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8/9/2019 Report of the Child Protection Proceedings Taskforce, Victoria, Australia, Feb 2010
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REPORT OF THE CHILD PROTECTION
PROCEEDINGS TASKFORCE
26 FEBRUARY 2010
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Report of the Child Protection Proceedings Taskforce
FOREWORD................................................................................................................4
CHAPTER 1:
EXECUTIVE
SUMMARY...........................5
CHAPTER 2:
RECOMMENDATIONS...........................................................................................11
CHAPTER 3:
CHILD PROTECTION PROCEEDINGS TASKFORCE ....................................14
CHAPTER 4:
BACKGROUND ........................................................................................................15
CHAPTER 5:
A BETTER WAY TO SOLVE PROBLEMS NEW CHILD PROTECTION
RESOLUTION CONFERENCES............................................................................19
CHAPTER 6:
A BETTER START IMPROVING PREPARATION FOR COURT................23
CHAPTER 7:
FACILITATING CHILDRENS PARTICIPATION WITHOUT THE NEED
FOR THEM TO ATTEND COURT........................................................................25
CHAPTER 8:
A MORE COLLABORATIVE APPROACH BETWEEN COURT USERS ......26
CHAPTER 9:
IMPROVING THE PHYSICAL ENVIRONMENT OF THE COURT...............27
CHAPTER 10:
IMPROVING LEGAL AND ADMINISTRATIVE PROCESSES TO REDUCE
TIME IN COURT......................................................................................................30
CHAPTER 11:
SUPPORTING COLLABORATION THROUGH MULTI-DISCIPLINARYTRAINING .................................................................................................................33
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APPENDIX A:
Child Protection Resolution Conferences a new model for the Childrens
Court. ..........................................................................................................................36
APPENDIX B:
Two additional options for implementation of the conference model...................41
APPENDIX C:
Commentary: The Ombudsmans Report into the Child Protection System.....44
APPENDIX D:
Commentary: Special Commission of Inquiry into Child Protection Services in
NSW (the Wood Commission). .................................................................................46
APPENDIX E:
Child Protection Proceedings Flow Chart ...............................................................49
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FOREWORD
We, the members of the Child Protection Proceedings Taskforce have pleasure in
providing the Government with our report which the Premier requested on 26
November 2009.
The Taskforce has agreed to 17 recommendations for the Governments consideration
in line with the terms of reference which are as follows:
1. To recommend measures designed to reduce the adversarial nature of Childrens
Court processes including options for appropriate dispute resolution.
2. To recommend measures that could reduce the time that parties spend in the
Childrens Court.
3. To recommend measures for the Department of Human Services to further
support child protection workers in their preparation for, interactions with and
involvement in Childrens Court processes.
The Taskforce was also asked to provide advice to the Attorney General and the
Minister for Community Services on possible legislative amendments that could be
progressed for introduction in the autumn 2010 session of Parliament.
Penny Armytage (Chair)
Secretary, Department of Justice
..
Judge Paul Grant
President, Childrens Court of Victoria
..
Gill Callister
Secretary, Department of Human
Services
..
Bevan Warner
Managing Director, Victoria Legal Aid
.
Bernie Geary
Child Safety Commissioner
..
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CHAPTER 1:
EXECUTIVE SUMMARY
The Premier announced the Child Protection Proceedings Taskforce on 26 November2009. The Taskforce was required to provide a report to the Attorney-General and the
Minister for Community Services by 26 February 2010.
The Taskforces Terms of Reference are as follows:
1. To recommend measures designed to reduce the adversarial nature of Childrens
Court processes including options for appropriate dispute resolution.
2. To recommend measures that could reduce the time that parties spend in the
Childrens Court.
3. To recommend measures for the Department of Human Services to furthersupport child protection workers in their preparation for, interactions with and
involvement in Childrens Court processes.
The Taskforce was also asked to provide advice to the Attorney General and the
Minister for Community Services on possible legislative amendments that could be
progressed for introduction in the autumn 2010 session of Parliament.
The Taskforce worked closely with the Victorian Law Reform Commission (the
VLRC). This has ensured that the Taskforces report is consistent with the VLRCs
general direction and ensured that the Taskforce and the VLRC acquitted their
responsibilities efficiently.
The underlying aim of the Taskforces work has been the safety of children. Each of
the Taskforce members approached this aim from a range of perspectives and with a
problem-solving approach to the development of this report.
The proposals recommended in this report are not cost neutral. Government will need
to consider cost implications of implementation as part of its consideration of the
report's recommendations.
In summary, the major issues addressed in this report and in the recommendations are
as follows:
A better way to solve problems New Child Protection Resolution Conferences
The Taskforce recommends the adoption of a new resolution conference model
drawing on work completed by the Childrens Court Appropriate Dispute Resolution
(ADR) Working Party throughout 2009. The new model is outlined in Appendix A.
In summary the model makes six key changes to the current dispute resolution
conferences in the Childrens Court.
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These changes aim to improve the quality of the parties negotiations and improve
outcomes for children who are at the centre of Childrens Court proceedings:
1. Conducting the conference at the earliest practical point in the process.
2. Conferences to occur offsite from the Court premises.
3. Exercise of appropriate authority by convenors.
4. Pre-conference preparation by convenors and parties.
5. Mandatory training and accreditation of convenors.
6. Integrating judicial conferences into a comprehensive conferencing process.
Recommendation 1 proposes the adoption of the new model.
For discussion see Chapter 5 A better way to solve problems New Child Protection
Resolution Conferences and Chapter 11 Supporting collaboration through multi-
disciplinary training.
A better start improving preparation for Court
The Taskforce strongly believes that earlier disclosure and preparation of matters is
vital to help get proceedings off to a good start in the Childrens Court. It
recommends two interrelated actions that will enable cases to get off to a better start
through better preparation:
1. Earlier and succinct disclosure from DHS regarding their main concerns and
their recommendations for the future.
2. Ensuring lawyers for parents and children are able to provide advice and
explore proposals to address the protective concerns of DHS early in the process
and that lump sums fees payable to private practitioners are aligned with good
practice preparation and conduct of Court related proceedings.
As an initial step, the Taskforce recommends that the DHS documentation currently
under trial at the new Moorabbin Childrens Court, be expanded immediately to the
Melbourne Childrens Court. VLA and DHS will also collaborate to develop furtherrevisions to documents in relation to all applications.
Recommendations 2, 3, 4 and 17 address these issues.
For discussion, see Chapter 6 A Better Start Improving preparation for Court.
Facilitating childrens participation without the need for them to attend Court
The Taskforce members agreed with the principle that we should minimise the need
for children to attend Court and that all attempts should be made to prepare cases so
that children do not have to attend Court. However, the Taskforce also recognises
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that there will be circumstances where this is unavoidable or where the child needs or
chooses to participate in the process.
The Taskforce notes that its recommendations to enable cases to get off to a better
start through better preparation are aligned with the goal of reducing the need for
children to attend Court.
In addition, one factor in whether there is time for DHS to provide information so that
clients can see lawyers and provide instructions, is the amount of time between taking
a child into safe custody and bringing them before Court. The Taskforce discussed
the issue of whether the current 24-hour time limit on bringing applications for safe
custody to Court should be extended to 72 hours. The Taskforce was unable to come
to an agreed position on this issue and recommends that it be referred to the VLRC.
Chapter 7 Facilitating childrens participation without the need for them to attend
Court provides discussion on these matters and Recommendations 5 and 6 also
address the issue of child attendance at Court.
A more collaborative approach between Court users
VLA and DHS will work together to develop a Code of Conduct for all users of the
Court and a memorandum of understanding modelled on the Western Australian
Memorandum of Understanding (MOU) between the Family Court, WA Legal Aid
and the WA Department of Child Protection.
The Taskforce recommends that a Steering Committee be established comprising
taskforce members to monitor the implementation of all Taskforce recommendations.
It also recommends that a dedicated project manager be assigned to facilitate theinteractions of the Steering Group and assist with implementing the
recommendations.
Recommendations 7 - 9 address collaboration between court users.
For discussion see Chapter 8 A more collaborative approach between Court users.
Improving the physical environment of the Court
The Taskforce agreed with the principle of Court decentralisation and that the Court
should sit in regional locations that are more convenient for children and their
families than the Melbourne CBD. The Taskforce has recommended that this
principle form the central part of Court planning into the future. In the meantime it
has proposed contingencies for consideration.
Despite the successful establishment of the court at Moorabbin, the Melbourne
Childrens Court facility remains a heavily congested physical space, especially on
the Family Division side of the building. This makes the environment highly stressful
for children, their families, protective workers, staff of the court and other court users.
It is also detrimental to the efficient and effective conduct of matters before the court,
increasing the time that parties must spend there.
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The Taskforce recommends that consideration be given to three relatively low cost
options to alleviate the congestion at the Court involving a combination of relocation
of cases and minor structural works at the Melbourne Childrens Court.
Part of the intention behind recommendations 10 and 11 is to improve the amenity of
the Court for those children who need to attend Court or who choose to attend.
These options are discussed in Chapter 9 Improving the physical environment of the
Court and addressed in recommendations 10 and 11.
Improving legal and administrative processes to reduce time in Court
The taskforce notes that current legislation requires that the majority of protection
applications must return to Court every 21 days. The Court makes over 12,000
extension orders every year.
Recommendation 12 proposes an amendment to the Children, Youth and Families Act2005 to remedy this.
The Taskforce members also agreed to consider whether undertakings by children,
parents or suitable persons under ss263(1)(a), (b) and (c) of the Act should be
replaced by a qualified condition. This is likely to save a significant amount of time
for all Court users, especially child protection workers and families. Further advice
will be provided to Government separately on this point.
Recommendation 13 proposes further consideration of this issue.
The Taskforce recommends that the Childrens Court develop and adopt an electronic
listings system and suggests that it consider expanding the range of listed matters over
time to include resolution conferences and mention hearings.
Recommendation 14 deals with listings.
These issues are discussed in Chapter 10 Improving legal and administrative
processes to reduce time in Court.
Supporting collaboration through multi-disciplinary training
VLA and DHS will work together to introduce a package of joint training across both
organisations. This will have the dual benefit of encouraging lawyers to become morefamiliar with child protection practice and familiarising child protection workers in
their preparation for and involvement in Childrens Court processes. Joint training
also aims to develop a greater spirit of collaboration between the two professional
groups.
The Ombudsman was critical of DHS in relation to its ability to meet the privacy
obligations under theInformation Privacy Act 2000 and theHealth Records Act 2001.
The Attorney-General made a commitment that the Department of Justice would
assist in this regard.
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The Department of Justice (DOJ) and DHS have exchanged privacy-training materials
and a process has commenced with the Office of the Victorian Privacy Commissioner
(OVPC) to develop new privacy training packages for child protection workers.
Recommendations 15 and 16 deal with training.
For discussion see Chapter 11 Supporting collaboration through multi-disciplinary
training.
Reference to the Victorian Law Reform Commission
During its meetings, the Taskforce discussed a number of issues that it considered
required further work or consultation.
The Taskforce recommends that the following matters be referred to the VLRC for
consideration as part of its report -
Whether the Children, Youth and Families Act 2005 should be amended
to enable the Childrens Court to conduct less adversarial trials. This
could be modelled on the amendments to the Family Law Act(Cth)
regarding less adversarial trials.
Any consequential amendments to the Children, Youth and Families Act
2005 to reflect the new approach to resolution conferences.
Whether it is in the best interests of an apprehended child that section
242(3) of the Children, Youth and Families Act 2005 be amended to
extend the period within which DHS must bring a safe custody applicationfrom 24 hours to 72 hours.
These matters are contained in recommendation 17.
What will change?
The Taskforce reaffirms that its recommendations are aimed to immediately reduce
court time and to improve appropriate dispute resolution in the Court. Should the
recommendations be implemented in full, they are expected to have a significant
impact by December 2010:
The new Child Protection Resolution Conferences are a much better way of
resolving protective issues and improving the child protection process. The
conferences, including the targeted use of judicial resolution conferences, aim to
improve outcomes, reduce time at Court and reduce the length of the Court
process.
Approximately 20% fewer matters being heard at the Melbourne Court,
assisting the efficient and effective conduct of matters before the Court.
New administrative processes in the Court that will assist the Court in planning
and managing its heavy workload.
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Initial steps towards better practice:
An ongoing dialogue between VLA, DHS and DOJ.
Joint DHS and VLA project underway to develop a new summary
statement regarding the Departments reasons for initiating a protectionapplication.
Joint training programs between DHS and VLA commenced.
Practitioner code of conduct and memorandum of understanding between
VLA and DHS.
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CHAPTER 2:
RECOMMENDATIONS
The Taskforce makes the following recommendations to Government.
A better way to solve problems New Child Protection Resolution Conferences
1. The Taskforce recommends the phased introduction of new Child Protection
Resolution Conferences in three phases.
The Taskforce's preferred phasing option is discussed in Chapter 5 A better
way to solve problems New Child Protection Resolution Conferences.
Alternative phasing options are in Appendix B.
A better start improving preparation for Court
2. The Taskforce recommends:
Immediate introduction throughout the Melbourne Childrens Court of the
form currently in use at the Moorabbin Childrens Court that sets out the
grounds for the Departments involvement and basic facts about each
protection application by safe custody.
Further development and piloting of a Statement of Grounds designed to
assist legal practitioners for the families to prepare quickly without adding
to the workload of Child Protection Workers, with the following features:
To be supplied to all parties on a Without Prejudice basis so as
not to bind the Department of Human Services (DHS) should it need
the freedom to amend its grounds or case at a later stage.
To be integrated into the DHS file note system so that it fulfils both
internal and external data collection needs without being
duplicative.
3. The Taskforce recommends a secondment of staff from VLA to DHS to work
on the items in Recommendation two as a joint project. This will help
encourage collaboration between the two organisations.
4. The Taskforce recommends that lump sum fees payable to private practitioners
who act for parents and children be reviewed to ensure they are sufficient and
aligned to good practice preparation and conduct of Court proceedings.
Facilitating childrens participation without the need for them to attend Court
5. The Taskforce recommends that DHS and VLA should work together to
facilitate childrens participation in legal proceedings that affect their lives
without requiring them to attend Court.
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6. The Taskforce recommends that there be continued consideration of ways in
which better support can be provided in those circumstances where children
attend Court. This recommendation is linked to recommendations 10 and 11, as
those recommendations will have the effect of improving the space and amenity
of the Court so that the environment will be more appropriate for those children
who need or choose to attend Court.
A more collaborative approach between Court users
7. The Taskforce recommends that a Steering Group be established comprising all
Taskforce members to monitor the implementation of the recommendations.
8. The Taskforce recommends that a dedicated project manager within the
Department of Justices Court Services portfolio be assigned to facilitate the
interactions of the steering group and to assist the implementation of the
Taskforces recommendations.
9. The Taskforce recommends the development of a Code of Conduct for
practitioners and a Memorandum of Understanding between the VLA and DHS.
DHS and VLA will agree on the Code of Conduct and will develop a MOU
based on the Western Australian model.
Improving the physical environment of the Court
10. The Taskforce recommends that DOJ consider the following matters as
priorities for its Court planning process:
a. The amenity of Courts for children and other Court users; and
b. The principle that the Childrens Court should operate on a decentralised
model.
11. The Taskforce recommends that consideration be given to the development of a
contingency plan as a short term measure to alleviate the space issues at the
Melbourne Childrens Court. The recommended elements of the proposed
contingency plan include the following:
a. The possible use of courtrooms at the refurbished old County Court
building at 223 William Street, Melbourne.
b. The potential to relocate Child Protection Resolution Conferences to an
off-site facility that will free up space on the ground floor of the
Melbourne Childrens Court building.
c. The feasibility of structural works at the Melbourne Childrens Court to
make better use of available space.
Improving legal and administrative processes to reduce time in Court
12. The Taskforce recommends that the Government consider amending the
Children, Youth and Families Act 2005 to remove the 21 day time limit on
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Interim Accommodation Orders, except for orders in relation to secure welfare
placements.
13. The Taskforce recommends that the relevant Government departments and the
Court consider whether undertakings by children, parents or suitable persons
under ss263(1)(a), (b) and (c) of the Act should be replaced by a qualifiedcondition. Further advice will be provided to Government separately on this
point.
14. The Taskforce recommends that the Childrens Court implement a new
electronic listings calendar.
Supporting collaboration through multi-disciplinary training
15. The Taskforce recommends that additional training in court preparation, privacy
and the new dispute resolution process be added to the Department of Human
Services training calendar.
16. The Taskforce recommends that DHS and VLA work together to incorporate
joint training programs for DHS court staff, child protection workers, VLA staff
and private practitioners into their training calendars, commencing with training
in the new dispute resolution process.
Reference to the Victorian Law Reform Commission
17. The Taskforce recommends that the following matters should be referred to the
VLRC for consideration as part of its report -
Whether the Children, Youth and Families Act 2005 should be amended to
enable the Childrens Court to conduct less adversarial trials. This could be
modelled on the amendments to the Family Law Act(Cth) regarding less
adversarial trials.
Any consequential amendments to the Children, Youth and Families Act 2005
to reflect the new approach to resolution conferences.
Whether it is in the best interests of an apprehended child that section 242(3)
of the Children, Youth and Families Act 2005 be amended to extend the period
within which DHS must bring a safe custody application from 24 hours to 72hours.
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CHAPTER 3:
CHILD PROTECTION PROCEEDINGS TASKFORCE
The Taskforce was made up of the following members:
Penny Armytage, Secretary Department of Justice (Chair)
Gill Callister, Secretary Department of Human Services
Bernie Geary, Child Safety Commissioner
Judge Paul Grant, President of the Childrens Court of Victoria
Bevan Warner, Managing Director, Victoria Legal Aid.
The Taskforce was supported by a Secretariat made up of the following members:
Neil Twist, Department of Justice
Entsar Hamid, Department of Justice
Mary Kyrios, Department of Human Services
Sophie Robinson, Department of Human Services.
Consultancy and facilitation services were provided by the Boston Consulting Group
(BCG).
The Taskforce met on 5 occasions as follows:
17 December 2009
20 January 2010
3 February 2010
10 February 2010
18 February 2010.
On 7 January 2010, members of the Taskforce Secretariat travelled to Sydney to meet
with representatives of NSW Legal Aid and the Department of Justice and Attorney
General.
On 4 and 5 February 2010, members of the Taskforce, the Secretariat and BCG
travelled to Perth to meet with representatives of the Childrens Court, Legal Aid and
Department of Child Protection.
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CHAPTER 4:
BACKGROUND
Introduction
The Ombudsman of Victoria tabled a report into the Department of Human Services
Child Protection program in Parliament on 26 November 2009.
In response to the Ombudsmans report, the Premier announced the Child Protection
Proceedings Taskforce on 26 November 2009. The Taskforce was required to
provide a report to the Attorney-General and the Minister for Community Services by
26 February 2010, outlining recommendations that will:
Reduce the adversarial nature of Childrens Court processes, including options
for appropriate dispute resolution;
Reduce the time parties spend in the Childrens Court; and
Enable the Department of Human Services to further support Child Protection
workers in their preparation for and interaction with and involvement in
Childrens Court processes
Due to the tight time frame within which the Taskforce was operating, it was decided
to focus predominantly on the processes at the Melbourne Childrens Court. This
decision should not be interpreted as disregarding the importance of understanding the
similarities and/or differences between metropolitan and regional areas. The
Taskforce has agreed to establish an ongoing Steering Committee which, amongst
other things, will consider the relevance of its recommendations relative to regional
experiences.
Work of the Department of Human Services in Child Protection
The Department of Human Services has the statutory responsibility for the provision
of child protection delivered through Victorias eight geographical regions, three
metropolitan and five rural regions. The Child Protection Service also provides a
Child Protection Crisis Line 24 hours, 7 days a week for telephone information and
referrals for the public regarding child protection matters.
The Child Protection Service provides child centred, family focused services to
protect children and young people from significant harm as a result of abuse or
neglect within the family unit and to ensure that children and young people receive
services to deal with the impact of abuse and neglect on their well being and
development. The Child Protection Service is based on the principle that the best
protection for children is usually within the family, however the paramount
consideration is the child's safety and well being.
The role of the Child Protection Service is to:
Receive reports from people who believe on reasonable grounds that a
child is in need of protection because of abuse or neglect
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Provide advice where people report such concerns
Investigate matters where it is believed that a child is at risk of significant
harm
Refer children and families to services that assist in providing the ongoingsafety and well being of the children
Take matters before the Children's Court if the child's safety cannot be
ensured within the family
Supervise children on legal orders granted by the Children's Court.
The Child Protection Service brings matters to Court where it is required to secure the
childs safety, wellbeing and stability. In some instances, this requires Child
Protection to bring matters before the Court within 24 hours to ensure the immediate
protection of a child.
Reports of abuse and child neglect to the Child Protection Service have increased
from 37,523 in 2004/05, to 42,851 in 2008/09 an increase of 14.2%.
There has also been significant growth in the number of children and young people
subject to Childrens Court orders (30% increase between June 2005 and June 2009)
and the number of children placed away from their parents (20% increase from June
2005 to June 2009).
Jurisdiction of the Family Division of the Childrens Court
The Childrens Court of Victoria has jurisdiction under the Children, Youth and
Families Act 2005 to hear cases in its Family Division involving children and young
people who are under the age of 17. An order made for a child who is under 17 may
continue until the childs 18th birthday.
The Family Division of the Court has the power to hear a range of applications and to
make a variety of orders upon finding that a child is in need of protection. The Court
can also deal with cases where there are irreconcilable differences between a child
and his or her parents.
In the Family Division, the court also determines applications under family violenceand stalking legislation where the aggrieved family member/victim of stalking, or the
defendant, is a child (in these cases, a child is defined as being under 18).
Court locations and sitting days
With the exception of Melbourne, the Childrens Court of Victoria sits at locations at
which the Magistrates Court is held. In accordance with section 505(3) of the
Children, Youth and Families Act 2005 the Childrens Court must not be held at any
time in the same building as that in which the Magistrates Court is at the time sitting
unless the Governor in Council, by Order published in the Government Gazette,
otherwise directs with respect to any particular building.
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Child protection cases from the Eastern and North-western regions of Melbourne are
determined at the Melbourne Childrens Court. Most cases from the Southern Region
of Melbourne are listed at the Moorabbin Justice Centre. Cases in regional Victoria
are listed at local regional courts.
Nature of and parties to proceedings in the Family Division of the ChildrensCourt
The Family Division of the Childrens Court becomes involved in child protection
matters when the Department of Human Services (DHS) determines that a child
may be at risk of significant harm and decides to invoke the Courts jurisdiction by
issuing a protection application. It may do this by issuing a notice for a future hearing
(Protection Application by Notice) or alternatively, by apprehending the child and
seeking immediate orders from the Court in relation to the childs placement
(Protection Application by Safe Custody).
Following either of these Protection Applications the parties will appear before theCourt to have the matter determined. Often, at the first hearing of the matter, the
Court will adjourn the case for a period of up to three weeks. The Court will make an
order on where the child should live until the matter returns to Court The
Magistrates decision about where the child should live until the matter is finally
resolved, is called an Interim Accommodation Order.
The progress of a matter through the court is represented in the diagram at Appendix
E.
The parties to a matter before the Family Division will include the DHS Child
Protection Worker who has worked with the family, (represented by a CourtAdvocacy Unit lawyer acting on behalf of DHS), the parents and potentially the
child/children. The parents and children in child protection proceedings will more
often than not retain the services of Victoria Legal Aid (VLA).
Under theLegal Aid Act 1978 VLA has the power to provide legal aid by making
available officers of VLA, and by providing grants in order to fund the services of
private lawyers1.
Legally aided clients may include a child, parent or party who has been joined to the
proceedings by order of the Childrens Court. Duty lawyers will usually provide
advice at the first court date and assist parties to apply for a grant of legal assistancefrom VLA where eligible or to make private arrangements for their ongoing legal
representation.
Increasing court demand
Throughout the past decade, the Family Division of the Childrens Court has
experienced significant growth in the number of matters brought before it. This
growth has been largely driven by the increase in the number of Protection
Applications by Safe Custody, which have doubled since 2002-03 and now represent
64% of Protection Applications (~78% in Melbourne).
1 Section 8(1) Legal Aid Act 1978
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A consequence of this growth and change in mix of Protection Applications has been
a greater demand on court resources. Analysis conducted by the Boston Consulting
Group indicates that Protection Applications by Safe Custody are more likely to
proceed to Dispute Resolution Conferences, Directions Hearings and Final contests
than Protection Applications by Notice. This type of application is also likely to
require more mentions than Protection Applications by Notice. Related to this, casesnow take longer to resolve than they did five years ago (in 2008/09 31% of primary
applications were still pending after 6 months compared to 19% in 2002/03).
Childrens Court Clinic
The Childrens Court Clinic is part of the Department of Justice and conducts
psychological and psychiatric assessments of children and families for the Childrens
Court of Victoria. In some cases, limited treatment is also provided. The Clinic also
conducts assessments relating to the impact of drug use on a young person and may
make recommendations about appropriate treatment.
Only a judge/magistrate can make an order for an assessment by the Childrens Court
Clinic. However, DHS staff, lawyers and parents can all request the judge/magistrate
to order a Clinic report. The reports provided by the Clinic are used by magistrates to
assist in decision making.
The Taskforce has not examined the functioning of the Childrens Court Clinic as part
of its work. The Secretary of the Department of Justice has indicated that a review of
the Childrens Court clinic is about to be conducted by the Department of Justice.
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CHAPTER 5:
A BETTER WAY TO SOLVE PROBLEMS NEW CHILD PROTECTION
RESOLUTION CONFERENCES
The Ombudsmans report stated that the Childrens Court was overly adversarial. In
his report into the NSW child protection system, Commissioner James Wood
expressed the view that the term overly adversarial was unhelpful when considering
how any jurisdiction might improve its processes. The reason for this, he stated, was
that it was not always clear what was meant by adversarial and it seems likely that
the term means different things to the different people who use it.2
Commissioner Wood preferred an approach that considered which areas of practice
and procedure might require change and improvement and he used that as a starting
point for his recommendations, rather than whether the Court was overly
adversarial.
The Taskforce found Commissioner Woods approach helpful and focused its
discussions on the future rather than debating different Taskforce members
understanding of overly adversarial.
If there is an issue about the adversarial process, the Childrens Court would welcome
legislative recognition of a less adversarial approach. The recent amendments to
Division 12A of the Family Law Act 1975 prescribing less adversarial trials offers one
possible model for the Childrens Court.
Short of conducting less adversarial trials, the Taskforce recommends implementation
of a new dispute resolution process in the Childrens Court.
In October 2008 the President of the Childrens Court requested the Director,
Appropriate Dispute Resolution (DOJ) to convene an ADR working party to review
ADR in the Childrens Court and develop a model for good practice. The working
party included representatives of the Court, DHS and VLA. The working party
reported to the President in late 2009. The Taskforce is grateful for the work done by
the working party. That work has enabled the Taskforce to quickly develop a new
resolution conference model that could be applied in the Childrens Court. The new
model is discussed in Appendix A.
Currently, dispute resolution conferences are conducted by sessional convenors or
Court registrars. Registrar convenors conduct conferences in regional courts and
sessional convenors conduct conferences at Melbourne. Registrars are officers of the
Court and this may assist in having their authority recognised by all participants.
They also work in regional courts where an adversarial culture is less pronounced.
The sessional convenors (and the Court) believe that current processes at Melbourne
contribute to an undermining of the authority of the Melbourne convenors and that, as
a result, the conferences are not as effective as they could be. For example, some
lawyers are not well prepared for the conference, are concerned about other cases
2 Special Commission of Inquiry into the Child Protection System in New South Wales (the Wood
Commission) 2007 Volume 2 pp512 - 514.
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listed in courtrooms and adopt an adversarial approach. On the other hand, DHS is on
occasion not represented by someone with the authority to make a decision and this
undermines the effectiveness of the conference.
The new conference model will address these issues by taking the Melbourne
conferences off site, requiring better preparation from all concerned, allowing moretime for discussion (in a less stressful environment), requiring decision makers to be
present and reinforcing appropriate behaviour through a practice direction. It is also
proposed that all convenors be trained and accredited in mediation in accordance with
the National Mediator Accreditation System.
The Taskforce also supports the eventual development and integration of judicial
conferencing into a comprehensive regime of conferencing in the Childrens Court.
This will be progressed at Melbourne when additional judicial officers are appointed
to the Court.
The short-term goal of the new conferencing model is to ensure that a well-facilitateddiscussion of the issues will be an important first step in the Childrens Court process.
The model will deliver the following key elements:
A reduction in time spent by families in adversarial court proceedings and
child protection workers in servicing the Court.
Better preparation by all those involved in the conferences.
Conferences at a venue away from the Court. (This applies to the
Melbourne Childrens Court).
Conferences conducted by trained convenors who have the authority of
the Court.
More time allowed for conferences so that discussions can take place in a
less stressful environment.
A reduction in court delay (as conference is a faster process than formal
court hearings).
Better preparation and the role of the convenor are critical to the success of the new
conference model. It is proposed that a joint project, running parallel to theconference model, will lead to earlier disclosure of relevant risk assessment
information by DHS to families and their lawyers.
All of these changes aim to create a better process in an environment that facilitates
problem solving in relation to those children who are the subject of child protection
proceedings.
The new conference model will require additional resources for Childrens Courts
throughout Victoria.
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Comparison of current Childrens Court Dispute Resolution Conferences with
the new conference model
Current Process Proposed conferences
Lack of training for, and therefore
authority of, convenors.
Training will be provided for all
convenors.
Lack of preparation by practitioners and
by the Court;
Changes to legal aid fees combined with
a Childrens Court Practice Direction will
encourage greater preparation.
Resource allocation so that the Court can
adequately prepare cases for the
Convenors.
Lack of time devoted to Conferences.
The average Dispute Resolution
Conference is listed for a maximum of 2
hours and they are rarely conducted for
more than an hour. This is insufficient
time to allow for a realistic discussion of
issues and an exploration of options.
Conferences will be scheduled for a
minimum of 2 hours per session.
This will include time for the preparation
of possible final orders for presentation to
the court.
Inadequate conferencing facilities. The
Conferences are held in the Courtbuilding. Practitioners come and go
from the Conferences to attend to other
Court matters. This means that the
Conferences are not taken seriously.
Conferences will take place away from
the Childrens Court at Melbourne whereappropriate. For security reasons, some
conferences may still need to proceed at
the Melbourne Childrens Court.
Conferences may occur at a late stage in
the Court process.
Conferences will take place at the earliest
possible stage in the Court process.
Implementation of the new conference model
The Taskforce proposes that the Child Protection Resolution Conference model be
implemented in 3 phases as follows:
Phase 1 Preparation
Duration: Present - 30 June 2010.
This phase involves the following:
Development of procedures around the role of the convenors and thepractice note in relation to the conference process.
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Organise training of Magistrates, convenors, legal practitioners and child
protection workers.
Development of evaluation parameters and performance indicators.
Confirmation of mediation facilities away from the Childrens Courtbuilding.
Phase 2 Commencement
Duration: 1 July 2010 31 December 2010.
The first conferences will be held during this phase:
Conduct training and accreditation of convenors.
Conduct training of Magistrates, and joint training of legal practitionersand child protection workers.
Conduct first 50 conferences.
Phase 3 Refine and roll out
Commencement of full implementation 1 January 2011.
This is the full implementation phase and includes:
Refinement of the model as required.
Confirmation of suitability of locations to hold conferences.
Roll out additional training.
Ensure ongoing dialogue on progress between the Court, VLA, DHS and
DOJ.
The Taskforce considered two further options in relation to implementation: The first
option involves a commencement phase involving 200 cases and the second option
involved full implementation without an initial commencement phase.
The Taskforce agreed that the option outlined above provided a balance between the
desire to implement a new conferencing system reasonably quickly, with the
flexibility of a short commencement phase that would enable any issues with the
model to be resolved prior to full implementation.
These two further options are outlined in Appendix B.
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CHAPTER 6
A BETTER START IMPROVING PREPARATION FOR COURT
On 4 and 5 February 2010 members of the Taskforce visited Western Australia tomeet with representatives of the Childrens Court at Perth, WA Legal Aid and the
Department of Child Protection.
Western Australia has implemented Signs of Safety - an innovative approach to case
planning in child protection. Signs of Safety is a process whereby everyone who has
an interest in the child has an opportunity to discuss what is working well and what is
worrying them, and to be involved in the development of a safety plan for the child.
The model includes the early involvement of lawyers in the process and the joint
training of lawyers and child protection workers. Lawyers and protective workers
participate in joint training in the WA risk assessment framework. Representatives ofWA Legal Aid and the Department of Child Protection spoke positively about their
experience of joint training. The consensus was that this broke down barriers between
the two professions and enabled the development of a shared language around child
protection.
In Victoria, parents and children may be provided with a VLA staff lawyer or a
private practitioner to help them through the process. Private practitioners are
remunerated on a progressive, lump sum fee basis according to the progress and
number of Court events associated with each case. Good practice preparation and
early settlement of cases requires early disclosure from all parties and sensible
negotiations consistent with model litigant guidelines generally applicable togovernment agencies.
The current fee structure for private practitioners together with the existing work
practices of the parties has led to more effort being directed to contested hearings at
the end of proceedings rather than preparation and early settlement. While there will
always be some cases that proceed to a contested hearing in Court, the majority of
cases are settled by negotiation. Recent research shows that only 3% of cases in the
Childrens Court go to a final contested hearing.
The Taskforce recommends that the fee structure for private practitioners be reviewed
to recognise the value of early preparation and negotiation and to ensure it is alignedwith the state of readiness of the applicant Department.
Similarly, early negotiation is easier if there is early exchange of information. During
the Taskforces deliberations, VLA and DHS commenced discussions on this issue. It
is anticipated that this will continue and there is the possibility of a secondment of a
staff member from VLA to work in partnership with DHS staff on the development of
an early disclosure document. The Taskforce views this as a positive development in
the relationship between these two key organisations.
The Taskforce makes two recommendations that aim to ensure better preparation and
minimise the need for children to attend Court:
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A revised fee structure for private practitioners to provide incentives for
lawyers to see children away from Court.
That VLA and DHS jointly conceive and implement arrangements for
early disclosure sufficient for lawyers for parents and children to provide
advice and effectively engage their clients in the Court process.
This issue is referred to also in Chapter 7 Facilitating childrens participation without
the need for them to attend Court.
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CHAPTER 7
FACILITATING CHILDRENS PARTICIPATION WITHOUT THE NEED
FOR THEM TO ATTEND COURT
The Taskforce spent a great deal of time considering how best to minimise the need
for children to come to Court. The Taskforce members agreed that the highly emotive
and overcrowded nature of the Melbourne Childrens Court means that it is not a good
place for a child.
In Melbourne, it is common for lawyers to see their child clients at Court rather than
prepare beforehand. This is rare in other States. Reasons for the Victorian practice
are:
Lawyers experience difficulties accessing children when they have been
taken into safe custody; and
Lawyers are not remunerated for pre court preparation, including the time
involved in travelling to see their child client or the time involved in
receiving the client in their offices (where this can be arranged).
The Taskforce recommends that arrangements to facilitate a child clients contact
with his/her lawyer away from court be put in place and that the private practitioner
fee structure aligns with good practice in preparing for Court and with practices in
other States.
The Taskforce discussed an option for reducing the need for children to attend Court,
namely, whether it would be in the best interests of the apprehended child to change
the current 24-hour timeframe within which DHS must bring protection applications
by safe custody, to a longer period. This would also give the parents time to access
legal advice before attending Court and for arrangements to be made for separate
representation of the child as appropriate. It also allows exchange of information and
discussion about issues such as family support options.
This question was discussed at length and members of the Taskforce had differing
views. The Taskforce believes this is a fundamental issue that requires referral for
public consultation. This is why we make the recommendation that the VLRC
consider, as part of its report, whether it is in the best interests of an apprehendedchild that s243(3) of the Act be amended to extend the period within which DHS must
bring a safe custody application from 24 hours to 72 hours.
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CHAPTER 8
A MORE COLLABORATIVE APPROACH BETWEEN COURT USERS
Through the Taskforce, the President of the Childrens Court, Managing Director ofVLA and the Secretary of DHS have commenced a frank and constructive dialogue
about a range of child protection issues, including culture.
The Taskforces visit to Western Australia (referred to in Chapter 6 above) reinforced
the importance of an ongoing dialogue, particularly between VLA and DHS. The
culture in Western Australia appears to be far more collaborative and is possibly less
stressful for all participants.
The striking feature about the culture in Western Australia was that Legal Aid and the
Department of Child Protection (DCP) recognised and respected each others
legitimate role in protecting children. The Taskforce was advised that this was largelydue to the Signs of Safety framework and its solution oriented focus, as well as the
amount of joint training between Legal Aid and DCP.
It is proposed that the Childrens Court, VLA and DHS continue the dialogue that has
now commenced and that a steering group should be formed to monitor the
implementation of the Taskforces recommendations.
The Taskforce recommends that senior representatives of DHS and VLA develop a
proposal for:
An agreed statement summarising DHS key issues in relation to the
applications by safe custody to be provided at an early stage in the
process.
A Code of Conduct for all practitioners in the Childrens Court.
Joint training of protective workers and lawyers in relation to the DHS
risk assessment process.
Accreditation of legal practitioners who appear before the Childrens
Court.
The agreed issues summary referred to in the first dot point above, should include the
following 3 things:
The key factor(s) that led to the decision to issue the protection
application.
Any strengths and weaknesses in the protective behaviour of the parents.
The child protective workers plan for how best to address the identified
strengths and weaknesses (i.e.: the case plan).
The long-term goal is to change the way child protection matters are litigated so thatlawyers, DHS and the Court take a problem solving approach to child protection.
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CHAPTER 9:
IMPROVING THE PHYSICAL ENVIRONMENT OF THE COURT
The Taskforce spent considerable time discussing the conditions for children at theMelbourne Childrens Court. One strategy to improve the conditions is to minimise
the need for children to attend in the first place and this strategy is discussed in
Chapter 7 above.
A second strategy involves the use of space at the Court. The Melbourne Court is
significantly overcrowded. Over the past five years, there has been a large increase in
cases before the Court. The Family Division area is now too small to contain the
large numbers of families, lawyers and protective workers who attend the Court each
day. Child protection is emotionally demanding and the overcrowding contributes to
the distress, anxiety and agitation of those who are at the Court. Put simply, there are
too many people in too small a space. It is not a good place for a child.
The Taskforce acknowledges that, for a number of reasons, there will be
circumstances where a childs attendance in unavoidable or where the child is
sufficiently mature and elects to participate in the process. Because of this, it is
crucial for the Court to be assisted in its efforts to provide appropriate facilities for
keeping children safe and comfortable.
There has been much discussion at the Taskforce about how best to support those
children in circumstances where they do attend Court. Differing views were
expressed and the measures outlined in this Chapter aim to improve the amenity of the
Court for all users, especially children. The Taskforce members will continue todiscuss ways to provide better support to those children who still need to attend Court
or who choose to attend.
Prior to 1 June 2009, all Family Division cases in the Melbourne metropolitan area
were listed at the Melbourne Childrens Court. The significant increase in
applications to the Childrens Court over the past five years created major
overcrowding at Melbourne. In an effort to deal with that problem, the Childrens
Court established two Family Division Courts at the Moorabbin Justice Centre.
The Moorabbin Children's Court (Family Division) commenced sittings on Monday, 1
June 2009. The Moorabbin facility has provided a contingency arrangement tomanage urgent demand pressures in the Melbourne Childrens Court and has not been
purpose-built as a Childrens Court.
Child protection cases allocated to the DHS Southern Region have been listed at
Moorabbin Children's Court. This includes all mentions, applications for safe custody,
submissions contests, Interim Accommodation Order contests, dispute resolution
conferences and directions hearings.
The following child protection matters continue to be listed at Melbourne Children's
Court:
cases involving a party currently in custody
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The Taskforce has considered short term options to alleviate the space issues at the
Melbourne Childrens Court. Recommendation 11 contains the following options for
consideration:
The possible use of courtrooms at the refurbished old County Court
building at 223 William Street, Melbourne.
The potential to relocate Child Protection Resolution Conferences to an
off-site facility that will free up space on the ground floor of the
Melbourne Childrens Court building.
The feasibility of structural works at the Melbourne Childrens Court to
make better use of available space.
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CHAPTER 10:
IMPROVING LEGAL AND ADMINISTRATIVE PROCESSES TO REDUCE
TIME IN COURT
Interim Accommodation Orders 21 day limit
The Children, Youth and Families Act 2005 establishes the framework within which
child protection proceedings are brought before the Childrens Court.
In order to commence proceedings in the Childrens Court DHS files a protection
application with the Court. The protection application sets out the grounds on which
DHS rests its case for involvement, along with recommendations for future action in
relation to the child.
Once a protection application is filed with the Court, the case will be adjourned and
given a date to return to Court (cases will be adjourned an average number of 3.6
times prior to final hearing). Often an Interim Accommodation Order (IAO) will be
made that covers the period between lodgement of the protection application and final
hearing.
IAOs are made in relation to most proceedings before the Court and they can have a
wide range of conditions attached to them. Under section 264 of the Act the Court
cannot make an IAO to an out-of-home placement for any longer than 21 days.
Section 267 of the Act allows the Court to extend IAOs for a further 21 days and there
is no limit to the number of extensions that can be granted.
Magistrates must extend IAOs and there will always be a DHS lawyer and a registrar
present when this occurs. Lawyers operating on a grant of legal aid are also required
to attend.
By far the most commonly made order in the Childrens Court is the order extending
an IAO. Of the 43,709 orders made in the Childrens Court in 2008/2009, 13,820
were IAO extensions. This represents 31% of the orders made in the Childrens
Court.
The 21-day IAO limit is historical and pre-dates the Children, Youth and Families Act
2005. The reason behind a time limit on IAOs is unclear but it would seem to have
been intended to give the Court a monitoring role.
Most IAO extensions are treated as a formality and there would seem to be little
practical reason for them. Any party is entitled to bring an application before the
Court at any time so there is no reason for requiring cases to return on a regular basis.
If the legislation were amended to remove the 21-day limit on IAOs, then most of the
13,820 orders made under this provision would be removed. This would bring about
a significant saving of time to the Court and the parties without diminishing anyones
rights before the Court.
Accordingly, the Taskforce recommends that the 21 day time limit on IAOs beremoved from the Children, Youth and Families Act 2005 as soon as is practicable. It
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should be noted that this proposal is not intended to apply to secure welfare placement
orders which are legislatively required to return to Court after 21 days and can only be
extended once.
Removal of requirement for undertakings under sections 263(1)(a)(b) & (c)
Given the recommendation to remove the 21-day limitation, it seems timely to also
consider undertakings on IAOs.
Under current law, the Court is required to take an undertaking from a parent/suitable
person with whom the child will reside during the period of the IAO. Those
parents/suitable people who are at Court when the IAO is made give their undertaking
in person. If the suitable person is not at Court, the undertaking (in the form of a
statutory declaration) must be faxed or delivered to that person to sign and then
returned to the Court and filed. The Court cannot make the IAO until the signed
undertaking has been returned to the Court and filed.
This process can present problems for DHS in arranging an undertaking to be signed
from a suitable person who is not present at Court. It means that time is spent at
Court waiting for the signed undertaking to be returned.
An alternative process would be for DHS to notify the parent or suitable person before
Court that they will be the subject of a condition on an IAO. This is done by child
protection workers now in any event so the current practice would not change. This
change would mean reduced time at Court for child protection workers.
It is proposed that this issue be given further consideration as a possible legislative
amendment.
Listings
The way in which a Court lists its cases can have an influence on the flow of cases
through the Court and, therefore, on the amount of time that parties will be required to
wait at Court.
The listings process can provide an overview of the amount of work that is passing
through the Court. When viewed in this way, it becomes a helpful planning and
resource allocation tool for the Court.
Currently cases are listed manually in paper diaries. The Childrens Court has agreed
to implement a new electronic calendar system that aims to improve administrative
processes in the Court.
The Childrens Court has suggested to the Taskforce that it embark on a staged
implementation of a new electronic listings calendar.
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Phase 1 Development and initial implementation
Commencement 1 April 2010.
The Court, with the assistance of the Department of Justice Courts TechnologyGroup, will develop an easy-to-use electronic calendar in which to list the cases that
it currently lists manually.
Phase 2 Child Protection Resolution Conferences
Commencement 1 July 2010.
The Court will add to the electronic calendar system all Dispute Resolution
Conferences, including the new Child Protection Resolution Conferences as they
commence on 1 July 2010.
Phase 3 Broader development
Commencement 1 September 2010.
The Court will explore in consultation with the DHS Court Advocacy Unit whether
to add other matters including mentions to the electronic calendar system. If
mentions are not to be added to the electronic calendar, the Court will consider the
best way to list these matters.
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CHAPTER 11:
SUPPORTING COLLABORATION THROUGH MULTI-DISCIPLINARY
TRAINING
Preparation for Court
DHS is currently conducting a training needs analysis in respect of all aspects of
training for child protection workers. The training needs analysis will assist DHS to
develop and deliver training targeted to child protection workers of 18 months to 2
years experience.
A report of the analysis will be produced in May 2010. The training package that will
be developed as a result of the analysis will include training in Court preparation.
The new package will add to the current suite of training that child protection workers
receive. The current training program and resources include:
Beginning Practice in Child Protection a 7 week intensive overview of
the Victorian child protection system, which is provided early in a child
protection workers employment. This is core training for child protection
workers.
Court Skills Training a practical session provided by retired Magistrate
Brian Wynn McKenzie for Team leaders, Unit Managers and Child
Protection Practitioners.
Court Kit and Court Practice Guide step-by-step instructions on the
Court process and associated legal processes.
Following the Western Australian example child protection training for
lawyers and legal training for child protection workers.
The Western Australians told us that training was the key to the success of a more
collaborative approach in that State especially the training provided by the DCP to
lawyers in relation to their risk assessment model.
DHS has now offered to provide components of the Beginning Practice in Child
Protection program to VLA lawyers and private lawyers, specifically in relation to theBest Interests Case Practice model of child protection.
Discussions have commenced between DHS and VLA and the first such training
session is planned to take place in May 2010. It is anticipated that VLA will
reciprocate with training for child protection workers.
Privacy
The preparation of court reports by child protection workers for Children's Court
proceedings includes personal and private information about children and families. To
preserve the privacy of children and families before the Children's Court the addressdetails of children and families are excluded from court reports. This approach is
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designed to ensure that children and families are not exposed to unintended
consequences that include the risk to their safety and security. This measure is also
intended to ensure that child protection workers meet the legislative obligations
including the Children Youth and Families Act 2005,Information Privacy Act 2000
andHealth Records Act 2001.
In his response to the Ombudsmans draft report, the Attorney-General made a
commitment that DOJ would assist DHS with the provision of any relevant training
packages or materials.
Officers of both Departments met on 19 January 2010 to agree on an exchange of
materials. This has now been done and a suite of DOJ privacy training material has
been provided to the DHS Senior Privacy Advisor to form the basis of a child
protection training package.
The DHS Senior Privacy Advisor has advised that she has liaised with the Office of
the Victorian Privacy Commissioner (OVPC) in order to develop a child protectionspecific training package.
The development of the training package is being conducted as a joint project
between DHS, OVPC and DOJ.
General DHS Privacy Presentation
Currently, DHS provides an introductory privacy presentation to staff that was
developed by the OVPC and the Health Services Commissioner.
This presentation provides an overview of:
privacy laws;
types of information covered by the IPA and HRA;
information and health privacy principles; and
how to respond to privacy complaints.
The presentation covers all the essential privacy information and can be varied
depending on the audience.
Child Protection Specific Privacy Training Package
The child protection workforce is required to meet a range of statutory obligations
under the Children, Youth and Families Act 2005, theInformation Privacy Act 2000
and theHealth Records Act 2001 so any type of privacy training must cover what
these Acts say about the management of information and privacy obligations.
A child protection training package with a range of materials and resources will be
developed. Staff are better able to transfer and make use of information if it is tailored
to the requirements of their role and work context and provides sufficient guidance on
what staff are required to do in meeting privacy obligations. These materials can thenbe used for a range of purposes, such as induction training, team leader and senior
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management training, unit meeting, etc. Each presentation/session may vary on the
types of activities, the delivery and may focus on a few critical points specific to the
group.
Mediation training for convenors
All convenors will participate in mediation training or will be able to demonstrate
sufficient experience to satisfy accreditation and be registered with the Federal
Attorney Generals Department as a Family Dispute Resolution Practitioner or the
NADRAC national mediation accreditation standard as follows:
Training is conducted by a training team comprised of at least 2 instructors where the
principal instructor has more than 3 years experience as a mediator and has complied
with NADRACs continuing accreditation requirements and has at least 3 years
experience as an instructor; and
has assistant instructors or coaches with a ratio of one instructor or coachfor every 3 course participants in the final coached simulation part of the
training and where all coaches and instructors are accredited; and
is a program of a minimum of 38 hours duration, excluding the
assessment process; and
involves each course participant in at least 9 simulated mediation sessions
and in at least 3 simulations each participant performs the role of
mediator; and
provides written, debriefing coaching feedback in respect of 2 simulatedmediations to each course participant by different members of the
training team.
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APPENDIX A
Child Protection Resolution Conferences a new model for the Childrens
Court.
Proposed principles
1. Conferences in the Childrens Court will include the following key elements:
Participants in a dispute get together with an independent convenor who
will facilitate the matter in accordance with this model;
Issues are identified, options developed, alternatives considered and
decisions made about future actions and outcomes;
The convenor acts as a third party to support the discussion and guide
participants to reach their own decision.
The convenor may comment on the dispute or its possible resolution.
The convenor will determine the process of the resolution conference and
may make suggestions for terms of settlement, give advice on likely
settlement terms.
The convenor may actively encourage the participants to reach an
agreement.
The convenor will focus on bringing the parties into the discussion. The
role of the lawyers in the process will be to advise clients rather than to
advocate.
The overriding interest is the best interest of children and young people
and in the conference this is enhanced by all parties being encouraged to
be actively involved in the process.
Conferences involving Aboriginal families will include an appropriately
qualified Aboriginal mediator wherever possible.
2. A pre-requisite to becoming a convenor in the Childrens Court will be to have
completed mediation training commensurate with national standards as
established by the National Alternative Dispute Resolution Advisory Council
(NADRAC).
3. Convenors should be offered opportunities for reflective practice and
improvements to the model where possible.
4. There will be an opportunity for Magistrates and convenors to engage in
discussions about practice issues while ensuring that confidentiality is
preserved. The Taskforce viewed this is an opportunity for Magistrates to
provide a mentoring role to convenors.
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5. Conferences will be held at a venue away from the Melbourne Childrens Court
wherever possible. This will be based largely on a risk assessment on a case-
by-case basis as well as the availability of alternative venues.
6. The authority of convenors will be made explicit by the Court through a
Practice Direction and this will be made clear to the parties and theirrepresentatives at each conference. The Practice Direction will set out the detail
of the process, including the Courts expectations and will, amongst other things
clarify the role and the authority of convenors
require that the decision maker be at the table.
require parties to attend fully prepared. (This practice note should be
cross-referenced with conditions of VLA funding).
address practitioner behaviour.
Training and introduction to the Child Protection Resolution Conference model.
All convenors will participate in mediation training or will be able to demonstrate
sufficient experience to satisfy the NADRAC national mediation accreditation
standard as follows:
Training conducted by a training team comprised of at least 2 instructors
where the principal instructor has more than 3 years experience as a
mediator and has complied with NADRACs continuing accreditation
requirements and has at least 3 years experience as an instructor; and
has assistant instructors or coaches with a ratio of one instructor or coach
for every 3 course participants in the final coached simulation part of the
training and where all coaches and instructors are accredited; and
is a program of a minimum of 38 hours duration, excluding the
assessment process; and
involves each course participant in at least 9 simulated mediation sessions
and in at least 3 simulations each participant performs the role of
mediator; and
provides written, debriefing coaching feedback in respect of 2 simulated
mediations to each course participant by different members of the training
team.
Lawyers and child protection workers will participate in a joint session on general
mediation principles and framework. (In Western Australia, training in the Western
Australian model of mediation is a condition of a grant of legal aid.) This would be
less onerous than the mediation training. The sessions could be held as 3-hour
sessions and would incorporate the following:
general mediation principles and framework;
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The consent of parties to Conference if either/both parties oppose
Conference, referral is made to Magistrate to hear submissions and make
an order either way.
Confirmation email with Conference details to legal practitioners 48 hours
prior to Conference.
2. Convenor
Reads the Court file and any other necessary documents.
Prepares summary that commences the facilitated discussion in the
conference.
Step 2b Documents required by the Court and compiled by the preparation
officer before a Conference can take place:
Court documents Any issues raised at intake stage.
All court reports related to the current application.
Current court orders, including any Intervention
Orders.
Family Court orders.
Hearing notice
Medical
documents All clinic reports related to the current application.
Medical reports
Parties documents Parties summary documents / affidavit in support of
warrant.
Outline of issues (optional)
Other Genogram.
Step 3 Conference
All Conferences should be set down for a minimum of 2 hours.
Steps in the Conference:
Introductions / setting the scene.
Convenor explains the process.
Convenor sets out the ground rules (including courtesy).
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Convenor summarises the DHS case and confirms the summary with the
child protection worker.
Response by other party/ies / statement of positions.
Discussion facilitated by convenor.
Private caucusing is an option if parties agree.
Reality testing is an option if the convenor sees it as appropriate and
particularly if the parties seek a view.
Time incorporated into the Conference for a break out session and at the end for
practitioners to draft orders (opportunity in both these parts of the Conference for
DHS worker to involve the Court Advocacy Unit.
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APPENDIX B
Two additional options for implementation of the conference model
Option 1 Phased approach
Under this option, conferences would be introduced in 2 phases:
Phase 1 involves the streaming of 200 Childrens Court cases into the new conference
model over a 12 month period, ahead of full implementation in phase 2.
This would work in the following way:
All child protection Court proceedings from a selected region issued with the
Childrens Court commencing 1 July 2010 would proceed through the new
conference model.
Prior to 1 July the following actions will occur:
Recruitment and training of Court staff to conduct the conferences. 200
conferences over the course of one year would require 1 new Registrar.
Joint information session for legal practitioners and child protection workers
in the new Child Protection Resolution Conference model. This session could
be provided by a Magistrate and the Registrar who is currently conducting
conferences at the Moorabbin Court consistent with the new conferencing
model.
Confirmation of venue away from the Melbourne Childrens Court in which
the conferences will be held.
The Court will have the discretion to adjourn cases for conference at any stage after
the protection application is lodged. The aim is that cases be referred to conference at
an early stage, ideally after the first mention. The convenor could be given the
flexibility to extend the time of a conference or to adjourn a part-heard conference
without going through the mention process.
The model will be evaluated throughout Phase 1 in order to ensure a smooth rollout of
the model in Phase 2. It will also enable the recruitment and training of additionalstaff to conduct the conferences throughout the Court in Phase 2.
Phase 2 is the full implementation of the new conference model throughout the
Childrens Court and this will occur as of 1 July 2011.
Advantages of Option 1
It enables a 12 month trial period where any problems with the new model can
be fixed prior to full implementation. Any necessary changes to the model can
be made prior to full implementation.
It can commence sooner than full implementation.
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It enables time to appoint and train Magistrates and staff in preparation for full
implementation in Phase 2.
It will act as a demonstration project to lawyers and child protection workers.
It will enable a comprehensive assessment of the resources required to operatea fully implemented model.
It provides time to organise new chamber and office space for additional
Magistrates and staff needed to implement the model throughout the Court.
Any further changes as a result of the VLRC recommendations can be
incorporated into the model prior to full implementation.
Phase 1 could operate as a demonstration project and thus form an important
part of the change process in the Childrens Court.
Disadvantages of Option 1
It involves running 2 different systems of conference simultaneously.
It may not be perceived as providing an immediate change and is likely to
have less of an impact in the short term.
Option 2 Full implementation
Under this option, conferences will be implemented throughout the Court as of day
one.
As of 1 September 2010 all cases in the Childrens Court would proceed through the
new conference model.
Prior to 1 September the following actions will occur:
Recruitment and training of Magistrates, Judicial Registrars and Court staff to
conduct the conferences.
Additional chamber and office space would need to be provided.
Joint information session for legal practitioners and child protection workers
in the new Childrens Court conference model. These sessions would be
provided by Magistrates and Registrars.
Confirmation of venues away from the Melbourne Childrens Court in which
the conferences will be held.
Advantages of Option 2
It provides time to organise new chamber and office space for additional
Magistrates and staff as well as the training needed to implement the model
throughout the Court.
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It is more efficient. Establishment costs will be similar for both options so in
the long run it will be cheaper to bring in the new model in one phase rather
than two.
It could be perceived as a fairer option as all new cases will go through the
same Court process as of the commencement date.
Disadvantages of Option 2
The momentum of the Taskforce could be lost.
It does nothing in the very short term.
There is no opportunity to trial the new conference model.
Any necessary changes to the model will be harder to make than under Option
1.
It provides less flexibility to make changes that take into account any
recommendations of the VLRC.
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APPENDIX C
Commentary: The Ombudsmans Report into the Child Protection System
On 17 April 2009, the Ombudsman, Mr George Brouwer, commenced an own motioninvestigation into the Department of Human Services (DHS) Child Protection
Program. Mr Brouwer advised that the basis for this was that he had concerns
regarding the departments ability to discharge its statutory responsibilities to children
at significant risk of harm.
Mr Brouwer reviewed 80 child protection files and 20 privacy complaints from DHS.
Mr Brouwer also conducted interviews with DHS staff, the Child Safety
Commissioner, the Victorian Aboriginal Child Care Agency and the President of the
Childrens Court.
The report covers the spectrum of child protection practice from responding to reportsof abuse through to the legal process in the Childrens Court.
Mr Brouwer wrote to the Attorney-General and the Minister for Community Services
on 31 August 2009 enclosing a copy of his draft report and inviting a response by 21
September 2009. The Secretary of the Department of Human Services forwarded a
response to the Ombudsman on 23 September 2009 which attached the Attorney-
Generals response in relation to the chapter headed Child Protection and the Legal
System.
The President of the Childrens Court also provided a response to the Ombudsmans
report.
The only recommendation in the chapter, Child Protection and the Legal System, was
as follows:
The Attorney-General:
1. Provide a reference to the Law Reform Commission to examine
alternative models for child protection legislative arrangements that would
reduce the degree of disputation and encourage a focus on the best
interests of children.
The Attorney-Generals response to this recommendation was forwarded to theOmbudsman on 23 September 2009 and is as follows:
I endorse the recommendation that a reference be provided to the
Victorian Law Reform Commission (VLRC) to examine alternative models
for child protection legislative arrangements that would reduce the degree
of disputation and encourage a focus on the best interests of children. I
will ask that the VLRC consider the Scottish model and those models
interstate that take a more administrative case management approach to
issues such as access.
As a part of this reference I will ask the VLRC to review the lessonslearned from previous reviews of child protection an