Child protection and juvenile justice

20.154 There is a strong correlation between juvenile participation in crime and rates of reported neglect or abuse,[189] and, in particular, between juvenile involvement in criminal activity and neglectful parenting.[190] Research indicates that an offending child or young person is likely to have a history of abuse or neglect,[191] and to have been in out-of-home care.[192] In Victoria, a study of young people sentenced to imprisonment by the children’s court over a period of eight months in 2001 found that 88% had been subject to an average of 4.6 notifications to the child protection agency. Almost one-third had been the subject of six or more notifications, and 86% had been in out-of-home care. Over half of these had had five or more care placements.[193]

20.155 Young offenders aged between 10 and 17 years are usually dealt with by the juvenile or youth justice system, where detention is considered a last resort and the emphasis is on diversion and rehabilitation in order to break offending cycles.[194] However, the special problems that many young people face when applying for bail tend to undermine these principles.

20.156 A central issue in juvenile justice policy today is the large and increasing numbers of children and young people being held in detention on remand rather than released on bail. The Australian Institute of Criminology has found that, across all states and territories, about 50% of young people in detention (at any one point in time) were on remand awaiting trial or sentencing in 2002, and that this had increased to almost 60% in 2007.[195]

20.157 One of the most significant factors associated with young people being remanded in custody is the lack of available and appropriate accommodation for young people.[196] Despite its reluctance to do so, a court is often forced to remand a young person in detention rather than release him or her on bail if, because of family violence or other factors, the young person has no safe or stable home to go to, or if there is no appropriate adult guardian to provide supervision and support for the young person to meet their bail requirements. Where courts do release a young person on bail, this is often on condition that the young person ‘reside as directed by the [child protection agency]’. However, as the child protection agency is not obliged to find accommodation for the child or young person except where it has parental responsibility,[197] many young people fail to meet this condition, and end up in detention.

20.158 The detention of children and young people on remand, where bail would otherwise have been granted, has a disproportionate impact on homeless young people. One of the main triggers of youth homelessness is family breakdown caused, among other things, by family violence, mental health issues and neglect.[198]

20.159 Specialist children’s courts deal with both criminal and care matters in relation to juveniles, so that there might be thought to be few gaps in the system affecting these children. However, issues often arise where a young person appears as a defendant in the court’s criminal jurisdiction. While the personal circumstances of the young person may suggest that there are child protection concerns in relation to the young person, such as the fact that the young person is unable to go home, the court cannot compel the child protection agency to find suitable accommodation for a young person for whom it has no parental responsibility. The court has no other option but to remand the young person in detention, until trial—even where imprisonment is an unlikely outcome. The problem seems to lie in the bifurcation of administrative responsibility for child protection and juvenile justice. It was observed in the Wood Inquiry that:

Coming within the juvenile justice or criminal justice system should not exclude a young offender from long-term services from [child protection agency] and other human service agencies. Nor should a shortage of refuges or other forms of accommodation result in young people who cannot live safely with their families, being remanded in custody unnecessarily, pending trial.[199]

Consultation Paper

20.160 In the Consultation Paper, the Commissions proposed that one way to raise safety concerns about young people presenting in the youth justice system was to empower children’s courts to refer their care and protection concerns for the child or young person to the child protection agency for investigation, and to require the agency to report back to the court with the outcomes of its investigation.[200]

20.161 The proposal was based on provisions contained in the Children, Youth and Families Act 2005 (Vic) which give the Children’s Court of Victoria power to refer a matter to the child protection agency for investigation when it believes that grounds exist for the making of a protection order or a therapeutic order in relation to a child or young person appearing as a defendant before it.[201] Under s 350, the child protection agency is obliged to investigate any such matter referred to it by the Children’s Court, and must provide a report of its investigation of the matter to the court within 21 days of the referral.[202] The report must set out the outcomes of the investigation specifying, in particular, whether the child protection agency has made an application for a protection order or a therapeutic treatment order in relation to the child or if the investigation reveals that such action is not warranted.

20.162 In the Consultation Paper, the Commissions also proposed that a similar power should be extended to children’s courts in their care jurisdiction. The suggestion was that the court should be able to refer its concerns for the safety of other children or siblings of the child who is the subject of the care proceedings to the child protection agency for investigation, and for the child protection agency to report back to the court within an agreed timeframe.[203]

Submissions and consultations

20.163 The majority of submissions that commented on these proposals were supportive.[204] In relation to the first proposal, the Magistrates’ Court and the Children’s Court of Victoria stated that the Victorian provisions introduced in 2005 were particularly important for young offenders. A formal referral by the Criminal Division to the child protection agency provides an alternative pathway to direct children and young people to participate in treatment programs, where certain conditions are met, without the need to rely on a criminal prosecution.[205] However, during consultations some concerns were expressed about their operation in practice. It was suggested that referrals are regularly met with a response from the child protection agency saying that further investigation is not warranted.

20.164 Some stakeholders, including Legal Aid NSW, noted that, mostly due to resource constraints and funding priorities, child protection agencies were frequently unresponsive to risk of harm notifications for adolescents who came to attention as a result of offending behaviour. This leaves the children’s court in a difficult situation where it cannot release a young person on bail or a bond because there is no appropriate adult in the family to take charge of the young person.[206]

20.165 National Legal Aid submitted that a major systems failure is the ‘gap in proper remedial and support services for young people.’ It submitted that clear guidelines need to be developed between the agencies responsible for juvenile justice and child protection authorities in relation to accommodation placements and family reunification options for young people who are defendants and who require bail.[207] It said that this was particularly important in cases where children have become homeless as a result of parents making applications for family violence protection orders against them.

20.166 The Children’s Court of New South Wales also strongly supported the proposals.[208] It noted that its criminal division often deals with young people who have no stable accommodation or who lack adequate parental supervision, and who are consequently easily led into criminal offending. It submitted that because of the lack of any power to require the child protection agency to report back to the court when the court refers these young people to the agency for investigation,

the Court will not be aware of whether or not any action has been taken and may only be informed that Community Services has not intervened or taken any action when the young person again appears before the Court.[209]

20.167 Consequently, magistrates become reluctant to make reports to the agency, even when special reporting arrangements have been established with the relevant child protection agency.[210]

20.168 In contrast, the Queensland Government did not consider legislative reform necessary as Queensland courts have ‘unfettered capacity’ to refer matters to the child protection agency when they have concerns for the safety of children, whether these concerns arise in its care or criminal divisions. In criminal proceedings, it noted that the court can liaise with the youth justice case worker who, in turn, liaises directly with the Department of Child Safety.[211]

20.169 Similarly, the Department of Human Services (NSW) also considered that legislative reform was not strictly necessary in NSW as court officers—including judges and magistrates—are mandatory reporters under child protection legislation and should therefore be making such reports routinely. However, the Department was open to support a conferral of powers on the Criminal Division of the Children’s Court to refer certain matters to the child protection agency for investigation, subject to further consideration of a number of factors, including how the provisions were operating in Victoria, and proper funding being made available. In relation to the imposition of therapeutic orders, the Department noted that further consultation with other relevant juvenile justice and health agencies would be required.[212]

20.170 A number of stakeholders, including the Children’s Court of New South Wales, also supported the proposal to confer a similar power on the court in its care jurisdiction to refer safety concerns for a child, who was not the subject of proceedings before the court, to the child protection agency for investigation and report back.[213]

20.171 Opposing the proposal, both the Queensland Government and the Department of Human Services (NSW) observed that it was unlikely that a court exercising care jurisdiction would be aware of a risk to a child which came to light during care proceedings for another child, without the child protection agency also being aware. Both organisations noted that as a matter of practice, when investigating a report about a child, the child protection agency would identify any risks posed to other children including siblings, and would seek appropriate orders in respect of each child individually.[214] The Queensland Government commented that it was important for the ‘court and the child protection agency to maintain mutual respect and confidence’ and accordingly it should not be for the court to make a child protection order in respect of a sibling whom the agency does not consider is in need of care and protection.[215]

20.172 In addition, the Department of Human Services (NSW) reiterated its view that a formal power of referral was, in any case, unnecessary, as court officers were mandatory reporters under NSW child protection legislation and were therefore obliged to make a report to the child protection agency where they suspected that a child was at risk of significant harm. However, the Department acknowledged that there may be value in providing a clear pathway for the court to report suspicions of abuse or neglect of children, not otherwise before it, to the child protection agency in the same way that Family Court judges and federal magistrates can. Noting the provisions of the Family Law Act 1975, the Department observed:

The Family Court for example has a well established process for notifying children at risk of abuse under section 67ZA. The obligation is not limited to children who are the subject of proceedings. While it does not specifically refer to judges and magistrates, they would in NSW be covered by the provisions of section 27 of the Care Act and there may be value in specifically including judicial officers.

20.173 However, the Department did not support giving the court power to require the child protection agency to report back to it within a specified time period. It argued that this would give the children’s court an inappropriate general oversight role and would impose a costs burden on the agency with no ‘discernible benefit for the child or young person who is the subject of the report’.[216]

20.174 According to the Department of Premier and Cabinet (Tas), the key to addressing the issues raised lies in the establishment of effective relationships between the courts and the child protection agency:

Effective relationships between the Family Court, Children’s Court and Child Protection are essential in ensuring the safety and wellbeing of children. If in the course of hearing a matter a court forms a reasonable belief that a child has been or is at risk of harm or neglect it is appropriate for Child Protection services to be notified of that concern and to provide clear, prompt feedback on any investigation of that matter back to the court in a mutually agreeable manner. Specific timelines for the provision of such feedback should be determined regionally.[217]

Commissions’ views

20.175 The Commissions acknowledge the serious community concerns for many young people who traverse the child protection and juvenile justice divide. The lack of suitable accommodation and other support services, and the consequent remand in custody of increasing numbers of young people, undermines established juvenile justice principles of diversion and rehabilitation. Of particular concern are young people who are homeless as a result of family dysfunction and violence.

20.176 This is not an issue that is easily addressed by legislative reform alone. For example, giving children’s courts formal powers to refer these matters to the child protection agency for investigation, and report, may not resolve the issue if there are no specialised bail services, refuges or other forms of suitable accommodation for young people who cannot live safely with their families. Ultimately, what is required is a commitment by state and territory governments to develop and fund adequate bail support services and bail accommodation services, in both metropolitan and regional areas, to meet identified needs.[218]

20.177 Nonetheless, the Commissions consider that some legislative reform is desirable to provide a clear pathway for referral of concerns for the welfare or safety of children from the children’s court to the relevant child protection agency.

20.178 Rather than conferring a power of referral on children’s courts as proposed in the Consultation Paper, the Commissions consider that a similar outcome can be achieved by utilising existing mandatory reporting provisions in child protection legislation. However, the Commissions note that, unlike the mandatory reporting provisions applying to Family Court judges and magistrates of the Federal Magistrates Court under the Family Law Act 1975,[219]current mandatory reporting provisions in state and territory child protection laws do not specifically refer to judicial officers and court staff. Rather, they apply generally to people who work in organisations that provide health, welfare, education, law enforcement, child care or residential services to children,[220] thus leading to some ambiguity about whether judicial officers and court staff are mandatory reporters. To resolve any doubt, the Commissions recommend that child protection legislation be amended to provide expressly that judicial officers and court personnel are mandatory reporters and therefore have a duty to report concerns for the safety and welfare of a child or young person to the relevant child protection authority.

20.179 In addition, to address concerns by children’s courts that they are not advised about the outcome of any referrals they make to child protection agencies, the Commissions recommend that state and territory child protection legislation should be amended, to the extent that it is necessary, to require the child protection agency to provide feedback to mandatory reporters.[221] This should include an acknowledgement that the report was received, and providing information to the reporter about the outcome of the agency’s initial assessment of the report. The Commissions note that a similar recommendation, since implemented in NSW, was made by the Wood Inquiry.[222]

Recommendation 20–7 State and territory child protection legislation should:

(a) specify that judicial officers and court staff are mandatory reporters; and

(b) require child protection agencies to provide timely feedback to mandatory reporters, including an acknowledgement that the report was received and information as to the outcome of the child protection agency’s initial investigation.

[189] D Weatherburn and B Lind, Social and Economic Stress, Child Neglect and Juvenile Delinquency (1997).

[190] P Salmelainen, Child Neglect: Its Causes and its Role in Delinquency, Crime and Justice Bulletin: Contemporary Issues in Crime and Justice, 33 (1996), 3–4.

[191] D Weatherburn and B Lind, Social and Economic Stress, Child Neglect and Juvenile Delinquency (1997), 47–48.

[192] D Kenny and others, NSW Young People on Community Orders Health Survey 2003–2006: Key Findings Report (2006), 11 cited in J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [15.2].

[193] Department of Human Services (Vic), An Integrated Strategy for Child Protection and Placement Services (2002), 52–53.

[194] Compare Children (Criminal Proceedings) Act 1987 (NSW) ss 17–18, which excludes serious indictable offences from being determined in the Children’s Court of New South Wales.

[195] N Taylor, Juveniles in Detention in Australia, 1981–2007 (2009), prepared for the Australian Institute of Criminology, 39.

[196] J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [15.8]; M Dumbach, ‘Homes for Homeless Children’ (2007) 32(3) Alternative Law Journal 170.

[197] Minister for Community Services v Children’s Court of NSW (2005) 62 NSWLR 419 referred to in J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [15.15].

[198] National Youth Commission, Australia’s Homeless Youth: A Report of the National Youth Commission Inquiry into Youth Homelessness (2008), 85.

[199] J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [15.83].

[200] Consultation Paper, Proposals 13–6, 13–7.

[201] Children, Youth and Families Act 2005 (Vic) s 349.

[202] Ibid s 350(1).

[203] Consultation Paper, Proposal 13–8.

[204] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; F Hardy, Submission FV 126, 16 June 2010; Better Care of Children, Submission FV 72, 24 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; M Condon, Submission FV 45, 18 May 2010.

[205] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[206] Legal Aid NSW, Submission FV 219, 1 July 2010. See also N Ross, Submission FV 129, 21 June 2010.

[207] National Legal Aid, Submission FV 232, 15 July 2010.

[208] The Children’s Court of New South Wales has previously advocated for such a power, not only in relation to children and young people who appear before it in its criminal division, but also in respect of those who are the subject of care proceedings in its care division, or of other children or young people who are mentioned in these proceedings: see J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [15.76]; New South Wales Law Reform Commission, Young Offenders, Report 104 (2005), [8.140].

[209] Children’s Court of New South Wales, Submission FV 237, 22 July 2010.

[210] J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [15.75].

[211] Queensland Government, Submission FV 229, 14 July 2010.

[212] Department of Human Services (NSW), Submission FV 181, 25 June 2010.

[213] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; F Hardy, Submission FV 126, 16 June 2010; Better Care of Children, Submission FV 72, 24 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; M Condon, Submission FV 45, 18 May 2010.

[214] Queensland Government, Submission FV 229, 14 July 2010; Department of Human Services (NSW), Submission FV 181, 25 June 2010.

[215] Queensland Government, Submission FV 229, 14 July 2010.

[216] Department of Human Services (NSW), Submission FV 181, 25 June 2010.

[217] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[218] See also J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [15.22]; and New South Wales Government, Keep Them Safe-A Shared Approach to Child Wellbeing (2009), Ch 3.

[219]Family Law Act 1975 (Cth) s 67ZA.

[220] Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 23, 27; Children, Youth and Families Act 2005 (Vic) ss 162, 184; Education (General Provisions) Act 2006 (Qld) ss 365–366; Public Health Act 2005 (Qld); Child Protection Act 1999 (Qld); Public Health Act 2005 (Qld) ss 158, 191; Children and Community Services Act 2004 (WA) ss 3, 124B; Children’s Protection Act 1993 (SA) ss 6, 10–11; Children, Young Persons and Their Families Act 1997 (Tas) ss 3–4, 14; Children and Young People Act 2008 (ACT) ss 342, 356; Care and Protection of Children Act 2007 (NT) ss 13–16, 26.

[221] See, eg, Children and Young Persons (Care and Protection) Act 1998 (NSW); Child Protection Act 1999 (Qld) s 159M.

[222] J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), [6.122]–[6.1138], Rec 6.3. See also New South Wales Government, Keep Them Safe-A Shared Approach to Child Wellbeing (2009), Ch 3.