The inquiry investigated systemic problems in Victoria's child protection system. Its report features recommendations to strengthen and improve the protection and support of vulnerable young Victorians, with criticism of investigations by religious organisations into abuses of children for whom those bodies were responsible.
Volume 1 includes the Executive summary and Lists of recommendations, findings and matters for attention as well as an Implementation plan. The second volume comprises contains 23 chapters dealing with the impact of abuse and neglect, Victoria’s current system for protecting children and young people, major issues raised in submissions, a policy framework for a system to protect vulnerable children and young people, major protective system elements (eg in out-of-home care), strengthening the law protecting children and young people and realigning court processes, funding arrangements, system governance, implementation and prioritisation. Volume 3 features the appendices.
The report notes that -
The vast majority of Victoria’s children and young people live in families where they are loved, cared for and encouraged by their families. These children will be supported by their families through the highs and lows of childhood and adolescence and will grow up with the personal resources and capabilities to live independent, well-adjusted and productive lives. However, a significant number of Victoria’s children and young people are not as fortunate. Every week, nearly 60 children and young people from across Victoria are removed from their parents by the State and placed in the care of another person or organisation because there are sound reasons to believe they are at risk of significant harm.In response it recommends - The performance of the system protecting children and young people
During 2010-11, about 3,000 children and young people were placed in accommodation away from their family home. While many will return home quickly, on average, these children stay in the care of the State for about 18 months and some will move between three or more separate placements in a single year. Over the past decade, the number of Victorian children and young people in out-of-home care has increased by 44 per cent – an annual growth of around 4 per cent a year – bringing the total number of children and young people in care to 5,700 at June 2011. Some children are never able to return to their parents’ care.
People across Victoria felt so concerned about the welfare of children that they made about 55,000 reports to the Victorian Department of Human Services in 2010–11. Of these 55,000 reports, nearly 14,000 were considered sufficiently serious by the Department of Human Services that they were formally investigated. These investigations found that for 7,600 of these cases, the concerns about the safety or welfare of these children were well founded. If current rates continue, one in four children born in Victoria in 2011 will be reported to the Department of Human Services by their 18th birthday.
Of great concern is that Aboriginal children and young people are significantly over-represented in Victoria’s system for protecting children. While Aboriginal children and young people make up 1.2 per cent of the Victorian population,
they constitute around 16 per cent of children and young people on care and protection orders and are nine times more likely to be in State care than others in the general population.
Even though in 2010–11 Victoria will spend $533 million on Victoria’s statutory child protection, specialist support services and placement services and 1,200 child protection practitioners are employed in Victoria to keep children safe, young people known to the Department of Human Services still suffer significant harm or die. Over the past decade, this expenditure has increased at a faster rate than government expenditure generally. There have also been substantial investments in child and family welfare services (around $170 million in 2010–11).
The Inquiry heard many distressing experiences from and about individuals who have had personal experience with Victoria’s statutory child protection services. The Inquiry was deeply moved by individual accounts that demonstrated how child abuse and neglect, and involvement with statutory child protection, can have devastating long term effects on people, even many years after they have left the system. These experiences have influenced many of the recommendations in this Report and moved the Inquiry to make explicit and reiterate what the Inquiry believes should be a fundamental truth – that Victoria has a responsibility to protect vulnerable children and young people. The Inquiry also believes that where child abuse or neglect has occurred, the government should provide a response that ameliorates the effects of such trauma and do all in its power to ensure it does not cause further harm.
Estimates prepared by Deloitte Access Economics for the Inquiry indicate that the total lifetime financial costs of child abuse and neglect that occurred in Victoria for the first time in 2009-10 is between $1.6 and $1.9 billion. Each individual case of child abuse and neglect continues to create costs for the community long after the abuse stops, or the neglect is addressed. This is because child abuse and neglect increases the costs of health care and education, housing and supported accommodation assistance, court-related matters and crime, and leads to significant
productivity losses.
The Inquiry consulted widely and sought input across the whole of Victoria through 18 Public Sittings covering 16 different locations, hearing verbal submissions from around 130 organisations and individuals. More than 220 written submissions were made to the Inquiry from a diverse range of individuals and organisations. Consultation sessions were conducted with children and young people, Aboriginal communities, culturally and linguistically diverse community service workers and people working in Victoria’s system for protecting children. A Reference Group advised the Inquiry on policy issues and stakeholder engagement.
1. The Government should consider, as a matter of priority, investing resources in:
• The information management systems spanning vulnerable families and children including the statutory child protection system to incorporate information on the major demographic characteristics (including culturally and linguistically diverse and Aboriginal status) and the presenting issues of vulnerable families and children;A policy framework for a system to protect vulnerable children and young people
• The regular publication of information on the characteristics of families, children and young people who have multiple interactions with the statutory child protection system to facilitate research and transparency about the performance of the system; and
• Conducting cost-benefit and feasibility assessments, including the possible governance arrangements of:– instituting cohort or longitudinal surveys of families and children following their involvement with statutory child protection services and, over time, related services for vulnerable children and families; and
– the approach developed in Western Australia of linking de-identified health data to de-identified data from the departments of Child Protection, Education, Disability Services and Corrective Services and Housing & Community, as a means of identifying for policy and program development purposes, the factors linked with child protection reports and the nature and dimensions of the subsequent experiences and issues.
2. The Government should develop and adopt a whole-of-government Vulnerable Children and Families Strategy. The objective of the strategy will be to establish a comprehensive government and community approach for improving Victoria’s performance in responding to Victoria’s vulnerable children and families at risk. The key elements are:
• A definition of vulnerable children and young people;3. Performance against the objectives set out in a Vulnerable Children & Families Strategy, including information on the performance of government departments and statutory child protection services should be published regularly through The state of Victoria’s children report.
• Identified whole-of-government objectives, including specific roles and responsibilities for departments, both individually and collectively, in addressing vulnerability in children and young people;
• A performance framework, or list of the accountabilities, performance measures or indicators to be used by government to measure the efficiency and effectiveness of the strategy; and
• Accountability structures that set out appropriate oversight for monitoring the implementation of the strategy by departments and agencies, including reporting on such implementation to government and the public.
4. Area-based policy and program design and delivery should be used to address vulnerability and protect Victoria’s vulnerable children and young people. In particular, an area-based approach should be adopted for assessing outcomes specified in a Vulnerable Children and Families Strategy and for reporting on progress against performance indicators.
Preventing child abuse and neglect
5. In preparing the whole-of-government Victorian Alcohol & Drug Strategy, the Department of Health should consider the impact of alcohol and drug abuse on the safety and wellbeing of children in families where parents misuse substances.
6. The Department of Education & Early Childhood Development should implement strategies designed to encourage greater participation by the families of vulnerable children in universal services
7. The Government, through the Department of Education & Early Childhood Development, should:
• Examine the capacity of local governments in low socioeconomic status areas to provide appropriate Maternal & Child Health and Enhanced Maternal & Child Health services, consistent with the concentration of vulnerable children and families, particularly as the current funding formula for Maternal & Child Health is based on a 50% contribution by local government; andThe increased investment in maternal and child health and enhanced maternal and child health should focus on:
• Increase investment and appropriate infrastructure in universal services including maternal and child health, kindergarten and community playgroups, to communities that have the highest concentration of vulnerable children and families to increase the participation of vulnerable children in these services.
• Enhanced support to families whose unborn babies are assessed as vulnerable to abuse or neglect, especially as a result of pre-birth reports; and8. The Department of Health should develop and lead a consistent statewide approach for antenatal psychosocial assessment so that problems such as family violence, parental mental illness and substance misuse in pregnancy can be more effectively addressed.
• A more intensive program of outreach to families of vulnerable children who do not attend maternal and child health checks, particularly in the first 12 months of life.
9. The Department of Education & Early Childhood Development, in partnership with the Department of Human Services, should develop a universal, evidence based parenting information and support program to be delivered in communities with high concentrations of vulnerable children and families, at key ages and stages across the 0 to 17 age bracket.
10. The Department of Education and Early Childhood Development should develop a wide-ranging education and information campaign for parents and caregivers of all school-aged children on the prevention of child sexual abuse.
Early intervention
11. The Department of Education and Early Childhood Development should implement the recommendations from the Auditor-General’s report on early childhood services by the end of 2012.
12. The Government should fund the expansion of early parenting centres to provide services to a greater range of vulnerable families and to improve access to families living in outer Melbourne, regional and rural areas.
13. The Department of Education & Early Childhood Development should improve its capacity to respond to the needs of vulnerable children and young people by:
• Undertaking a comprehensive evaluation of whether existing school-based programs are meeting the needs of vulnerable children and young people; and14. The Department of Health should amend the framework for monitoring the performance of health services to hold services accountable for support they provide to vulnerable children and families, consistent with their responsibilities under the recommended whole-of-government Vulnerable Children and Families Strategy.
• Introducing a population health and wellbeing questionnaire of students as they make the transition from childhood to adolescence, and publishing the outcomes in The state of Victoria’s children report.
15. The Government should enhance its capacity to identify and respond to vulnerable children and young people by:
• Evaluating the outcomes of pre-birth reports to statutory child protection and pre-birth responses to support pregnant women;16. As part of a strategy to improve services for vulnerable children and families in need, the Department of Human Services should strengthen area-based planning and coordination of family services and accountability arrangements under Child FIRST by:
• Providing funding to support universal early childhood services, schools, health services (including General Practitioners) and specialist adult services to identify and respond to the full range of risk factors for child abuse and neglect. This should include increased investment in the Department of Health’s Vulnerable Children’s Program; and
• Providing funding to support specialist adult services to develop family-sensitive practices, commencing with an audit of practices by specialist adult services that identify and respond to the needs of any children of parents being treated, prioritising drug and alcohol services
• Establishing Area Reference Committees to oversee the monitoring, planning and coordination of services and management of operational issues within each catchment. The Committees would be co-chaired by the Department of Human Services area manager and the chief executive officer or area manager of the lead community service organisation, and comprise a representative of each community service organisation in17. The Government should expand upon the existing local Alliances of family services and statutory child protection services to develop broader Vulnerable Child and Family Service Networks – catchment-based networks of services for vulnerable children and families, including statutory child protection, family services, specialist adult services, health services and enhanced universal services.
the local Alliance; and
• Ensuring the funding arrangements for Alliance lead agencies clearly specify the agencies’ responsibilities for receiving referrals, undertaking an initial assessment of clients’ needs, and facilitating an appropriate service response, with appropriate performance indicators.
18. The Government should ensure the legislation governing relevant services establishes the responsibilities of services to act in the best interests of children and young people, and to prioritise service delivery to vulnerable children, young people and their families. In addition, health services and specialist adult services should be required to adopt family-sensitive practice guidelines.
Meeting the needs of children and young people in the statutory system
19. Following adoption of the Child FIRST governance changes and using a piloted approach, intake functions carried out by the Department of Human Services and by Child FIRST should be physically co-located on an area basis throughout Victoria. Statutory child protection intake should remain a separate process to child and family support services intake, but there should be an increased focus, particularly with common clients, on improving collaboration between statutory child protection and family support services and greater joint decision making about risks presenting to vulnerable children and young people.
Following implementation and evaluation of co-located intake throughout Victoria, and provided the key challenges and risks have been addressed appropriately, the Department of Human Services should aim to move towards a consolidated intake model where Child FIRST and statutory child protection intake processes are combined.
20. The Department of Human Services should introduce differentiated pathways as part of the statutory child protection response, with some increased case management by community service organisations.
The two pathways that should be adopted immediately should involve first-time contact families and the use of multidisciplinary centres to respond to suspected child sexual abuse victims. Following collaboration between the Department of Human Services and key stakeholders, two additional pathways should be adopted to address the needs of families that have repeated contact with the Department of Human Services and families experiencing chronic and entrenched vulnerability.
21. The Department of Human Services should simplify case planning processes and improve collaboration and pathways between statutory child protection services and other services, particularly family violence and disability services.
The Department of Human Services should increase case conferencing with other disciplines and services related to child protection issues including housing, health, education, drug and alcohol services and particularly for family violence and disability services. In relation to family violence, consideration should be given to the evidence base for establishing differentiated pathways that lead to improved outcomes along the lines of those pathways discussed in Recommendation 20. The protocol between statutory child protection and disability services should be strengthened, with more explicit statements around the roles and responsibilities of the different service agencies.
22. The Department of Human Services should simplify practice guidance and instructions for child protection practitioners.
The Department of Human Services should reduce practice complexity by consolidating and simplifying the number of standards, guidelines, rules and instructions that child protection practitioners must follow. This process should investigate and apply learnings from comparatively high-risk sectors such as health or aviation in the approach taken to risk management and adverse events.
23. The Department of Human Services should identify and remove barriers to achieving the most appropriate and timely form of permanent placements for children unable to be reunited with their biological family or to be permanently placed with suitable members of the extended family by:
• Seeking parental consent to adoption, and where given, placing the child in a suitable adoptive family;Meeting the needs of children and young people in out-of-home care
• Pursuing legal action to seek the dispensation of parental consent to adoption for children whose
circumstances make them eligible under section 43 of the Adoption Act 1984;
• Resolving the inconsistency between practical requirements for child protection practitioners to simultaneously plan for reunification while contemplating permanent care arrangements; and
• Reviewing the situation of every child in care who is approaching the stability timeframes as outlined in the Children, Youth & Families Act 2005, to determine whether an application for a permanent care order should be made. Where it is deemed not appropriate to do so (for example, where a child’s stable foster placement would be disrupted), the decision not to make application for a permanent care order should be endorsed at a senior level.
24. The Department of Human Services and community service organisations should continue to support the Who Am I Project on out-of-home care record-keeping to enable children and young people to access all records of relevance and, as appropriate, be provided with a personal record when leaving care.
25. The Government should, as a matter of priority, establish a comprehensive five year plan for Victoria’s out-of-home care system based on the goal, over time, of the growth in the number of Victorian children and young people in care being in line with the overall growth in Victorian children and young people and the objective of improving the stability, quality and outcomes of out-of-home care placements. The key elements of the plan should include:
• Significant expansion in placement prevention initiatives to divert children from out-of-home care. In particular, increased investment in placement diversion and re-unification initiatives, when the safety of the child has been professionally assessed, involving intensive and in-home family support and other services for key groups such as families of first-time infants and young children;Given the underlying trends and quality issues, implementation of this plan will require significant investment.
• More timely permanent care where reunification is not viable;
• All children and young people entering out-of-home care undergo comprehensive health, wellbeing and education assessments;
• All children in out-of-home care receive appropriate therapeutic care, education and other services;
• Progressive adoption of client-based funding to facilitate the development of individual and innovative responses to the needs of child and young people who have been the subject of abuse and neglect;
• The introduction over time of a professional carer model to provide improved and sustained support for children and young people with a focus on lowering the use of residential care;
• Significant investment in the funding and support arrangements for:– home-based care including a common service and funding approach across foster care, kinship and permanent care and improved carer training, support and advocacy arrangements;• The adoption of an area-based approach to the planning, delivery and monitoring of out-of-home care services and outcomes involving the Department of Human Services, community service organisations and other relevant agencies.
– residential care including mandating training and skill requirements for residential and other salaried care workers (i.e. the proposed professional care model); and
26. To provide for the clear and transparent development of a client-based funding, the Government should request the Essential Services Commission to advise on:
• The design of a client-based funding approach for out-of-home care in Victoria; and27. The Victorian Government should, as a matter of priority, give further detailed consideration to the professional carer model and associated arrangements and request that the Commonwealth Government address and resolve, as a matter of priority, significant national barriers associated with establishing this new category of worker including industrial relations and taxation arrangements.
• The unit funding of services for children and young people placed in care.
The experiences of children and young people when leaving out-of-home care
28. The Department of Human Services should collect regular information on the experiences of young people leaving care and their access to leaving care and post-care services and report the initial findings to the Minister in 2012 and thereafter on an annual basis to the proposed Commission for Children & Young People.
29. The Department of Human Services should have the capacity, including funding capacity, to extend the current home-based care and residential care out-of-home placement and support arrangements, on a voluntary and needs basis, for individual young people beyond 18 years of age.
30. The Department of Human Services should:
• Ensure all leaving care plans identify stable initial accommodation options and that a ‘no discharge to31. The Government should consider, in the medium term, the availability of post-care support and periodic followup being extended, on a needs basis, until a young person reaches the age of 25 years.
temporary and inappropriate accommodation policy’ is adopted;
• Review the levels and range of leaving and post-care financial assistance provided to care leavers as part of the development and implementation of the proposed Leaving Care Employment and Education Access Program, including appropriate representations to the Commonwealth Government on their current employment and education assistance programs; and
• Assess the impact of the current leaving care services and programs, as a matter of priority, to determine whether the necessary access to, and integration of, post-care support across the full range of health, housing and other services is being achieved.
Meeting the needs of Aboriginal children and young people
32. More detailed monitoring should be developed for the Victorian Indigenous Affairs Framework that provides reports on outcomes at the operational level regarding key areas of disadvantage (such as education attainment or family violence) and in specific localities with high prevalence rates of risk factors for abuse and neglect.
33. Aboriginal cultural competence should be a feature of the Department of Human Services standards for community service organisations. Further, the performance of agencies in relation to cultural competence should be an area of specific focus in the next cycle of community service organisation registration.
34. The Government should expand the use and effectiveness of culturally competent approaches within integrated family services and statutory child protection services through the Department of Human Services by:
• Establishing funding arrangements with the Aboriginal Child Specialist Advice and Support Service that enable cultural advice to be provided across the full range of statutory child protection activities;35. As part of the creation of a Commission for Children and Young People, an Aboriginal Children’s Commissioner or Deputy Commissioner should be created to monitor, measure and report publicly on progress against objectives for vulnerable Aboriginal children and young people across all areas of government activity, including where government provides resources for non-government activities.
• Using the Aboriginal Family Decision Making program as the preferred decision making process if an Aboriginal child in statutory child protection services is substantiated as having suffered abuse or neglect;
• Expanding family preservation and restoration programs so they are available to Aboriginal families in rural and regional areas with significant Aboriginal populations;
• Expanding Aboriginal kinship care support to provide support to all Aboriginal kinship carers; and
• Expanding Aboriginal family support programs so they are available to Aboriginal families in areas with significant Aboriginal populations.
36. The Department of Human Services should develop a comprehensive 10 year plan to delegate the care and control of Aboriginal children removed from their families to Aboriginal communities. This would include:
• Amending section 18 of the Children, Youth & Families Act 2005 to reflect Aboriginal community decision making processes and address current legislative limitations regarding implementation;The proposed Aboriginal Commissioner or Deputy Commissioner for children and young people should report on performance against this plan.
• Developing a sustainable funding model to support transfer of guardianship to Aboriginal communities that recognises the cost of establishing an alternative guardianship pathway. These arrangements would initially be on a small scale and require access to significant legal advice, legal representation, practice advice, specialist assessments and therapeutic treatment;
• Developing a statewide plan to transfer existing out-of-home care placements for Aboriginal children and young people from mainstream agencies to Aboriginal community controlled organisations and guide future resource allocation (with performance/registration caveats and on an area basis);
• Providing incentive funds for Aboriginal community controlled organisations to develop innovative partnership arrangements with mainstream providers delivering out-of-home care services to Aboriginal children to connect them to their culture;
• Targeting Aboriginal community controlled organisations capacity building to these activities, that is, guardianship, cultural connection and provision of out-of-home care services; and
• Providing increased training opportunities for Aboriginal community controlled organisation staff to improve skills in child and family welfare.
Meeting the needs of children and young people from culturally and linguistically diverse communities
37. To improve knowledge and data on vulnerable children of culturally and linguistically diverse backgrounds so that the appropriateness of current service provision can be considered:
• The Department of Human Services should collect data to record and track children and young people of culturally and linguistically diverse backgrounds who are involved with the child protection system, and the family services sector; and38. The Victorian Government, through the Council of Australian Governments, should seek inclusion of the needs of recently arrived children and families of culturally and linguistically diverse backgrounds in the National Framework for Protecting Australia’s Children 2009-2020, in particular:
• The Department of Education & Early Childhood Development should include data on the experiences of vulnerable children and young people of culturally and linguistically diverse backgrounds (including in Victoria’s system for protection children) in The State of Victoria’s Children report.
• The need to provide advice and information about Australian laws and norms regarding the rights and responsibilities of children and parents; andStrengthening the law protecting children and young people
• Appropriate resettlement services for refugees to prevent abuse and neglect of refugee children.
39. Victoria Police should change the brief authorisation process for allegations of child physical assault so that authorisation is conducted by a specialist senior officer.
40. The Department of Justice should lead the development of a new body of data in relation to criminal investigation of allegations of child physical and sexual abuse, and in particular the flow of reports from the Department of Human Services to Victoria Police. Victoria Police, the Office of Public Prosecutions, the Department of Human Services and the courts should work with the Department of Justice to identify areas where data collection practices could be improved.
41. The best interests principles set out in section 10 of the Children, Youth and Families Act 2005 should be amended to include, as section 10(3)(a), ‘the need to protect the child from the crimes of physical abuse and sexual abuse’.
42. The following Acts should be amended to ensure that service providers assisting adults also have a clear responsibility to the children of their clients:
• Disability Act 2006;43. The Children, Youth and Families Act 2005 should be amended to address the following issues:
• Education and Training Reform Act 2006;
• Health Services Act 1988;
• Housing Act 1983;
• Mental Health Act 1986; and
• Severe Substance Dependence Treatment Act 2010.
• Section 215(1)(c) that requires the Family Division of the Children’s Court to consider evidence on the ‘balance of probabilities’ should be amended to expressly override the considerations in section 140(2) of the Evidence Act 2008 and to disapply the Briginshaw qualification that requires a court to take into account the nature of the subject matter of the proceeding and the gravity of the facts alleged;44. The Victorian Government should progressively gazette those professions listed in sections 182(1)(f) - (k) of the Children, Youth and Families Act 2005 that are not yet mandated, beginning with child care workers. In gazetting these groups, amendments will be required to the Children, Youth and Families Act 2005 and to the Children’s Services Act 1996 to ensure that only licensed proprietors of, and qualified employees who are managers or supervisors of, a children’s service facility that is a long day care centre, are the subject of the reporting duty.
• The definition of ‘child’ in section 3 should be amended to make it possible for protection applications in respect of any child under the age of 18 years; and
• Out dated terms in the Children, Youth & Families Act 2005 associating child protection with criminal law should be modernised and consideration should also be given to using terms consistent with the Family Law Act 1975. This includes: substituting the term ‘emergency removal order’ for ‘warrants’; the term ‘protection application by emergency removal’ for ‘protection application by safe custody’; and the word ‘contact’ for ‘access’ when describing contact between a child and a parent or other person significant in the child’s life.
45. The Department of Human Services should develop and implement a training program and an evaluation strategy for mandatory reporting to enable a body of data to be established for future reference. This should be developed and implemented in consultation with the representative bodies or associations for each mandated occupational group.
46. The Victorian Government should obtain the agreement of all jurisdictions, through the Council of Australian Governments or the Community and Disability Services Ministers’ Conference, to undertake a national evaluation of mandatory reporting schemes with a view to identifying opportunities to harmonise the various statutory regimes.
47. The Crimes Act 1958 (Vic) should be amended to create a separate reporting duty where there is a reasonable suspicion a child or young person who is under 18 is being, or has been, physically or sexually abused by an individual within a religious or spiritual organisation. The duty should extend to:
• A minister of religion; andAn exemption for information received during the rite of confession should be made. A failure to report should attract a suitable penalty having regard to section 326 of the Crimes Act 1958 and section 493 of the Children, Youth and Families Act 2005.
• A person who holds an office within, is employed by, is a member of, or a volunteer of a religious or spiritual organisation that provides services to, or has regular contact with, children and young people.
48. A formal investigation should be conducted into the processes by which religious organisations respond to the criminal abuse of children by religious personnel within their organisations. Such an investigation should possess the powers to compel the elicitation of witness evidence and of documentary and electronic evidence.
49. Section 146 of the Family Violence Protection Act 2008 should be extended to permit the Children’s Court to exercise jurisdiction under that Act when a child who is the subject of a child protection application is a child of ‘the affected family member’ or ‘the protected person’.
50. Sections 182-186 of the Serious Sex Offenders (Detention and Supervision) Act 2009, which provide for the making of supression orders, should be repealed (Recommended by majority).
51. The Victorian Government should, consistent with other Australian jurisdictions, enact an internet grooming offence.
52. A national study should be undertaken to improve current knowledge and understanding of the causes of filicide and the behavioural signs preceding filicide. Such a study could be undertaken by a research body such as the Australian Institute of Criminology.
Realigning court processes to meet the needs of children and young people
53. The Children, Youth and Families Act 2005 should be amended to provide that:
• A child named on a protection application should have the formal status of a party to the proceedings;54. The Victorian Government should develop guidelines to assist the court, tribunal, or the independent children’s lawyer to determine whether the child is capable of giving direct instructions and to provide criteria by which the presumption of capacity can be rebutted.
• A child who is under 10 years of age is presumed not to be capable of providing instructions unless shown otherwise and a child who is 10 years and over is presumed capable of providing instructions unless shown otherwise;
• A child who is not capable of providing instructions should be represented by an independent lawyer on a ‘best interests’ basis; and
• Other than in exceptional circumstances, a child is not required to attend at any stage of the court process in protection proceedings unless the child has expressed a wish to be present in court and has the capacity to understand the process.
55. The Children’s Court should be resourced to decentralise the Family Division by offering more sitting days at Magistrates’ Courts or in other customised facilities in those Department of Human Services regions with high demand. Existing court facilities should be adapted as appropriate to meet the needs of children and their families.
56. The Children’s Court should develop a case docketing system that will assign one judicial officer to oversee one protection matter from commencement to end. In order to evaluate the effectiveness of the system, the system should be piloted at an appropriate court location. The Department of Justice should support the Children’s Court to establish the system.
57. The Children’s Court should be empowered under the Children, Youth and Families Act 2005 to conduct hearings similar to the Less Adversarial Trial model used by the Family Court under Division 12A of the Commonwealth Family Law Act 1975.
58. Appropriate training in infant and child development, child abuse and neglect, trauma, and child interviewing techniques should be developed and provided to lawyers practising in the Children’s Court jurisdiction and in the Victorian Civil & Administrative Tribunal, having regard to the training offered to independent children’s lawyers in the family law jurisdiction. This training should be a prerequisite for any lawyer seeking to represent a child on a direct representation or best-interests basis in proceedings before the Children’s Court and should be an accredited course. Appropriate education should be provided to judicial officers exercising the jurisdiction of the Children’s Court and members exercising the jurisdiction of the Victorian Civil and Administrative Tribunal. The Victorian Government should consult with the relevant professional organisations and also seek the assistance of the Judicial College of Victoria in developing an appropriate professional education program.
59. The Victorian Government Solicitor’s Office should represent the Department of Human Services in all child protection proceedings in the Melbourne Children’s Court and other metropolitan and regional Children’s Court sittings and at the Victorian Civil and Administrative Tribunal. Department of Human Services lawyers should represent the department at the pre-court conferencing stage.
60. Protection concerns should be resolved as early as possible using a collaborative problem-solving approach with a child-centred focus and minimising where possible, the need for parties to go to Court. This means that:
• The Department of Human Services should, where appropriate, use voluntary Family Group Conferencing as a matter of practice to prevent matters from reaching the protection application stage;61. Victoria Legal Aid should implement fee penalties for lawyers who fail to take adequate steps to ensure their clients’ attendance at a New Model Conference and lawyers who repeatedly fail to do so should not be engaged by Victoria Legal Aid. This should also be addressed in the code of conduct being proposed for practitioners in 2012.
• Where a matter has reached the protection application stage, parties must try to resolve the protective concern, where appropriate, through a statutorily mandated Child Safety Conference set out in the Children, Youth and Families Act 2005; and
• Where a matter is before the Children’s Court, parties should, where appropriate, go through a New Model Conference and the Children’s Court should be supported to implement this model of conferencing across the state.
62. The Children’s Court should establish specialist Sexual Abuse and Koori lists in the Family Division. The Children’s Court should be resourced to create and implement these lists as a matter of priority. To ensure these lists are suitable for implementation across the state, a pilot could be run in the Melbourne Children’s Court or another suitable court location.
63. The current scheme of protective orders under the Children, Youth and Families Act 2005 should be simplified. This can be achieved by reviewing the scope and objectives of each order and their current utility. Consideration should be given to:
• Removing Custody to Third Party Orders as a category of order from the Children, Youth and Families Act 2005;64. A specialist Child Protection List should be created in the Victorian Civil and Administrative Tribunal in order to hear any reviews of decisions by the Department of Human Services on conditions. The Victorian Civil and Administrative Tribunal should be resourced to ensure that the members who would determine disputes within that specialist list have appropriate qualifications and expertise in child abuse and neglect and child health and wellbeing. The current legal aid guidelines should be amended to enable parties who seek a review of decisions by the Department of Human Services at the Victorian Civil and Administrative Tribunal to be eligible to obtain legal aid representation without requiring special consideration.
• Removing Temporary Assessment Orders as a category of order from the Children, Youth and Families Act
2005;
• Creating a general ‘Interim Order’ which could incorporate the current functions of an Interim
Accommodation Order and a Temporary Assessment Order;
• Renaming ‘Interim Protection Order’ as either a ‘Temporary Supervision Order’ or ‘Temporary Care Order’; and
• Consolidating the current range of protection orders into categories of ‘Interim’ and ‘Final’ orders and into categories of ‘Care’ and ‘Supervision’ orders while maintaining the range of purposes that the various orders currently serve.
65. The Children, Youth and Families Act 2005 should be amended to confirm the status of the Children’s Court as a court of record. The Children’s Court should be appropriately resourced to enable decisions to be published on the Children’s Court’s website in de-identified form. Transcripts should also be made available to the public in de-identified form.
66. A new Children’s Court of Victoria Act should be created and that Act should contain the current provisions in the Children, Youth and Families Act 2005 relating to the Children’s Court, appropriately modified. The Children, Youth and Families Act 2005 should be revised consequent upon removal of the provisions relating to the Children’s Court.
A workforce that delivers quality services
67. The Government should establish a child and family welfare sector training body to oversee development of an industry-wide workforce education and development strategy. This strategy should focus on consolidating the number of separate training budgets and strategies relating to child protection and family services. This body should focus on:
• Developing the professionalism of the sector;The training body should be established as a public entity, with dedicated funding and staffing resources, and governed by a board drawn from the government and non-government sector. It should be led by an independent chair with expertise related to the professional education and training needs of the sector.
• Providing opportunities for continuing professional education including training and career path opportunities for workers entering at the Child Protection Worker-1 level;
• Addressing the education and training needs of the out-of-home care sector including carers;
• Overseeing and evaluating current training and development efforts, with an initial emphasis on assessing the adequacy of the Beginning Practice training offered to new child protection workers;
• Ensuring relevant training is consistent with national training frameworks and appropriately accredited;
• Identifying opportunities for providing combined training to government child protection workers, the community sector workforce and other professions;
• Coordinating the delivery of internal Department of Human Services courses;
• Procurement of other courses from external providers; and
• Collaborating with professional bodies and universities in disciplines that interact with vulnerable children to develop curriculum content relevant to the prevention of and response to child abuse and neglect.
68. The Department of Human Services should improve the cultural competence of integrated family services and statutory child protection services, including through:
• Applying leadership accountability for culturally competent services and client satisfaction at regional service delivery level through performance agreements;Community sector capacity
• Requiring cultural competence to be a component of all training;
• Providing culturally appropriate training, assistance and support to carers of children and young people from culturally and linguistically diverse backgrounds in the out-of-home care system;
• Encouraging local child and family services to draw links with relevant culturally and linguistically diverse communities as part of area-based planning reforms;
• Recruitment strategies to attract suitable candidates from Aboriginal and culturally and linguistically diverse backgrounds into child protection including through the use of scholarship schemes to undertake relevant tertiary-level training; and
• Exploring staff exchange and other joint learning programs on an area basis to build knowledge and respect for Aboriginal culture.
69. The future relationship between the Department of Human Services and community service organisations should be based on a model where:
• The Victorian Government is responsible for the overall policy leadership and accountability for the structure and performance of the child, youth and family support and service system; and70. The Department of Human Services should review and strengthen over time the governance and performance requirements of community service organisations providing key services to vulnerable children and their families, while also playing a proactive facilitation and support role in community services sector organisational development.
• The capacities and service delivery roles of community service organisations for the provision of vulnerable children and families are reflected in collaborative service system planning and performance monitoring at a regional and area level.
71. The Department of Human Services should:
• Consult with the community services sector on the implications of the future system and service directions outlined in this Report for the future structure of service provision and requirements of community service organisations; andCourt clinical services
• Establish one-off funding and other arrangements to facilitate the enhancement and adjustment of community service organisations.
72. Section 562(4)(a) of the Children, Youth and Families Act 2005, which confers a discretion on the Children’s Court to not release all or part of a clinical report to the Department of Human Services if satisfied that the release of the report could cause significant psychological harm to a child, should be repealed.
73. The Children, Youth & Families Act 2005 should be amended to:
• Empower the clinical service provider to provide a report at the request of the Children’s Court, or at the request of the Victorian Civil and Administrative Tribunal, or at the request of the parties to the proceedings;74. The scope, governance and oversight of the provision of clinical services in the statutory child protection system should be reformed:
• Prohibit the clinical service provider from making any disposition recommendations in its report;
• Enable the Department of Human Services to release clinic reports to carers or case managers who have a direct involvement with the child or young person subject to appropriate safeguards around the use and dissemination of those reports; and
• Require a clinical assessment to take into account information provided to the clinical assessor by the parties, particularly where the clinical assessor is unable to assess the child, young person or the family within their home environment.
• As an immediate priority, the current Children’s Court Clinic should be abolished and re-established as an administrative unit within the Department of Health; and75. The Government should implement the following legislative and administrative changes to support the recommended reform of clinical services.
• In the medium to long term, the administrative unit should be replaced by a statutory clinical services board that will oversee service provision by a panel of providers. The parties to protection applications, or the Children’s Court or the Victorian Civil and Administrative Tribunal, should be able to use a panel clinical service provider to provide a clinic report.
Scope and governance
The Children, Youth and Families Act 2005 should be amended to:
• Set out the new statutory board’s and clinical service provider’s objectives and tying these objectives, where appropriate, to the best interest principles in the Act;Funding arrangements
• Define the type of clinical services to be provided within the statutory child protection system and the services to be provided within the criminal justice system; and
• Require the statutory board to publish an annual report.
Clinic access and environment in the immediate term
• The administrative unit should be relocated from the Children’s Court, but the Government should ensure the Court still has access to on-site counselling and support services to deal with children, youth, and families who may be experiencing acute stress in the court environment; and
• Clinical services should be decentralised as a priority to ensure the needs of children, young people and their families are met across Victoria, as outlined in the 2011 report on the Children’s Court Clinic prepared for the Department of Justice.
Resourcing of the Clinic in the immediate term
• The administrative unit should be resourced to: expand the current pool of assessors available to the Clinic; provide the proper level of remuneration to both permanent and sessional clinicians commensurate with their professional expertise; implement the process and quality assurance reforms as recommended in the 2011 report on the Children’s Court Clinic prepared for the Department of Justice; and provide therapeutic treatment services, where appropriate, for children, young people and their families by agreement of the parties, or at the request of the Court, or the Victorian Civil and Administrative Tribunal; and
• The Government should, in consultation with the new statutory board, ensure the new administrative unit is properly funded and resourced to provide the necessary services to meet its statutory objectives with a view to establishing a panel of clinical service providers in the medium to long term.
76. Future funding of child protection and family services should recognise and anticipate the underlying growth in demand in future budget processes for statutory child protection, out-of-home care and family services.
77. Funding for child protection and family services should be distributed in accordance with an area-based approach and according to a common methodology. The Department of Human Services should develop this methodology so that funding is distributed on an equitable basis to the areas that need it most. The methodology should take into account:
• The population of children in a region;The method should be able to be regularly updated and should be incorporated into future system planning.
•The level of vulnerability of these children, including the Aboriginal population; and
• Factors that increase the cost of service delivery in regions, such as remoteness and the geographic size of the area.
78. The Department of Human Services should review the list of individual placement and support, and community and family services activities provided by community service organisations. The number of these activities and their funding arrangements should be consolidated as part of adopting a more client-focused approach based on broader service types.
79. The Government should adopt an explicit policy of fully funding child protection and family services delivered through community service organisations, including provision for infrastructure and other relevant indirect costs. On an ongoing basis, there should also be a greater level of independent oversight of the Government’s role as the sole purchaser of services delivered through community service organisations. The Essential Services Commission should be given an ongoing role to periodically determine the appropriate prices for child protection and family services that are delivered through community service organisations.
The role of government agencies
80. The Government should establish a Children’s Services Committee of Cabinet comprising the minsters responsible for community services, children, education, health, community development and justice to oversee:
• The development and implementation of the whole-of-government Vulnerable Children and Families Strategy;81. The Government should amend relevant legislation to provide that the Secretaries of the Department of Education & Early Childhood Development and the Department of Health are responsible for the education and health outcomes, respectively, of children and young people in State care, with responsibility for these services under the Children Youth & Families Act 2005 being removed from the Secretary of the Department of Human Services.
• The coordination of the service delivery by government agencies, particularly to vulnerable children and their families; and
• Holding government agencies accountable for their delivery of services with regard to vulnerable children.
82. Government performance against the whole-of-government Vulnerable Children and Families Strategy should be reported on by the Commission for Children and Young People.
83. The Child Wellbeing & Safety Act 2005 should be amended to give the Children’s Services Coordination Board greater operational responsibility for coordinating policy, programs and services that affect children and young people. Activities would include:
• Overseeing implementation by government agencies of the Vulnerable Children and Families Strategy and reporting on this to the Children’s Services Committee of Cabinet;
• Proactively fostering the development of local area partnerships, through the regions and Regional Management Forums, to assist in the coordination and delivery of area-based policies and services to address the needs of vulnerable children, including structuring and reporting on area-based performance indicators;
• Proposing an annual work program for approval the Cabinet Committee;
• Reporting annually on activities and achievement; and
• Functioning as a source of advice on budgetary matters regarding vulnerable children.
84. The Government should strengthen and clarify the role of the Victorian Children’s Council by:
• Requiring the development of an annual work plan to be signed off by the Premier;Further, the Children Youth and Families Act 2005 should be amended to remove the Child Safety Commissioner, or the successor commission, from the membership of the Victorian Children’s Council.
• Providing for the Premier and Ministers for Children, Early Childhood Development and Community Services to refer matters to the Victorian Children’s Council for consideration;
• Allowing it to also provide advice to the proposed Commission for Children and Young People, if requested by the Commission; and
• Appointing a person with expertise in the needs of children of culturally and linguistically diverse backgrounds.
The Victorian Children’s Council should be reviewed after two years.
Regulation and oversight
85. The Department of Human Services should adopt a risk-based approach to monitoring and reviewing community service organisation performance, involving greater use of unannounced inspections and reviewing the performance of higher risk agencies more frequently than lower risk agencies.
86. The Department of Human Services should retain responsibility for regulating out-of-home care services and family services. This function should be independent and structurally separated from those parts of the department responsible for child protection and family services policy and funding of community service organisations. The director of the unit should report directly to the Secretary.
87. The Department of Human Services should take lead responsibility for formal care reviews.
88. The Department of Human Services should produce a comprehensive annual report on its regulation and monitoring of community service organisations. This report should include information on:
• The registration of community service organisations and their performance against the standards;In addition to this annual reporting, the Department of Human Services should immediately publish any decisions take regulatory action against community service organisations, such as the placement of conditions on In to a community service organisation’s registration, the appointment of an administrator, or the revocation of registration.
• The registration and disqualification of out-of-home carers;
• Category one critical incidents;
• Quality of care concerns, investigations of abuse in care and formal care reviews; and
• Actions taken against community service organisations.
89. The Government should amend the Child Wellbeing and Safety Act 2005 to establish a Commission for Children and Young People, comprising one commissioner appointed as the chairperson and such number of full-time and part-time additional commissioners as the Premier considers necessary to enable the Commission to perform its functions. Commissioners would be appointed by the Governor-in-Council. The Commission should have responsibility for overseeing and reporting to Ministers and Parliament on all laws, policies, programs and services that affect the wellbeing of vulnerable children and young people. The Commission would hold agencies to account for meeting their responsibilities as articulated in the Vulnerable Children and Families Strategy and related policy documents. The Commission would also retain the current roles and functions of the Child Safety Commissioner. The Commission would be required by legislation to give priority to the interests and needs of vulnerable children. The Commission should have authority to undertake own-motion inquiries into systemic reforms necessary to improve the wellbeing of vulnerable children and young people. The specific powers granted to the Ombudsman under s 20 of the Children, Youth & Families Act 2005 should be transferred to the Commission.
90. The Commission for Children and Young People should convene a multidisciplinary committee such as the Victorian Child Death Review Committee to provide advice to the Commission during the course of the Commission’s inquiries into child deaths. This committee should replace the Victorian Child Death Review Committee.
