05 Oct 2010
The Victorian Law Reform Commission’s report on options for reforming court procedures in child protection cases was tabled in state Parliament today.
The Attorney-General asked the Commission to review Children’s Court procedures in child protection cases following a 2009 report by the Ombudsman expressing concern about the level of disputation in these cases and suggesting a more collaborative approach. The Commission was asked to provide options for reform `that may minimise disputation and maintain a focus on the best interests of children’.
While Victoria has the lowest rate of child protection interventions in the country, the Children’s Court deals with more than 3000 new applications each year. Over half of those cases involve children under the age of seven.
In launching the report—Protection Applications in the Children’s Court—Commission Chairperson, Professor Neil Rees, said the challenge when devising procedures for use in child protection cases was to strike the right balance between important, but very different, interests.
“The law should allow for fast action to protect children from harm, but at the same time, fair processes must be followed before the state intervenes in the life of a family by taking a child into care, or by imposing lifestyle conditions on the parents,” he said.
Professor Rees noted that the Commission’s report is the tenth major review of Victoria’s child protection system in the past 33 years.
“The many, many reviews of child protection procedures in Victoria and elsewhere demonstrate just how difficult it is to strike a balance in a way that attracts broad support,” he said.
Professor Rees said that the current procedures are very similar to those used in criminal law matters and do not reflect the unique nature of child protection cases. ”It is time to consider if we should continue with traditional adversarial proceedings in child protection or whether we should have purpose-built procedures specially designed for these cases,” he said.
The Commission has provided the Victorian Government with five options for reform. The options draw upon innovative aspects of the Victorian legal system—like the growing emphasis upon appropriate dispute resolution (ADR)—and important developments in child protection procedures elsewhere, such as family group conferences in New Zealand.
Professor Rees said the Commission found a substantial gap between the way in which the Court’s processes have been designed to operate and the realities of Children’s Court practice.
“The current procedures do not reflect the fact that most child protection applications—around 97 per cent—are resolved by agreement. These agreements are often reached informally in the corridors of the Court as part of the process of moving towards a contested hearing,” he said.
To help gain agreement among people in the child protection system who see things from different perspectives, the Commission suggested a set of overarching principles to guide the development of any new system.
“The objective is to have procedures which emphasise child-centred agreements using ADR-style processes and to rely on adjudicated outcomes only when agreement is unachievable, or inappropriate, in the circumstances of the case,” Professor Rees said.
Some of the five reform options involve procedural changes within the existing legal framework, while others propose structural change.
The most significant structural change proposed is the creation of an independent statutory commission to represent and promote the best interests of children at all stages of the child protection process. The Commission suggests calling it the Office of the Children and Youth Advocate (OCYA).
In developing the report, the Commission held 28 formal consultations with interested groups and individuals and received 51 submissions in response to an information paper released in February 2010.
Professor Rees thanked fellow Commissioners, Judge Felicity Hampel, Magistrate Mandy Chambers and Hugh de Kretser, who worked with him on this reference.
The report is available at: www.lawreform.vic.gov.au or by calling 8608 7800.
For more information or an interview with Professor Rees please contact:
Nicola Edwards, Communications Manager, Tel: 03 8608 7824 or 0428 025 009