Release on bail
One specific area where the child protection system crosses the path of the criminal justice system, and where poor outcomes for children and young people may result, is in relation to bail. Statistics show that more young people are being held in detention on remand for longer periods of time, and in part this is because, quite simply, there is nowhere else for them to go. Young people 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. However, the special problems that many young people face when applying for bail tend to undermine these principles.
The detention of children and young people on remand pending trial, where bail would otherwise have been granted, clearly has a disproportionate impact on homeless young people, and on those who have no stable family home to go to. It is contrary to the prevailing policies and principles in the juvenile justice arena of diversion and rehabilitation, and may exacerbate existing risk factors for that class of children and young people.
The solution recommended by the Wood Inquiry was an administrative one, namely the establishment in NSW of an after-hours bail and assistance service to help children and young people access bail when they are at risk of being remanded in custody. Residential bail programs have also been suggested by advocacy bodies and service providers. Some of these services and programs already exist in other jurisdictions including Victoria, Queensland and Western Australia and the Commissions support their availability across all states and territories.
Referring care and protection issues when they arise
Safety concerns for a child or young person who is a defendant in criminal proceedings in a children’s or youth court could be brought to the attention of the child protection agency by giving the court a power to refer the matter formally to the child protection agency for investigation. The NSW Children’s Court called for such a power in its submissions to the Wood Inquiry and to a previous review of the NSWLRC in relation to young offenders.
The Commissions understand that while magistrates may make reports to the relevant child protection agency in these circumstances, either via the usual notification processes or by special arrangement with the relevant child protection agency, this does not occur often. One of the reasons for the infrequent referral, as noted by the NSWLRC, is the court’s lack of power to require the child protection agency to report back to it on the results of its investigation.
Under s 350 of the Children, Youth and Families Act 2005 (Vic), the child protection agency is obliged to investigate any 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. 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.
The Commissions consider that there may be merit in giving courts a formal power to refer their concerns for the safety of a child or young person, who is a defendant in criminal proceedings before it, to the child protection agency for investigation. Section 349 of the Victorian statute provides a useful model in this regard. Such a power gives the court a clear pathway to take action where it is of the view that action is warranted, rather than relying on court officers to make a report using the notification provisions. It also ensures that an investigation is carried out by the child protection agency.
There is also merit in ensuring the court can request relevant information from a child protection agency in the exercise of its sentencing jurisdiction. This would assist it to identify any ongoing care and protection issues that it ought to have regard to when sentencing young offenders. Presently, in NSW, the court may request this information under s 248 of the Children and Young Persons (Care and Protection) Act. The Commissions are interested in hearing from stakeholders about how often, in practice, courts request such information.
The Commissions’ preliminary view is that courts should also be able to make a formal referral (with report back provisions) to the child protection agency when exercising its care jurisdiction, where it has concerns for the safety of other children or siblings of the child or young person who is the subject of care proceedings before it.
Proposal 13–6 State and territory child protection legislation should be amended to allow a court, in the exercise of its criminal jurisdiction where a child or young person who is a defendant before it, to refer a matter to the child protection agency for investigation where it considers that there are legislative grounds for a protection application, or an application for a therapeutic treatment order, to be made.
Proposal 13–7 State and territory child protection legislation should require the child protection agency to provide, within 21 days of the referral, a report to the court setting out the outcomes of its investigation into the matter, and specifying whether a care and protection order or a therapeutic treatment order is being sought, or if the investigation reveals that such an order is not warranted.
Proposal 13–8 A court exercising care jurisdiction under state and territory child protection legislation should have a power to refer its concerns for the safety of other children or siblings of the child or young person the subject of care proceedings before it to the child protection agency for investigation, and to require the child protection agency to furnish it with a report of its investigation within a certain time period specified in the legislation.
Question 13–13 In practice, when sentencing young offenders, how often does the court request information held by the child protection agency about the offender to be provided to it?
M Dumbach, ‘Homes for Homeless Children’ (2007) 32(3) Alternative Law Journal 170.
 Cf Children (Criminal Proceedings) Act 1987 (NSW) ss 17–18 which excludes serious children’s indictable offences from being determined in the NSW Children’s Court.
J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), Rec 15.1. The recommendation has been approved in principle by the NSW Government, and an after-hours bail hotline, to operate under the auspices of the NSW Department of Juvenile Justice, is expected to be implemented by June 2010.
 See, for example, National Council of Social Services, Bail Me Out: NSW Young People and Bail (2010), Rec 1.4; UnitingCare Burnside, Releasing the Pressure on Remand: Bail Support Solutions for Children and Young People in New South Wales (2009); M Dumbach, ‘Homes for Homeless Children’ (2007) 32(3) Alternative Law Journal 170, 171.
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 No 104 (2005), [8.140].
Children, Youth and Families Act 2005 (Vic) s 350(1).