Victoria Legal Aid

Commission for Children and Young People – submission toChild Protection Legal Aid Services Review consultation and options paper

Commission for Children and Young People – submission to Child Protection Legal Aid Services Reviewconsultation and options paper

Introduction

The Commission for Children and Young People Victoria (the Commission) is an independent statutory body established to promote continuous improvement and innovation in policies and practices relating to the safety and wellbeing of Victorian children and young people, with a focus on vulnerable children and young people.

The Commission:

  • provides independent oversight of services for children and young people, particularly those who are in youth justice and out-of-home care or who are involved with child protection
  • advocates for improved policy, program and service responses to children and young people
  • supports organisations that work with children and young people to prevent abuse and harm, and
  • promotes the rights, safety and wellbeing of children and young people.

Victoria Legal Aid (VLA) plays a critical role as the primary provider and funder of legal assistance to children and parents involved with the child protection system. VLA has observed an increase in demand for its services at the same time that it has noted significant changes to the child protection system in terms of both policy objectives and legal and administrative processes. Because of the importance of the services and these changes, VLA is reviewing the efficiency and effectiveness of its current mix and models of service delivery.

The Commission is seeking to apply a rights-based approach to its work. The United Nations Convention on the Rights of the Child provides the most universally accepted and comprehensive statement of the rights and protection to which each and every child is entitled. The Commission seeks to use the Convention to guide its work and encourages VLA to do the same.

The process of ensuring children and young people understand their rights and can participate in decision making is integral to their protection and to the effective enabling and enforcement of their rights.

It is with this perspective that we offer our contribution to this important review.

General comment

The Commission’s contribution to this review is informed by the views expressed by the children and young people that the Commission has contact with and by the issues and concerns raised us in the course of our monitoring and oversight activities. This includes insights from partners in government and in the community including from our volunteer independent visitors. Many of these observations coincide with the views expressed to VLA during the course of its consultations for this review.

Key observations include:

  • Children and young people can too often feel disconnected from their lawyers and at times are unclear who is their lawyer.
  • Lawyers working with children should communicate clearly, using plain easy to understand language, and should keep in touch outside court and between court events.
  • Children and young people find the court experience unsettling, dominated by adults and one in which they have little or no say or control.
  • Children and young people want continuity; they want the same lawyer at different stages of their child protection matter. They also want consistency of child protection and criminal lawyers, whether this is the same lawyer or at least that different lawyers are communicating and sharing information.
  • Children do not understand the time frames that are used in court matters and if matters are delayed, they can lose a sense that events are related.

The Commission endorses many of the key themes that emerged from the consultations conducted by VLA.

We acknowledge VLA’s efforts to address the issues identified in its consultations. In particular, we note that the review has identified the importance of ensuring child-focused service delivery. The Commission believes there are further steps that can be taken to reframe the assistance that VLA could provide to give greater priority to children and young people.

Understanding the importance of child-focused services

  • Greater focus should be made to ensure that the approach and provision of legal services to children and young people is child-focused rather than court, lawyer or even parent-centred
  • The provision of effective legal assistance must be built upon appropriate relationships of trust with the child or young person
  • Focusing on timely intervention and support
  • Funding should support assistance and engagement before, between and after court events
  • Funding guidelines should maximise legal assistance for children under the age of ten years in broader circumstances (noting the restrictive legislative limitations on representation for this group)

Increasing access and developing improved processes

  • A more integrated approach to legal assistance is required that recognises the legal needs of children and young people can include interconnected child protection and criminal law issues and are often broader than child protection and criminal justice and can include civil and family law problems
  • Legal assistance should be provided in coordination with other services and support and in a manner that also focuses on the needs and wishes of children rather than the lawyer or the legal services
  • Greater use of technology could improve access to legal assistance

Meeting the challenges of the changing nature of child protection

  • The use of non-legal advocates can assist clients to access services and information and support and can provide children and young people with an advocate or a ‘voice’ that many feel they lack
  • Greater support for Aboriginal and Torres Strait Islander children and parents is required
  • Legal services must be provided in a culturally safe manner and assistance must pay attention to improving compliance with the Aboriginal Child Placement Principle
  • Child protection legal services should be sustainable and flexible to deal with the changing landscape

The Commission supports early and ongoing access to legal information and advice in decision making processes but also encourages the development of alternative approaches to providing assistance. Providing legal assistance does not have to mean a client (child or parent) has to ‘see a lawyer’. These alternative approaches could include greater use of secondary consultations, collaboration with community partners, recognition and greater use of advocacy by non-legal professionals (and family and community members) and support for more child-friendly mechanisms that work with families and involve children in decision making.

Purpose of the Child Protection Program

Option 1

The purpose of the Child Protection Program should be clarified … to promote the safety, wellbeing and development of children and young people. This involves supporting:

  • children and young people to understand their rights and have an effective voice
  • parents to make decisions and take actions that promote the best interests of children
  • processes and practices that lead to a fair, accountable and accessible child protection system.

The United Nations Convention on the Rights of the Child provides the most universally accepted and comprehensive statement of the rights and protection to which each and every child is entitled. The Commission seeks to use the Convention to guide its work and encourages VLA to do the same.

The principles that are set out in the Convention should guide the provision of legal assistance to children and young people (particularly in dealing with Child Protection). These principles include:

  • The family is the fundamental group and environment for the protection and development of a child and should be supported to provide for each and every child (Preamble and Articles 5 and 18))
  • The state is responsible for ensuring the protection of the child and any decision to remove a child from the family must be necessary for the best interests of the child and be subject to judicial review (Article 9, 18 and 19)
  • The right of a child removed from their own family to be given special care and with particular attention to culture and community (Article 20)
  • The child and the family must be able to participate in proceedings for separation and to have their views heard (Article 9 and 12)
  • The child’s right to be heard shall be provided directly or by representative and they must be supported to be able to complain and have their views heard and considered as is appropriate for each child (Article 3, 12 and the Third Optional Protocol to the Convention)

Section 17 of the Charter of Human Rights and Responsibilities Act 2006 (Victoria) also enshrines the right of protection to families and children and that children have the same rights as adults with additional protection according to their best interests.

The process of ensuring children and young people understand their rights and can participate in decision making is integral to their protection. This process should also take into account the dynamics of adult-child relationships and the circumstances of each child. This calls for recognition of the experience (or lack of experience) of a child with authority figures and legal process and cultural and behavioural factors that can impact on language and understanding. [1]

In these circumstances, although the Commission supports the purpose of the Program as proposed, it would also encourage a more explicit commitment to promoting and supporting the rights of the child as set out in the Convention and the Charter.

Client-focused services – non-legal advocacy

Option 2

Pilot a Client Support Service, which features a team of appropriately qualified, culturally diverse, non-legal advocates to support children, young people and parents involved in child protection proceedings. The Client Support Service team would work alongside lawyers … assisting children, young people and parents in accordance with a grant of legal assistance.

Given their lack of experience or effective engagement with adult-designed and controlled decision-making processes and greater vulnerability in a range of settings, advocacy for children and young people calls for greater engagement, attention to particular barriers and additional skills.

Many children and young people have described to us:

  • feeling that they have no effective advocate in many settings
  • struggling to understand the processes that impact upon them particularly child protection and the law
  • finding it difficult to understand decisions that are made about them
  • having no sense that they have a voice.

Some children and young people do have effective relationships with others who do help them to understand these processes and decisions. These people may be workers, family members or friends. However, a great number of children and young people do not feel that they have such relationships.

For those young people without a relationship with a worker who provides this support, the model presented in Option 2 would be valuable. This is consistent with Recommendation 3 from the Commission’s report ‘as a good parent would …’[2] For those young people with an existing effective relationship with a support worker, the model should be flexible enough to work with this worker and to use other strategies such as secondary consultations, training in identifying legal issues and maintaining support for those workers. While we would see children and young people as the priority group, this flexibility should extend in appropriate circumstances to providing this support to parents and families to ensure the best service for some children.

The Commission endorses the importance of early and ongoing access to legal information (and advice) and encourages the development of alternative approaches to providing assistance. Alternative approaches could include greater use of secondary consultations with workers and community members with ongoing and developed relationships of trust with a child; greater collaboration with community partners; recognition and greater use and support for advocacy by non-legal professionals (and family and community members) and support for more child-friendly mechanisms in collaboration with those that work with children and families. Particular attention could be given to the role of Aboriginal controlled community organisations in providing more appropriate advocates for Aboriginal children and young people.

Community based supports particularly for children should build on existing relationships and skills particularly in regional settings. The provision of specialist technical legal assistance can be facilitated by flexible use of technology and networks.

The role of local advocates should be expanded to include engagement in a range of decision making settings and not limited to enabling access to support services. Specialist training and community legal education should include the skills to identify legal issues, provide advocacy and limit the need for the intervention of lawyers. An example of an alternate advocacy model is found in the multidisciplinary socio-legal defence centres (or child defence centres) supported internationally by Defence for Children International.[3]

Representation of children

Option 3

Victoria Legal Aid work with its partners to develop guidelines for the representation of children and young people, including specific guidelines for ‘best interests’ representation.

Option 4

Widen the legal aid eligibility guidelines for the representation of children to enable more children under the age of 10 to be represented.

The Commission does not support the current legislative preference for the representation of children 10 years and over. All children should be represented in child protection proceedings. It is inconsistent with recognition of the importance of early intervention and of the impact of decisions concerning care and protection over the life of a child to limit representation to older children. At present, many decisions with significant impact on children are made without review or remedy. We also note that the current guidelines which require a court order for representation mean that almost no child under 10 is represented.

A child’s experiences and observations should directly inform decisions that are made about their protection. Commission inquiries into various settings and issues have found that this approach is not consistently followed in child protection practice. Too often decisions are not adequately informed by the child’s views – including their experiences of feeling unsafe.[4]

The Commission’s view is that the representation of children should be a priority. We support the development of guidelines as proposed in Option 3. Guidelines should give priority for the direct representation of children and ensure that ‘best interests’ representation is also built on an understanding of the essential role of the participation of the child in all decisions.

Best practice in the direct representation of children should be built on the foundation of the necessary communication skills for taking informed instructions from a child. This amounts to specialist representation. In the circumstances where a lawyer representing a child does not possess these recognised skills, specialist assistance should be provided to the lawyer to assist them to obtain meaningful instructions particularly from younger children, children from Aboriginal communities and children with communication difficulties.

The representation provided to each child should recognise the importance of trust and continuity in relationships as a key element of ensuring effective communication and support. This should take into account as much as possible continuity of representation by individual lawyers.

Giving priority to children in legal representation should involve a family support approach that is collaborative and cross-disciplinary. A key early element of this approach is that it identifies and involves supportive and appropriate family and community members in communication and decision making. This family support and community based approach is particularly important for Aboriginal children and should incorporate cultural awareness and appreciation of the importance of cultural safety.

Traditional representation may not be required until a court based process is initiated. However, the critical nature of a range of administrative and bureaucratic decisions (many of which are not reviewed by a court) calls for increased access to legal assistance and advice. The role of non-legal support by community advocates and workers may ameliorate the impact of changes in representation and can be reinforced by the use of good case management in maintaining community engagement and liaison by VLA.

Supporting children in the child protection and criminal law systems

Option 5

Develop intake processes to identify children and young people at risk of long-term engagement with legal services and provide a client-focused, case-managed approach to legal representation, designed to prioritise consistency and more frequent contact between children and their lawyers.

Option 6

Develop intake processes to identify children and young people who have concurrent Children’s Court Family Division and Criminal Division matters and that the funding be structured to support high-quality, consistent representation in both divisions. This could include a global grant to enable the one lawyer assist the child or young person.

The Commission supports the development of the proposed intake processes on Options 5 and 6.

Particular attention should be given to the risk of criminalisation of behaviours of young people in residential units.[5] This is one of the key preventable pathways for children in care into the criminal justice system.

There should also be recognition of the legal needs of young people who already have children of their own and come into contact with family law processes.

Coordinated representation should be a fundamental characteristic of VLA service delivery and should be provided to children and young people affected by both the child protection and the criminal justice systems. Given the importance of trust and relationship in effective representation of children, there should be a presumption that the one lawyer will deal with the same client in different matters.