Child Protection in Tasmania : A Critical Analysis of the legislation and a new approach Magistrate Don Jones

In a typical year, approximately 3 million cases of suspected child abuse are reported in the United States. Also, each year, approximately 3 million juveniles encounter the police or justice system. Is it coincidental that these numbers are virtually identical? Not likely. According to the Child Welfare League of America, childhood abuse and neglect are the highest indicators of future delinquency.’ While child abuse is no excuse for delinquent behaviour, we do know that youngsters who are abused often turn the tables and victimize society. Child abuse is the "smoking gun" behind much of youth violence. Studies have shown that abused and neglected youth are 66 times more likely to become early delinquents than other children. For boys alone, a record of abuse increases the likelihood of delinquency by over 100 times. In one study of juvenile murderers on death row, Dorothy Otnow Lewis found that all of her subjects had been abused and, in some cases, tortured by parents and stepparents. The Problem

Interpreting the data From this information, and limiting it to Tasmania, in there were 10,788 notifications, which involved 5,802 children of which 782 were substantiated and this related to 637 children. From this information, and limiting it to Tasmania, in there were 10,788 notifications, which involved 5,802 children of which 782 were substantiated and this related to 637 children.

Outcomes The effect of these substantiations resulted in 601 applications being made to the Magistrates Court of Tasmania The effect of these substantiations resulted in 601 applications being made to the Magistrates Court of Tasmania

Objects of the Legislation Section 7 (1) provides The object of this Act is to provide for the care and protection of children in a manner that maximises a child's opportunity to grow up in a safe and stable environment and to reach his or her full potential.

Principles The legislation sets out the principles which are to be observed in dealing with children and they are as follows 8. (1) The administration of this Act is to be founded on the following principles: 8. (1) The administration of this Act is to be founded on the following principles: (a) the primary responsibility for a child's care and protection lies with the child's family; (a) the primary responsibility for a child's care and protection lies with the child's family; (b) a high priority is to be given to supporting and assisting the family to carry out that primary responsibility in preference to commencing proceedings under Division 2 of Part 5; (b) a high priority is to be given to supporting and assisting the family to carry out that primary responsibility in preference to commencing proceedings under Division 2 of Part 5; (c) if a family is not able to meet its responsibilities to the child and the child is at risk, the Secretary may accept those responsibilities. (c) if a family is not able to meet its responsibilities to the child and the child is at risk, the Secretary may accept those responsibilities.

(2) In any exercise of powers under this Act in relation to a child – (2) In any exercise of powers under this Act in relation to a child – (a) the best interests of the child must be the paramount consideration; and (a) the best interests of the child must be the paramount consideration; and (b) serious consideration must be given to the desirability of – (b) serious consideration must be given to the desirability of – (i) keeping the child within his or her family; and (i) keeping the child within his or her family; and (ii) preserving and strengthening family relationships between the child and the child's guardians and other family members, whether or not the child is to reside within his or her family; and (ii) preserving and strengthening family relationships between the child and the child's guardians and other family members, whether or not the child is to reside within his or her family; and (iii) not withdrawing the child unnecessarily from the child's familiar environment, culture or neighbourhood; and (iii) not withdrawing the child unnecessarily from the child's familiar environment, culture or neighbourhood; and

Principles (Continued) (iv) not interrupting unnecessarily the child's education or employment; and (iv) not interrupting unnecessarily the child's education or employment; and (v) preserving and enhancing the child's sense of ethnic, religious or cultural identity, and making decisions and orders that are consistent with ethnic traditions or religious or cultural values; and (v) preserving and enhancing the child's sense of ethnic, religious or cultural identity, and making decisions and orders that are consistent with ethnic traditions or religious or cultural values; and (vi) preserving the child's name; and (vi) preserving the child's name; and (vii) not subjecting the child to unnecessary, intrusive or repeated assessments; and (vii) not subjecting the child to unnecessary, intrusive or repeated assessments; and

(c) the powers, wherever practicable and reasonable, must be exercised in a manner that takes into account the views of all persons concerned with the welfare of the child. (c) the powers, wherever practicable and reasonable, must be exercised in a manner that takes into account the views of all persons concerned with the welfare of the child. (3) In any exercise of powers under this Act in relation to a child, if a child is able to form and express views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the child's age and maturity. (3) In any exercise of powers under this Act in relation to a child, if a child is able to form and express views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the child's age and maturity.

(4) In any proceeding under this Act that may lead to any separation of a child from his or her family, other than a proceeding under Part 4, the child's family and other persons interested in the child's wellbeing must be given the opportunity to present their views in respect of the child's wellbeing. (4) In any proceeding under this Act that may lead to any separation of a child from his or her family, other than a proceeding under Part 4, the child's family and other persons interested in the child's wellbeing must be given the opportunity to present their views in respect of the child's wellbeing. (5) In any proceeding under this Act in relation to a child, the child's family and other persons interested in the child's wellbeing should be provided with information sufficient to enable them to participate fully in the proceeding. (5) In any proceeding under this Act in relation to a child, the child's family and other persons interested in the child's wellbeing should be provided with information sufficient to enable them to participate fully in the proceeding. (6) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case. (6) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.

Aboriginal Children Further provision is made in respect of aboriginal children and are contained in Section 9. These are additional to those principles stated in Section 8. It requires that no decision or order be made in relation to an aboriginal child unless a recognised aboriginal organisation has been first consulted, and regard must be had to any submissions made by that organisation. In the absence of any such submissions regard must be had to aboriginal tradition and cultural values, including kinship rules. Further, aboriginal children should remain within the aboriginal community. Further provision is made in respect of aboriginal children and are contained in Section 9. These are additional to those principles stated in Section 8. It requires that no decision or order be made in relation to an aboriginal child unless a recognised aboriginal organisation has been first consulted, and regard must be had to any submissions made by that organisation. In the absence of any such submissions regard must be had to aboriginal tradition and cultural values, including kinship rules. Further, aboriginal children should remain within the aboriginal community.

Family Group Conferences “ Family group conferencing is increasingly regarded as best practice both nationally and internationally. Various models have been in operation throughout Australia for a decade and research on family group conferencing has produced some interesting results. For example, Bell (2002) found that children attributed a number of positive outcomes to the family group conferencing process including improved education experiences, attendance and happiness at school and improved family relationships. In terms of longer term outcomes, researchers have found an increased use in respite care (Kiely 2005) and an increased use of kinship care as a result of family group conferencing (Lupton and Stevens 1997). Pennell and Burford (2000) found that family group conferencing promoted family unity, increased safety for all family members and reduced reports of child maltreatment.”

Section 45 The Court must not, unless it is satisfied that there are exceptional circumstances, grant adjournments in relation to an application for a care and protection order or the variation or revocation of a care and protection order so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks The Court must not, unless it is satisfied that there are exceptional circumstances, grant adjournments in relation to an application for a care and protection order or the variation or revocation of a care and protection order so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks

Section 46 (1) If the Court adjourns the hearing of an application for a care and protection order, the Court may also make an interim care and protection order. - and - (4)An interim care and protection order has effect for the period of the adjournment and any subsequent adjournment.

Thank you for listening It has been a pleasure presenting it to you and if it can help us all become more aware as to the insidious nature of child abuse and more determined to ensure that the laws are used to protect such children, our time has not been wasted.

A hundred years from now it will not matter what my bank account was, the sort of house I lived in, or the kind of car I drove...but the world may be different because I was important in the life of a child.” Forest E Witcraft, (American Scholar, Teacher and Scout Leader, )