Child welfare laws and practices (ACT)

The Child Welfare report reviews the child welfare laws and practices in the Australian Capital Territory.

The ALRC observed that the Children’s Court and police service lacked a clear policy and practical guidelines on how to manage cases involving young offenders.

In addition, the welfare system was found to be inadequately equipped to deal with neglected, abused and uncontrollable children. The law in this area was unclear and the welfare agencies lacked coordination.

Consultation papers issued as part of this reference were:

Key recommendations

• The distinction between offenders and non-offenders (children in need of care) should be recognised, allowing separate strategies to be developed for each type of individual.

• When dealing with young offenders, the criminal justice system should balance the importance of crime prevention and the needs of the young. This should be reflected in court procedures and in sentencing practices.
• Legislation should be introduced, clarifying and restricting police powers regarding charging and processing children. In general, prosecution should be avoided wherever alternatives were available.
• When a child is identified as being in need, court intervention should be done flexibly and cause as little disruption in the child’s life as possible.
• Court orders should be continually reviewed to make sure that they are still appropriate.
• Emergency procedures should be introduced, to permit abused children—or those at risk of abuse—to be removed from their homes.
• In addition, the Commission made a number of recommendations for restructuring welfare services in the ACT. A draft Bill was included in the report.

Implementation

A substantial portion of the Commission’s recommendations were implemented by the Children’s Services Act 1986 (ACT). As recommended, the new legislation’s treatment of young people distinguished between young offenders and children in need of care. A general policy of non-intervention underlies the Act. Prosecution or court-enforced orders were to be avoided or, if essential, were to be managed in as non-intrusive way as possible.

The Act also established various offices and bodies to address the issue of young people’s welfare. The Children’s Services Council was established to advise the government in this area. The office of the Director of Family Services was created to provide welfare services. In addition, the Official Visitor was established to inspect and oversee children’s welfare facilities.

In May 2000, the Children and Young People Act 1999 (ACT) came into effect, repealing the Children’s Services Act 1986 (ACT). The measures described above, however, were retained in the legislation. A significant purpose of the new Act was to clarify and expand the court’s powers to make orders. In some cases, the new Act is more comprehensive in implementing the Commission’s recommendations. In the new Act, special provision is made for emergency protection orders and community service order.

Continuing issues

The issue of children’s welfare was revisited by the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission in their 1997 report, Seen and Heard: Priority for children in the legal process (ALRC Report 84). The ALRC is considering child protection issues as part of its current inquiry into family violence.