Submission on

Children, Youth and Families Amendment Bill 2014 To:

The Hon Mary Wooldridge Minister for Mental Health, Community Services, Disability Services and Reform

Date:

19 June 2014

Contact: Gemma Hazmi, Lawyer – Family Law Section Ph: (03) 9607 9374 Email: [email protected] www.liv.asn.au

© Law Institute of Victoria (LIV). No part of this submission may be reproduced for any purpose without the prior permission of the LIV. The LIV makes most of its submissions available on its website at 1 www.liv.asn.au

TABLE OF CONTENTS Introduction .................................................................................................................................................... 2 Part A: Statement Of Compatibility ................................................................................................................ 2 Part B: The Bill: Parameters Of Operation ..................................................................................................... 4 Part C: The Bill – Attendance, Convenors & Immunity .................................................................................. 6 Conclusion ..................................................................................................................................................... 7

INTRODUCTION The Law Institute of Victoria (LIV) is Victoria’s peak body for lawyers and those who work with them in the legal sector, representing over 16,000 members. This submission has been prepared by the LIV’s Family Law Section - Children and Youth Issues Committee in relation to the Children Youth & Families Amendment Bill 2014 (“the Bill”) which seeks to substantially amend aspects of the Children Youth & Families Act 2005 (“the Act”). Our members have had a long history in advocating on children’s law reform issues and we welcome this opportunity to be able to provide comments to the proposed amendments.

PART A: Statement of Compatibility 1

The LIV is concerned that the Bill’s Statement of Compatibility as described on 7 May 2014 in the Victorian Parliament, does not adequately reflect the important rights and responsibilities identified in the Victorian Charter of Human Rights and Responsibilities Act 2006 (“the Charter”). The LIV submits that the proposed Bill fails to comply with the Charter’s Right to Privacy (section 13), the Right to a Fair Hearing (section 24) and the Protection of Families and Children (section 17(1)), as outlined below.

Charter - Section 13: Right to Privacy Section 13 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) provides: A person has the right – (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked. A right to privacy for parents and children who are involved with the Department of Human Services (DHS) and before the Children’s Court of Victoria, is a paramount consideration. As it currently stands, if a grandparent has not been determined to be a party to the proceedings pursuant to section 522(1)(iii), then that grandparent has no right to all the information available to DHS and the Court. This is an important safeguard as often very sensitive and difficult material is in the possession of DHS and the Court. This provision provides an effective mechanism by which only those with a direct legal interest are privy to sensitive material. The LIV are concerned that an individual or family’s privacy may be undermined with the introduction of section 213C of the Bill as it sets out a significant number of persons who are permitted to attend a Child Safety Conference (CSC) including, under subsection (i): “any other person, permitted by the convenor, who the convenor considers may make a meaningful contribution to addressing the protective concerns in relation to the child”. Whilst section 213J goes some way to addressing the issue of privacy, as does section 213R, information sharing in good faith is an unreasonable limitation to the right to privacy. Furthermore, section 213Q puts families at risk of stigma and prejudice by creating a potential situation where a family member, or other per-

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Statement of Compatibility, Minister for Mental Health, Women’s Affairs and Community Services, Ms Mary Wooldridge, Book 6 Hansard, 7 May 2014 http://www.parliament.vic.gov.au/images/stories/daily-hansard/Assembly_2014/Assembly_Weekly_Feb-Jun_2014_Book_6.pdf

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son with an interest, might be able to gain access to private information. For example, such a person may be a family member involved in a family feud or a school who does not seek to enrol a child who is alleged to be abusive.

Charter - Section 24: Right to a Fair Hearing Section 24(1) of the Charter provides that: A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. 2

Justice Bell in the matter of Secretary to the Department of Human Services v Sanding held that child welfare proceedings were civil proceedings, and as a result, the right to a fair hearing in the Charter applies to child welfare proceedings. The LIV is concerned that because a CSC is conducted at a pre-court stage, for example when a protection application has not been issued, section 213A (b) and (d) permits DHS pursuant to section 213C, to direct a parent to attend a CSC whilst court proceedings are on foot. This may result in parents and children being directed to attend a CSC, and that it is in the best interests of the child for the parents to agree to a certain outcome. This process effectively abolishes the important role of the Children’s Court of Victoria in overseeing the removal of children from families and the intervention of the state. The LIV submits that a CSC places an unreasonable limitation on the right to a fair hearing pursuant to section 7 of the Charter. This may lead to an imbalance of power leading to detrimental consequences for unrepresented families without access to legal advice or the scrutiny of a competent, independent and impartial court. Charter - Section 17: Protection of Families & Children Section 17 of the Charter stipulates that: (1) Families are the fundamental group unit of society and are entitled to be protected by society and the State. (2) Every child has the right, without discrimination to such protection as is in his or her best interests and is needed by him or her by reason of being a child. The LIV is concerned that the proposed Bill is incompatible with this section due to the capacity for a CSC to intervene on behalf of the State without scrutiny from an independent arbitrator or the provision for independent legal advice. The LIV points out that Section 10(3)(a) of the current Act already states that when determining a decision or action to take in the best interests of a child, consideration must be given to providing the widest possible protection and assistance to the parent and child as the fundamental group unit of society. The decision must also ensure that intervention with that relationship is limited to that which is necessary to secure the safety and wellbeing of the child. The LIV is concerned that the proposed amendment does not respect this protective right and will create an unjustifiable conflict and inconsistency within the Act itself.

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Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011)

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PART B: The Bill: Parameters of Operation 1. Circumstances where it may be inappropriate to hold a CSC 3

The Protecting Victoria’s Vulnerable Child Inquiry (2012) (the Inquiry) proposed and supported Statutory Child Safety Conferences prior to court. The Inquiry stated that there would be circumstances where a CSC 4 would be inappropriate: “There are circumstances in which a statutory pre-court conference would be inappropriate. These circumstances should be stated in the CYF Act. Consistent with the Inquiry’s proposals in Chapter 9 for new statutory child processes in response to serious reports of abuse, such as physical or sexual abuse and family violence, it is likely to be inappropriate for protective concerns based on such allegations to be dealt with 5 through a pre-court conference” The LIV is concerned that section 213A of the proposed Bill does not clarify circumstances in which a statutory pre-court conference (CSC) would be inappropriate. According to section 213A(1)(a) of the proposed Bill, a Secretary may arrange a child safety conference in respect to a child if a protective intervener has completed an investigation under section 205 and the Secretary reasonably believes that the child is in need of protection. The LIV is concerned that section 213A(1)(a) does not distinguish between matters which involve serious reports of abuse, such as physical or sexual abuse and family violence. Members of the LIV have raised concerns that it can be extremely problematic for practitioners to mediate in situations where there is an asymmetry of power involving DHS and a perpetrator in a CSC. The Convenor of a CSC may, pursuant to section 213D, refuse attendance at a CSC. However, it is prima facie inappropriate to hold a pre-court procedure in a matter of this nature, where the intervention of the State in a child’s life may be ‘resolved’ without the scrutiny of a competent, independent and impartial court. 2. Obligations under the United Nations Convention on the Rights of the Child Australia has obligations pursuant to Article 9(2) of the United Nations Convention on the Rights of the Child (UNCROC). Article 9 of UNCROC makes it clear that DHS as the representative for the State must: “ensure that a child not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such 6 separation is necessary for the best interests of the child”. Pursuant to the current Act, under section 525 and subject to section 524, a child must be legally represented in most legal applications before the Children’s Court. These clauses currently uphold Australia’s obligations under UNCROC Article 9. The LIV is concerned that at a pre-court stage, where a protection application has not yet been issued under section 213A(a) of the proposed Bill, a Child Safety Agreement pursuant to section 213E may be utilized by DHS. This proposed Agreement, which intends to replace the regularly utilized Voluntary Agreement, may be formulated by DHS in a way which breaches the legislative framework in which they work pursuant to section 7 8 9 8 , section 10 , section 525 of the Act, and Article 9 of the United Nations Convention on the Rights of the Child.

The Protecting Victoria's Vulnerable Children Inquiry (2012) http://www.childprotectioninquiry.vic.gov.au/report-pvvc-inquiry.html The Protecting Victoria’s Vulnerable Child Inquiry (2012) page 391 -394 5 The Protecting Victoria’s Vulnerable Child Inquiry (2012) page 391 6 United Nations Convention on the Rights of the Child (UNCROC) Article 9(2) 7 Children Youth and Families ACT 2005 VIC Section 8 Decision makers to have regard to principles 8 Children Youth and Families Act 2005 VIC Section 10 Best interests principles 9 Children Youth and Families Act 2005 VIC Section 525 Proceedings in which child is required to be legally represented 3 4

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Example:

DHS receives a report of alleged physical abuse perpetrated by a Father against his 14 year old daughter, in an instance when the Father grabbed his daughter when she went to leave the house at 10pm to go into the city with friends. He then slapped her in the face during the course of heated argument and also in the presence of the Mother. The next day, the 14 year old daughter went to school and told her teacher. DHS holds an interview with the daughter and family and form the belief that the 14 year old and her three siblings, 8 y/o, 5 y/o and 2y/o are all in need of protection. DHS could then direct, pursuant to s 213C, that this parent attend a CSC. The 14 year old may or may not be permitted to attend a CSC.

Article 9 of UNCROC emphasizes that such a determination may be necessary in a particular case such as one involving abuse or neglect. The majority of protective matters certainly involve allegations of abuse and neglect and hence the need for a determination as to the removal of children, rather than a CSC. Example continued:

This family have not had prior contact with DHS nor any statutory involvement by the Court and are unaware of their legal rights or that legal advice would be beneficial in assisting them navigate the legislative frame-work created by the Act in terms of best interests of the child. The Father contacts his local Solicitor but they do not practice in child protection matters. The 14 year old does not understand that she can be legally represented at the conference and she does not know who to ask about these things, and what to expect. It should be noted that pursuant to section 213C(4), a legal representative of the child may attend. However, if it is pre-court, it is highly unlikely that the young person would have access to a lawyer. Further, Victoria Legal Aid (“VLA”) may be unlikely to fund the representation of lawyers for young people or parents at these CSC’s. DHS are not separately represented, but rather the Convenor is an appointee of DHS who is unable to per-form the role as an impartial mediator. The DHS Protective Worker attends the CSC and puts a position to the Mother, Father and 14 year old that unless the Father moves out of the home, notwithstanding that he is the sole bread-winner and provides financial support to the whole family. The Father, wanting to do the right thing agrees to a Child Safety Agreement which states that for 1 year he is not to live with or contact the children other than a 1 hour supervised visit per week outside the family home.

While the example set out above is extreme, and such an agreement may not be sanctioned by the Children’s Court, it is one which outlines the need for CSC’s to be more scrutinised due to its pre- court status. 3. Section 213A(1) - when a protective intervener has made a protection application in respect of the child As discussed in Part A above, the LIV is concerned that allowing DHS to direct parents to attend a CSC whilst proceedings are active before the Children’s Court, effectively abolishes the important role of the Court in overseeing the removal of children from families and the intervention of the State. Further, as set out in relation to s 213(A)(a) above, the Inquiry made specific recommendations that CSC’s ought to occur on a limited pre-court basis, and not when the Children’s Court is held from the matter. If there is a current protection application issued before the court, children have a fundamental right to representation as set out in section 525 (subject to s 524). The LIV are concerned that if a CSC is convened during the course of a live protection application, the safeguards for the rights of children do not follow through

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to the CSC. Pursuant to section 213D, the Convenor of a CSC may exclude a person from attending a CSC if they are satisfied as to certain matters. If the Convenor excludes a child, then the provisions of section 213(E)(3) are of no value. Section 213(E)(3) stipulates that an agreement to propose orders must not be entered into if the agreement is opposed by the child who is mature enough to give instructions, or his or her legal representative. Pursuant to section 213E, an agreement to propose orders in respect of a child must be between DHS, the parent/s participating in the CSC, and any participant who is a party to the current child protection proceeding. The agreement to propose orders can then be sent to the Court and, pursuant to section 213F, the Court may make orders in the absence of parties if satisfied that it is in the child’s best interests to do so. The Court may consider the report by the DHS Convenor pursuant to section 213G, but the Court is not required to consider a disposition report (under section 213K) which is inconsistent with the requirement of the Court to consider a disposition report when making a protection order as set out in section 276 of the Act. The LIV submits that any agreement to propose orders from a CSC should not interfere with the role of the Court to examine the allegations and or evidence provided by DHS to support their application according to the purpose of the disposition report. The LIV is concerned that the powers afforded in section 213(1)(d)(ii) of the Bill enables DHS to call a CSC when it “has grounds to take action under section 312.”

PART C: The Bill – Attendance, Convenors & Immunity Children Youth & Families Act 2004 (Amendment) Bill 2014 1. Attendance at a CSC: Section 213C Section 213(C) of the Bill enables DHS to direct who will attend a CSC, including whether a parent will attend. Clause 6 allows DHS to determine who will attend a CSC. The LIV believes that section 213(C), and specifically clause 6 of the proposed Bill, does not support the balance of power between the judiciary and parliament. This clause allows DHS to convene a CSC if a convenor is satisfied, inter alia, that the parent 10 who is absent is not significantly involved in the child’s life. The LIV is concerned that there is no threshold definition to how a ‘convenor is satisfied’ or what is ‘significantly involved’. Problems can arise for example, if the convenor has been told information by a parent who does not wish to allow the other parent to have any contact. Furthermore, it is an abrogation of guardianship rights of parents, whose rights are respected by the service provisions (under Part 8.1) of the Act. Further, section 213D allows a Convenor to refuse attendance of ‘a person’ at a CSC if it is not in the best 11 12 interests of the child or it would be a risk to the safety of another participant or the child. However, the LIV is concerned that significant decisions in relation to protection applications, applications to revoke, vary, extend and breach by notice, may be resolved in the absence of a parent who may have a different point of view or has been unfairly left out. The resolutions pursuant to section 213(2)(E) mean that it is only the parent or parents of the child participating in the conference who must agree to propose orders. 2. Appointment of convenors: Section 213M Section 213M of the amendment states that: (1)The Secretary may designate as a convenor for the purposes of section 213A— (a) a person who has been appointed as a conciliation convenor under section 227; or

Children, Youth and Families Amendment Bill 2014 Bill section 213C(6)(a) Children, Youth and Families Amendment Bill 2014 Bill section 213D(a) 12 Children, Youth and Families Amendment Bill 2014 Bill section 213D(b) 10 11

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(b) a person who has been appointed as a convenor for the purposes of this section. (2) Subject to subsection (3), a person may be appointed as convenor by— (a) the Secretary; or (b) a public service body Head within the meaning of the Public Administration Act 2004; or (c) a statutory body or organisation approved by the Secretary for that purpose.

The LIV is concerned that this proposed amendment breaches the central tenets of alternative dispute resolution principles that there must be an independent and impartial mediator or convenor. We note that recommendations made in the Inquiry endorse the creation of CSC’s in a different manner and format to that which is proposed by the Bill, specifically that: “As the Child Safety Conference is intended to divert matters from court, administrative responsibility for the implementation of these conferences should be with DHS and not the Children’s Court. However, due to the proposed structure and conduct of these conferences as discussed below, DHS would be required to enter into an implementation agreement with VLA. … The Inquiry recommends that the conference adopt an aspect of the Western Australia SOS conference model, namely that the conference be co-convened by the two convenors from VLA and DHS. However, the Inquiry is mindful of the concerns that may arise for parties and indeed the convenors on the matter of independence. In order to ensure separation between the convenors and the parties and to minimize any perceptions of bias or identification with the parties, the Inquiry recommends that the convenors should be: (a) (b) (c)

accredited in mediation and ADR Practice; appointed for fixed terms for the exclusive purpose of convening Child Safety Conferences; as far as is possible, be based near the conference venues.” (p 391 – 392).”

CONCLUSION The LIV commends any efforts to improve the efficiency of processes and procedures in children’s law matters. The LIV is and will remain committed to working collaboratively with all relevant stakeholders who are also committed to this purpose. As outlined in our submissions above, these proposed amendments, if implemented will result in unneces-

sary inconsistency with the current Act and the recommendations of the Protecting Victoria’s Vulnerable Child Inquiry 2012. There is also a risk that the proposals breach certain requirements set out in the Charter in relation to rights to privacy, the right to a fair hearing, and the protection of families and children. There are also concerns in relation to the Bill’s compliance with Australia’s obligations under article 9 of the United Nations Convention on the Rights of the Child. We are grateful for the opportunity to provide comments and welcome the prospect of providing further input as required.

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