Legal intervention in child protection

19.20 This section of the chapter considers the development of state intervention in relation to children in need of care and protection, from the parens patriae jurisdiction to legislative schemes involving the establishment of specialist children’s courts and, among other things, defining thresholds for state intervention. The chapter also considers the procedure for triggering state intervention, the impact of multiple jurisdictions and services, and factors that can exacerbate the tensions present in the legal system due to the differing objectives and purposes of child protection and family law.

Development of state intervention

19.21 The earliest legal interventions in relation to children in need of care and protection used the parens patriae jurisdiction. This jurisdiction to make orders and give directions in relation to the welfare of children was inherited from the Court of Chancery in England by the Supreme Courts of each state and territory.[27] However, beginning in the mid–19th century, state and territory governments legislated to secure the welfare of children by defining the circumstances in which children needed to be protected from neglect or abuse, and the ways in which young people might be treated as criminals.[28]

19.22 Developments in child protection legislation were often motivated by revelations of cases of severe abuse or neglect, which spurred child welfare activists in the late 1800s and early 1900s to form rights and advocacy bodies, including societies for the prevention of cruelty to children.[29]

19.23 Starting with South Australia in 1890 and including all states by 1918, dedicated children’s courts were established throughout Australia.[30] Children’s courts had two principal functions: child care and protection; and exclusive jurisdiction with respect to child offenders. They were required to sit separately, either in specially designated premises, or by arranging for segregated court time, when other business was not being transacted.[31] By the 1970s all states and territories had introduced legislation to protect children.[32] The evolution of the child protection system has included numerous reviews of child protection services.[33]

19.24 A recurring theme concerns when it is appropriate for the state to intervene and the appropriate role of child protection services:

According to a public health model of disease prevention, tertiary services are one platform in a well functioning service system. The public health model is comprised of three service platforms: primary services, secondary services, and tertiary services. This model can also be used in a child protection context. Primary services provide services for all children (eg, education and health). Secondary services are targeted at families at higher risk or in need of additional support. Tertiary child protection services are a last resort, and the least desirable option for families or the state. Families that require a tertiary response to ensure the safety of their children form the ‘tip of the iceberg’. Consequently, the primary and secondary service domains are larger than the tertiary domain representing the need for more services in these areas.[34]

19.25 The legal system will become involved through child protection legislation and criminal law in relation to the ‘tertiary domain’. However family courts make decisions in relation to children from all domains.

Child protection interventions and procedures

19.26 As noted above, each state and territory has its own system of child protection laws and supporting agencies. These laws are invoked by the state when parents are determined to be insufficiently protective of a child. In each jurisdiction there are thresholds for intervention by child protection authorities to protect children and to assist parents and families.[35] The 2008–09 report on child protection in Australia by the AIHW reported that while ‘the processes used to protect children are broadly similar’,[36] there are ‘significant differences’ in how jurisdictions deal with and report child protection issues.[37] Keeping in mind such differences, a broad description of the way in which child protection agencies engage with families is set out below.

19.27 Child protection intervention is triggered first by a report of concern to a child protection or support service. Reports could come from community members, professionals, organisations, the child, parents or relatives, and may relate to abuse and neglect or ‘broader family concerns such as economic problems or social isolation’.[38] Reports are then assessed against the relevant criteria and classified either as a family support issue or warranting a child protection intervention.

19.28 An investigation involves an assessment of the degree of harm or risk of harm for the child and will either be ‘substantiated’ or ‘not substantiated’ and the assessment questions may differ according to the relevant jurisdiction.

19.29 The relevant child protection agency may apply to the court in each jurisdiction for a care and protection order, but such action is usually taken ‘only as a last resort in situations where the child protection agency believes that continued involvement with the child is warranted’.[39] Although the law may affect all of the steps in the process, an application to a children’s court is only contemplated at the end of a series of interventions and decisions and in relation to only a small percentage of cases.

19.30 Some notifications may also give rise to prosecutions, as considered in Chapter 20. The police and director of public prosecutions in the relevant jurisdiction may be involved in making an assessment of whether a matter should proceed further down the criminal justice pathway. If not, the matter falls back within the overall umbrella of child protection concerns.

19.31 At the same time as care proceedings are being contemplated or dealt with in state and territory children’s courts, there may also be applications in federal family courts for parenting orders. Criminal proceedings in relation to the same experiences of violence or abuse may also be pursued in state criminal courts. Related applications for protection orders may also be made, generally in state magistrates’ courts. Child protection cases may therefore potentially present themselves in three different jurisdictions.

The impact of multiple jurisdictions and services

19.32 That families may be involved in proceedings in more than one jurisdiction is a recurring theme of the interactions under review in this Inquiry. The need to go to multiple courts increases the possibility of inconsistent orders, and the possibility that people will drop out of the system without the protections they need, thus putting them at risk of further violence and abuse. It also increases costs and stress on families at a very difficult time. Children in particular may find the uncertainty and delay difficult to handle. One nine year-old child said:

I felt worried that mum was going to go back and forth and back and forth and it wasn’t going to stop … [I felt] freaked out, I couldn’t get to sleep, I had nightmares, I was crying a lot … [It was just all] horrible and frightening.[40]

19.33 Repeated contact with different parts of the legal and service systems may also require women and children who are the targets of violence to have to tell their story repeatedly. A 13 year-old described this problem as follows:

[The assessment session] was frustrating. Because every time it was banging your head against a brick wall. You always go back to the way it was. Like we were stuck there. Like another person wants to see it again … we had already done that … We had to go through it all again, which is crap.[41]

19.34 As explained in Chapter 2, there is a division of jurisdiction in Australia between states and territories as administrators of the public domains of criminal and child protection laws, and the federal family courts as adjudicators of private law disputes. Inadequate communication, coordination or information sharing between courts and child protection agencies has been identified as a critical problem.[42]

19.35 The tensions between different parts of the system have been attributed to the different cultures and histories of the different parts of the system. In the United Kingdom, Professor Marianne Hester refers to the three ‘planets’ of domestic violence, child protection and parenting orders:

Domestic violence work in the UK (and many other countries) has been influenced by feminist understanding of domestic violence as gender based, and tends to see the problem as (mainly) male perpetrators impacting on (mainly) female victims or survivors. The work of child protection services in the UK has a very different history to that of domestic violence, with the family, and in particular ‘dysfunctional’ families, as central to the problem. Within this approach the focus is on the child and her or his main carer, usually the mother. These structural factors, with domestic violence and child protection work on different ‘planets’, have made it especially difficult to integrate practice, and have resulted in child protection work where there is a tendency to see mothers as failing to protect their children rather than as the victims of domestic violence, and where violent male perpetrators are often ignored. These difficulties are made even more complex where both child protection and arrangements for child visitation post separation of the parents intersect. Within the context of divorce proceedings, mothers must be perceived as proactively encouraging child contact and must not be attempting to ‘aggressively protect’ their children from the direct or indirect abuse of a violent father. The child protection and child visitation/contact planets thus create further contradictions for mothers and children: there may be an expectation that mothers should protect their children, but at the same time, formally constituted arrangements for visitation may be implemented that do not adequately take into account that in some instances mothers and/or children may experience further abuse.[43]

19.36 An Australian study, conducted by Drs Heather Douglas and Tamara Walsh of the University of Queensland, argues that the competing discourses of child protection and family violence create difficult dilemmas for women.[44] They argue that there is:

  • the ‘interpersonal conflict’ misunderstanding—failing to recognise the particular dynamics associated with family violence, with ‘ramifications for the way in which child protection workers respond to abused mothers and their children’;[45]

  • the ‘protective parent’ dilemma—if a mother is not perceived as acting protectively, she may be seen as ‘part of the reason for the dangerous environment’ and the removal of children from her care becomes more likely;[46]

  • ‘the mother is to blame’ phenomenon—the focus of child protection authorities is on the woman and her capacity to protect the children, and not on the father’s ‘capacity to cease using violent or abusive behaviour’;[47] and

  • the ‘leave’ ultimatum—move to ‘accommodation away from the domestic violence perpetrator and continue to care for the children, or stay with their abuser and lose the children’.[48]

19.37 It is apparent from the discussion above that the fragmented nature of the system for dealing with child protection and family violence can create difficult problems for the families who must use the system. The system may make sense to those who work within it, but those who use it can find it confusing and intimidating.

Exacerbating factors

19.38 The tensions present in the legal system may be mediated or exacerbated for some women by their identities, histories or experiences. For example, the Commissions have heard of the particular difficulties that arise for women with intellectual disabilities in accessing services and asserting their capacity to parent.[49]

19.39 Indigenous women are likely to approach the legal system with particular concerns arising from the history of the ‘stolen generation’ and the fear of their children being taken from them:

For many Aboriginal people, the intervention of child protection services is a common experience that often goes back several generations. Recently it was reported that child protection workers in Australia have begun removing the fifth generation of Aboriginal children from their parents, meaning that some Aboriginal families have an eighty year history of child protection intervention. ... Many scholars have observed that as a result of the intersecting factors of poverty, race and gender, Aboriginal women, and women who are recent immigrants, are particularly disadvantaged and discriminated against in their engagements with institutional processes.[50]

19.40 Migrant women report that they find using courts difficult. Their lack of knowledge of the Australian legal and cultural system, in addition to any language barriers, adds to the difficulties:

In my country I was studying. My family are educated … all of them. But here, I knew nothing … how to catch a bus, how to pay a bill … and I knew no-one else. And he used my ignorance as my chains.[51]

19.41 They are likely to find going to court an intimidating experience:

[F]inally, with the help of different agencies, I went to the court, and I got a restraining order. It was probably as frightening as it was being in my marriage.[52]

19.42 They may also find the child protection system in Australia mystifying:

I did not understand why this happened. My husband, he beats me, and now my children are gone. Why did this happen. No one told me.[53]

19.43 Such experiences were also strongly echoed in submissions made to this Inquiry.[54]

Previous and current reviews

19.44 The need for review of the intersections of child protection laws, family laws and criminal laws is apparent from the discussion above. This Report is by no means the only review of these problems. The interactions between the family law and child protection systems have been addressed by the Family Law Council in 2002[55] and in 2009;[56] by the ALRC and the then Human Rights and Equal Opportunity Commission (HREOC) in the report, Seen and Heard: Priority for Children in the Legal Process (ALRC Report 84);[57] and by Professor Richard Chisholm’s Family Courts Violence Review (Chisholm Review).[58]

19.45 Reviews of specific state and territory child protection systems have also raised practical interaction issues in the context of evaluating the functions of child protection agencies.[59] The problems have also been identified and discussed by government committees,[60] in academic articles and studies[61] and in judicial decisions.[62] Both the Council of Australian Governments and the Standing Committee of Attorneys-General (SCAG) are also considering issues relating to child protection, and improvements that can be made at a national level to the way government agencies and courts deal with these issues.[63]

[27] A Dickey, Family Law (5th ed, 2007), 287. For a fuller discussion of the historical background, see A Dickey, Family Law (4th ed, 2002), 389.

[28] G Monahan and L Young (eds), Children and the Law in Australia (2008), at [1.11] trace the ten principal Acts passed in Victoria over 90 years, from 1864 to 1933.

[29] B Mathews, ‘Protecting Children from Abuse and Neglect’ in G Monahan and L Young (eds), Children and the Law in Australia (2008) 204, [10.5].

[30] Seymour details the legislation establishing the first children’s courts: J Seymour, Dealing with Young Offenders (1988), 76–87.

[31] Ibid, 83.

[32] The current legislation is: Children and Young Persons (Care and Protection) Act 1998 (NSW); Children, Youth and Families Act 2005 (Vic); Child Protection Act 1999 (Qld); Children and Community Services Act 2004 (WA); Children’s Protection Act 1993 (SA); Children, Young Persons and Their Families Act 1997 (Tas); Children and Young People Act 2008 (ACT); Care and Protection of Children Act 2007 (NT).

[33] See J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008); Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (2007); Ombudsman Victoria, Own Motion Investigation into the Department of Human Services Child Protection Program (2009). The Victorian Law Reform Commission has also recently submitted to the Attorney-General a review of Victoria’s child protection legislative arrangements.

[34] L Bromfield and P Holzer, Protecting Australian Children (2008), 4.

[35] Australian Institute of Health and Welfare, Child Protection Australia 2008–09, ch 1. See also B Mathews, ‘Protecting Children from Abuse and Neglect’ in G Monahan and L Young (eds), Children and the Law in Australia (2008) 204.

[36] Australian Institute of Health and Welfare, Child Protection Australia 2008–09, 1.

[37] Ibid, 1. Appendix 4 of the report provides extracts from the relevant legislation of the ‘in need of care and protection’ threshold.

[38] Ibid, 2.

[39] Ibid.

[40] A Hay, ‘Child Protection and the Family Court of Western Australia: The Experiences of Children and Protective Parents’ (Paper presented at Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1-2 May 2003), 11.

[41] Ibid, 10.

[42] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 60.

[43] M Hester, ‘Commentary on H Douglas and T Walsh, “Mothers, Domestic Violence and Child Protection”’ (2010) 16 Violence Against Women 516, 517.

[44] H Douglas and T Walsh, ‘Mothers, Domestic Violence and Child Protection’ (2010) 16 Violence Against Women 489.

[45] Ibid, 492.

[46] Ibid, 492–3.

[47] Ibid, 493–5.

[48] Ibid, 496–7. This is described by the authors as a ‘binary ultimatum to stay or leave’, which, without significant support, ‘misunderstands the complexity of many mothers’ situations’: 499.

[49] S Seymour, Australian Law Reform Commission Family Violence Inquiry—Case Studies Contribution, 2 January 2010, 4.

[50] H Douglas and T Walsh, ‘Mothers, Domestic Violence and Child Protection’ (2010) 16 Violence Against Women 489, 500 (citations omitted).

[51] Women’s Council for Domestic and Family Violence Services (WA), HURT Project: The Shame of Domestic and Family Violence in Australia <http://www.hurt.net.au> at 30 July 2010.

[52] Ibid.

[53] M Dimopoulos, Protection Applications in the Children’s Court: Report of Consultations with New and Emerging Communities (2010) prepared by MyriaD Consultants for the Victorian Law Reform Commission, 23. See also National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 30–35.

[54] For example, in relation to Indigenous women: Women’s Legal Service Brisbane, Submission FV 223, 2 July 2010; North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Shoalcoast Community Legal Centre, Submission FV 141, 24 June 2010. In relation to women with disability: Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women With Disabilities Australia, Submission FV 143, 24 June 2010; Women Working Alongside Women with Intellectual and Learning Disabilities Sexual Violence Prevention Association, Submission FV 140, 24 June 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; J Fletcher, Submission FV 01, 27 July 2009. In relation to immigrant women: Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Service Brisbane, Submission FV 223, 2 July 2010; Women’s House Shelta, Submission FV 139, 23 June 2010; Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010; Confidential, Submission FV 48, 22 May 2010; P Easteal, Submission FV 39, 14 May 2010; National Peak Body for Safety and Protection of Parents and Children, Submission FV 18, 13 January 2010; Confidential, Submission FV 15, 11 November 2009. Similar concerns were raised in relation to lesbian, bisexual, transgender or intersex women: ACON, Submission FV 119, 15 June 2010; Centacare Safer Families Support Service, Submission FV 118, 15 June 2010; Same Sex Domestic Violence Interagency, Submission FV 116, 10 June 2010; Inner City Legal Centre—Safe Relationships Project, Submission FV 17, 13 January 2010.

[55] Family Law Council, Family Law and Child Protection: Final Report (2002).

[56] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009).

[57] Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), ch 15.

[58] R Chisholm, Family Courts Violence Review (2009).

[59] For example, Ombudsman Victoria, Own Motion Investigation into the Department of Human Services Child Protection Program (2009); J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008).

[60] Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001), 75; House of Representatives Standing Committee on Family and Community Affairs—Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003).

[61] See, eg, F Kelly and B Fehlberg, ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in the Area of Child Protection’ (2002) 16 International Journal of Law, Policy and the Family 38; T Brown, M Frederico, L Hewitt and R Sheehan, Problems and Solutions in the Management of Child Abuse Allegations in Custody and Access Disputes Before the Family Court of Australia (1998); J Seymour, ‘The Role of the Family Court of Australia in Child Welfare Matters’ (1992) 21 Federal Law Review 1.

[62] See, eg, Re Karen (1995) 19 Fam LR 528.

[63] Council of Australian Governments, Protecting Children is Everyone’s Business: A National Framework for Protecting Australia’s Children 2009–2020 (2009); R McClelland (Attorney-General), Family Violence in Focus Conference [Opening Address], (2009) <www.attorneygeneral.gov.au> at 31 July 2010. The VLRC is currently reviewing child protection applications in the Family Division of the Children’s Court; Victorian Law Reform Commission, Review of Victoria’s Child Protection Legislative Arrangements: Information Paper (2010).