Alternatives to court

Introduction

17.42 After investigation, the relevant family services department assesses the situation of the child and family, determines whether any intervention is required and, if so, decides whether intervention should take the form of a court issued care and protection order. Only a very small number of investigated cases eventually become the subject of care and protection proceedings in court. In 1995–96, of the 71 766 children involved in notifications of suspected child abuse and neglect across Australia, approximately 25 500 children were subjects of substantiated cases and only 4 123 of these children were placed under care and protection orders by a court, less than 6% of those notified.^[70]

17.43 In many cases, the decision whether to make a care and protection application depends on the immediate family’s willingness to co-operate with the department’s provision of services, the resources available to the department and an assessment of whether the child would be safe in the family. The family and child concerned may or may not have a say in the development of the case plan with which the family must comply to avoid the matter being brought to court.

17.44 Some jurisdictions actively promote the family’s participation in out-of-court solutions to care and protection matters through ‘family group conferences’ or pre-hearing conferences. The goal of these out-of-court conferences is to help the family and the family services department come to a protective solution for the child that avoids court involvement.^[71]

Family group conferences

17.45 Family group conferencing was pioneered in New Zealand in the Children, Young Persons and Their Families Act 1989. This model emphasises the importance of the extended family in protecting and caring for children and gives children, young people and their extended families substantially increased responsibility in decision-making.^[72] The conference is a mandatory second step after an investigation has revealed a child to be prima facie in need of care and protection.^[73] The conference itself has three stages. First, the professionals who have investigated the allegations detail the information that they have received and members of the extended family are given the opportunity to ask questions or correct factual errors. Next, the family discusses, in private if they wish, their response to the information and whether they think the child is in need of care and protection and then decides on a plan to ensure that the child receives that care and protection (at this point the family may also discuss with the professionals various services that may be offered or available). Finally, the family’s plan is conveyed to the professionals, who may agree to it or request modifications. If the result of the conference is a plan that is acceptable to both the family and the professionals involved, it is formally recorded and subject to implementation by all concerned.^[74]

17.46 In Victoria, family group conferencing, based on the New Zealand model, was established following a successful pilot program. Family group conferences may be convened where there are protective concerns but before an application is made to the Children’s Court.^[75] Unlike the New Zealand model, the Victorian scheme is not legislatively based.^[76] The evaluation of the pilot study concluded that ‘[t]he majority of the children considered in the family group conferences…have been able to be cared for within their wider family networks’.^[77] The Victorian Government submission noted that conferencing

…plays an important role in maintaining children at home, or within their extended family network. While not necessarily diverting matters from court action, Family Group Conferencing increases the likelihood of these processes being settled by consent.^[78]

A similar conferencing arrangement is now included in South Australian care and protection legislation.^[79] A ‘family care conference’ must be convened before application for a care and protection order is made to the courts, unless there are special circumstances that require otherwise.^[80] Family group conferences are also being proposed in Tasmania’s Children, Young Persons and their Families Bill 1997.^[81]

Pre-hearing conferences

17.47 Victoria has also introduced a system of pre-hearing conferences to encourage settlement, reduce delays and promote the involvement of the immediate family in decision-making after a care and protection application has been made to the children’s court.^[82] Under this scheme, either party to child welfare proceedings (the parents or the family services department) or the presiding magistrate may seek a conference. The conference convenor reports to the magistrate on any settlement that may be reached during a conference.^[83] When a conference is convened, it must be attended by the parents concerned and representatives of the family services department, although the court may order that the child, other relatives and/or an ethnic community representative also attend.^[84] Only the parents and the child may be represented at the pre-hearing conference.^[85] The evaluation of this program found it successful in promoting resolution of matters in the majority of cases.^[86]

Evaluating conferencing models

17.48 Family group conferences and prehearing conferences hold a good deal of promise for the resolution of disputes about the care and protection of children. They attempt to ensure that the family, and in some cases the extended family or other community members, can participate in reaching a co-operative solution to their problems. They also minimise paternalism and exclusion on the part of the legal process. An agreement may be reached to foster the child voluntarily, to have the abuser leave the family home, to have the family attend therapy or counselling or to provide continued informal supervision by the relevant department. These agreements may protect the child with minimal distress and disturbance. These kinds of voluntary arrangements to protect children were supported in submissions to the Inquiry.^[87]

17.49 On the other hand, there are concerns with processes that pressure vulnerable families into negotiation with social workers who are privy to all the family concerns and failings and that may result in limited contact between or even separation of parents and children. Submissions to the Inquiry also expressed concern that the vulnerability of some family members within violent and abusive families may mean that dynamics in conferences could hamper appropriate resolutions.^[88] There is a ‘…potential [in conferencing schemes] to mask the inequality of the parties by a veneer of participation’.^[89] Appropriate training of conference convenors and an ability of family members to access legal advice before conferences may address some of these issues.

17.50 The Inquiry is concerned about the appropriate level of children’s involvement in these conferences.^[90] Where the conference convenor is unable to protect the child or is unaware of negative family dynamics, participation by the child could constitute further abuse of the child. It may involve the child in discussions with an allegedly abusive parent or with family members who may intimidate or blame the child for ‘disrupting’ the family.^[91] In some family group conferences in New Zealand the entire family spent their time haranguing the child or subjecting the child to intimidation.^[92] On the other hand, it is important that children are able to participate or at the very least that their wishes or best interests are made clear when conference participants are making decisions about children’s residence, contact with parents or family members and services needed. Children consistently told the Inquiry that they should be able to participate in decision making processes when the decisions to be made directly concerned them.^[93] The current levels of children’s participation in these conferences is unknown.^[94]

17.51 Recommendation 82 proposed that a representative be appointed for a child as early as possible in the process of a care and protection intervention. Legal advice should be provided to a child before the child decides whether or not to participate in a conference. The legal representative should attend the conference to represent the child’s interests if the child is too young to participate or wishes the representative to participate on his or her behalf or to assist a child who wishes the additional support during these processes.^[95]

17.52 Another concern is that, in the promotion of a solution acceptable to the family and professionals involved, the best interests of the child may become of secondary importance. The commitment in conferences is to negotiation and settlement by agreement, a commitment that may subsume concerns about the welfare of the child.^[96] Most jurisdictions require that the best interests of the child be promoted in court proceedings.^[97] Conferencing models should also incorporate this principle.

17.53 Finally, the initial assessment of whether a child is at risk should not be the subject of negotiation or compromise at these conferences.^[98] Pre-application or pre-hearing conferences are not an appropriate investigation tool nor should they be a forum in which the family or family services department attempts to prove or disprove the allegations. Conferencing procedures are appropriate only to decide upon a plan for the protection and care of children found to be at risk following an investigation and for whom court orders will be sought if the conference fails to reach an acceptable solution.^[99]

17.54 Many of these concerns may be addressed if conference convenors are appropriately trained to identify and handle them. However, more research is needed to evaluate existing conferencing models, develop criteria for effective conferencing schemes and identify the professional requirements for conference convenors. This research should also take into account the particular perspectives and needs of Indigenous children and families and those from non-English speaking backgrounds and ensure that people with disabilities are not effectively excluded from the process. The long-term effectiveness of conferencing schemes in reaching appropriate resolutions as compared to court-based resolution should also be studied.^[100]