Report of the Child Protection Proceedings Taskforce, Victoria, Australia, Feb 2010

8/9/2019 Report of the Child Protection Proceedings Taskforce, Victoria, Australia, Feb 2010

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REPORT OF THE CHILD PROTECTION

PROCEEDINGS TASKFORCE

26 FEBRUARY 2010


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Report of the Child Protection Proceedings Taskforce

FOREWORD................................................................................................................4

CHAPTER 1:

EXECUTIVE

SUMMARY...........................5

CHAPTER 2:

RECOMMENDATIONS...........................................................................................11

CHAPTER 3:

CHILD PROTECTION PROCEEDINGS TASKFORCE ....................................14

CHAPTER 4:

BACKGROUND ........................................................................................................15

CHAPTER 5:

A BETTER WAY TO SOLVE PROBLEMS NEW CHILD PROTECTION

RESOLUTION CONFERENCES............................................................................19

CHAPTER 6:

A BETTER START IMPROVING PREPARATION FOR COURT................23

CHAPTER 7:

FACILITATING CHILDRENS PARTICIPATION WITHOUT THE NEED

FOR THEM TO ATTEND COURT........................................................................25

CHAPTER 8:

A MORE COLLABORATIVE APPROACH BETWEEN COURT USERS ......26

CHAPTER 9:

IMPROVING THE PHYSICAL ENVIRONMENT OF THE COURT...............27

CHAPTER 10:

IMPROVING LEGAL AND ADMINISTRATIVE PROCESSES TO REDUCE

TIME IN COURT......................................................................................................30

CHAPTER 11:

SUPPORTING COLLABORATION THROUGH MULTI-DISCIPLINARYTRAINING .................................................................................................................33


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APPENDIX A:

Child Protection Resolution Conferences a new model for the Childrens

Court. ..........................................................................................................................36

APPENDIX B:

Two additional options for implementation of the conference model...................41

APPENDIX C:

Commentary: The Ombudsmans Report into the Child Protection System.....44

APPENDIX D:

Commentary: Special Commission of Inquiry into Child Protection Services in

NSW (the Wood Commission). .................................................................................46

APPENDIX E:

Child Protection Proceedings Flow Chart ...............................................................49


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FOREWORD

We, the members of the Child Protection Proceedings Taskforce have pleasure in

providing the Government with our report which the Premier requested on 26

November 2009.

The Taskforce has agreed to 17 recommendations for the Governments consideration

in line with the terms of reference which are as follows:

1. To recommend measures designed to reduce the adversarial nature of Childrens

Court processes including options for appropriate dispute resolution.

2. To recommend measures that could reduce the time that parties spend in the

Childrens Court.

3. To recommend measures for the Department of Human Services to further

support child protection workers in their preparation for, interactions with and

involvement in Childrens Court processes.

The Taskforce was also asked to provide advice to the Attorney General and the

Minister for Community Services on possible legislative amendments that could be

progressed for introduction in the autumn 2010 session of Parliament.

Penny Armytage (Chair)

Secretary, Department of Justice

..

Judge Paul Grant

President, Childrens Court of Victoria

..

Gill Callister

Secretary, Department of Human

Services

..

Bevan Warner

Managing Director, Victoria Legal Aid

.

Bernie Geary

Child Safety Commissioner

..


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CHAPTER 1:

EXECUTIVE SUMMARY

The Premier announced the Child Protection Proceedings Taskforce on 26 November2009. The Taskforce was required to provide a report to the Attorney-General and the

Minister for Community Services by 26 February 2010.

The Taskforces Terms of Reference are as follows:

1. To recommend measures designed to reduce the adversarial nature of Childrens

Court processes including options for appropriate dispute resolution.

2. To recommend measures that could reduce the time that parties spend in the

Childrens Court.

3. To recommend measures for the Department of Human Services to furthersupport child protection workers in their preparation for, interactions with and

involvement in Childrens Court processes.

The Taskforce was also asked to provide advice to the Attorney General and the

Minister for Community Services on possible legislative amendments that could be

progressed for introduction in the autumn 2010 session of Parliament.

The Taskforce worked closely with the Victorian Law Reform Commission (the

VLRC). This has ensured that the Taskforces report is consistent with the VLRCs

general direction and ensured that the Taskforce and the VLRC acquitted their

responsibilities efficiently.

The underlying aim of the Taskforces work has been the safety of children. Each of

the Taskforce members approached this aim from a range of perspectives and with a

problem-solving approach to the development of this report.

The proposals recommended in this report are not cost neutral. Government will need

to consider cost implications of implementation as part of its consideration of the

report's recommendations.

In summary, the major issues addressed in this report and in the recommendations are

as follows:

A better way to solve problems New Child Protection Resolution Conferences

The Taskforce recommends the adoption of a new resolution conference model

drawing on work completed by the Childrens Court Appropriate Dispute Resolution

(ADR) Working Party throughout 2009. The new model is outlined in Appendix A.

In summary the model makes six key changes to the current dispute resolution

conferences in the Childrens Court.


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These changes aim to improve the quality of the parties negotiations and improve

outcomes for children who are at the centre of Childrens Court proceedings:

1. Conducting the conference at the earliest practical point in the process.

2. Conferences to occur offsite from the Court premises.

3. Exercise of appropriate authority by convenors.

4. Pre-conference preparation by convenors and parties.

5. Mandatory training and accreditation of convenors.

6. Integrating judicial conferences into a comprehensive conferencing process.

Recommendation 1 proposes the adoption of the new model.

For discussion see Chapter 5 A better way to solve problems New Child Protection

Resolution Conferences and Chapter 11 Supporting collaboration through multi-

disciplinary training.

A better start improving preparation for Court

The Taskforce strongly believes that earlier disclosure and preparation of matters is

vital to help get proceedings off to a good start in the Childrens Court. It

recommends two interrelated actions that will enable cases to get off to a better start

through better preparation:

1. Earlier and succinct disclosure from DHS regarding their main concerns and

their recommendations for the future.

2. Ensuring lawyers for parents and children are able to provide advice and

explore proposals to address the protective concerns of DHS early in the process

and that lump sums fees payable to private practitioners are aligned with good

practice preparation and conduct of Court related proceedings.

As an initial step, the Taskforce recommends that the DHS documentation currently

under trial at the new Moorabbin Childrens Court, be expanded immediately to the

Melbourne Childrens Court. VLA and DHS will also collaborate to develop furtherrevisions to documents in relation to all applications.

Recommendations 2, 3, 4 and 17 address these issues.

For discussion, see Chapter 6 A Better Start Improving preparation for Court.

Facilitating childrens participation without the need for them to attend Court

The Taskforce members agreed with the principle that we should minimise the need

for children to attend Court and that all attempts should be made to prepare cases so

that children do not have to attend Court. However, the Taskforce also recognises


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that there will be circumstances where this is unavoidable or where the child needs or

chooses to participate in the process.

The Taskforce notes that its recommendations to enable cases to get off to a better

start through better preparation are aligned with the goal of reducing the need for

children to attend Court.

In addition, one factor in whether there is time for DHS to provide information so that

clients can see lawyers and provide instructions, is the amount of time between taking

a child into safe custody and bringing them before Court. The Taskforce discussed

the issue of whether the current 24-hour time limit on bringing applications for safe

custody to Court should be extended to 72 hours. The Taskforce was unable to come

to an agreed position on this issue and recommends that it be referred to the VLRC.

Chapter 7 Facilitating childrens participation without the need for them to attend

Court provides discussion on these matters and Recommendations 5 and 6 also

address the issue of child attendance at Court.

A more collaborative approach between Court users

VLA and DHS will work together to develop a Code of Conduct for all users of the

Court and a memorandum of understanding modelled on the Western Australian

Memorandum of Understanding (MOU) between the Family Court, WA Legal Aid

and the WA Department of Child Protection.

The Taskforce recommends that a Steering Committee be established comprising

taskforce members to monitor the implementation of all Taskforce recommendations.

It also recommends that a dedicated project manager be assigned to facilitate theinteractions of the Steering Group and assist with implementing the

recommendations.

Recommendations 7 - 9 address collaboration between court users.

For discussion see Chapter 8 A more collaborative approach between Court users.

Improving the physical environment of the Court

The Taskforce agreed with the principle of Court decentralisation and that the Court

should sit in regional locations that are more convenient for children and their

families than the Melbourne CBD. The Taskforce has recommended that this

principle form the central part of Court planning into the future. In the meantime it

has proposed contingencies for consideration.

Despite the successful establishment of the court at Moorabbin, the Melbourne

Childrens Court facility remains a heavily congested physical space, especially on

the Family Division side of the building. This makes the environment highly stressful

for children, their families, protective workers, staff of the court and other court users.

It is also detrimental to the efficient and effective conduct of matters before the court,

increasing the time that parties must spend there.


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The Taskforce recommends that consideration be given to three relatively low cost

options to alleviate the congestion at the Court involving a combination of relocation

of cases and minor structural works at the Melbourne Childrens Court.

Part of the intention behind recommendations 10 and 11 is to improve the amenity of

the Court for those children who need to attend Court or who choose to attend.

These options are discussed in Chapter 9 Improving the physical environment of the

Court and addressed in recommendations 10 and 11.

Improving legal and administrative processes to reduce time in Court

The taskforce notes that current legislation requires that the majority of protection

applications must return to Court every 21 days. The Court makes over 12,000

extension orders every year.

Recommendation 12 proposes an amendment to the Children, Youth and Families Act2005 to remedy this.

The Taskforce members also agreed to consider whether undertakings by children,

parents or suitable persons under ss263(1)(a), (b) and (c) of the Act should be

replaced by a qualified condition. This is likely to save a significant amount of time

for all Court users, especially child protection workers and families. Further advice

will be provided to Government separately on this point.

Recommendation 13 proposes further consideration of this issue.

The Taskforce recommends that the Childrens Court develop and adopt an electronic

listings system and suggests that it consider expanding the range of listed matters over

time to include resolution conferences and mention hearings.

Recommendation 14 deals with listings.

These issues are discussed in Chapter 10 Improving legal and administrative

processes to reduce time in Court.

Supporting collaboration through multi-disciplinary training

VLA and DHS will work together to introduce a package of joint training across both

organisations. This will have the dual benefit of encouraging lawyers to become morefamiliar with child protection practice and familiarising child protection workers in

their preparation for and involvement in Childrens Court processes. Joint training

also aims to develop a greater spirit of collaboration between the two professional

groups.

The Ombudsman was critical of DHS in relation to its ability to meet the privacy

obligations under theInformation Privacy Act 2000 and theHealth Records Act 2001.

The Attorney-General made a commitment that the Department of Justice would

assist in this regard.


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The Department of Justice (DOJ) and DHS have exchanged privacy-training materials

and a process has commenced with the Office of the Victorian Privacy Commissioner

(OVPC) to develop new privacy training packages for child protection workers.

Recommendations 15 and 16 deal with training.

For discussion see Chapter 11 Supporting collaboration through multi-disciplinary

training.

Reference to the Victorian Law Reform Commission

During its meetings, the Taskforce discussed a number of issues that it considered

required further work or consultation.

The Taskforce recommends that the following matters be referred to the VLRC for

consideration as part of its report -

Whether the Children, Youth and Families Act 2005 should be amended

to enable the Childrens Court to conduct less adversarial trials. This

could be modelled on the amendments to the Family Law Act(Cth)

regarding less adversarial trials.

Any consequential amendments to the Children, Youth and Families Act

2005 to reflect the new approach to resolution conferences.

Whether it is in the best interests of an apprehended child that section

242(3) of the Children, Youth and Families Act 2005 be amended to

extend the period within which DHS must bring a safe custody applicationfrom 24 hours to 72 hours.

These matters are contained in recommendation 17.

What will change?

The Taskforce reaffirms that its recommendations are aimed to immediately reduce

court time and to improve appropriate dispute resolution in the Court. Should the

recommendations be implemented in full, they are expected to have a significant

impact by December 2010:

The new Child Protection Resolution Conferences are a much better way of

resolving protective issues and improving the child protection process. The

conferences, including the targeted use of judicial resolution conferences, aim to

improve outcomes, reduce time at Court and reduce the length of the Court

process.

Approximately 20% fewer matters being heard at the Melbourne Court,

assisting the efficient and effective conduct of matters before the Court.

New administrative processes in the Court that will assist the Court in planning

and managing its heavy workload.


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Initial steps towards better practice:

An ongoing dialogue between VLA, DHS and DOJ.

Joint DHS and VLA project underway to develop a new summary

statement regarding the Departments reasons for initiating a protectionapplication.

Joint training programs between DHS and VLA commenced.

Practitioner code of conduct and memorandum of understanding between

VLA and DHS.


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CHAPTER 2:

RECOMMENDATIONS

The Taskforce makes the following recommendations to Government.

A better way to solve problems New Child Protection Resolution Conferences

1. The Taskforce recommends the phased introduction of new Child Protection

Resolution Conferences in three phases.

The Taskforce's preferred phasing option is discussed in Chapter 5 A better

way to solve problems New Child Protection Resolution Conferences.

Alternative phasing options are in Appendix B.

A better start improving preparation for Court

2. The Taskforce recommends:

Immediate introduction throughout the Melbourne Childrens Court of the

form currently in use at the Moorabbin Childrens Court that sets out the

grounds for the Departments involvement and basic facts about each

protection application by safe custody.

Further development and piloting of a Statement of Grounds designed to

assist legal practitioners for the families to prepare quickly without adding

to the workload of Child Protection Workers, with the following features:

To be supplied to all parties on a Without Prejudice basis so as

not to bind the Department of Human Services (DHS) should it need

the freedom to amend its grounds or case at a later stage.

To be integrated into the DHS file note system so that it fulfils both

internal and external data collection needs without being

duplicative.

3. The Taskforce recommends a secondment of staff from VLA to DHS to work

on the items in Recommendation two as a joint project. This will help

encourage collaboration between the two organisations.

4. The Taskforce recommends that lump sum fees payable to private practitioners

who act for parents and children be reviewed to ensure they are sufficient and

aligned to good practice preparation and conduct of Court proceedings.

Facilitating childrens participation without the need for them to attend Court

5. The Taskforce recommends that DHS and VLA should work together to

facilitate childrens participation in legal proceedings that affect their lives

without requiring them to attend Court.


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6. The Taskforce recommends that there be continued consideration of ways in

which better support can be provided in those circumstances where children

attend Court. This recommendation is linked to recommendations 10 and 11, as

those recommendations will have the effect of improving the space and amenity

of the Court so that the environment will be more appropriate for those children

who need or choose to attend Court.

A more collaborative approach between Court users

7. The Taskforce recommends that a Steering Group be established comprising all

Taskforce members to monitor the implementation of the recommendations.

8. The Taskforce recommends that a dedicated project manager within the

Department of Justices Court Services portfolio be assigned to facilitate the

interactions of the steering group and to assist the implementation of the

Taskforces recommendations.

9. The Taskforce recommends the development of a Code of Conduct for

practitioners and a Memorandum of Understanding between the VLA and DHS.

DHS and VLA will agree on the Code of Conduct and will develop a MOU

based on the Western Australian model.

Improving the physical environment of the Court

10. The Taskforce recommends that DOJ consider the following matters as

priorities for its Court planning process:

a. The amenity of Courts for children and other Court users; and

b. The principle that the Childrens Court should operate on a decentralised

model.

11. The Taskforce recommends that consideration be given to the development of a

contingency plan as a short term measure to alleviate the space issues at the

Melbourne Childrens Court. The recommended elements of the proposed

contingency plan include the following:

a. The possible use of courtrooms at the refurbished old County Court

building at 223 William Street, Melbourne.

b. The potential to relocate Child Protection Resolution Conferences to an

off-site facility that will free up space on the ground floor of the

Melbourne Childrens Court building.

c. The feasibility of structural works at the Melbourne Childrens Court to

make better use of available space.

Improving legal and administrative processes to reduce time in Court

12. The Taskforce recommends that the Government consider amending the

Children, Youth and Families Act 2005 to remove the 21 day time limit on


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Interim Accommodation Orders, except for orders in relation to secure welfare

placements.

13. The Taskforce recommends that the relevant Government departments and the

Court consider whether undertakings by children, parents or suitable persons

under ss263(1)(a), (b) and (c) of the Act should be replaced by a qualifiedcondition. Further advice will be provided to Government separately on this

point.

14. The Taskforce recommends that the Childrens Court implement a new

electronic listings calendar.

Supporting collaboration through multi-disciplinary training

15. The Taskforce recommends that additional training in court preparation, privacy

and the new dispute resolution process be added to the Department of Human

Services training calendar.

16. The Taskforce recommends that DHS and VLA work together to incorporate

joint training programs for DHS court staff, child protection workers, VLA staff

and private practitioners into their training calendars, commencing with training

in the new dispute resolution process.

Reference to the Victorian Law Reform Commission

17. The Taskforce recommends that the following matters should be referred to the

VLRC for consideration as part of its report -

Whether the Children, Youth and Families Act 2005 should be amended to

enable the Childrens Court to conduct less adversarial trials. This could be

modelled on the amendments to the Family Law Act(Cth) regarding less

adversarial trials.

Any consequential amendments to the Children, Youth and Families Act 2005

to reflect the new approach to resolution conferences.

Whether it is in the best interests of an apprehended child that section 242(3)

of the Children, Youth and Families Act 2005 be amended to extend the period

within which DHS must bring a safe custody application from 24 hours to 72hours.


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CHAPTER 3:

CHILD PROTECTION PROCEEDINGS TASKFORCE

The Taskforce was made up of the following members:

Penny Armytage, Secretary Department of Justice (Chair)

Gill Callister, Secretary Department of Human Services

Bernie Geary, Child Safety Commissioner

Judge Paul Grant, President of the Childrens Court of Victoria

Bevan Warner, Managing Director, Victoria Legal Aid.

The Taskforce was supported by a Secretariat made up of the following members:

Neil Twist, Department of Justice

Entsar Hamid, Department of Justice

Mary Kyrios, Department of Human Services

Sophie Robinson, Department of Human Services.

Consultancy and facilitation services were provided by the Boston Consulting Group

(BCG).

The Taskforce met on 5 occasions as follows:

17 December 2009

20 January 2010

3 February 2010

10 February 2010

18 February 2010.

On 7 January 2010, members of the Taskforce Secretariat travelled to Sydney to meet

with representatives of NSW Legal Aid and the Department of Justice and Attorney

General.

On 4 and 5 February 2010, members of the Taskforce, the Secretariat and BCG

travelled to Perth to meet with representatives of the Childrens Court, Legal Aid and

Department of Child Protection.


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CHAPTER 4:

BACKGROUND

Introduction

The Ombudsman of Victoria tabled a report into the Department of Human Services

Child Protection program in Parliament on 26 November 2009.

In response to the Ombudsmans report, the Premier announced the Child Protection

Proceedings Taskforce on 26 November 2009. The Taskforce was required to

provide a report to the Attorney-General and the Minister for Community Services by

26 February 2010, outlining recommendations that will:

Reduce the adversarial nature of Childrens Court processes, including options

for appropriate dispute resolution;

Reduce the time parties spend in the Childrens Court; and

Enable the Department of Human Services to further support Child Protection

workers in their preparation for and interaction with and involvement in

Childrens Court processes

Due to the tight time frame within which the Taskforce was operating, it was decided

to focus predominantly on the processes at the Melbourne Childrens Court. This

decision should not be interpreted as disregarding the importance of understanding the

similarities and/or differences between metropolitan and regional areas. The

Taskforce has agreed to establish an ongoing Steering Committee which, amongst

other things, will consider the relevance of its recommendations relative to regional

experiences.

Work of the Department of Human Services in Child Protection

The Department of Human Services has the statutory responsibility for the provision

of child protection delivered through Victorias eight geographical regions, three

metropolitan and five rural regions. The Child Protection Service also provides a

Child Protection Crisis Line 24 hours, 7 days a week for telephone information and

referrals for the public regarding child protection matters.

The Child Protection Service provides child centred, family focused services to

protect children and young people from significant harm as a result of abuse or

neglect within the family unit and to ensure that children and young people receive

services to deal with the impact of abuse and neglect on their well being and

development. The Child Protection Service is based on the principle that the best

protection for children is usually within the family, however the paramount

consideration is the child's safety and well being.

The role of the Child Protection Service is to:

Receive reports from people who believe on reasonable grounds that a

child is in need of protection because of abuse or neglect


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Provide advice where people report such concerns

Investigate matters where it is believed that a child is at risk of significant

harm

Refer children and families to services that assist in providing the ongoingsafety and well being of the children

Take matters before the Children's Court if the child's safety cannot be

ensured within the family

Supervise children on legal orders granted by the Children's Court.

The Child Protection Service brings matters to Court where it is required to secure the

childs safety, wellbeing and stability. In some instances, this requires Child

Protection to bring matters before the Court within 24 hours to ensure the immediate

protection of a child.

Reports of abuse and child neglect to the Child Protection Service have increased

from 37,523 in 2004/05, to 42,851 in 2008/09 an increase of 14.2%.

There has also been significant growth in the number of children and young people

subject to Childrens Court orders (30% increase between June 2005 and June 2009)

and the number of children placed away from their parents (20% increase from June

2005 to June 2009).

Jurisdiction of the Family Division of the Childrens Court

The Childrens Court of Victoria has jurisdiction under the Children, Youth and

Families Act 2005 to hear cases in its Family Division involving children and young

people who are under the age of 17. An order made for a child who is under 17 may

continue until the childs 18th birthday.

The Family Division of the Court has the power to hear a range of applications and to

make a variety of orders upon finding that a child is in need of protection. The Court

can also deal with cases where there are irreconcilable differences between a child

and his or her parents.

In the Family Division, the court also determines applications under family violenceand stalking legislation where the aggrieved family member/victim of stalking, or the

defendant, is a child (in these cases, a child is defined as being under 18).

Court locations and sitting days

With the exception of Melbourne, the Childrens Court of Victoria sits at locations at

which the Magistrates Court is held. In accordance with section 505(3) of the

Children, Youth and Families Act 2005 the Childrens Court must not be held at any

time in the same building as that in which the Magistrates Court is at the time sitting

unless the Governor in Council, by Order published in the Government Gazette,

otherwise directs with respect to any particular building.


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Child protection cases from the Eastern and North-western regions of Melbourne are

determined at the Melbourne Childrens Court. Most cases from the Southern Region

of Melbourne are listed at the Moorabbin Justice Centre. Cases in regional Victoria

are listed at local regional courts.

Nature of and parties to proceedings in the Family Division of the ChildrensCourt

The Family Division of the Childrens Court becomes involved in child protection

matters when the Department of Human Services (DHS) determines that a child

may be at risk of significant harm and decides to invoke the Courts jurisdiction by

issuing a protection application. It may do this by issuing a notice for a future hearing

(Protection Application by Notice) or alternatively, by apprehending the child and

seeking immediate orders from the Court in relation to the childs placement

(Protection Application by Safe Custody).

Following either of these Protection Applications the parties will appear before theCourt to have the matter determined. Often, at the first hearing of the matter, the

Court will adjourn the case for a period of up to three weeks. The Court will make an

order on where the child should live until the matter returns to Court The

Magistrates decision about where the child should live until the matter is finally

resolved, is called an Interim Accommodation Order.

The progress of a matter through the court is represented in the diagram at Appendix

E.

The parties to a matter before the Family Division will include the DHS Child

Protection Worker who has worked with the family, (represented by a CourtAdvocacy Unit lawyer acting on behalf of DHS), the parents and potentially the

child/children. The parents and children in child protection proceedings will more

often than not retain the services of Victoria Legal Aid (VLA).

Under theLegal Aid Act 1978 VLA has the power to provide legal aid by making

available officers of VLA, and by providing grants in order to fund the services of

private lawyers1.

Legally aided clients may include a child, parent or party who has been joined to the

proceedings by order of the Childrens Court. Duty lawyers will usually provide

advice at the first court date and assist parties to apply for a grant of legal assistancefrom VLA where eligible or to make private arrangements for their ongoing legal

representation.

Increasing court demand

Throughout the past decade, the Family Division of the Childrens Court has

experienced significant growth in the number of matters brought before it. This

growth has been largely driven by the increase in the number of Protection

Applications by Safe Custody, which have doubled since 2002-03 and now represent

64% of Protection Applications (~78% in Melbourne).

1 Section 8(1) Legal Aid Act 1978


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A consequence of this growth and change in mix of Protection Applications has been

a greater demand on court resources. Analysis conducted by the Boston Consulting

Group indicates that Protection Applications by Safe Custody are more likely to

proceed to Dispute Resolution Conferences, Directions Hearings and Final contests

than Protection Applications by Notice. This type of application is also likely to

require more mentions than Protection Applications by Notice. Related to this, casesnow take longer to resolve than they did five years ago (in 2008/09 31% of primary

applications were still pending after 6 months compared to 19% in 2002/03).

Childrens Court Clinic

The Childrens Court Clinic is part of the Department of Justice and conducts

psychological and psychiatric assessments of children and families for the Childrens

Court of Victoria. In some cases, limited treatment is also provided. The Clinic also

conducts assessments relating to the impact of drug use on a young person and may

make recommendations about appropriate treatment.

Only a judge/magistrate can make an order for an assessment by the Childrens Court

Clinic. However, DHS staff, lawyers and parents can all request the judge/magistrate

to order a Clinic report. The reports provided by the Clinic are used by magistrates to

assist in decision making.

The Taskforce has not examined the functioning of the Childrens Court Clinic as part

of its work. The Secretary of the Department of Justice has indicated that a review of

the Childrens Court clinic is about to be conducted by the Department of Justice.


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CHAPTER 5:

A BETTER WAY TO SOLVE PROBLEMS NEW CHILD PROTECTION

RESOLUTION CONFERENCES

The Ombudsmans report stated that the Childrens Court was overly adversarial. In

his report into the NSW child protection system, Commissioner James Wood

expressed the view that the term overly adversarial was unhelpful when considering

how any jurisdiction might improve its processes. The reason for this, he stated, was

that it was not always clear what was meant by adversarial and it seems likely that

the term means different things to the different people who use it.2

Commissioner Wood preferred an approach that considered which areas of practice

and procedure might require change and improvement and he used that as a starting

point for his recommendations, rather than whether the Court was overly

adversarial.

The Taskforce found Commissioner Woods approach helpful and focused its

discussions on the future rather than debating different Taskforce members

understanding of overly adversarial.

If there is an issue about the adversarial process, the Childrens Court would welcome

legislative recognition of a less adversarial approach. The recent amendments to

Division 12A of the Family Law Act 1975 prescribing less adversarial trials offers one

possible model for the Childrens Court.

Short of conducting less adversarial trials, the Taskforce recommends implementation

of a new dispute resolution process in the Childrens Court.

In October 2008 the President of the Childrens Court requested the Director,

Appropriate Dispute Resolution (DOJ) to convene an ADR working party to review

ADR in the Childrens Court and develop a model for good practice. The working

party included representatives of the Court, DHS and VLA. The working party

reported to the President in late 2009. The Taskforce is grateful for the work done by

the working party. That work has enabled the Taskforce to quickly develop a new

resolution conference model that could be applied in the Childrens Court. The new

model is discussed in Appendix A.

Currently, dispute resolution conferences are conducted by sessional convenors or

Court registrars. Registrar convenors conduct conferences in regional courts and

sessional convenors conduct conferences at Melbourne. Registrars are officers of the

Court and this may assist in having their authority recognised by all participants.

They also work in regional courts where an adversarial culture is less pronounced.

The sessional convenors (and the Court) believe that current processes at Melbourne

contribute to an undermining of the authority of the Melbourne convenors and that, as

a result, the conferences are not as effective as they could be. For example, some

lawyers are not well prepared for the conference, are concerned about other cases

2 Special Commission of Inquiry into the Child Protection System in New South Wales (the Wood

Commission) 2007 Volume 2 pp512 - 514.


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listed in courtrooms and adopt an adversarial approach. On the other hand, DHS is on

occasion not represented by someone with the authority to make a decision and this

undermines the effectiveness of the conference.

The new conference model will address these issues by taking the Melbourne

conferences off site, requiring better preparation from all concerned, allowing moretime for discussion (in a less stressful environment), requiring decision makers to be

present and reinforcing appropriate behaviour through a practice direction. It is also

proposed that all convenors be trained and accredited in mediation in accordance with

the National Mediator Accreditation System.

The Taskforce also supports the eventual development and integration of judicial

conferencing into a comprehensive regime of conferencing in the Childrens Court.

This will be progressed at Melbourne when additional judicial officers are appointed

to the Court.

The short-term goal of the new conferencing model is to ensure that a well-facilitateddiscussion of the issues will be an important first step in the Childrens Court process.

The model will deliver the following key elements:

A reduction in time spent by families in adversarial court proceedings and

child protection workers in servicing the Court.

Better preparation by all those involved in the conferences.

Conferences at a venue away from the Court. (This applies to the

Melbourne Childrens Court).

Conferences conducted by trained convenors who have the authority of

the Court.

More time allowed for conferences so that discussions can take place in a

less stressful environment.

A reduction in court delay (as conference is a faster process than formal

court hearings).

Better preparation and the role of the convenor are critical to the success of the new

conference model. It is proposed that a joint project, running parallel to theconference model, will lead to earlier disclosure of relevant risk assessment

information by DHS to families and their lawyers.

All of these changes aim to create a better process in an environment that facilitates

problem solving in relation to those children who are the subject of child protection

proceedings.

The new conference model will require additional resources for Childrens Courts

throughout Victoria.


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Comparison of current Childrens Court Dispute Resolution Conferences with

the new conference model

Current Process Proposed conferences

Lack of training for, and therefore

authority of, convenors.

Training will be provided for all

convenors.

Lack of preparation by practitioners and

by the Court;

Changes to legal aid fees combined with

a Childrens Court Practice Direction will

encourage greater preparation.

Resource allocation so that the Court can

adequately prepare cases for the

Convenors.

Lack of time devoted to Conferences.

The average Dispute Resolution

Conference is listed for a maximum of 2

hours and they are rarely conducted for

more than an hour. This is insufficient

time to allow for a realistic discussion of

issues and an exploration of options.

Conferences will be scheduled for a

minimum of 2 hours per session.

This will include time for the preparation

of possible final orders for presentation to

the court.

Inadequate conferencing facilities. The

Conferences are held in the Courtbuilding. Practitioners come and go

from the Conferences to attend to other

Court matters. This means that the

Conferences are not taken seriously.

Conferences will take place away from

the Childrens Court at Melbourne whereappropriate. For security reasons, some

conferences may still need to proceed at

the Melbourne Childrens Court.

Conferences may occur at a late stage in

the Court process.

Conferences will take place at the earliest

possible stage in the Court process.

Implementation of the new conference model

The Taskforce proposes that the Child Protection Resolution Conference model be

implemented in 3 phases as follows:

Phase 1 Preparation

Duration: Present - 30 June 2010.

This phase involves the following:

Development of procedures around the role of the convenors and thepractice note in relation to the conference process.


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Organise training of Magistrates, convenors, legal practitioners and child

protection workers.

Development of evaluation parameters and performance indicators.

Confirmation of mediation facilities away from the Childrens Courtbuilding.

Phase 2 Commencement

Duration: 1 July 2010 31 December 2010.

The first conferences will be held during this phase:

Conduct training and accreditation of convenors.

Conduct training of Magistrates, and joint training of legal practitionersand child protection workers.

Conduct first 50 conferences.

Phase 3 Refine and roll out

Commencement of full implementation 1 January 2011.

This is the full implementation phase and includes:

Refinement of the model as required.

Confirmation of suitability of locations to hold conferences.

Roll out additional training.

Ensure ongoing dialogue on progress between the Court, VLA, DHS and

DOJ.

The Taskforce considered two further options in relation to implementation: The first

option involves a commencement phase involving 200 cases and the second option

involved full implementation without an initial commencement phase.

The Taskforce agreed that the option outlined above provided a balance between the

desire to implement a new conferencing system reasonably quickly, with the

flexibility of a short commencement phase that would enable any issues with the

model to be resolved prior to full implementation.

These two further options are outlined in Appendix B.


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CHAPTER 6

A BETTER START IMPROVING PREPARATION FOR COURT

On 4 and 5 February 2010 members of the Taskforce visited Western Australia tomeet with representatives of the Childrens Court at Perth, WA Legal Aid and the

Department of Child Protection.

Western Australia has implemented Signs of Safety - an innovative approach to case

planning in child protection. Signs of Safety is a process whereby everyone who has

an interest in the child has an opportunity to discuss what is working well and what is

worrying them, and to be involved in the development of a safety plan for the child.

The model includes the early involvement of lawyers in the process and the joint

training of lawyers and child protection workers. Lawyers and protective workers

participate in joint training in the WA risk assessment framework. Representatives ofWA Legal Aid and the Department of Child Protection spoke positively about their

experience of joint training. The consensus was that this broke down barriers between

the two professions and enabled the development of a shared language around child

protection.

In Victoria, parents and children may be provided with a VLA staff lawyer or a

private practitioner to help them through the process. Private practitioners are

remunerated on a progressive, lump sum fee basis according to the progress and

number of Court events associated with each case. Good practice preparation and

early settlement of cases requires early disclosure from all parties and sensible

negotiations consistent with model litigant guidelines generally applicable togovernment agencies.

The current fee structure for private practitioners together with the existing work

practices of the parties has led to more effort being directed to contested hearings at

the end of proceedings rather than preparation and early settlement. While there will

always be some cases that proceed to a contested hearing in Court, the majority of

cases are settled by negotiation. Recent research shows that only 3% of cases in the

Childrens Court go to a final contested hearing.

The Taskforce recommends that the fee structure for private practitioners be reviewed

to recognise the value of early preparation and negotiation and to ensure it is alignedwith the state of readiness of the applicant Department.

Similarly, early negotiation is easier if there is early exchange of information. During

the Taskforces deliberations, VLA and DHS commenced discussions on this issue. It

is anticipated that this will continue and there is the possibility of a secondment of a

staff member from VLA to work in partnership with DHS staff on the development of

an early disclosure document. The Taskforce views this as a positive development in

the relationship between these two key organisations.

The Taskforce makes two recommendations that aim to ensure better preparation and

minimise the need for children to attend Court:


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A revised fee structure for private practitioners to provide incentives for

lawyers to see children away from Court.

That VLA and DHS jointly conceive and implement arrangements for

early disclosure sufficient for lawyers for parents and children to provide

advice and effectively engage their clients in the Court process.

This issue is referred to also in Chapter 7 Facilitating childrens participation without

the need for them to attend Court.


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CHAPTER 7

FACILITATING CHILDRENS PARTICIPATION WITHOUT THE NEED

FOR THEM TO ATTEND COURT

The Taskforce spent a great deal of time considering how best to minimise the need

for children to come to Court. The Taskforce members agreed that the highly emotive

and overcrowded nature of the Melbourne Childrens Court means that it is not a good

place for a child.

In Melbourne, it is common for lawyers to see their child clients at Court rather than

prepare beforehand. This is rare in other States. Reasons for the Victorian practice

are:

Lawyers experience difficulties accessing children when they have been

taken into safe custody; and

Lawyers are not remunerated for pre court preparation, including the time

involved in travelling to see their child client or the time involved in

receiving the client in their offices (where this can be arranged).

The Taskforce recommends that arrangements to facilitate a child clients contact

with his/her lawyer away from court be put in place and that the private practitioner

fee structure aligns with good practice in preparing for Court and with practices in

other States.

The Taskforce discussed an option for reducing the need for children to attend Court,

namely, whether it would be in the best interests of the apprehended child to change

the current 24-hour timeframe within which DHS must bring protection applications

by safe custody, to a longer period. This would also give the parents time to access

legal advice before attending Court and for arrangements to be made for separate

representation of the child as appropriate. It also allows exchange of information and

discussion about issues such as family support options.

This question was discussed at length and members of the Taskforce had differing

views. The Taskforce believes this is a fundamental issue that requires referral for

public consultation. This is why we make the recommendation that the VLRC

consider, as part of its report, whether it is in the best interests of an apprehendedchild that s243(3) of the Act be amended to extend the period within which DHS must

bring a safe custody application from 24 hours to 72 hours.


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CHAPTER 8

A MORE COLLABORATIVE APPROACH BETWEEN COURT USERS

Through the Taskforce, the President of the Childrens Court, Managing Director ofVLA and the Secretary of DHS have commenced a frank and constructive dialogue

about a range of child protection issues, including culture.

The Taskforces visit to Western Australia (referred to in Chapter 6 above) reinforced

the importance of an ongoing dialogue, particularly between VLA and DHS. The

culture in Western Australia appears to be far more collaborative and is possibly less

stressful for all participants.

The striking feature about the culture in Western Australia was that Legal Aid and the

Department of Child Protection (DCP) recognised and respected each others

legitimate role in protecting children. The Taskforce was advised that this was largelydue to the Signs of Safety framework and its solution oriented focus, as well as the

amount of joint training between Legal Aid and DCP.

It is proposed that the Childrens Court, VLA and DHS continue the dialogue that has

now commenced and that a steering group should be formed to monitor the

implementation of the Taskforces recommendations.

The Taskforce recommends that senior representatives of DHS and VLA develop a

proposal for:

An agreed statement summarising DHS key issues in relation to the

applications by safe custody to be provided at an early stage in the

process.

A Code of Conduct for all practitioners in the Childrens Court.

Joint training of protective workers and lawyers in relation to the DHS

risk assessment process.

Accreditation of legal practitioners who appear before the Childrens

Court.

The agreed issues summary referred to in the first dot point above, should include the

following 3 things:

The key factor(s) that led to the decision to issue the protection

application.

Any strengths and weaknesses in the protective behaviour of the parents.

The child protective workers plan for how best to address the identified

strengths and weaknesses (i.e.: the case plan).

The long-term goal is to change the way child protection matters are litigated so thatlawyers, DHS and the Court take a problem solving approach to child protection.


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CHAPTER 9:

IMPROVING THE PHYSICAL ENVIRONMENT OF THE COURT

The Taskforce spent considerable time discussing the conditions for children at theMelbourne Childrens Court. One strategy to improve the conditions is to minimise

the need for children to attend in the first place and this strategy is discussed in

Chapter 7 above.

A second strategy involves the use of space at the Court. The Melbourne Court is

significantly overcrowded. Over the past five years, there has been a large increase in

cases before the Court. The Family Division area is now too small to contain the

large numbers of families, lawyers and protective workers who attend the Court each

day. Child protection is emotionally demanding and the overcrowding contributes to

the distress, anxiety and agitation of those who are at the Court. Put simply, there are

too many people in too small a space. It is not a good place for a child.

The Taskforce acknowledges that, for a number of reasons, there will be

circumstances where a childs attendance in unavoidable or where the child is

sufficiently mature and elects to participate in the process. Because of this, it is

crucial for the Court to be assisted in its efforts to provide appropriate facilities for

keeping children safe and comfortable.

There has been much discussion at the Taskforce about how best to support those

children in circumstances where they do attend Court. Differing views were

expressed and the measures outlined in this Chapter aim to improve the amenity of the

Court for all users, especially children. The Taskforce members will continue todiscuss ways to provide better support to those children who still need to attend Court

or who choose to attend.

Prior to 1 June 2009, all Family Division cases in the Melbourne metropolitan area

were listed at the Melbourne Childrens Court. The significant increase in

applications to the Childrens Court over the past five years created major

overcrowding at Melbourne. In an effort to deal with that problem, the Childrens

Court established two Family Division Courts at the Moorabbin Justice Centre.

The Moorabbin Children's Court (Family Division) commenced sittings on Monday, 1

June 2009. The Moorabbin facility has provided a contingency arrangement tomanage urgent demand pressures in the Melbourne Childrens Court and has not been

purpose-built as a Childrens Court.

Child protection cases allocated to the DHS Southern Region have been listed at

Moorabbin Children's Court. This includes all mentions, applications for safe custody,

submissions contests, Interim Accommodation Order contests, dispute resolution

conferences and directions hearings.

The following child protection matters continue to be listed at Melbourne Children's

Court:

cases involving a party currently in custody


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The Taskforce has considered short term options to alleviate the space issues at the

Melbourne Childrens Court. Recommendation 11 contains the following options for

consideration:

The possible use of courtrooms at the refurbished old County Court

building at 223 William Street, Melbourne.

The potential to relocate Child Protection Resolution Conferences to an

off-site facility that will free up space on the ground floor of the

Melbourne Childrens Court building.

The feasibility of structural works at the Melbourne Childrens Court to

make better use of available space.


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CHAPTER 10:

IMPROVING LEGAL AND ADMINISTRATIVE PROCESSES TO REDUCE

TIME IN COURT

Interim Accommodation Orders 21 day limit

The Children, Youth and Families Act 2005 establishes the framework within which

child protection proceedings are brought before the Childrens Court.

In order to commence proceedings in the Childrens Court DHS files a protection

application with the Court. The protection application sets out the grounds on which

DHS rests its case for involvement, along with recommendations for future action in

relation to the child.

Once a protection application is filed with the Court, the case will be adjourned and

given a date to return to Court (cases will be adjourned an average number of 3.6

times prior to final hearing). Often an Interim Accommodation Order (IAO) will be

made that covers the period between lodgement of the protection application and final

hearing.

IAOs are made in relation to most proceedings before the Court and they can have a

wide range of conditions attached to them. Under section 264 of the Act the Court

cannot make an IAO to an out-of-home placement for any longer than 21 days.

Section 267 of the Act allows the Court to extend IAOs for a further 21 days and there

is no limit to the number of extensions that can be granted.

Magistrates must extend IAOs and there will always be a DHS lawyer and a registrar

present when this occurs. Lawyers operating on a grant of legal aid are also required

to attend.

By far the most commonly made order in the Childrens Court is the order extending

an IAO. Of the 43,709 orders made in the Childrens Court in 2008/2009, 13,820

were IAO extensions. This represents 31% of the orders made in the Childrens

Court.

The 21-day IAO limit is historical and pre-dates the Children, Youth and Families Act

2005. The reason behind a time limit on IAOs is unclear but it would seem to have

been intended to give the Court a monitoring role.

Most IAO extensions are treated as a formality and there would seem to be little

practical reason for them. Any party is entitled to bring an application before the

Court at any time so there is no reason for requiring cases to return on a regular basis.

If the legislation were amended to remove the 21-day limit on IAOs, then most of the

13,820 orders made under this provision would be removed. This would bring about

a significant saving of time to the Court and the parties without diminishing anyones

rights before the Court.

Accordingly, the Taskforce recommends that the 21 day time limit on IAOs beremoved from the Children, Youth and Families Act 2005 as soon as is practicable. It


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should be noted that this proposal is not intended to apply to secure welfare placement

orders which are legislatively required to return to Court after 21 days and can only be

extended once.

Removal of requirement for undertakings under sections 263(1)(a)(b) & (c)

Given the recommendation to remove the 21-day limitation, it seems timely to also

consider undertakings on IAOs.

Under current law, the Court is required to take an undertaking from a parent/suitable

person with whom the child will reside during the period of the IAO. Those

parents/suitable people who are at Court when the IAO is made give their undertaking

in person. If the suitable person is not at Court, the undertaking (in the form of a

statutory declaration) must be faxed or delivered to that person to sign and then

returned to the Court and filed. The Court cannot make the IAO until the signed

undertaking has been returned to the Court and filed.

This process can present problems for DHS in arranging an undertaking to be signed

from a suitable person who is not present at Court. It means that time is spent at

Court waiting for the signed undertaking to be returned.

An alternative process would be for DHS to notify the parent or suitable person before

Court that they will be the subject of a condition on an IAO. This is done by child

protection workers now in any event so the current practice would not change. This

change would mean reduced time at Court for child protection workers.

It is proposed that this issue be given further consideration as a possible legislative

amendment.

Listings

The way in which a Court lists its cases can have an influence on the flow of cases

through the Court and, therefore, on the amount of time that parties will be required to

wait at Court.

The listings process can provide an overview of the amount of work that is passing

through the Court. When viewed in this way, it becomes a helpful planning and

resource allocation tool for the Court.

Currently cases are listed manually in paper diaries. The Childrens Court has agreed

to implement a new electronic calendar system that aims to improve administrative

processes in the Court.

The Childrens Court has suggested to the Taskforce that it embark on a staged

implementation of a new electronic listings calendar.


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Phase 1 Development and initial implementation

Commencement 1 April 2010.

The Court, with the assistance of the Department of Justice Courts TechnologyGroup, will develop an easy-to-use electronic calendar in which to list the cases that

it currently lists manually.

Phase 2 Child Protection Resolution Conferences

Commencement 1 July 2010.

The Court will add to the electronic calendar system all Dispute Resolution

Conferences, including the new Child Protection Resolution Conferences as they

commence on 1 July 2010.

Phase 3 Broader development

Commencement 1 September 2010.

The Court will explore in consultation with the DHS Court Advocacy Unit whether

to add other matters including mentions to the electronic calendar system. If

mentions are not to be added to the electronic calendar, the Court will consider the

best way to list these matters.


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CHAPTER 11:

SUPPORTING COLLABORATION THROUGH MULTI-DISCIPLINARY

TRAINING

Preparation for Court

DHS is currently conducting a training needs analysis in respect of all aspects of

training for child protection workers. The training needs analysis will assist DHS to

develop and deliver training targeted to child protection workers of 18 months to 2

years experience.

A report of the analysis will be produced in May 2010. The training package that will

be developed as a result of the analysis will include training in Court preparation.

The new package will add to the current suite of training that child protection workers

receive. The current training program and resources include:

Beginning Practice in Child Protection a 7 week intensive overview of

the Victorian child protection system, which is provided early in a child

protection workers employment. This is core training for child protection

workers.

Court Skills Training a practical session provided by retired Magistrate

Brian Wynn McKenzie for Team leaders, Unit Managers and Child

Protection Practitioners.

Court Kit and Court Practice Guide step-by-step instructions on the

Court process and associated legal processes.

Following the Western Australian example child protection training for

lawyers and legal training for child protection workers.

The Western Australians told us that training was the key to the success of a more

collaborative approach in that State especially the training provided by the DCP to

lawyers in relation to their risk assessment model.

DHS has now offered to provide components of the Beginning Practice in Child

Protection program to VLA lawyers and private lawyers, specifically in relation to theBest Interests Case Practice model of child protection.

Discussions have commenced between DHS and VLA and the first such training

session is planned to take place in May 2010. It is anticipated that VLA will

reciprocate with training for child protection workers.

Privacy

The preparation of court reports by child protection workers for Children's Court

proceedings includes personal and private information about children and families. To

preserve the privacy of children and families before the Children's Court the addressdetails of children and families are excluded from court reports. This approach is


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designed to ensure that children and families are not exposed to unintended

consequences that include the risk to their safety and security. This measure is also

intended to ensure that child protection workers meet the legislative obligations

including the Children Youth and Families Act 2005,Information Privacy Act 2000

andHealth Records Act 2001.

In his response to the Ombudsmans draft report, the Attorney-General made a

commitment that DOJ would assist DHS with the provision of any relevant training

packages or materials.

Officers of both Departments met on 19 January 2010 to agree on an exchange of

materials. This has now been done and a suite of DOJ privacy training material has

been provided to the DHS Senior Privacy Advisor to form the basis of a child

protection training package.

The DHS Senior Privacy Advisor has advised that she has liaised with the Office of

the Victorian Privacy Commissioner (OVPC) in order to develop a child protectionspecific training package.

The development of the training package is being conducted as a joint project

between DHS, OVPC and DOJ.

General DHS Privacy Presentation

Currently, DHS provides an introductory privacy presentation to staff that was

developed by the OVPC and the Health Services Commissioner.

This presentation provides an overview of:

privacy laws;

types of information covered by the IPA and HRA;

information and health privacy principles; and

how to respond to privacy complaints.

The presentation covers all the essential privacy information and can be varied

depending on the audience.

Child Protection Specific Privacy Training Package

The child protection workforce is required to meet a range of statutory obligations

under the Children, Youth and Families Act 2005, theInformation Privacy Act 2000

and theHealth Records Act 2001 so any type of privacy training must cover what

these Acts say about the management of information and privacy obligations.

A child protection training package with a range of materials and resources will be

developed. Staff are better able to transfer and make use of information if it is tailored

to the requirements of their role and work context and provides sufficient guidance on

what staff are required to do in meeting privacy obligations. These materials can thenbe used for a range of purposes, such as induction training, team leader and senior


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management training, unit meeting, etc. Each presentation/session may vary on the

types of activities, the delivery and may focus on a few critical points specific to the

group.

Mediation training for convenors

All convenors will participate in mediation training or will be able to demonstrate

sufficient experience to satisfy accreditation and be registered with the Federal

Attorney Generals Department as a Family Dispute Resolution Practitioner or the

NADRAC national mediation accreditation standard as follows:

Training is conducted by a training team comprised of at least 2 instructors where the

principal instructor has more than 3 years experience as a mediator and has complied

with NADRACs continuing accreditation requirements and has at least 3 years

experience as an instructor; and

has assistant instructors or coaches with a ratio of one instructor or coachfor every 3 course participants in the final coached simulation part of the

training and where all coaches and instructors are accredited; and

is a program of a minimum of 38 hours duration, excluding the

assessment process; and

involves each course participant in at least 9 simulated mediation sessions

and in at least 3 simulations each participant performs the role of

mediator; and

provides written, debriefing coaching feedback in respect of 2 simulatedmediations to each course participant by different members of the

training team.


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APPENDIX A

Child Protection Resolution Conferences a new model for the Childrens

Court.

Proposed principles

1. Conferences in the Childrens Court will include the following key elements:

Participants in a dispute get together with an independent convenor who

will facilitate the matter in accordance with this model;

Issues are identified, options developed, alternatives considered and

decisions made about future actions and outcomes;

The convenor acts as a third party to support the discussion and guide

participants to reach their own decision.

The convenor may comment on the dispute or its possible resolution.

The convenor will determine the process of the resolution conference and

may make suggestions for terms of settlement, give advice on likely

settlement terms.

The convenor may actively encourage the participants to reach an

agreement.

The convenor will focus on bringing the parties into the discussion. The

role of the lawyers in the process will be to advise clients rather than to

advocate.

The overriding interest is the best interest of children and young people

and in the conference this is enhanced by all parties being encouraged to

be actively involved in the process.

Conferences involving Aboriginal families will include an appropriately

qualified Aboriginal mediator wherever possible.

2. A pre-requisite to becoming a convenor in the Childrens Court will be to have

completed mediation training commensurate with national standards as

established by the National Alternative Dispute Resolution Advisory Council

(NADRAC).

3. Convenors should be offered opportunities for reflective practice and

improvements to the model where possible.

4. There will be an opportunity for Magistrates and convenors to engage in

discussions about practice issues while ensuring that confidentiality is

preserved. The Taskforce viewed this is an opportunity for Magistrates to

provide a mentoring role to convenors.


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5. Conferences will be held at a venue away from the Melbourne Childrens Court

wherever possible. This will be based largely on a risk assessment on a case-

by-case basis as well as the availability of alternative venues.

6. The authority of convenors will be made explicit by the Court through a

Practice Direction and this will be made clear to the parties and theirrepresentatives at each conference. The Practice Direction will set out the detail

of the process, including the Courts expectations and will, amongst other things

clarify the role and the authority of convenors

require that the decision maker be at the table.

require parties to attend fully prepared. (This practice note should be

cross-referenced with conditions of VLA funding).

address practitioner behaviour.

Training and introduction to the Child Protection Resolution Conference model.

All convenors will participate in mediation training or will be able to demonstrate

sufficient experience to satisfy the NADRAC national mediation accreditation

standard as follows:

Training conducted by a training team comprised of at least 2 instructors

where the principal instructor has more than 3 years experience as a

mediator and has complied with NADRACs continuing accreditation

requirements and has at least 3 years experience as an instructor; and

has assistant instructors or coaches with a ratio of one instructor or coach

for every 3 course participants in the final coached simulation part of the

training and where all coaches and instructors are accredited; and

is a program of a minimum of 38 hours duration, excluding the

assessment process; and

involves each course participant in at least 9 simulated mediation sessions

and in at least 3 simulations each participant performs the role of

mediator; and

provides written, debriefing coaching feedback in respect of 2 simulated

mediations to each course participant by different members of the training

team.

Lawyers and child protection workers will participate in a joint session on general

mediation principles and framework. (In Western Australia, training in the Western

Australian model of mediation is a condition of a grant of legal aid.) This would be

less onerous than the mediation training. The sessions could be held as 3-hour

sessions and would incorporate the following:

general mediation principles and framework;


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The consent of parties to Conference if either/both parties oppose

Conference, referral is made to Magistrate to hear submissions and make

an order either way.

Confirmation email with Conference details to legal practitioners 48 hours

prior to Conference.

2. Convenor

Reads the Court file and any other necessary documents.

Prepares summary that commences the facilitated discussion in the

conference.

Step 2b Documents required by the Court and compiled by the preparation

officer before a Conference can take place:

Court documents Any issues raised at intake stage.

All court reports related to the current application.

Current court orders, including any Intervention

Orders.

Family Court orders.

Hearing notice

Medical

documents All clinic reports related to the current application.

Medical reports

Parties documents Parties summary documents / affidavit in support of

warrant.

Outline of issues (optional)

Other Genogram.

Step 3 Conference

All Conferences should be set down for a minimum of 2 hours.

Steps in the Conference:

Introductions / setting the scene.

Convenor explains the process.

Convenor sets out the ground rules (including courtesy).


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Convenor summarises the DHS case and confirms the summary with the

child protection worker.

Response by other party/ies / statement of positions.

Discussion facilitated by convenor.

Private caucusing is an option if parties agree.

Reality testing is an option if the convenor sees it as appropriate and

particularly if the parties seek a view.

Time incorporated into the Conference for a break out session and at the end for

practitioners to draft orders (opportunity in both these parts of the Conference for

DHS worker to involve the Court Advocacy Unit.


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APPENDIX B

Two additional options for implementation of the conference model

Option 1 Phased approach

Under this option, conferences would be introduced in 2 phases:

Phase 1 involves the streaming of 200 Childrens Court cases into the new conference

model over a 12 month period, ahead of full implementation in phase 2.

This would work in the following way:

All child protection Court proceedings from a selected region issued with the

Childrens Court commencing 1 July 2010 would proceed through the new

conference model.

Prior to 1 July the following actions will occur:

Recruitment and training of Court staff to conduct the conferences. 200

conferences over the course of one year would require 1 new Registrar.

Joint information session for legal practitioners and child protection workers

in the new Child Protection Resolution Conference model. This session could

be provided by a Magistrate and the Registrar who is currently conducting

conferences at the Moorabbin Court consistent with the new conferencing

model.

Confirmation of venue away from the Melbourne Childrens Court in which

the conferences will be held.

The Court will have the discretion to adjourn cases for conference at any stage after

the protection application is lodged. The aim is that cases be referred to conference at

an early stage, ideally after the first mention. The convenor could be given the

flexibility to extend the time of a conference or to adjourn a part-heard conference

without going through the mention process.

The model will be evaluated throughout Phase 1 in order to ensure a smooth rollout of

the model in Phase 2. It will also enable the recruitment and training of additionalstaff to conduct the conferences throughout the Court in Phase 2.

Phase 2 is the full implementation of the new conference model throughout the

Childrens Court and this will occur as of 1 July 2011.

Advantages of Option 1

It enables a 12 month trial period where any problems with the new model can

be fixed prior to full implementation. Any necessary changes to the model can

be made prior to full implementation.

It can commence sooner than full implementation.


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It enables time to appoint and train Magistrates and staff in preparation for full

implementation in Phase 2.

It will act as a demonstration project to lawyers and child protection workers.

It will enable a comprehensive assessment of the resources required to operatea fully implemented model.

It provides time to organise new chamber and office space for additional

Magistrates and staff needed to implement the model throughout the Court.

Any further changes as a result of the VLRC recommendations can be

incorporated into the model prior to full implementation.

Phase 1 could operate as a demonstration project and thus form an important

part of the change process in the Childrens Court.

Disadvantages of Option 1

It involves running 2 different systems of conference simultaneously.

It may not be perceived as providing an immediate change and is likely to

have less of an impact in the short term.

Option 2 Full implementation

Under this option, conferences will be implemented throughout the Court as of day

one.

As of 1 September 2010 all cases in the Childrens Court would proceed through the

new conference model.

Prior to 1 September the following actions will occur:

Recruitment and training of Magistrates, Judicial Registrars and Court staff to

conduct the conferences.

Additional chamber and office space would need to be provided.

Joint information session for legal practitioners and child protection workers

in the new Childrens Court conference model. These sessions would be

provided by Magistrates and Registrars.

Confirmation of venues away from the Melbourne Childrens Court in which

the conferences will be held.

Advantages of Option 2

It provides time to organise new chamber and office space for additional

Magistrates and staff as well as the training needed to implement the model

throughout the Court.


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It is more efficient. Establishment costs will be similar for both options so in

the long run it will be cheaper to bring in the new model in one phase rather

than two.

It could be perceived as a fairer option as all new cases will go through the

same Court process as of the commencement date.

Disadvantages of Option 2

The momentum of the Taskforce could be lost.

It does nothing in the very short term.

There is no opportunity to trial the new conference model.

Any necessary changes to the model will be harder to make than under Option

1.

It provides less flexibility to make changes that take into account any

recommendations of the VLRC.


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APPENDIX C

Commentary: The Ombudsmans Report into the Child Protection System

On 17 April 2009, the Ombudsman, Mr George Brouwer, commenced an own motioninvestigation into the Department of Human Services (DHS) Child Protection

Program. Mr Brouwer advised that the basis for this was that he had concerns

regarding the departments ability to discharge its statutory responsibilities to children

at significant risk of harm.

Mr Brouwer reviewed 80 child protection files and 20 privacy complaints from DHS.

Mr Brouwer also conducted interviews with DHS staff, the Child Safety

Commissioner, the Victorian Aboriginal Child Care Agency and the President of the

Childrens Court.

The report covers the spectrum of child protection practice from responding to reportsof abuse through to the legal process in the Childrens Court.

Mr Brouwer wrote to the Attorney-General and the Minister for Community Services

on 31 August 2009 enclosing a copy of his draft report and inviting a response by 21

September 2009. The Secretary of the Department of Human Services forwarded a

response to the Ombudsman on 23 September 2009 which attached the Attorney-

Generals response in relation to the chapter headed Child Protection and the Legal

System.

The President of the Childrens Court also provided a response to the Ombudsmans

report.

The only recommendation in the chapter, Child Protection and the Legal System, was

as follows:

The Attorney-General:

1. Provide a reference to the Law Reform Commission to examine

alternative models for child protection legislative arrangements that would

reduce the degree of disputation and encourage a focus on the best

interests of children.

The Attorney-Generals response to this recommendation was forwarded to theOmbudsman on 23 September 2009 and is as follows:

I endorse the recommendation that a reference be provided to the

Victorian Law Reform Commission (VLRC) to examine alternative models

for child protection legislative arrangements that would reduce the degree

of disputation and encourage a focus on the best interests of children. I

will ask that the VLRC consider the Scottish model and those models

interstate that take a more administrative case management approach to

issues such as access.

As a part of this reference I will ask the VLRC to review the lessonslearned from previous reviews of child protection an

Report of the Child Protection Proceedings Taskforce, Victoria, Australia, Feb 2010

Documents

Transcript of Report of the Child Protection Proceedings Taskforce, Victoria, Australia, Feb 2010