Court processes


17.55 Children’s courts deal with juvenile justice matters as well as care and protection cases. Traditionally, little distinction was made between the criminal and care jurisdictions either in the manner of proceeding or in the orders available to the courts. All jurisdictions have amended their law, making the two areas distinct divisions within the jurisdiction with different processes and practices. However, ‘[v]ery often,…the offending child and the child in need of protection are one and the same — the clear distinction envisaged by legislation does not in practice exist’.[101]

Issues of structure

17.56 In all Australian jurisdictions, care and protection applications are heard at first instance in State and Territory children’s courts, which may be magistrates’ or District courts.[102] Many submissions to the Inquiry suggested that care and protection matters should be dealt with by a tribunal or expert panel rather than by a court.[103] For example, the NSW Community Services Commission recommended a more flexible, multi-disciplinary approach to care and protection matters to ensure that care orders are appropriate to the circumstances of the individual child. It suggested that a new body be established

…which could deal with both guardianship decisions and regular reviews of children in care. It would have the advantage of using a multi-disciplinary child focussed and non-adversarial approach.[104]

17.57 We agree that decisions concerning the placement and care of children in need of care should be flexible and child focused. We agree that decision makers should have available a wide array of orders able to be adapted to the needs and circumstances of the individual child. We also consider that decisions should draw upon the knowledge and expertise of social scientists.[105]

17.58 However, the far-reaching and potentially damaging consequences of decisions to separate children from their families or to coerce certain actions on the part of families require a judicial rather than an administrative process.[106] Around the world, child protection systems give final recourse to the courts when allegedly abusive or neglectful families are unable to or refuse to comply with less coercive interventions.[107] Judicial decision making, particularly in contested matters, also provides an assurance to parties that due process will be observed and reflects the gravity of the decision being made. The Inquiry’s approval of courts as the final arbiter in care and protection systems does not exclude the possibility of alternative dispute resolution in appropriate cases or of a more flexible and less adversarial approach to these cases within the courts.[108]


17.59 Legislation in most jurisdictions encourages cases to be conducted as informally as possible.[109] One result of this is that most jurisdictions have dispensed with rules of evidence in care and protection proceedings.[110] The informality of the courts may benefit children and assist in the appropriate resolution of care and protection matters in the best interests of the child. However, some concern was expressed in submissions that avoiding strict rules of evidence leads to a dangerous lack of rigour in the presentation of evidence. One submission noted that ‘[a]t present, unsworn documents [such as Court Reports] are tendered…Such documents contain a mix of observations, hearsay and opinion.’[111] The Children’s Court of Victoria was critical of the support and training given to care and protection workers presenting cases in court. It noted

…it is not unusual to see words attributed to very young children which are well beyond the child’s vocabulary. This practice can only detract from the probative value of the child’s words and affect the credit of the evidence being given.

Protective workers have difficulty in determining what is relevant. This probably relates to a difference in perspective with regard to what is relevant in a social work sense and what is legally relevant to the issues a Court must decide….While the Children’s Court is able to be flexible concerning the admissibility of evidence, it is not a matter of ‘open slather’. Workers do not have adequate training…[112]

17.60 Care and protection proceedings should be as informal as possible. Strict rules of evidence are not appropriate in determining issues of fact in this jurisdiction. However, decisions should be transparent and based upon acceptable standards of information and proof. Some degree of rigour should be required in the presentation and assessment of evidence in care and protection matters. Preference should be given to the direct evidence of the witness concerned. Evidence should always be relevant to the issues to be decided. Because children should not generally be required to give evidence in these proceedings, it is appropriate that hearsay statements by children should be admissible. However, the form of the hearsay statement should as far as possible reflect the words of the child. The process by which children are interviewed during investigations and by which they might give evidence in these cases is discussed in Chapter 14.

Recommendation 171 The national care and protection standards should specify that direct evidence by a witness should be preferred, except when the witness is the subject child. Hearsay evidence of statements by the subject child should as far as possible be presented in the child’s own words.


17.61 Courts in the States and Territories may make a number of different care and protection orders, including

    • undertakings or recognisances by parents or children, with no further supervision

    • supervision by the department, with or without undertakings

    • custody orders to other relatives or appropriate people

    • custody orders to the minister or department

    • guardianship to the minister or department.

The names given to the orders vary in different jurisdictions and some States and Territories do not have all these types of care orders. Some have a greater range of care and protection options available.[113] Orders may be made in combination so that, for example, a guardianship order may be made whether or not the child remains at home or is removed from the family.

17.62 In the past Western Australia avoided developing a range of non-guardianship orders,[114] as there has been a preference in that jurisdiction for informal work with the family of a child at risk without recourse to court orders until a guardianship order is considered necessary. The Department of Family and Children’s Services discussion paper Proposed New Legislation, indicates that a wider range of orders may be included in the future.[115] It is important to have the option to work informally with the family of a child at risk in many cases. However, a range of court orders available that fall short of a full transfer of guardianship are also required. This allows flexibility in dealing with the individual circumstances of each family, from the least coercive option to full intervention.

17.63 In England, the Children Act 1989 introduced the ‘no order’ principle. Under this principle, the court must be satisfied before making an order that the making of an order would accomplish something which is unlikely to be achieved without it.[116] A similar principle is embodied in some Australian care and protection legislation, particularly with respect to guardianship orders or orders placing a child away from home.[117] We do not recommend this rule because it seems unnecessary in Australia. We received no evidence of overuse of orders. Magistrates and judges should be free to make whatever orders seem necessary and appropriate. They should not be restricted to accepting or rejecting the orders applied for by the parties. This flexibility will assist in ensuring that the orders, if any, reflect and promote the best interests of the child.

17.64 Current moves towards expanding the portability of orders across State and Territory boundaries require a range of similar orders in the different jurisdictions.[118] Chapter 15 discusses the jurisdictional arrangements between care and protection jurisdictions and the Family Court and recommended ways to streamline the processes so that issues that cross the two jurisdictions may be dealt with appropriately in the one forum. These recommendations would allow both care and protection and Family Law Act orders to be made in the one proceeding. The orders available in the different jurisdictions must therefore be compatible and sufficiently flexible to accommodate protection and family issues. Incompatible orders could lead to forum shopping or the inability of courts to work within the proposed arrangements.

Recommendation 172 The national care and protection standards should specify that

  • legislation in all jurisdictions should provide for consistent definitions of abuse and neglect and consistent or similar orders allowing a range of formal interventions suitable to the different protective and family law issues associated with individual children and families

  • children’s court magistrates and judges should not be restricted to making those orders applied for by the parties but rather should have authority to make whatever orders are appropriate from a range available under the legislation.

Delays, case management and active judges

17.65 Some jurisdictions have imposed time limits on the length of adjournments and on time taken to determine care and protection matters.[119] Even so, the Inquiry heard evidence that delays in care and protection matters are common in all jurisdictions.[120] Delays in hearing care and protection applications are of particular concern because the child may be out of the family home or remain at home and at risk pending the finalisation of the case.

17.66 The Attorney-General of the ACT has indicated that delays could be reduced by firmer case management at interlocutory stages of litigation.[121] The Inquiry sees merit in allocating matters to a particular magistrate or judge at the time the application is filed.[122] Not only does this ensure accountability on the part of representatives and parties for unwarranted delays but it also allows the judicial officer to develop an understanding of the history of each matter. In New York, for example, care and protection applications are assigned to a particular judge from their inception and that judge then handles the case through to completion as well as all subsequent court reviews.[123] In addition, the same judge usually handles any further matters concerning that particular family, including custody applications, apprehended violence orders and care and protection applications for other children.[124] A judge will often have a history with a particular family going back 10 or more years, longer than the combined terms of the individual lawyers or social workers involved with them. In the UK, courts exercise significant control over the entry of children into care and their transition and discharge from care.[125]

17.67 The level of involvement in care and protection proceedings by decision makers — whether magistrates or judges — is the subject of some debate and was discussed in the family law context at paras 16.31-32. The same arguments apply here.

Recommendation 173 The national care and protection standards should specify that children’s court magistrates and judges should be active and managerial in their approach to care and protection cases and that the same magistrate or judge should manage a case from first listing, on an individual case management or single docket model.

Children’s participation in court processes

17.68 A common complaint to the Inquiry from and on behalf of children in care was that children do not understand the care and protection process.[126] In the survey conducted by the Inquiry, of those young people who indicated they had been involved in welfare proceedings, 46% said they had not understood the proceedings and 71% stated they had not had the opportunity to have a say in the proceedings.[127] Many children who do not understand the process tend to think they are to blame for what happens to them and their families.One young woman told the Inquiry

I think the worst thing for young people in care is that they think they are criminals, that they have done something wrong, and that’s why they are going into care. I think that’s the guilt that they live with for years and years and years.[128]

A NSW study on young people leaving care indicated that

…young people who had believed at some stage they were responsible for going into care were less likely to complete high school, more likely to have thoughts about suicide and less happy after leaving care than those who did not believe that.[129]

17.69 Where children are able to participate in the court process involved in care and protection matters, they may be able to understand better what is happening and why. In Chapter 13, we have dealt with children’s participation in the court processes involved in care and protection proceedings.

[101] G Brewer & P Swain Where Rights are Wronged National Children’s Bureau of Australia Notting Hill 1993, 5.

[102] The Inquiry received a good deal of commentary on whether the care and protection jurisdiction is appropriately placed in State and Territory children’s courts or whether it should be integrated with the Family Court. This issue is discussed in ch 15.

[103] eg J Benfer, E Drew & K Shepherd IP Submission 119; L Gunawan IP Submission 135; S Castell-McGregor IP Submission 152; J Mogridge & M Hood, Women & Children’s Hospital Minutes of Meeting Adelaide 30 April 1996; Royal Children’s Hospital Minutes of Meeting Brisbane 29 July 1996.

[104] NSW Community Services Commission IP Submission 211. See paras 17.81-84 for a discussion of reviews.

[105] See paras 13.121-122.

[106] Moreover, there may be constitutional difficulties in transferring care and protection proceedings to an administrative decision-maker. In Kable v Director of Public Prosecutions for NSW (1996) 138 ALR 577 the High Court left open the question of whether State and Territory courts are bound by the strictures of ch III of the Constitution.

[107] See R Hetherington et al Protecting Children: Messages from Europe Russel House Publishing Dorset 1997.

[108] See eg paras 17.45-47.

[109] eg Children (Care and Protection Act) 1987 (NSW) s 70(1); Children and Young Person’s Act 1989 (Vic) s 82(1); Children’s Protection Act 1993 (SA) s 45(1); Community Welfare Act 1983 (NT) s 40.

[110] eg Children (Care and Protection) Act 1987 (NSW) s 70(3); Children and Young Person’s Act 1989 (Vic) s 82(1)(d); Children’s Protection Act 1993 (SA) s 45(1) Community Welfare Act 1993 (NT) s 39(2).

[111] Darwin Community Legal Service and Top End Women’s Legal Service IP Submission 202.

[112] Children’s Court of Vic IP Submission 51.

[113] For a summary of the various non-guardianship orders available around Australia see G Angus, C Dunn & H Moyle Children Under Care and Protection Orders Australia 1994–95 AIHW Child Welfare Series 15 AGPS Canberra 1996, 34–44 .

[114] id 34.

[115] WA Dept of Family and Children’s Services Perth 1996.

[116] A Bainham Children: The Modern Law Family Law Bristol 1994, 48.

[117] eg Children’s Services Act 1965 (Qld) s 52; Community Welfare Act 1983 (NT) s 43(2); Children’s Services Act 1986 (ACT) s 80(2); Children (Care and Protection) Act 1987 (NSW) s 72(1)(c); Children’s Protection Act 1993 (SA) s 38(2).

[118] See para 15.5.

[119] eg Children (Care and Protection) Act 1987 (NSW) ss 58(1A), 76(3) and Children’s Protection Act 1993 (SA) ss 23, 39 impose restrictions on length of adjournments and the time for determination of applications; Community Welfare Act 1983 (NT) s 44 prescribes maximum lengths of adjournments and s 40 requires the court to endeavour ‘…to ensure that proceedings are not protracted’.

[120] eg Family Support Services Association of NSW IP Submission 72; Barnardos Australia IP Submission 95; Federation of Community Legal Centres (Vic) IP Submission 129; L McKeon & A Brown IP Submission 140; Berry Street IP Submission 159; Law Institute of Vic IP Submission 173; Townsville Community Legal Service IP Submission 181; Australian Association of Social Workers IP Submission 207; Burnside IP Submission 214. See J Cashmore, R Dolby & D Brennan Systems Abuse: Problems and Solutions NSW Child Protection Council Sydney 1994, 94.

[121] G Humphries IP Submission 194.

[122] See ALRC IP 20 Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System ALRC Sydney 1996 ch 6 for a discussion of case management.

[123] Uniform Rules for the Family Court 22 New York Court Rules and Regulations s 205.3.

[124] Uniform Rules for the Family Court 22 New York Court Rules and Regulations s 205.3.

[125] A Bainham Children: The Modern Law Family Law Bristol 1994, 59.

[126] See para 4.20-22 for more general discussion of children’s understanding of legal processes.

[127] Some of these children may have been too young to understand or participate in the proceedings.

[128] E Travers, Future Echoes Public Hearing Submission Adelaide 1 May 1996.

[129] J Cashmore & M Paxman Wards Leaving Care: A Longitudinal Study Social Policy Research Centre & NSW Dept of Community Services Sydney 1996, 11.