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Child protection change concerns

Briefs

Cite as: December 2010 84(12) LIJ, p.14

The LIV is concerned that vulnerable children could be represented by people without legal training if recommendations by the Victorian Law Reform Commission (VLRC) are adopted.

The VLRC is pushing to make Victoria’s child protection system less adversarial with recommendations contained in its review Protection Applications in the Children’s Court – Final Report, which was tabled on 5 October.

The report follows a 2009 Ombudsman review that suggested a more collaborative approach to child protection cases was necessary to ease high levels of disputation.

The VLRC report contained five options for reform that strongly emphasised alternative dispute resolution (ADR) techniques, procedural changes within the existing legal framework and system structural change.

Among the recommendations was the formation of an Office of the Children and Youth Advocate to represent children.

LIV Family Law and Collaborative Practice Sections lawyer Laura Muccitelli said while the LIV was happy with aspects of the report, such as fewer adversarial trials, children attending court if they wished and the creation of an independent statutory commissioner, there were major concerns..

She said allowing non-lawyers to represent children at conferences and changing the composition of the Children’s Court were dangerous developments.

“The LIV is not in favour of changing the composition of the Court as judicial management is imperative to serve the child’s best interests,” Ms Muccitelli said.

“The LIV opposed the establishment of a tribunal or panel containing non-lawyers to hear Children’s Court family division cases. Decisions made by the Court about whether children were placed in state care should not be made by persons who are not legally trained.”

The VLRC said the current situation where Children’s Court procedures resembled summary criminal prosecutions should be replaced by purpose-built family group conferencing to allow families a greater say in matters.

On 5 October, Attorney-General Rob Hulls said a form of family group conferencing would be introduced and the report marked the end of the state’s adversarial court system for child protection.

The VLRC favours a New Zealand conferencing model, which includes parents, extended family, a child’s representative and all support workers.

The Victorian Children’s Court receives 3000 new applications each year and the VLRC report was the 10th major review of Victoria’s child protection system since 1977.

VLRC chair Professor Neil Rees said the VLRC found a “substantial gap between how the Court’s processes were designed to operate and the realities of Children’s Court practice”.

The LIV made a submission (see http://bit.ly/dsnOUW) to the review on 1 April this year.

It argued for a greater number of judicial resolution conferences instead of dispute resolution conferences, the need for lawyers to be involved in the decision-making process and that ADR was appropriate pre-court only if parties had access to legal advice.

The LIV also advocated for legislative changes, such as the use of the less adversarial trials system (LATS) currently used in the Family Court.

To view the report, visit www.lawreform.vic.gov.au.

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