Agreements

  • ADR processes should become the principal means of determining the outcome of child protection applications, where appropriate.
  • A graduated range of ADR processes:
    • Family group conferences: should usually occur before application filed; successfully used in NZ for 20 years; invites the family to take responsibility.
    • Conciliation conferences.
    • Judicial resolution conferences.

 

Option 2

A New System: Enhanced Court Practices and Processes

  • New procedures governing the way in which protection applications are commenced and proceed through the Children’s Court, including:
    • New ways of conducting contested proceedings; inquisitorial powers modelled on those used in some family law matters.
    • New emergency procedures; judicial authorisation generally required before a child taken into ‘safe custody’.
    • The child to become a party; a new approach to the representation of children based on Independent Children’s Lawyers in family law.
    • New ‘no fault’ grounds and an ‘agreement’ provision.
    • Encouraging the use of a docket system in the Court.
    • Improving the built environment and court administration.
    • More training for lawyers, child protection workers and the judiciary.

 

Option 3

The Office of the Children and Youth Advocate (OCYA): A New Multi-Disciplinary Body to Advance Children’s Interests

  • A new independent statutory commissioner to represent and promote the best interests of children at all stages of the child protection process.
    • A multi-disciplinary body which blends ‘welfare’ and ‘justice’ perspectives.
    • Could take over the role of the Children’s Clinic.
  • The primary roles of OCYA would be to:
    • Convene family group conferences.
    • Represent children throughout the process.
    • Assist the Court to act in an inquisitorial fashion.

 

Option 4

Representing the Department of Human Services: A Role for the Victorian Government Solicitor in Protection Matters

  • A new system for conducting cases on behalf of DHS in the Children’s Court.
  • Victorian Government Solicitor (VGS) should conduct proceedings on behalf of the state.
  • VGS to prepare model litigant guidelines specially designed for child protection applications.

 

Option 5

Broadening the Role of the Child Safety Commissioner

  • Additional functions for the Child Safety Commissioner and strengthening the Commissioner’s independence.
  • Commissioner to oversee and report about the operations of the child protection system.
  • To investigate and report about the CYF Act.
  • A-G to be the Minister responsible for the Commissioner.

 

Some reflections

  • Child protection is difficult for state governments conceptually, politically and administratively, and financially.
  • Some conceptual challenges:
    • Balancing competing state responsibilities—welfare and justice.
    • Crisis driven system—are there other means of responding to children who might need protection?
    • Current legislation gives broad discretionary power to both DHS and the Children’s Court—public policy not clear.
    • More thought needed about the extent to which state should and can assume ‘parenting’ responsibilities.
    • More thought needed about the extent to which DHS and the Court should promote reunification.
  • Some political and administrative challenges:
    • Child protection linked to many broader ‘wicked’ social problems—drug and alcohol abuse, gambling, family violence, family dislocation and poverty.
    • Long term strategies required—difficult ‘investment’ for governments running on 4-year terms.
    • Few votes to be won by good performance—votes to be lost by adverse publicity about failures.
    • Split responsibility between Ministers and departments impedes innovation and development.
    • Child protection a ‘new’ and evolving discipline—DHS has limited policy development and law making experience—policy monopolies not desirable.
  • Some financial challenges:
    • Few votes to be won by good performance—many areas of social need competing for additional funds.
    • Child protection workers not well paid—other front line workers (police and fire fighters) better entry salaries.
    • Major investment required for long-term change—numerous Victorian inquiries reveal a desire for the ‘magic bullet’.
    • A policy development and peace initiative such as OCYA will draw funds from service delivery.
    • The Children’s Court competing with other more powerful courts for development funds. 

 

More information

Victorian Law Reform Commission
3/333 Queen Street
Melbourne   VIC   3000
Tel: (03) 8608 7800

Related Project: 
Date published: 
08 May 2011

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