Applied Research in Crime and Justice Conference, Sydney, February 2015 Australia’s Children’s Courts: The findings of a ‘National Assessment’ Rosemary Sheehan AM, Department of Social Work, Monash University Allan Borowski, PhD FASSA, Public Policy Program, School of Global, Urban and Social Studies, RMIT University, Melbourne.

National Assessment of Australia’s Children's Courts ARC-funded Discovery grant set out to:  Examine the current “status” of Australia’s Children's Courts  Examine their contemporary problems and challenges  Identify directions for change and their viability From the perspective of key stakeholders, most prominently magistrates.

National Assessment of Australia’s Children's Courts Study carried out across all States and Territories by 8 x 3-person teams using common data collection tools and research strategy. A follow-up study was conducted 2014 to discern what if any changes had been made to legislation or court process, and if any derived directly from the ARC study. This presentation presents both key findings from the primary ARC study and the later follow-up study.

National Assessment of Australia’s Children's Courts The ARC Study is unprecedented in scope (a national study), with agreement of all heads of Children Court jurisdiction to participate and prominence of magistrates among the stakeholder groups.

Methodology The National Assessment of Australia’s Children’s Courts adopted a phenomenological approach of inquiry Studying the experiences and views of key stakeholders who work within the Children’s Court system Data collection in ; subsequent update survey in 2014.

Methodology Initial data collection comprised both individual interviews and focus groups with more than 300 key stakeholders in both metropolitan and regional areas of each state and territory. Questionnaires developed for interviews and focus groups were shared with a small number of judicial officers and key experts for comment, prior to data collection.

Methodology Data collection canvassed a range of topics with respondents, including 1) the purpose of the Children’s Court, 2) its current status, 3) its major inputs 4) aspects of its throughputs, 5) Indigenous issues and 6) legislative and other reforms. Follow-up data were received from 6 of the 8 jurisdictions: ACT, NSW, Queensland, South Australia, Tasmania and Victoria. WA and NT were unable to provide updated data.

The Children's Court Today: Study Findings Key themes emerged as well as broad reform directions suggested across the eight jurisdictions. Purpose of the children’s courts was fairly consistent across jurisdictions. In the criminal division rehabilitation, punishment, deterrence and community safety were general themes, though the emphasis on rehabilitation versus punishment slightly varied between jurisdictions.

The Children's Court Today: Study Findings Children’s Courts in NSW, WA and NT place greater emphasis on public safety compared to those in Victoria and SA. The differences are reflected in rates of detention of alleged and convicted young offenders. In Family (child protection) matters it was generally agreed the best interests of the child and protection from harm was the Court’s purpose. Considerable variation in mandatory reporting: WA for sexual abuse only; Victoria and ACT for sexual and physical abuse; remainder for all forms of child abuse and neglect (The Commission for Children and Young People Western Australia, 2012).The Commission for Children and Young People Western Australia, 2012

The Children's Court Today: Study Findings Effectiveness of the Children’s Court was not conceptualised by respondents in terms of impact on recidivism or protection of children from harm. There were difficulties separating the perceived effectiveness of the Courts from the systems in which they were embedded. Workloads were generally described as high; diversion options underutilised, increasing case volume unnecessarily The structure of the Children’s Court system varied between jurisdictions, as did the satisfaction with the structure.

The Children's Court Today: Study Findings In some regions (e.g. Victoria) the Children’s Court is comprised of two divisions that separately hear family and criminal matters. In Queensland, two tiers deal with matters based on severity and type (e.g. appeals). In Tasmania, there was no dedicated Children’s Court at the time of the study, but rather a Children’s Division within the local Magistrates’ court. The need for close collaboration and communication between all divisions and jurisdictions responding to child welfare and criminal justice matters was a noted theme.

The Children's Court Today: Study Findings Children’s Court Judicial officers were both specialist and generalist when in regional and remote locations. Generalist judicial officers’ lack of knowledge and skill made for variability in case processing and decision- making. National consensus judicial officers (particularly generalists) need ongoing professional development. Child protection workers (CPWs), whilst acknowledged difficulties of their work, their professionalism and quality of work at times questioned. Legal respondents suggested specialist qualifications for CPWs to perform court work; CPWs experienced the court as a difficult work environment.

The Children's Court Today: Study Findings Youth Justice Workers (YJWs) shortages, staff retention difficult, minimal tertiary training; but overall well- regarded. In relation to Lawyers: quality of legal representation (varied across and within jurisdictions), difficulties accessing legal representation (particularly in regional areas, and inadequate legal funding which lead to inadequate representation) and their roles (e.g. focus on direct representation vs interests of the child). Need for professional participants in the courtroom to have better training around psychology and childhood trauma, mental health, intellectual disability, cross- cultural professional matters etc.

The Children's Court Today: Study Findings Clientele seen to be more challenging than a decade ago Socioeconomic disadvantage and marginalisation remain common characteristics of clients Added complexity from refugee backgrounds, alcohol and other drug problems, domestic violence, mental health problems and previous involvement with the child protection system. Court facilities presented concerns. Lack of separation of child and adult matters, particularly in regional and remote locations; mixing of child welfare and criminal jurisdictions of the Court.

The Children's Court Today: Study Findings Resourcing child welfare and youth justice systems had direct impact on the operation of the Court. Especially in geographically larger states and territories, those with larger Indigenous populations, where locational disadvantage was seen to contribute to different outcomes (e.g. where requirements of enabling legislation, such as sentencing options, cannot be met). Indigenous overrepresentation. Specialist Indigenous criminal courts and sentencing circles (not in NT and WA).

The Children's Court Today: Study Findings Court process time consuming and costly, continual attendances to finalise family welfare matters Adversarial nature of contested child welfare proceedings. Belief that many children, young people and families at Court lacked understanding of the processes and decisions, and their subsequent inability to participate in these.

Reform directions Raising the minimum age of criminal responsibility Clarifying key concepts in legislation, Expansion of community-based sentencing pre-court diversion options. A non-adversarial court with child welfare matters. A shift away from critical incident-based, antagonistic and confrontational approach of common law adversarialism in dealing with child welfare cases. More collaborative, problem-solving therapeutic jurisprudence approach preferred, with judicial monitoring of cases and close collaboration with statutory and non-government service

Reform directions Views not unanimous. Queensland did not see the Court as having a problem-solving role. Similarly, the adversarial nature of proceedings was seen as necessary for appraising evidence in child welfare matters. Some jurisdictions (e.g. ACT) supported an inquisitorial model for processing child welfare matters, similar to the Scottish system; NSW did not see this as desirable, but supported a case management role for Courts. Little enthusiasm for a national Children’s Court framework. Bail: Widespread concern about the underutilisation of bail across almost every jurisdiction, lack of appropriate accommodation and bail support options.

Follow-up study: NSW Since the initial study was conducted, reforms to the NSW care and protection legislation were introduced under the Child Protection Legislation Amendment Act 2014.Child Protection Legislation Amendment Act Increase parental responsibility; permanency planning; increasing the use of Alternative Dispute Resolution to reduce the time spent in court. In the criminal division of the Children’s Court in NSW. the introduction of a one-year pilot of a dedicated Koori Court in Parramatta to commence hearing cases in January 2015.

Follow-up study: Qld Since the initial study was completed, an inquiry into the Queensland Child Protection System (Queensland Child Protection Commission of Inquiry, 2013), and reforms to the Child Protection System and the Children’s Court.Queensland Child Protection Commission of Inquiry, 2013 Case management framework for child protection matters to operate under a Court Case Management Committee (to be led by the Children’s Court President and Chief Magistrate), to increase the Court’s efficiency and ensure better outcomes for children. Accepted recommendations of the inquiry: children’s court can access independent expert assistance to support decision-making.

Follow-up study: Qld Increased legal aid for child protection matters; include the child’s views in child protection hearings. Changes follow broader reforms in the Queensland child welfare sector (accepted by the state government in December 2013) to reduce number of families entering statutory services (e.g. revising legislative definitions of harm, reforming mandatory reporting by police of domestic violence cases involving children, implementing a differential response framework for child welfare services). Idea to increase prevention and early intervention, minimise use of statutory and coercive intervention with families.

Follow-up study: Qld These recommendations address many of the issues raised in the National Children’s Court study: greater court access to independent expert assistance, better legal representation for families and children and more integrated and streamlined responses for families through the case management framework Additional reforms to the state’s Youth Justice System were also implemented since the study, including the passing of the Youth Justice and Other Legislation Amendment Bill The legislative amendments include: allowing publication of identifying information about repeat offenders

Follow-up study: Qld Only stand-alone purpose built Children’s Court in Brisbane closed in early Youth justice and child protection proceedings now heard in dedicated courtroom in the main Brisbane Magistrates Court building. All children’s matters throughout the state now heard in general courts sitting as Children’s Court.

Follow-up study: Qld Open Children’s Court for repeat young offenders: so that media and the public can attend Additional new offence for young person if found guilty of a further offence while on bail Mandatory boot camp (vehicle offences) order for young offenders who commit 3 or more motor vehicle offences within 12 months in the Townsville area Juvenile criminal histories to be available to adult courts for sentencing purposes Transfer of young offenders to adult prison when they turn 17, if more than 6 months left to serve Removal of sentence reviews Removal of the principle of detention as a last resort.

Follow-up study: Tas Since the initial study, many of the same issues still present in Tasmania: the lack of bail hostels, and limited therapeutic programs for children and young people. While restorative justice programs are in operation and supported, respondents noted different uses and practices of restorative justice throughout the state (e.g. some being more punitive, differences in monetary restoration practices etc.) A Specialised Youth Justice Court Pilot commenced operation in Hobart in 2011, evaluation of the pilot was completed in 2013.

Follow-up study: Tas The Pilot contained two streams: general and a ‘Specialist List’ to hear and determine complex matters assessed as needing a therapeutic jurisprudence approach, involving judicial case supervision (Magistrates Court of Tasmania, 2013).Magistrates Court of Tasmania, 2013 Evaluation found Pilot contributed to better working relationships across all participant groups, offering more therapeutic response to complex young offenders, and greater specialisation in youth justice matters. Recommended the specialised Youth Justice Court be continued and be commenced at another site (Launceston) in 2014.

Follow-up study: Tas Other minor legislative amendments in the Youth Justice division under The Youth Justice (Miscellaneous Amendments) Bill 2012, including the need to give rehabilitative needs the most weight in sentencing, the requirement that youth justice workers be invited to all community conferences, and the need for bail conditions to not be onerous (Children and Youth Services, 2012).Children and Youth Services, 2012

Follow-up study: Vic Certain structural changes identified in the Children’s Court system since the initial study, including: The addition of the ‘D-List’ in 2013: an intensive case management approach for the handling of child sexual abuse cases by way of a specialist hearing list. The Family Drug Treatment Court: to assist parents with substance abuse issues who have children aged 0-3 years who have been placed in out of home care. Push to expand the Koori Court to the Family Division of the Children’s Court not solely be in the Criminal Division.

Follow-up Study: ACT, SA, WA, NT Since the initial study, no substantial changes were identified in either the child welfare or criminal divisions of the Childrens Court in the ACT. Similarly the case in SA, despite the need for reform made clear in a Govt Inquiry under previous incumbent Govt. WA was not able to identify specific changes although it is anecdotally believed the youth justice sector had become more punitive. NT did not respond, despite follow up enquiries

Directions for reform This is the first national study of Australia’s system of Children’s Courts. One identified limitation was the inability to capture the voices the court’s clients. Nevertheless similarities and differences were identified across jurisdictions. What remains still: Children’s Courts have growing, increasingly complex workloads There is often interface with other courts/tribunals which deal with children’s law which challenge coherent decision-making Need for additional Legal Aid allocations Investment in court facilities, particularly in non- metropolitan locations

Directions for reform Serious consideration be given to increasing the lower age of criminal responsibility from 10 to 12 years Problem solving and specialty court approaches. Address the underinvestment in this important institution, coupled with its supporting welfare systems (including child protection and youth justice systems), given their major long-term consequences for the welfare of society.