AIFS staff presentation

Brisbane, 5-7 May 2011
Child Protection in Australia and New Zealand – Issues and Challenges for Judicial Administration Conference

Child protection and family law… Joining the dots

Dr Daryl Higgins
Deputy Director (Research), Australian Institute of Family Studies

Dr Rae Kaspiew
Senior Research Fellow, Australian Institute of Family Studies

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Child Protection and Family Law… Joining the Dots
- Daryl Higgins & Rae Kaspiew
- Australian Institute of Family Studies
- AIJA Conference, Brisbane, 5-7 May 2011
Overview
- Policy and practice context
- Overview of the Australian systems:
- Intersections and Gaps
- Magellan – a case study
- Recent research and reports addressing the issues
- Concluding thoughts
Disclaimer : The views are the authors' and do not necessarily represent the views of the Institute or the Australian Government.
Key issues
- Prevalence of concerns about child safety in post-separation parenting disputes
- Concerns about lack of effectiveness of current responses
- Increasingly complex families presenting to both child protection and family law agencies/systems
Family Law Council (2002)
- " There is no greater problem today than the problems of adequately addressing child protection concerns under the Family Law Act " (p. 15)
Context of Child Protection Concerns
- In the family law context, child protection concerns arise in two key ways:
  1. where the child is alleged to be currently at risk from spending time in either parent's household (through exposure to child abuse, neglect, or family violence); and/or
  2. where concerns have arisen about the treatment of child child by either/both parents prior to separation – and this history is argued to be relevant to post-separation parenting concerns.
Allegations of family violence and child abuse in family law disputes
- AIFS Research Report No 15:
- Allegations of child abuse in:
- Allegations of child abuse also common in Family Dispute Resolution (FDR) sector (Bickerdike, 2007)
Prevalence of family violence
- AIFS Evaluation of 2006 Family Law Reforms showed Mothers' self-reports:
  - 26% physically hurt
  - 39% emotional abuse
  - 35% no violence
- Fathers' self-reports:
  - 17% physically hurt
  - 36% emotional abuse
  - 47% no violence
Kaspiew et al. 2009, Table 2.2
Child safety concerns .
AIFS Evaluation of 2006 Family Law Reforms showed re: concerns about other parent:
- Mothers' self-reports:
  - 3.6% - concerns for self
  - 9.1% - concerns for child
  - 8.4% - both themselves and their child
- Fathers' self-reports:
  - 1.6% - concerns for self
  - 12.3% - concerns for child
  - 2.6% - both themselves and their child
Kaspiew et al. 2009, Table 2.4
Policy and practice context:
- Aim: protecting children from harm in family law children cases
- Concerns:
  1. Federal family law system used as a default child protection mechanism
  2. State child protection departments used as default mechanisms for assessing harm in the family law context
Constitutional context
- States have responsibility for child protection (public law issues i.e. state intervention in family life)
- Commonwealth government has responsibility for family law issues (private disputes involving children in separated families)
Child Protection: practice context
- Highly proceduralised risk assessment processes;
- Perceived as risk 'averse' because of high level of public scrutiny;
- Increasing burden on services and limited budgets result in need to prioritise resources to seen to be most at risk
Child Protection Policy in Australia
- Investigating and responding to allegations of harm to children:
  - responsibility of each of the 8 states/territories
  - massive increases in the workload of departments over the past decade (notifications have more than tripled)
  - has been largely focused on risk-assessments, and forensically driven
  - emerging trends towards differential approaches to family support
Child abuse and neglect data
- No prevalence data in Australia
- A UK study surveyed a national random probability sample of 2,869 young people aged 18-24 years and found that, of this sample of the population:
AIHW, 2008
Headline statutory child protection activity for 1999-00 to 2006-07
- Graph: Headline statutory child protection activity for 1999-00 to 2006-07
- Holzer (2008), based on AIHW (2008) NB: Data for NSW missing for 2003-04
National child protection data snapshot
- Large increase in the number of concerns notified to child protection departments in the past decade. Child Protection Service Activity data (AIHW, 2010) show:
- These numbers have increased, whether considered in absolute terms, or in rates per 1000
- Due to workload demands, cases are prioritised, and not all notifications are investigated (e.g., 2007-08: only 56% of notifications had finalised investigations).
AIHW, 2010
Key stages of child protection system.
Four key stages:
- Notification
- Intake and initial assessment
- Investigation
- Decision - case determination
- Action – family support and/or court interventions
AIHW, 2010
Family law legislative context
- Parenting orders should:
  - Be in child best interests (FLA s65CA)
  - Maximise meaningful involvement of both parents (FLA s60B(1)(a))
  - Protect from harm from being subjected/exposed to abuse, neglect or family violence (FLA s60B(1)(b))
Family law practice context
- Most parenting disputes handled in the family dispute resolution sector
- Minority proceed to court
- In current court system, most family law disputes are heard in the FMC (i.e., 79% of applications excluding divorces and consent orders: Semple Report)
- FCoA has special case management system to deal with serious cases of sexual and physical abuse: Magellan
Key concern
- " The bulk of the work at the apex of the family law system in Australia—those cases that come to family courts for judicial determination-contain allegations of family violence and/or child abuse." (Higgins & Kaspiew, 2011, p. 8)
Overlapping legal frameworks and statutory responsibilities
- Understanding the intersection between child protection and family law
- Key agencies/systems:

Agency/system comparison

Agency/system comparison
Agency/ system	Jurisdiction Responsible	Focus	Basis of decision-making / Burden of proof
Police	State/territories	Law enforcement	Responsible for investigating alleged crimes and making the case to the DPP to lay charges if there is sufficient evidence to mean a conviction is likely
Criminal courts	State/territories	Criminal justice	Criminal Standard of proof (beyond reasonable doubt)
Child Protection Depart-ments	State/territories	Protection of children	Risk assessment to determine whether there is a significant risk of harm (based on a mix of professional judgment and actuarial decision-making frameworks)
Juvenile Courts	State/territories	Protection of children	Care and protection matters are determined on the civil standard of proof (balance of probabilities)
Family law system (FCoA and FMC)	Commonwealth	Determination of private law disputes between two parties according to the best-interests of the child	Civil standard of proof (balance of probabilities)

What is the question being asked?
- Statutory child protection departments - Are you a protective parent? Is the child currently safe? Does the situation meet the threshold for intervention?
- Children's Courts - Are you an adequate parent? What actions to take to improve parent capacity?
- Family Courts - What pattern of time spent is in children's best interests? Are they protected? Are you a "friendly parent"?
- Police - Is there sufficient evidence to press charges?
- Criminal Courts - Has alleged crime been proven?
What is not directly asked?
- Did abuse occur ?
- Is it likely to recur?
- Family courts need answers to the following questions, yet they aren't central to any of these investigations:
  - Is the child at risk of harm in the household of either parent (or other caregiver)?
  - Would the child be safe if he/she were to spend time unsupervised with the parent against whom allegations of abuse have been raised?
The legal and investigatory gap in family law / child protection issues
- Diagram: The legal and investigatory gap in family law / child protection issues
Bridging the gap: Magellan
- Co-ordinated approaches to bringing together information from each of these agencies to ensure private family law disputes have;
What is Magellan?
- The Family Court's Magellan case-management model is a world-first initiative for improving outcomes for vulnerable children and families in the family law system.
- It is an inter-agency, collaborative, judge-led approach to case-management approach for responding to allegations of sexual or serious physical abuse.
- A consortium of agencies in Victoria developed and implemented the new approach in a pilot project of 100 cases, which commenced in 1998.
- The pilot was evaluated in 2001 before the case-management approach was progressively rolled out.
What is Magellan? /…2
- The Magellan case-management pathway consists of a team of Judges, Registrars and Mediators ('Family Consultants') who handle the case from start to finish.
- Independent Children's Lawyers (ICLs) represent the interests of children.
- Significant resources (i.e., uncapped legal aid; focused report from CP Department; family report; other expert reports) are directed to the case in the early stages with an aim of resolving the case within six months.
Magellan Evaluation
- The aim of the evaluation was to examine:
  - the effectiveness of Magellan in responding to allegations of sexual abuse or serious physical abuse in parenting matters in the FCoA;
  - how Magellan is being implemented; and
  - perceptions of key stakeholders regarding its effectiveness, successful features, and any barriers to its successful implementation / improvements.
Total case duration
- From date of application to date of case outcome:
- Magellan-like cases:
  - 471 days (15.4 months)
- Magellan cases:
  - 332 days (10.9 months)
    Difference = 133 days quicker (4.6 months)
- **Magellan cases (excl. Brisbane):
  - 304 days (10.0 months)
    Difference = 167 days quicker (5.5 months)
Distribution of case duration
- Graph: Distribution of case duration
Key elements of the Magellan model
Relationship with Child Protection Departments
- Cooperation of the statutory child protection Department was essential
- Understanding separate roles:
- Importance of the "Magellan Report"
Magellan Report
- Identify history and current concerns
- Importance of clear guidelines:
Key Messages from Magellan
- Magellan matters were believed to be shorter, often resolving without judicial determination
- Magellan seen to deliver better outcomes for children and families.
- Tight case-management procedures are critical to this, particularly the role of Magellan Judges and Registrars.
- The importance placed on Magellan matters by the Court is reflected in the role that Judges play, and this was seen as one of the ways that the process gives parties a sense of procedural fairness.
- Cooperation with the statutory child protection department was seen as critical to the success of Magellan.
Key Messages from Magellan
- Fewer court events, fewer judicial officers, more frequent early settlement
- Although participants emphasised the success of Magellan, opportunities for improvements were identified, including:
- Participants suggested consideration be given to:
New research and emerging policy
- AIFS Evaluation of 2006 Family Law Reforms (Kaspiew et al. 2009)
- Australian Law Reform Commission and NSW Law Reform Commission, 2010 report: Family Violence – A National Legal Response
- Reports by Professor Richard Chilsolm (2009) and Family Law Council (2009)
- National Framework for Protecting Australia's Children
- Family Law Legislation Amendment (Family Violence and Other Measures Bill (2011)
New research and emerging policy
- Common themes:
  - Provisions of the Family Law Act widely misunderstood (shared parental responsibility != equal time, and that family violence and child abuse are exceptions
  - Fears re: orders for costs if knowingly making false statements
  - Better education and training for professionals
  - Better cooperation between family law and child protection system professionals
Joining up the dots… ?
- Federal family law agencies and state/territory child protection departments operate with:
  - Different legislative imperatives
  - Different practice questions
  - Different outcomes
Conclusion
- Recent reports have highlighted the poor fit between child protection systems and the federal family law system.
- Magellan has improved effectiveness of Court procedures, but is limited in its availability
- Empirical evidence that:
- Developments in policy create new opportunities to holistically and systematically address the gaps .
Final Report
- Report released by Family Court 16 October 2007
- Available at: www.aifs.gov.au/institute/pubs/magellan/index.html
Presentation based on:

AIFS staff presentation

Child protection and family law… Joining the dots

Slide outline

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