Alternatives to court


17.42 After investigation, the relevant family services department assesses the situation of the child and family, determines whether any intervention is required and, if so, decides whether intervention should take the form of a court issued care and protection order. Only a very small number of investigated cases eventually become the subject of care and protection proceedings in court. In 1995–96, of the 71 766 children involved in notifications of suspected child abuse and neglect across Australia, approximately 25 500 children were subjects of substantiated cases and only 4 123 of these children were placed under care and protection orders by a court, less than 6% of those notified.[70]

17.43 In many cases, the decision whether to make a care and protection application depends on the immediate family’s willingness to co-operate with the department’s provision of services, the resources available to the department and an assessment of whether the child would be safe in the family. The family and child concerned may or may not have a say in the development of the case plan with which the family must comply to avoid the matter being brought to court.

17.44 Some jurisdictions actively promote the family’s participation in out-of-court solutions to care and protection matters through ‘family group conferences’ or pre-hearing conferences. The goal of these out-of-court conferences is to help the family and the family services department come to a protective solution for the child that avoids court involvement.[71]

Family group conferences

17.45 Family group conferencing was pioneered in New Zealand in the Children, Young Persons and Their Families Act 1989. This model emphasises the importance of the extended family in protecting and caring for children and gives children, young people and their extended families substantially increased responsibility in decision-making.[72] The conference is a mandatory second step after an investigation has revealed a child to be prima facie in need of care and protection.[73] The conference itself has three stages. First, the professionals who have investigated the allegations detail the information that they have received and members of the extended family are given the opportunity to ask questions or correct factual errors. Next, the family discusses, in private if they wish, their response to the information and whether they think the child is in need of care and protection and then decides on a plan to ensure that the child receives that care and protection (at this point the family may also discuss with the professionals various services that may be offered or available). Finally, the family’s plan is conveyed to the professionals, who may agree to it or request modifications. If the result of the conference is a plan that is acceptable to both the family and the professionals involved, it is formally recorded and subject to implementation by all concerned.[74]

17.46 In Victoria, family group conferencing, based on the New Zealand model, was established following a successful pilot program. Family group conferences may be convened where there are protective concerns but before an application is made to the Children’s Court.[75] Unlike the New Zealand model, the Victorian scheme is not legislatively based.[76] The evaluation of the pilot study concluded that ‘[t]he majority of the children considered in the family group conferences…have been able to be cared for within their wider family networks’.[77] The Victorian Government submission noted that conferencing

…plays an important role in maintaining children at home, or within their extended family network. While not necessarily diverting matters from court action, Family Group Conferencing increases the likelihood of these processes being settled by consent.[78]

A similar conferencing arrangement is now included in South Australian care and protection legislation.[79] A ‘family care conference’ must be convened before application for a care and protection order is made to the courts, unless there are special circumstances that require otherwise.[80] Family group conferences are also being proposed in Tasmania’s Children, Young Persons and their Families Bill 1997.[81]

Pre-hearing conferences

17.47 Victoria has also introduced a system of pre-hearing conferences to encourage settlement, reduce delays and promote the involvement of the immediate family in decision-making after a care and protection application has been made to the children’s court.[82] Under this scheme, either party to child welfare proceedings (the parents or the family services department) or the presiding magistrate may seek a conference. The conference convenor reports to the magistrate on any settlement that may be reached during a conference.[83] When a conference is convened, it must be attended by the parents concerned and representatives of the family services department, although the court may order that the child, other relatives and/or an ethnic community representative also attend.[84] Only the parents and the child may be represented at the pre-hearing conference.[85] The evaluation of this program found it successful in promoting resolution of matters in the majority of cases.[86]

Evaluating conferencing models

17.48 Family group conferences and prehearing conferences hold a good deal of promise for the resolution of disputes about the care and protection of children. They attempt to ensure that the family, and in some cases the extended family or other community members, can participate in reaching a co-operative solution to their problems. They also minimise paternalism and exclusion on the part of the legal process. An agreement may be reached to foster the child voluntarily, to have the abuser leave the family home, to have the family attend therapy or counselling or to provide continued informal supervision by the relevant department. These agreements may protect the child with minimal distress and disturbance. These kinds of voluntary arrangements to protect children were supported in submissions to the Inquiry.[87]

17.49 On the other hand, there are concerns with processes that pressure vulnerable families into negotiation with social workers who are privy to all the family concerns and failings and that may result in limited contact between or even separation of parents and children. Submissions to the Inquiry also expressed concern that the vulnerability of some family members within violent and abusive families may mean that dynamics in conferences could hamper appropriate resolutions.[88] There is a ‘…potential [in conferencing schemes] to mask the inequality of the parties by a veneer of participation’.[89] Appropriate training of conference convenors and an ability of family members to access legal advice before conferences may address some of these issues.

17.50 The Inquiry is concerned about the appropriate level of children’s involvement in these conferences.[90] Where the conference convenor is unable to protect the child or is unaware of negative family dynamics, participation by the child could constitute further abuse of the child. It may involve the child in discussions with an allegedly abusive parent or with family members who may intimidate or blame the child for ‘disrupting’ the family.[91] In some family group conferences in New Zealand the entire family spent their time haranguing the child or subjecting the child to intimidation.[92] On the other hand, it is important that children are able to participate or at the very least that their wishes or best interests are made clear when conference participants are making decisions about children’s residence, contact with parents or family members and services needed. Children consistently told the Inquiry that they should be able to participate in decision making processes when the decisions to be made directly concerned them.[93] The current levels of children’s participation in these conferences is unknown.[94]

17.51 Recommendation 82 proposed that a representative be appointed for a child as early as possible in the process of a care and protection intervention. Legal advice should be provided to a child before the child decides whether or not to participate in a conference. The legal representative should attend the conference to represent the child’s interests if the child is too young to participate or wishes the representative to participate on his or her behalf or to assist a child who wishes the additional support during these processes.[95]

17.52 Another concern is that, in the promotion of a solution acceptable to the family and professionals involved, the best interests of the child may become of secondary importance. The commitment in conferences is to negotiation and settlement by agreement, a commitment that may subsume concerns about the welfare of the child.[96] Most jurisdictions require that the best interests of the child be promoted in court proceedings.[97] Conferencing models should also incorporate this principle.

17.53 Finally, the initial assessment of whether a child is at risk should not be the subject of negotiation or compromise at these conferences.[98] Pre-application or pre-hearing conferences are not an appropriate investigation tool nor should they be a forum in which the family or family services department attempts to prove or disprove the allegations. Conferencing procedures are appropriate only to decide upon a plan for the protection and care of children found to be at risk following an investigation and for whom court orders will be sought if the conference fails to reach an acceptable solution.[99]

17.54 Many of these concerns may be addressed if conference convenors are appropriately trained to identify and handle them. However, more research is needed to evaluate existing conferencing models, develop criteria for effective conferencing schemes and identify the professional requirements for conference convenors. This research should also take into account the particular perspectives and needs of Indigenous children and families and those from non-English speaking backgrounds and ensure that people with disabilities are not effectively excluded from the process. The long-term effectiveness of conferencing schemes in reaching appropriate resolutions as compared to court-based resolution should also be studied.[100]

Recommendation 169 Research should be conducted into the practice of family group conferencing and pre-hearing conference schemes, to encourage the adoption in all jurisdictions of effective conferencing models. This research should

  • evaluate the effectiveness of various case conferencing arrangements used in Australian jurisdictions, particularly in relation to procedures, outcomes and levels of satisfaction or dissatisfaction of all the participating parties with the arrangements

  • identify the types of cases most amenable to case conferencing solutions, the stage of the proceedings when conferences are most effective, whether the conference works best in the shadow of or outside court confines and whether the participation of legal representatives assists or retards proceedings

  • focus on children’s levels of participation in, and satisfaction with, these processes and the assistance they require to participate effectively in conferences

  • be aimed at ensuring appropriate participation in conferencing by Indigenous children and families and those from non-English speaking backgrounds as well as people with disabilities.

Implementation. OFC or the Australian Child Protection Advisory Council should co-ordinate this research on the basis of information provided by State and Territory family services departments. The research should include longitudinal studies of the effectiveness of different models as compared to court-based resolution.

Recommendation 170 The procedures associated with conferencing schemes should be set down in legislation, based on the evaluation proposed in recommendation 169. The legislation dealing with procedures for conferencing models in care and protection jurisdictions should require that

  • in family group and pre-hearing conferences the best interests of the child should be the paramount consideration

  • family members and children have access to independent legal advice before participating in any conference

  • children who are too young to participate or who wish to have additional support during the conference should be represented by a lawyer or advocate of their choice in these conferences

  • convenors of family or pre-hearing conferences should have knowledge of and training in care and protection law, family dynamics and child development issues, so that they are aware of power imbalances between the participants at the conferences and are able to work to overcome these imbalances to arrive at a resolution in the best interests of the child.

Implementation. The Attorney-General through SCAG should encourage all States and Territories to enact similar legislation. The national care and protection standards should specify the minimum training and experience requirements for convenors of conferences.

[70] See paras 2.60, 2.65.

[71] See paras 18.45-55 for a discussion of family group conferencing in the juvenile justice context.

[72] P Marsh ‘Partnership, child protection and family group conferences — The New Zealand Children, Young Persons and Their Families Act 1989′ (1994) 6 Journal of Child Law 109, 110.

[73] id 110–112. The conference may also be conducted after court proceedings have begun, upon referral by the court, in order to facilitate an agreement on an acceptable outcome.

[74] id 112–113.

[75] PA Swain ‘Letting the family decide? Family Group Conferences and Pre-Hearing Conferences in Victoria’s child protection system’ (1996) 7 Alternative Dispute Resolution Journal 234.

[76] ibid.

[77] PA Swain Safe in Our Hands — The Evaluation Report of the Family Decision-Making Project Mission of St James and St John Melbourne 1993, 6.

[78] Vic Government IP Submission 213.

[79] Children’s Protection Act 1993 (SA) Pt 5.

[80] Children’s Protection Act 1993 (SA) Pt 5 Div 1.

[81] Pt 5 Div 1.

[82] Children and Young Person’s Act 1989 (Vic) s 82A.

[83] Children and Young Person’s Act 1989 (Vic) s 82A.

[84] Children and Young Person’s Act 1989 (Vic) s 82A(4).

[85] Children and Young Person’s Act 1989 (Vic) s 82A(5).

[86] P Lagay et al To Seek the Best Possible Outcomes –– An Evaluation of a Pilot Program of Pre-Hearing Conferences in the Family Division of the Children’s Court of Victoria University of Melbourne School of Social Work Melbourne 1994 section 5.

[87] eg NSW Community Services Commission IP Submission 211; G Campbell DRP Submission 9; Family Support Services Association of NSW DRP Submission 32; Kreative Kids DRP Submission 35.

[88] eg Women’s Legal Service DRP Submission 68; NSW Government DRP Submission 86. In private family law disputes it has been suggested that alternative dispute resolution is not appropriate where there is a history of violence, child abuse or sexual abuse, a fear of violence, a serious personal pathology or where counselling or therapy might be required or the parties may reach an agreement that disadvantages an unsuspecting third party: G Clarke & I Davies ‘Mediation — When is it not an appropriate dispute resolution process’ (1992) 3 Alternative Dispute Resolution Journal 78. Research on mediation in private family law disputes indicates, on the other hand, that some domestic violence victims believe that mediation represents a positive experience of empowerment and can assist in reaching a fair and reasonable agreement: Keys Young Research/Evaluation of Family Mediation Practice and the Issue of Violence Legal Aid & Family Services, Attorney-General’s Dept Canberra 1996, ii–iii.

[89] PA Swain ‘Letting the family decide: Family Group Conferences and Pre-Hearing Conferences in Victoria’s child protection system’ (1996) 7 Alternative Dispute Resolution Journal 233.

[90] Neither the Family Group Conference nor the pre-hearing conference schemes in Victoria require or specifically countenance the participation of the children concerned although in both their participation is possible. In SA the child is to be invited to the family care conference unless the convenor believes the child’s presence to be contrary to his or her best interests.

[91] eg Women’s Legal Service DRP Submission 68.

[92] Dept of Human Services (Vic) The Evaluation of Family Groups Conferences –– August 1995: Results and Discussion Dept of Human Services (Vic) Melbourne 1995, 18.

[93] Adelaide Focus Group 29 April 1996; Newcastle Focus Group 13 May 1996; Perth Focus Group 1 July 1996; Alice Springs Focus Group 19 July 1996. See also paras 13.55-58.

[94] Australian Association of Social Workers IP Submission 207.

[95] Legal representation of children in these and other legal processes involved in care and protection matters is discussed in ch 13.

[96] For a discussion of these concerns in the context of the Belgian Flemish Mediation Committee, which must attempt to reach a solution between social workers and families before care and protection concerns about a child are brought to court, see B Luckock et al ‘The Belgian Flemish child protection system — Confidentiality, voluntarism and coercion’ (1997) 9 Child and Family Law Quarterly 101, 106.

[97] Children’s Services Act 1986 (ACT) s 5; Children (Care and Protection) Act 1987 (NSW) s 55(a); Children’s Services Act 1965 (Qld) s 52(2); Children’s Protection Act 1993 (SA) s 4; Community Welfare Act 1983 (NT) s 9; Community Services Act 1970 (Vic) s 41. The Tas Government proposes to introduce a similar provision: Children, Young People and their Families Bill 1997 cl 8(2)(a). See also Tas Government IP Submission 210.

[98] See NSW Government DRP Submission 86.

[99] ibid.

[100] The NSW Government suggested that such research be included in the proposed evaluation: DRP Submission 86.