Information sharing between child protection agencies and the police

20.42 The investigation, and prosecution, by law enforcement agencies of serious offences alleged to have been committed against a child or young person may be hampered by laws that do not clearly permit relevant information to be shared with the police. Consequently, the ability of the criminal justice system to protect the safety not only of the alleged victim but also of other children and young people may be compromised.

Confidentiality of reporters

20.43 Child protection laws across Australia make it an offence for a person to disclose the identity of a person who makes a report to a child protection agency, or to disclose information contained in a report from which the reporter’s identity could be revealed, except to the extent that disclosure is made in the course of performing official duties under the legislation, or where the reporter has consented.^[56] In some jurisdictions, the circumstances in which relevant information that is otherwise confidential may be shared has been broadened. These provisions are examined below.

20.44 Child protection legislation also generally precludes information which would reveal the identity of the reporter from being admissible in court proceedings, unless the court is satisfied that the information is of critical importance to the proceedings, and that failure to allow it to be tendered as evidence would prejudice the proper administration of justice.^[57]

20.45 In the context of a possible criminal prosecution, the concern is that these provisions may prevent the disclosure to police of information that might assist in a prosecution.

20.46 Where child protection workers and police officers are working together as part of an integrated joint response team, such as Queensland’s Suspected Child Abuse and Neglect Team (SCAN) or Western Australia’s ChildFirst Assessment and Interview Team, collaborative arrangements between police and child protection agencies are generally governed by agreement.^[58]

20.47 However, it seems that there may be some confusion in practice when the matter falls outside the brief of a joint inter-agency team. In a recent inquiry into child protection services in Victoria, the Victorian Ombudsman found that child protection workers were confused about what information they could, and could not, share. One misapprehension was that child protection workers could not disclose the identity of reporters to Victoria Police when investigating allegations of physical or sexual abuse against children.^[59] This is despite an express provision in the Victorian legislation that allows a protective intervener—defined as the Secretary of the child protection agency or a member of the police force—to share information, including the identity of a reporter, with another protective intervener or to a person in connection with a court proceeding, including proceedings in the Family Court.^[60]

20.48 Recent amendments to the Children and Young People (Care and Protection) Act 1998 (NSW), implementing recommendations made by the Wood Inquiry,^[61] were designed to avoid this uncertainty. The NSW legislation now provides that information from which a reporter’s identity may be revealed can be shared with a law enforcement agency in clearly defined circumstances. Those circumstances are:

• where the information is disclosed in connection with the investigation of a serious offence alleged to have been committed against a child or young person; and

• where the disclosure is necessary to safeguard or promote the safety, welfare and wellbeing of any child or young person;^[62] and, as an added safeguard,

• where a senior law enforcement officer certifies that obtaining the reporter’s consent may prejudice the investigation, or where the person or body making the disclosure certifies in writing that it is impractical to obtain the consent of the reporter.^[63]

20.49 Child protection legislation in Western Australia was also amended in 2008 to broaden the circumstances in which identifying information about a reporter can be disclosed. Among the circumstances listed, the Children and Community Services Act 2004 (WA) provides that identifying information can be disclosed to, or by, a police officer for the purpose of, or in connection with, an investigation of a suspected offence, or for the conduct of a prosecution of an offence, relating to the child.^[64] The provision is narrower than the NSW provision as it is confined to the investigation and prosecution of an offence alleged to have been committed against the child who is the subject of the report.

Consultation Paper

20.50 In the Consultation Paper the Commissions proposed that state and territory child welfare laws be amended to permit the disclosure of the identity of the reporter, and of information contained in the report from which the reporter’s identity could be revealed, to a law enforcement agency of any Australian jurisdiction in particular circumstances. Using the NSW legislation as a model, the Commissions suggested that a person be permitted to disclose the identity of a reporter, or the contents of a report from which the identity of the reporter may be revealed where:

• the information is disclosed in connection with an investigation of a serious offence alleged to have been committed against a child or young person; and

• the disclosure is necessary to protect a child or young person.^[65]

20.51 Wherever possible or practical, the Commissions proposed three safeguards:

• that the reporter’s consent always be sought first as a matter of best practice;

• the legislation should require a senior law enforcement officer to certify in writing beforehand that obtaining consent would prejudice the investigation of the offence, or that obtaining consent is impractical; and

• the person who disclosed the identity of the reporter should notify the reporter of that fact unless to do so would prejudice the investigation concerned.^[66]

20.52 The purpose of the proposal was to remove any uncertainty that exists about what information may be provided to a law enforcement agency, and thus remove any impediment to an effective criminal justice response.

Submissions and consultations

20.53 The Commissions received numerous submissions on these proposals, the majority of which supported the proposals to the extent that individual jurisdictions did not already allow protected information to be shared with a law enforcement agency.^[67]

20.54 The governments of Tasmania and Queensland both submitted that the current exceptions in their legislation adequately permit disclosure to the police of otherwise confidential information because disclosure is made in the performance of official functions under the legislation, and is therefore ‘authorised by law’.^[68] If there is any doubt that this is the case, the Queensland Government noted that the confidentiality of information relating to the reporter may be overridden by a court order where a court considers it appropriate. It argued, therefore, that the current provisions adequately enable information sharing between the police and relevant agencies in the child protection sector. The Queensland Government also submitted that disclosing the reporter’s details to police for situations not connected with the investigation of an offence had the potential to compromise the effectiveness of the legislation by deterring people from reporting their suspicions.^[69]

20.55 The principal concern of those stakeholders that were opposed to the proposals was that paring back the protections given to reporters would deter people from reporting suspected cases of child neglect and abuse.^[70] While many acknowledged—and agreed with—the purpose of the proposal, there was a concern that the measure would discourage people from making reports to child protection agencies because of fear of repercussions or retribution from their family or their community if it became known that they had made the report. This may be of particular concern in small or regional communities.

20.56 A number of stakeholders also highlighted the need for child protection agencies to take into account the safety of the reporter before disclosing confidential information to a law enforcement agency, particularly where issues of family violence were evident or suspected.^[71]

20.57 The Victorian Aboriginal Legal Service Co-operative Ltd submitted that, in the majority of cases, information that would be most relevant in a criminal investigation rests in the content of the report, and not necessarily its source, although there may be instances when the credibility of the source may also need to be tested. It advocated for some protections for reporters to be maintained.^[72]

Commissions’ views

20.58 As abuse and neglect of children often occurs in the privacy of the home, it is essential that people in our communities—particularly professionals who see children in the course of their everyday work—report their concerns to child protection agencies. To encourage people to make reports, child protection laws contain a suite of protections for reporters. These include provisions that protect reporters’ identities and that protect them from civil actions in defamation or breaches of professional standards when reports are made in good faith. Mandatory reporting provisions in state and territory laws also impose a duty on certain people to report safety concerns about children to relevant agencies.^[73]

20.59 For this reason, the Commissions consider that the confidentiality provisions applying to reporters should only be overridden in exceptional circumstances. Even when these exceptional circumstances exist, the reporter’s consent should always be sought first, wherever possible and practical.

20.60 In the Commissions’ view, those exceptional circumstances must include where the information is sought by a law enforcement agency in connection with the investigation of a serious offence alleged to have been committed against a child. This is to ensure that an effective criminal justice response is activated to protect not only the child who is the victim of the alleged offence, but of other children whose safety may also be at risk.

20.61 A number of child welfare laws contain limited provisions that allow information to be shared between people in the course of performing official functions under the legislation. However, the Commissions are not persuaded that these provisions are always sufficiently clear to permit disclosure of otherwise confidential information about a reporter to a law enforcement agency for the purpose of investigating an alleged criminal offence against a child. Uncertainty about the law causes people working in the sector to adopt a risk-averse approach,^[74] refusing to disclose potentially crucial information because of fear of breaching privacy or secrecy laws. This may, in turn, hinder a proper and timely investigation by the police of serious offences alleged to have been committed against a child, and may subsequently affect the ability to prosecute the offences. In this regard, the Commissions note that some jurisdictions—including NSW and Western Australia—have amended their laws to make it clear that information about a reporter may be disclosed to the police for the purpose of an investigation of a serious offence in relation to a child.

20.62 To the extent that it is not already clearly provided for in individual jurisdictions, the Commissions recommend that state and territory child protection legislation be amended, based on the NSW legislation, to authorise a person to disclose the identity of a reporter, or information contained in a report from which the reporter’s identity may be revealed, to a law enforcement agency where:

• the information is disclosed in connection with the investigation of a serious offence alleged to have been committed against a child or young person; and

• the disclosure is necessary for the purpose of safeguarding or promoting the safety, welfare and wellbeing of any child or young person, whether or not the victim of the alleged offence.

20.63 The Commissions also recommend that disclosure only be authorised where the person or body that discloses to a law enforcement agency the identity of the reporter certifies beforehand that seeking the reporter’s consent is impractical, or a senior police officer certifies that this would prejudice the investigation. If such information is disclosed, the reporter should be advised of that fact as soon as practicable, unless to do so would prejudice the investigation.

20.64 The legislation should also define a law enforcement agency broadly to include federal, state and territory police in order to allow information to be shared across state and territory borders.

20.65 The Commissions’ recommendations are limited to the purpose of investigating the commission of an alleged serious offence against a child or young person, and where there is a concern for the safety of a child or young person. They are intended to ensure that legislative provisions do not prevent the sharing of information in circumstances where there is a risk to the safety of a child or young person. The recommendations are consistent with the broad recommendations, in Chapter 30, that family violence and child protection legislation should clearly set out which agencies and organisations may use and disclose information and in what circumstances. This will provide clarity for those being asked to disclose the information, and ensure that any disclosure is consistent with child protection legislation, and with relevant privacy and secrecy legislation, as the disclosure is ‘authorised by law’.^[75]

20.66 As with a number of recommendations made in this Report, these recommended legislative amendments must be supported by providing appropriate training to people working in the child protection sector, in both government and non-government agencies, to enhance their understanding of the amendments and implement appropriate arrangements to ensure the laws operate as intended.^[76] Chapter 31 acknowledges the importance of ongoing education and training programs.

20.67 The Commissions’ recommendations accord with the overarching objective of this Inquiry—to address gaps in service provision that have arisen in practice where governing legislative frameworks intersect—in order to improve safety outcomes for women and children who are victims of family violence and abuse.

Deciding whether to prosecute

20.68 The decision whether to commence a prosecution of offences committed against children is a significant aspect of the criminal justice process. In the majority of cases, the decision whether to prosecute rests with the police.^[77] However in the case of serious indictable offences, where a child has suffered significant physical or sexual assault, or has been killed, it is a matter for the state or territory director of public prosecutions.

20.69 Although prosecutorial policy varies across the jurisdictions, prosecutorial discretion is guided by two principal criteria: first, whether there is sufficient reliable evidence to support a conviction (the ‘prima facie test’); and secondly, whether it is in the public interest to bring a prosecution.^[78]

20.70 In relation to the first criterion, a number of factors are relevant in assessing whether there is enough evidence to support a conviction, including the availability, competence and reliability of witnesses, and the availability of any lines of defence to the defendant.

20.71 Once the prosecutor is satisfied that there is sufficient evidence to justify making a decision to prosecute, or to continue a prosecution, the second key consideration is whether or not it is in the public interest to pursue the prosecution.^[79] There is a long list of non-exhaustive factors that may be taken into account when determining this issue, including:

• the seriousness of the offence;

• any aggravating or mitigating factors;

• the age, intelligence and mental health of the offender, the victim and any witnesses;

• the degree of culpability of the alleged offender;

• whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive; and

• the prevalence of the offence and the need for general deterrence.^[80]

20.72 In matters concerning the abuse or neglect of children, a decision to bring a prosecution against a parent can have a devastating impact on the family. This issue was considered by the ALRC in its 1981 report, Child Welfare, where the ALRC recommended that:

Prosecutions should therefore be initiated only after careful deliberation. The police should be encouraged to consult representatives of welfare agencies before a decision to prosecute is taken. Further, when a prosecution has been initiated, procedures should be introduced which will facilitate the withdrawal of the proceedings when this is desirable.^[81]

20.73 When matters are referred to a joint or inter-agency team, the decision as to whether to initiate proceedings against a person may be made by the police in consultation with the child protection agency, or at least communicated to the child protection caseworker involved, as directed under policy and procedure manuals.

20.74 In Queensland, unless a matter is urgent, the police are statutorily required to consult with the child protection agency before investigating an offence against a child whom a police officer knows or suspects is a child in need of care and protection, or before initiating proceedings.^[82] The intention of the provision is to ensure that police and the child protection agency agree on the best strategy to proceed with an investigation and to determine whether initiating proceedings would be in the child’s best interests. In Victoria and Tasmania, a requirement exists for police to consult the child protection agency before bringing a prosecution but only in relation to offences contained in the child protection legislation.^[83] These provisions recognise that the child protection agency has an interest in decisions to initiate proceedings against a parent, where such action may conflict with the agency’s work with the family to address the underlying risk factors that have given rise to the abuse or neglect.

20.75 In the Consultation Paper, the Commissions sought feedback about the need for, or appropriateness of, statutorily requiring the police to consult with the relevant child protection agency before commencing an investigation or bringing proceedings in respect of an alleged offence against a child whom the police considered to be in need of care and protection.^[84]

Submissions and consultations

20.76 All stakeholders who addressed this issue all agreed that cooperation between the police and the child protection agency was critical in responding appropriately and effectively to allegations that a child had been abused or neglected, and for improving outcomes for children and their families.^[85] The relationship between the police and the child protection agency was considered to be central to more consistent and better coordinated responses to child abuse and neglect. As one organisation, Berry Street Inc, commented:

Whilst legislative reform is part of the way forward any legislative reform is only as good as the practice reform that follows. The key here is not legal changes. The main issue is the culture of the relationship between child protection, the police and non-government services which are often the third ‘player’ with the most direct relationship with a family and insight into the circumstances confronting children.

It is important to understand how the professionals, service and agencies view each other. An example of this may be that if the police have an assumption that [the] child protection [agency] is not assisting them with their work but rather making their work more difficult they will be less [likely] to investigate an alleged offence against a child where the child is suspected of being in need of care and protection. Thus children at risk can receive a different level of intervention not based on the level of risk but the working relationship between police and child protection.^[86]

20.77 In particular, it was considered appropriate and desirable for police to consult with child protection experts when assessing harm or risk of harm to children and young people.^[87] One stakeholder said that consultation between the police and child protection agencies concerning the investigation of alleged offences against children should be encouraged within child protection laws as a means of assisting police when exercising their prosecutorial discretion.^[88] Similarly, National Legal Aid submitted that child protection authorities should have collaborative working arrangements with the police to ensure that offenders are prosecuted in appropriate cases.^[89]

20.78 A number of submissions noted that, in many states and territories, the relationship between the police and the child protection agency was governed by inter-agency protocols or guidelines, which emphasised consultation and cooperation between the agencies. The general consensus was that these non-legislative cooperative arrangements were working well in practice, and that legislative change was only desirable if administrative arrangements were not operating effectively.^[90]

20.79 The Queensland Government submitted that the statutory requirement in s 248B of the Child Protection Act 1999 (Qld) applies only where the child is not already known to the child protection agency. Where the child is known to the Department of Child Safety, the Queensland Government stated that there are processes already in place—namely, the inter-agency SCAN teams—to ensure that the Department is aware of any police involvement with the child, and to facilitate cooperation between the two agencies.^[91]

20.80 There was a concern expressed in some submissions that imposing a legislative requirement on the police to consult with the child protection agency may interfere with the duty of the police to investigate all suspicions of criminal activity,^[92] or may delay appropriate action being taken to protect the child who was the subject of the allegations.^[93]

20.81 The Department of Premier and Cabinet (Tas) advocated against statutorily requiring the police to consult with the child protection agency on the grounds that, as mandatory reporters, the police were nevertheless required to report a child in respect of whom it had care concerns to the child protection agency. It stated that existing protocols between the child protection agency and the police provide mechanisms for determining what action should be taken which both protects the child and ensures police are able to investigate and prosecute alleged crimes effectively and efficiently.^[94]

Commissions’ views

20.82 A key recommendation of this Inquiry is the promotion and fostering of integrated responses in order to improve outcomes for children and their families, and to make the legal response as seamless as possible in the relevant circumstances.^[95] Inter-agency collaboration is an essential feature of integrated responses.^[96]

20.83 Collaboration between the police and the child protection agency—together with other relevant agencies—is central to ensuring an appropriate and effective criminal justice and child protection response to allegations of child abuse and neglect, particularly where they arise in the context of family violence. This inter-agency collaboration depends on a shared understanding of the nature and dynamics of family violence both within and across each jurisdiction,^[97] which must be reflected in the protocols and guidelines that govern the cooperative arrangements.^[98]

20.84 The benefits of closer collaboration are many: police can draw on the expertise of child protection caseworkers to make harm, or risk of harm, assessments; and can acquire a better understanding of the impact on the child and the child’s family of a likely prosecution, and a likely sentence on conviction. This will ensure that all relevant factors are properly considered by the police when exercising their discretion to prosecute, so that prosecutions are initiated only in appropriate cases.

20.85 Where a matter is the subject of a joint inter-agency response, the Commissions note that consultation between the police and the child protection agency is generally covered by the terms of the inter-agency agreement that governs those arrangements. The two agencies are jointly involved in the investigation of child abuse or neglect allegations, therefore reducing trauma on the victim by having to repeat their story, and are required to coordinate the services they provide to the child and non-offending family members. Responses received in submissions and consultations indicated that, where joint inter-agency response teams are involved, these administrative arrangements appear to be working effectively in practice to ensure consultation between the police and the child protection agency.

20.86 There may be a gap in service integration and cooperation if a matter being investigated by the police is not referred to joint investigation—for example, if it does not meet the relevant criteria for referral to the joint investigation unit. However, the Commissions note that where the police are investigating alleged offences of abuse or neglect of a child, as mandatory reporters they must make a report about the child to the relevant child protection authority. Even if a matter is not allocated to a joint inter-agency team, it is probable that the police will consult with the child protection agency in reporting their concerns for the child.

20.87 The issue is whether consultation should be statutorily required, or whether it should be facilitated through the use of administrative mechanisms. The Commissions consider that the key to fostering good working relationships between the police and the child protection agency is more likely to be achieved by building trust and by promoting cultural change both within and across the agencies, rather than by legislative compulsion. As the Commissions conclude in Chapter 29, the success of integrated responses relies to a large extent on strong and visionary leadership, shared principles and objectives, clear inter-agency arrangements, and an ongoing and responsive relationship between the parties. All of these elements can be put in place without a legislative basis. Accordingly, the Commissions recommend that state and territory law enforcement, child protection—and other relevant agencies—should develop a framework for consultation about law enforcement responses when allegations of abuse or neglect of a child, for whom there are care and protection concerns, are being investigated by the police.

Mandatory reporting of children’s exposure to family violence

20.88 As discussed in Chapter 19, there is a substantial body of research that demonstrates the co-occurrence of child abuse and family violence, and the impact that exposure to family violence has on the long-term health and welfare of children. Consequently, children’s exposure to family violence is now acknowledged in all state and territory child welfare legislation as either a distinct category of child abuse or as a ground in itself triggering a child protection intervention.

20.89 Together with the introduction and expansion of mandatory reporting laws, the recognition of harm caused to children by their exposure to family violence is believed to have contributed to the substantial increase in the number of reports received by child protection agencies over the last five years, from 137,938 in 2001–2002 to 339,454 in 2008–2009.^[99] Family violence is one of the most common reasons given for reports to child protection agencies;^[100] and a large number of reports—in which family violence was a primary concern—are made by police.^[101]

20.90 A number of researchers and commentators have questioned whether the formal recognition of the impact of family violence on children in the child protection context has improved services for women and children living with violence.^[102] This is said to be due, in part, to the flood of reports that have overloaded a sector that is already strained due to the constant pressure of inadequate resourcing. As Dr Dorothy Scott has argued, this combination of factors has resulted in resources being spent unproductively, reports being investigated too superficially and closed prematurely, caseworkers not being assigned, and critically, children and families missing out on support and education services that they require.^[103]

20.91 These problems appear to be magnified by laws and policies in some states and territories that require police officers to notify the child protection agency every time they respond to an incident of family violence where children are present or ordinarily resident in the home but not there at the time.^[104]

20.92 In the Wood Inquiry, for example, it was found that a similar NSW Police policy was inconsistent with the legislative reporting provisions which, at the time, required reports to be made where, as a result of being exposed to incidents of domestic violence, the child or young person was at risk of ‘serious physical or psychological harm’.^[105]

20.93 Although unintentional, the evidence suggests that legislative reporting requirements or policy directives that require police officers to make a report following every incident of family violence where a child is present or ordinarily resident in the home is counter-productive.

20.94 Two consequences may flow from mandatory notifications: the first is that it may discourage women from reporting family violence or breaches of family violence protection orders because of the fear that their children will be removed from them.^[106] This fear is particularly acute for Indigenous women, as a recent study of Indigenous communities in Queensland by Professor Chris Cunneen illustrated:

The reason I haven’t reported is my kids, my babies. I’m worried about them being taken. I had four children. Because police are brought to a house where there is violence, the kids get taken straight away. The Stolen Generation I reckon is coming back. …

I think the extra dimension for Indigenous women which is onerous is Child Safety. All of these veiled threats that if you do this you will lose the kids …That sort of dynamic was driving people underground and they weren’t reporting because they knew Child Safety would get involved.^[107]

20.95 Cunneen found that many people, including police officers themselves, questioned the usefulness of mandatory reporting by police where a child is present (or usually resident) at the scene of a domestic violence incident.^[108] The report concluded that ‘a more sensible policy would provide for better use of police discretion on this issue’.^[109] The Queensland Government is presently undertaking a review of its child protection law and practice, and this is one of the primary issues under examination.^[110]

20.96 The second consequence that may flow from mandatory notifications is that, because most reports of family violence from police incidents do not reach the threshold for an investigation by the child protection agency, the matter is closed and no support services are provided to the families and children.^[111]

Submissions and consultations

20.97 In the Consultation Paper the Commissions asked about the circumstances in which it would be appropriate for police to make child protection notifications when responding to incidents of family violence.^[112]

20.98 A number of submissions, particularly from child protection advocates, argued that it was appropriate for police to make a report to the child protection agency in every case where children were exposed to family violence, or its aftermath.^[113] They noted that children are not mere witnesses to family violence, but can be seriously affected by it. Failure to report children who are exposed to family violence runs the risk that they will be exposed to greater harm if the conflict escalates, both in terms of potentially being ‘caught in the crossfire’ or in terms of their long term health and wellbeing.

20.99 However, one person observed that, despite the requirement to make a report in all family violence matters in Queensland, the policy was not always consistently applied:

… some police will refer all cases, no matter where the child was, others will make a decision that a baby in the house was not affected by the violence and so not make a decision. A[nd] importantly, the referrals are overwhelming the system and often what happens is that a number of ‘occurrence reports’ [are] completed by Police, these can be up to two weeks old, are faxed to Child Safety, and these can often sit there for some time before Child Safety has the opportunity to read through them. My understanding is that any urgent case is called through, nevertheless, there have been situations where a case that Child Safety identified as being concerning, and had they known at the time, would have taken direct action, however, no action was taken because the report was not read for some time.^[114]

20.100 While not disputing the importance of reporting concerns for the safety of children exposed to family violence, many other submissions felt that better results could be achieved in terms of improving the safety outcomes for children and their non-offending families by allowing police more discretion in their reporting practices, and providing alternative pathways for referral.^[115] As one submission commented:

… there needs to be a rethinking of how we respond to these cases. Police need a few referral pathways, one is to child protection authorities, the second, which could occur in tandem, is to a domestic and family violence service/family support service to work with the family to help address the issues. The difficulty is that currently, if Child Safety in Queensland decides not to investigate because the case does not meet the threshold for intervention, nothing is actually done to support this family.

Key to this is having a well developed risk assessment framework and training and education for police to enable them to more accurately assess harm to children as a result of domestic violence. Ideally, a specialist child protection worker role attached [to] Police could be involved in undertaking such assessments.^[116]

20.101 Professor Cathy Humphreys submitted that a policy of reporting every single incident of family violence where a child is present is an ‘ineffective, and potentially unethical and damaging route which closes down help-seeking rather than protecting children’.^[117] She suggested that the statutory route should be reserved for children where there is ‘evidence of physical and sexual abuse or where there is evidence of cumulative harm through repeated incidents’ and children are at risk of significant harm, noting that:

This is not to suggest that children do not need protection and support, but rather that the statutory route has proven to be ineffective in ensuring the protection of large numbers of children notified from police domestic violence incidents. A community services route is needed for children living with domestic violence.^[118]

20.102 The Magistrates’ Court and the Children’s Court of Victoria observed that, under the Code of Practice for the Investigation of Family Violence, Victoria Police are advised that the threshold for child protection intervention is higher than the standard required to apply for a family violence protection order. Accordingly, the Code directs the police to consider whether to apply for a family violence intervention order on behalf of a child in order to secure their protection in cases where the child protection agency has deemed that its threshold for action is not met. The Courts further submitted that it is likely that work has and could be done to allow police to make a relatively sophisticated risk assessment of a child exposed to family violence and that the risk assessment could guide decision making about notification to the child protection agency and applications for family violence protection orders.^[119] In Victoria, the police, courts and family violence service providers now use a Common Risk Assessment Framework, which is reported to be improving consistency in risk assessment.^[120]

Commissions’ views

20.103 The Commissions note that a number of Australian jurisdictions have responded to the large increase in numbers of notifications to child protection agencies by refining their assessment and decision-making tools to better identify those cases that require a statutory child protection response. A key feature of these new systems is the introduction of a dual track system whereby reports to the child protection agency are only made where a reporter believes on reasonable grounds that a child is at risk of ‘significant harm’. Concerns for children that fall below this threshold may be made to regional or community intake centres for assessment and referral to appropriate family support and therapeutic services. Child protection agencies are then able to focus on cases where the concerns warrant a full risk of harm assessment and are likely to lead to some form of intervention to protect the child from harm.

20.104 Where the risk is less severe, and statutory intervention is not justified, a range of new approaches have been created that allow more flexible responses to address concerns about a child’s welfare. These new approaches address the needs of those families who find themselves in what Dr Leah Bromfield and Prue Holzer describe as the ‘nexus between risk and need’,^[121]—that is, those families who could benefit from some form of intervention, but who fall below the threshold for statutory child protection involvement. These new approaches have been augmented by improvements to risk assessment processes to ensure consistency in decision-making and better integration of child protection services and family support agencies. The Commissions note, however, that the dual track system will only operate effectively if adequate resources are deployed in this ‘less urgent’ stream.

20.105 The Commissions note that the practice of requiring police to make automatic reports to the child protection agency in every case where children are exposed to family violence has been discontinued in most states and territories and is presently under review in Queensland, where the policy is still in place. In the Commissions’ view, when responding to incidents of family violence, it is vital that police use a common risk assessment framework, and retain their discretion to refer appropriate matters to the relevant child protection authority.^[122]