Focus on child protection laws

The Victorian Law Reform Commission is currently reviewing Victoria’s Child Protection Legislative Arrangements.

The reference to the Commission follows an own-motion investigation by the Victorian Ombudsman into the Department of Human Services Child Protection Program. The Ombudsman’s report, published in November 2009 recommended that the government give a reference to the Commission on the issue. On 4 December 2009, the Commission received a reference from the Attorney-General to review aspects of Victoria’s child protection system.

The Attorney-General has asked the Commission to focus on the use of appropriate dispute resolution and to have regard to models that take a more administrative approach to child protection issues. Further, the Terms of Reference have asked that the Commission take into consideration arrangements in other relevant Australian Jurisdictions, and overseas, including England and Scotland.

Professor Neil Rees, Chairperson of the Commission, said the review will provide the government with reform options that seek to minimise disputation while maintaining a focus on the best interests of the child. The Commission has been asked to look specifically at the processes of the Children’s Court of Victoria. Professor Rees said, “the review provides an opportunity for people with experience of child protection applications to have their say on the court process”.

There have been numerous reviews into Victoria’s Child Protection System in the past 30 years which are informing our report. Further, the Australian Law Reform Commission and the New South Wales Law Reform Commission are currently conducting a joint Inquiry into family violence laws. The Inquiry will report to the Attorney-General by 31 July.

A separate review has been undertaken by a Government Taskforce which addressed measures to immediately reduce court time and bring in less adversarial processes. The Government Taskforce reported to the Attorney-General on 26 February 2010 and the report was made public on 1 April.

The Commission team has visited New South Wales, Western Australia and South Australia to gather information, and has had contact with overseas jurisdictions including New Zealand, England and Scotland to better inform the Commission’s thinking in this area. The team has undertaken close observation of the Melbourne Children’s Court practices as well as visits to regional Victoria to examine how the system works in country areas.

The Commission has conducted an extensive consultation process despite the short time-frame for this reference. To assist with this process the Commission released an information paper containing possible options for reform including:

  1. New processes that may assist the resolution of child protection matters by agreement rather than by adjudication.
  2. New grounds upon which State intervention in the care of a child may be authorised and reform of the procedures followed by the Children’s Court when deciding whether to provide this authorisation.
  3. The creation of an independent statutory commissioner who would have some of the functions currently performed by the Department of Human Services.
  4. Changing the nature of the body which decides whether there should be State intervention in the care of a child so that it includes non-judicial as well as judicial members.

The first two options assume that the legal framework of the existing child protection system would remain in place while the third and fourth options involve changes to the framework of the child protection system. These options have been presented at consultations and are designed to generate discussion and debate. They are not necessarily those that will be presented in the Commission’s final report.

Submissions received reflect the strong views held by interested parties, and the many different perspectives of those involved in child protection in Victoria.

The Commission employed the services of peak bodies to facilitate devolved consultations to ensure that it heard from those people who are involved in the court process; namely young people, foster carers, kinship carers and parents who have had contact with the Children’s Court.

The reports from devolved consultations in addition to the information paper and copies of submissions received are available online at the Commission’s website

The Commission will report to the Attorney-General on June 30 2010.

This article was produced by the Commission and appeared in the July 2010 issue of the Law Institute Journal.

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