Driver for intervention The individual child’s needs in a present and future perspective; society’s needs for healthy and contributory citizens The family unit needs assistance Parents being neglectful and abusive towards children (maltreatment) Role of the State Paternalistic/defamilialisation- State assumes parent role; but seeks to refamilialise child by foster home/kinship care/adoption Parental support; the state seeks to strengthen family relations Sanctioning; the State functions as ‘watchdog’ to ensure child’s safety Problem frame Child’s development and unequal outcomes for children Social/psychological (such as system, poverty and racism) Individual/moralistic Aim of intervention Promote wellbeing via social investment and/or equal opportunity Prevention/social bonding Protection/harm reduction relationship Substitutive/partnership Partnership Adversarial Balance of rights Children’s rights/parents’ responsibility Parents’ rights to family life mediated by professional social workers Children’s/parents’ rights enforced through legal means See Table 8 in for an examination of how the different orientations to child protection translate in terms of service delivery ‘on the ground’. The review was unable to locate analysis or research, which considered how the different orientations to child protection translated in terms of legal services delivery. Australia has traditionally been viewed as a child protection oriented system. However, since 2002 the States and Territories have embarked on reforms to build capacity and strengthen families with a view to preventing abuse and neglect. This shift in focus was endorsed in the first National Framework for Protecting Australia’s Children 2009–2020, which provides an overarching framework for developments in policy and practice that acknowledges: Australia needs to move from seeing ‘protecting children’ merely as a response to abuse and neglect to one of promoting the safety and wellbeing of children. The 2016 Victorian ‘Road Map to Reform’ suggests an attempt to move further in this direction. Consideration is required as to how this shift in focus impacts upon legal service delivery,
Child participation encouraged to extent age and development enable – direct representation Pre-court Family Group Conferences encouraged Care and Protection Orders made in circumstances of ‘risk’ have a no fault threshold Public Advocate monitors all court orders and may intervene on behalf of a child or young person Guidelines: assistance available ‘for proceedings pursuant to Principal Act, except where the total cost, in the opinion of the CEO, is likely to exceed $15K’ New South Wales Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Amendment (Parental Responsibility Contracts) Act 2006 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) ‘safety, welfare and wellbeing of the child or young person are paramount’ Child participation encouraged to extent developmental capacity and circumstances allow – direct and separate Culture, disability, language, religion and sexuality of child must be taken into account Least intrusive intervention consistent with protection of child Early intervention Retention of relationships with people significant to child Permanent placement principles – represent a hierarchy of intervention (restored to care of family, guardianship with relative, kin or suitable Legal Aid NSW Pre-court assistance/rep: Yes ADR where no current court proceedings offered as well as pre-litigation contact dispute mediation Duty Lawyer Service: Yes Court based assistance/rep: Yes Post-court assistance/rep: Yes Post final orders grant Third Parties: Yes Initiate applications: Yes, including breach applications Administrative review: Yes Guidelines: assistance available ‘where applicant has parental responsibility for the child or young person, or from whom an aspect of parental responsibility has been
Care and Protection Orders made with no fault threshold. Parental responsibility orders may be made to parents, the Minister, suitable persons and include contact conditions Guardianship orders may be made to a suitable person until age of 18. Contact orders Northern Territory Care and Protection of Children Act 2007 (NT) Care and Protection of Children Amendment (Permanent Care Orders) Act 2015 (NT) ‘best interests of the child are the paramount concern’ Family has primary responsibility for care of child and contact encouraged if child removed Child to be treated in a way that respect’s their dignity and privacy Child participation to extent age and development enable – separate representation ATSI placement hierarchy Permanency planning Grounds for making protection orders, no fault threshold NT Legal Aid Commission Pre-court assistance/rep: No, other than telephone advice Duty Lawyer Service: No Court based assistance/rep: Yes Post-court assistance/rep: No Third Parties: Unclear Initiate applications: No Administrative review: No Guidelines: assistance available ‘for Respondents in Care and Protection (FACS) proceedings in the Magistrates Court’. Queensland Child Protection Act 1999 (QLD) Child Protection Reform Amendment Act 2014 (QLD) ‘safety, wellbeing and best interests of a child are paramount’ Rights based principles, such as a child’s right to safety, maintenance of family relationships, explore identity/culture, Legal Aid QLD Pre-court assistance/rep: Yes, not subject to the merits test Duty Lawyer Service: No (although being piloted in 2 smaller, regional Courts) Court based assistance/rep: Yes, Post-court assistance/rep: