Professor Neil Rees, 5 October 2010
Late last year the Attorney-General asked the Commission to review Children’s Court processes in child protection matters and provide him with options for reform that may ‘minimise disputation and maintain a focus on the best interests of children’.
The Attorney-General’s reference to the Commission followed a report to Parliament by the Ombudsman in which he expressed concern about the level of disputation in child protection cases and suggested that the Commission be asked to consider models that take a more administrative case management approach.
Our report tabled in Parliament today is the tenth major review of Victoria’s child protection system in the past 33 years. The sheer number of reviews demonstrates the complexity of the field and the challenge in attracting broad support for reform, particularly reform of the procedures used when deciding whether a child should be taken into state care.
This challenge is not limited to Victoria. Other parts of Australia and other countries with similar legal systems have also reviewed their child protection procedures on many occasions in the hope of securing improvements.
Balancing of interests and purpose built procedures
The difficulty faced when devising procedures for use in child protection cases is to strike the right balance between two important, but very different, state responsibilities.
We need to balance the state’s capacity to act as swiftly as possible with the need for fair processes before the state intervenes in the life of a family – by taking a child into care or by imposing restrictions upon the way the parents live. That is not an easy balance to achieve, especially in a field such as child protection where the stakes are so high for the family, for the broader community, for the state and, most importantly, for the child.
This tension between the different interests, and the different state responsibilities in the area of child protection, is well illustrated by one section of Victoria’s Charter of Human Rights and Responsibilities—section 17. Sub-section (1) of this section says that ‘families are the fundamental group of society’ and that they should be protected by the state. Sub-section (2) says that children have the right to protection of their best interests. While the state has a clear responsibility to protect children from harm, it must sometimes interfere with a family’s choice to live as it pleases in order to do so.
One of the reasons why our report is quite lengthy is that we have described the history of Victoria’s child protection laws. That history reveals a long and close connection between the criminal law and child protection law. While many steps have been taken over the past 25 years to break that nexus—for example, the police no longer play a central role in child protection cases—the historical connection has left us with child protection procedures which bear a strong resemblance to those used in criminal prosecutions in the Magistrates Court. Not surprisingly, those procedures are strongly adversarial in nature.
The Commission believes that it is time to consider whether we should continue to have adversarial proceedings in child protection matters or whether we should have purpose-built procedures specially designed for this unique jurisdiction.
The Commission has provided the Victorian government with five options for reform. They involve re-thinking the way in which we respond when there is a reasonably held concern that a child may be in need of some form of protection.
The options draw upon innovative and highly successful aspects of the Victorian legal system—such as the growing emphasis upon ADR—and ‘best practice’ developments in other parts of the world—most notably family group conferences in New Zealand and separate representation of all children in England and Wales.
The options seek to close the substantial gap between the way in which the Children’s Court’s processes have been designed to operate and the realities of daily practice in the Court.
Each year the Children’s Court deals with more than 3000 new child protection applications. Over half of those cases involve children under seven.
These applications are placed on a pathway which assumes there will be a contested hearing even though 97% of cases are actually resolved by agreement. The methods used in reaching those agreements—often in the crowded corridors of the Children’s Court—is a matter of controversy.
Principles to guide new procedures
To help foster agreement among people in the child protection system who sometimes see things from very different perspectives, the Commission has suggested a set of principles to guide the development of any new system. We hope that these principles might attract broad support.
Those principles have been summarised in an overriding objective devised by the Commission. That objective is: the processes for determining the outcome of child protection applications should emphasise supported child-centred agreements. In other words, the system should rely strongly upon ADR mechanisms—and should only rely upon adjudication by inquisitorial means—that is, going to court—when proceeding by way of supported agreement is unachievable or inappropriate in the circumstances.
Options and Proposals
In order to give practical meaning to that overriding objective I will briefly describe the five options for reform in the Commission’s report.
The options comprise a range of possible reforms. Although all five could be adopted, they are not presented as a single integrated scheme.
One, some, all, or only parts of the options may be chosen to bring about a new system for dealing with child protection matters.
Options 1 and 2 involve no change to the structure of the current system. They do involve significant change 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.
Option 1 proposes that a graduated range of supported and structured agreement-making processes—in other words ADR mechanisms—should become the principal means of determining the outcome of child protection matters.
We suggest that one of those processes—Family Group Conferences — could become the primary decision-making forum in Victoria’s child protection system. Family Group Conferences have played this role in the New Zealand system for nearly 20 years.
A Family Group Conference is a process that emphasises family decision-making in child protection cases. It puts the family in the driving seat by giving it a chance to make decisions for the well-being of one of its younger members before the state undertakes this difficult task.
Option 2 contains a number of separate, but connected proposals for new processes for the manner in which protection applications are commenced and proceed through the Children’s Court.
The 24 proposals in Option 2 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 involves a significant change to the framework of the child protection system.
It proposes that a new body, the Office of the Children and Youth Advocate—or OCYA for short—be established to represent and promote the best interests of children at all stages of the child protection process.
The Office of the Children and Youth Advocate would sit between the Department of Human Services and the Children’s Court. It would be a multi-disciplinary body—one which sought to blend the welfare and justice interests that arise in child protection cases. OCYA would 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.
This has been a challenging reference for the Commission. We are mindful of the many people who have previously sought to devise systems that protect some of the most vulnerable people in our community—young children—but do so in a manner which is just and fair. We are grateful for their insights and for the opportunity to build upon their work.
I take this opportunity to thank the President and members of the Children’s Court, the Secretary of the Department of Human Services and her staff, the Managing Director of Victoria Legal Aid, the Child Safety Commissioner, the legal practitioners who work in the Court, the academic experts, and the many members of the community with an interest in the area for their assistance and for the constructive manner in which they presented their views to the Commission.
That concludes the presentations this afternoon. We are happy to take questions. Copies of the report are available for you to take away.