In most Australian states and territories, child protection legislation includes provisions designed to facilitate negotiated solutions. In addition, some government and community agencies use ADR procedures for child protection cases and have developed policy and practice in relation to ADR. There is a great deal of variation in the processes and terminology used to describe them.
Two frequently used processes are family group conferencing and mediation. Other examples of ADR in this area are conferences prior to a court hearing; the role of Family Consultants in the Family Court; and ADR processes developed for Indigenous families, such as Care Circles.
The ALRC and the (then) Human Rights and Equal Opportunity Commission examined the use of family group conferencing and pre-hearing conferences in the report, Seen and Heard: Priority for Children in the Legal Process (Seen and Heard). The report discussed the benefits of such procedures and noted a number of concerns, including the fact that ‘the vulnerability of some family members within violent and abusive families may mean that dynamics in conferences could hamper appropriate resolutions’. It recommended further research into effective conferencing practices, and the setting down of procedures in child protection legislation based on this research. These recommendations have not yet been implemented.
As stated in Seen and Heard, the use of ADR in child protection cases ‘hold[s] a good deal of promise for the resolution of disputes about the care and protection of children’. Of particular relevance to this Inquiry is the possibility that ADR can improve communication between the many agencies and individuals involved in making decisions in child protection matters. As well as providing an opportunity for professionals to meet and hear each other’s perspectives, it may help children and young people and their families understand a system that has been described as a ‘maze.’ The Commissions are interested in hearing from stakeholders how these potential benefits can best be realised.
The Commissions note that, as with FDR, ADR in child protection matters involves a number of challenges in the context of family violence. These include dealing with relationships of power; protection from violence, abuse and intimidation; and ensuring that all voices are heard, including the voice of the child. Many of these concerns, however, may be addressed through training of convenors and ensuring best practice. The Commissions are interested in hearing views on whether legislative or other reforms are needed to ensure that family violence is addressed appropriately in such practices.
Question 11–5 How can the potential of alternative dispute resolution mechanisms to improve communication and collaboration in the child protection system best be realised?
Question 11–6 Is there a need for legislative or other reforms to ensure that alternative dispute resolution mechanisms in child protection address family violence appropriately?