therapeutic jurisprudence and the children’s …...in the viability of therapeutic jurisprudence...

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DOCTOR OF PHILOSOPHY

UNIVERSITY OF WESTERN AUSTRALIA

Therapeutic Jurisprudence and the Children’s Court: creating a more relational approach to protection and

care proceedings

ALANA D. THOMPSON

This thesis is presented for the degree of Doctor of Philosophy of the University of Western Australia

Discipline of Social Work and Social Policy

School of Social and Cultural Studies and

Law School University of Western Australia

2011

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ABSTRACT The focus of this thesis is deeply practical insofar as it examines how existing laws, practices and procedures can be more therapeutically applied in the Children’s Court. The research is situated within a contested public policy arena in which multiple calls are being made to move the child protection system towards a more holistic and less incident-based response. The purpose of the research was to assess how the Children’s Court of Western Australia and its legal response to families in adversity could be more therapeutic. It grew out of the need to deal with the now well-established critique in the Australian research, numerous inquiries and scholarly literature about the impact that the adversarial legal system has on court participants. Therapeutic jurisprudence has been used as a template for this research as it teases out the therapeutic and non-therapeutic potential of the laws and practices in the Children’s Court.

In this thesis, the contemporary legal context within which child protection operates is described, and the key challenges and controversies facing contemporary child protection systems around Australia are outlined. A comprehensive account is provided of the core tensions that are articulated in the literature, that suggest the traditional adversarial model of law may be an ineffective remedy for the often long-term and complex individual and family problems seen in the Children’s Court. The way in which therapeutic jurisprudence has emerged in response to many of these tensions is described.

By means of semi-structured interviews with parents and families, magistrates, lawyers and court staff, and participant observation of the Children’s Court, the experiences and perspectives of the people involved in the court were obtained.

The findings focus on the potential for change at the ‘micro’ (procedural level), ‘meso’ (policy) and ‘macro’ (conceptual) levels. The central finding of this research is that therapeutic jurisprudence can redefine the functioning of the child protection legal process, and can offer an alternative approach to legal practice therein based on a model that encourages respect, validation, voice, self-determination, relationships and supports conciliation and restoration. Most importantly, the thesis finds that parents and families are powerfully placed to inform this process of change.

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Title i. Abstract ii. ----------------------------------------------------------------------------------------------------------

TABLE OF CONTENTS

Dedication ix.

Acknowledgements x.

Statement of Candidate Contribution xi.

Glossary xii.

Prelude xvi.

PART 1: THE RESEARCHED

Chapter One - INTRODUCTION

1.1 The Context 1

(i) The intersection of social policy and the law 4

(ii) The changing face of the law 7

(iii) The emergence of therapeutic jurisprudence 9

1.2 The study intent 11

1.3 Research questions 11

1.4 Significance 11

1.5 Presentation of this thesis 13

Chapter Two - LEGAL SYSTEMS

2.1 Introduction 15

2.2 The Australian legal system 15

(i) Snapshot of the Australian legal landscape 16

(ii) Adversarial and inquisitorial legal systems 19

(iii)Tensions within the system of common law 22

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2.3 Statutory basis of child protection in Australia 25

(i) Role and structure of the Children’s Court 25

(ii) Child protection legislation at a glance: principles, provisions

and regulations 27

(iii) Protection applications and protection orders 35

(iv) Legal representation in the Children’s Court 37

(v) Court process 40

2.4 Summary 43

Chapter Three - CHILD PROTECTION IN AUSTRALIA: A BROKEN SYSTEM

3.1 Introduction 45

3.2 Ideas and ideology of child welfare in western English-speaking countries 46

3.3 The current status of child protection in Australia: a system in crisis 48

3.4 Tensions and alternative approaches in child welfare decision-making 56

3.5 The voice and perspective of the consumer 65

(i) Vulnerable parents and families 65

(ii) Indigenous children and families 68

(iii) Culturally and linguistically diverse children and families 73

(iv) Hearing the complex consumer voice 74

3.6 Summary 79

Chapter Four - THERAPEUTIC JURISPRUDENCE: AN ALTERNATIVE

APPROACH

4.1 Introduction 80

4.2 The concept of therapeutic jurisprudence 83

4.3 Micro- meso- and macro-analytic therapeutic jurisprudence 88

4.4 Applying therapeutic jurisprudence in practice 90

(i) Problem-solving courts 91

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(ii) Justice architecture 94

(iii) Family law and child welfare 96

4.5 Summary 101

PART 2: THE RESEARCHING

Chapter Five - CONCEPTUALISING THE STUDY: THE THINKING AND DOING

5.1 Introduction 103

5.2 Research Questions 103

5.3 Designing the research: a theoretical framework 104

(i) Data collection 105

(ii) Sampling 116

(iii) The ethics of researching 121

(iv) Data analysis 123

5.4 My research journey 128

5.5 Summary 137

PART 3: THE RESEARCH Chapter Six - PEOPLE AND THE PROCESS OF LAW


6.2 Trauma 140

6.3 Invisibility and silence 143

6.4 Stress 145

6.5 Intimidation 146

6.6 Confusion 148

6.7 The need for support and advocacy 150

6.8 Summary 151

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Chapter Seven - PARTICIPATION IN THE LEGAL SYSTEM


7.2 Communication and time 153

7.3 Nature of the court process 159

7.4 The pre-hearing conference process 168

7.5 The role of the magistrate 177

7.6 Provision of information 181

7.7 Nature of negotiations 184

7.8 Locating the protection and care jurisdiction 186

7.9 Summary 190

Chapter Eight - ACCESS TO JUSTICE


8.2 The concept of ‘access to justice’ 194

8.3 Legal assistance 197

8.4 Court resources 208

8.5 Rigidity vs. flexibility 215

8.6 Legislative considerations 218

8.7 Summary 221

Chapter Nine - CONCLUSION


9.2 A synthesis of the main findings 226

9.3 The need for macro level change 232

(i) Culture of adversarialism 232

(ii) The centrality of power in the Children’s Court 233

(iii) The way forward — an ethic of care and the law 234

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REFERENCES 238

APPENDICES A. Protection orders in Western Australia 284

B. Flowchart of court process for contested cases in the Children's Court 286

C. Flowchart of court process for consented cases in the Children's Court 287

D. Overview of child protection process in Australia 288

E. Information Sheet 289

F. Participant Consent Form 292

G. Email requesting interview with magistrates 294

H. Interview framework — magistrates, lawyers and court staff 295

I. Interview framework — parents and families 297

J. Human Subjects Research Ethics Approval Form 299

K. Overview of process for child protection notification in WA 301

L. Email requesting interview with lawyers and court staff 302

M. Factors to be considered in determining 'best interests of the child' (WA) 303

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TABLES

Table 1. Profile of participants in the sample 120

FIGURES

Figure 1. Number of children and young people on protection orders at 30 June

2005-09 55

Figure 2. Comparison of traditional court process and transformed court process 93

Figure 3. Comparison of approaches adopted by traditional judicial officers and

problem-solving judicial officers 179

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DEDICATION

This thesis is dedicated to parents everywhere who are struggling to keep their families

together against the odds, and to the 1893 children on care and protection orders in

Western Australia.

And to my family – my husband, Chris Phillips, for his patience, support and

understanding, and our loving daughter, Stella Amaya Phillips, for the life that awaits

her.

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ACKNOWLEDGMENTS

My key acknowledgement is to the patience, commitment and support of my supervisors, Associate Professor Maria Harries, and Dr Tracey Summerfield of the University of Western Australia. Their guidance, enthusiasm and interest in this research area from the very beginning through to the many hours it took to carry out this research to its conclusion, have been a constant source of motivation and have continued to bolster me throughout. Maria, you believed in the viability of therapeutic jurisprudence and the Children’s Court as a thesis topic from the first time we spoke about it, and you never wavered in your support of me as both a student and new mother. This research would not have been possible without the cooperation and assistance of many people working in the Perth Children’s Court, the magistrates, the registry staff and particularly the President of the Court, Judge Denis Reynolds. My thanks go to the Judge, who allowed his Court to serve as the research site, and was graciously accommodating and supportive of this research from the beginning. Thanks also go to all those persons who agreed to be interviewed and gave their time to share their stories and perspectives. I would also like to thank Judge Alex Calabrese of the Red Hook Community Justice Center in Brooklyn, New York for introducing me to the world of therapeutic jurisprudence and to its cross-disciplinary application. My thanks also go to Donna Laikind of the Ackerman Institute for the Family in New York, and the late Dr Wayne Myers of Columbia University who both encouraged my interest in this research. I would also like to acknowledge the assistance and support from colleagues and staff at the University of Western Australia, particularly Rosa Catalano, Jenny Golding and Karen Upton-Davis. I would like to acknowledge Eugenia Koussidis for her patience, efficiency and thoroughness in conducting the editing and proofreading of this thesis. I would like to thank a number of people for their friendship over the years this thesis was written. To Margaret and Tony Phillips, and to a number of generous women in my life who have offered friendship, encouragement and patience and whom I wish to acknowledge – I am indeed very lucky and with all my heart thank Annalise Thompson, Jo Gibson, Penny Morgan, Kathryn Kubicki, Rachael Hartley and Olivia Woodland. My sister, Annalise Thompson has been my cheerleader, friend and source of constant encouragement and I will forever be grateful for her love and unfailing loyalty. I am personally indebted to my parents, John and Soosie Thompson, whose respect for academic endeavours and support of my own particular interests made this project possible. I am ever mindful of the opportunities I have gained through their example of hard work and commitment. Your help and support to Chris and I, and particularly your adoring love and dedication to your little ‘cucu perumpuan’ has enabled this to happen. Last, but never least, I would like to acknowledge my husband, Chris Phillips, who was my unfailing support, my gentle encourager and the most wonderful and loving father to our little Stella. You lived with my weekend absences for the past year while I spent time writing in the library. And to Stella — you have provided us with the greatest joy and happiness. Your presence within the past two years of PhD-land has been the greatest light and reason to complete the task! I hope you never lose your wonderful curiosity that leads your never ending “what” and “why” questions. Thank you Chris and Stella, my wonderful family, for making it all worthwhile.

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DECLARATION FOR THESES CONTAINING PUBLISHED WORK AND/OR WORK

PREPARED FOR PUBLICATION

Please sign the statement below.

This thesis does not contain work that I have published, nor work under review for publication.

Student Signature……………………………………………………………………………

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GLOSSARY Adjournment When a magistrate puts the case off to a later court date Adversarial A system in civil law where two sides argue their case Applicant The person or organisation who applies to the Court for an order: this is usually the Chief Executive Officer of the Department for Child Protection Affidavit A written statement of facts made under oath or

affirmation, which may be used as evidence

Care Plan A written plan that identifies the needs of the child and outlines the steps and measures that need to be taken to meet these. A Care Plan also sets out the decisions for placement and contact CEO Chief Executive Officer Child A person who is under the age of 18 years Contact Contact between a child and another person, usually a

parent. It can involve face-to-face contact or contact by telephone or letter. This was previously referred to as ‘access’

Convenor A person appointed by the court to manage a pre-hearing conference

DCP Department for Child Protection

Directions Instructions by a judge or magistrate about how a case is

to proceed. These may include dates for filing of documents, conferences and the hearing

File To lodge a document in the registry of the court and have it accepted for filing by the court Filing The process when official documents (such as case

outlines and applications) are handed into the court registry

First court date The date and time marked on DCP’s protection application for the parents to first appear at the Children’s Court

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Foster care Home-based care provided under statutory care and protection legislation for children and young people Guardianship A legal guardian is responsible for all decision-making regarding the child or young person Hearing A final hearing is where all of the parties present their

witnesses and evidence they will use, to help the court decide what should happen to the child. Lawyers may attend the hearing to represent the parties, DCP, the parents or carers of the child and/or the child

Initial legal assistance When a lawyer advocates or negotiates a matter for a

client, without having to lodge formal court proceedings or commence litigation

Judicial Officer Either a judge or a magistrate who is listed to hear the case. A judge usually deals with longer or more complex cases Judiciary The system of courts of justice and the personnel, such as judges, who are involved in making judgments Jurisdiction The extent of authority to make judgments and administer justice Legal advice The application of legal information to the individual

circumstances a person is facing. Legal advice can be given face-to-face, by telephone or, in some cases, by email

Legal representation Covers services provided by legal professionals that go beyond initial legal advice, for example drafting documents (e.g. wills, contracts), representing a person in a legal matter, preparing documents for court appearances (e.g. statements of claim, affidavits), and representing people in court and tribunal processes

Legislation The process of making or enacting a law in written form;

or the collective body of enacted laws Mediation A system using a neutral person to help two parties in a

dispute to come to an agreement or settlement without going to court

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Mention A court date where routine administrative issues are discussed and dealt with by the parties and magistrate Order A command or direction by a court Party Each person who is named on the application is called a party PHC Pre-Hearing Conference Plain language legal information Generic material written about legal issues that people

might face. Plain language legal information provides ‘jargon free’ information about specific laws, legal problems or legal processes, or about where to get legal advice or representation.

Procedural orders Instructions (sometimes referred to as Directions) from the court about what each party must do and when. The purpose of these orders is to ensure that the case is properly prepared for each stage of the court process, so that the case is resolved as quickly and cheaply as possible

Pre-hearing conference A confidential discussion that takes place at the court,

involving the parties, their lawyers and a magistrate or convenor to try and reach an agreement

Protection application DCP can apply to the Children’s Court for a protection order if it appears to DCP that a child is in need of protection

Respondent When an application is made, one or more persons

against whom orders are sought are named on the application. Respondents are usually the parents or guardians of the child and any person who may have caused the child to be in need in of protection

Response A response may be filed by a respondent in answer to the

applicant’s affidavit and/or case outline Serve To formally provide documents to the other party Statutory intervention Court-approved removal of children from the custody of

parents and the provision of alternative foster care Submissions Arguments presented to the court to persuade the court to

make the orders that a particular party wants

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Subpoena A document issued by the court that requires a person to appear at a court to give evidence or produce documents

Taken into care Removal of a child from normal carers by DCP and taken

into provisional protection and care when authorised by the court

The Act Children and Community Services Act 2004 (WA)

Trial The final hearing of a matter before a judicial officer

considers all the evidence presented, and makes a final decision or protection order to finalise the matter

Ward A term that was used under the now repealed Child

Welfare Act 1947 to refer to children and young people for whom the DCP has assumed parenting responsibilities

Wellbeing of a child The care, development, health and safety of a child Young person A child who is aged between 12 and 17 years

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PRELUDE

PART ONE: THE RESEARCHED

The first part of this thesis outlines the impetus and motivation for this research. The

research aims are introduced, and the broader policy frameworks in which this thesis is

set are outlined. The overarching goal of Part One is to act as a container in which the

intersection of social policy and the law, and changes in the law can be explored.

Chapter 1 introduces new ways of thinking about the law, and new areas of

multidisciplinary scholarship including restorative justice, preventive law, community

justice and therapeutic jurisprudence are discussed. The way in which therapeutic

jurisprudence has emerged, the creation of problem-solving courts, alternative dispute

resolution processes including mediation and administrative tribunals, and changes to

legislation – all of which are seen as part of a significant shift from traditional legal

responses towards a more comprehensive resolution of human problems — are also

explored.

Chapters 2, 3 and 4 present relevant background literature that locates the research. The

Australian legal system and the statutory basis of child protection in Australia and its

working relationship with the Children’s Court are described, in order to explain the

contemporary legal context within which child protection operates.

The key challenges facing contemporary child protection systems around Australia are

outlined, and core tensions evident in the research literature about the way the law

responds to child protection matters are described. The complex consumer voice that has

emerged in recent years, which arguably is central to informing policies and practices

that will benefit children, young people and families and are critical to guiding the

delivery of services, is also included in Part One of this thesis.

This discussion sets the stage for the reasons that the traditional legal response to the

issue of child welfare and protection needs to change. The discussion provides a

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backdrop against which the theory and application of therapeutic jurisprudence at a

micro, meso and macro level are presented.

PART TWO: THE RESEARCHING

Part Two is about how the research was conceptualised. It is a description of the

‘thinking’ and the ‘doing’, the method and the journey. The research design, its

epistemology and methodology are described. The ethics of researching, including

specific ethical and relational issues, are considered.

Drawing on the professional thinking and action that guides the social work profession,

the template I used during the research was based on a micro, meso and macro

distinction to structure the application of therapeutic jurisprudence in the Children’s

Court at different levels. Data were analysed using the Wexler (1995) and Brooks

(1999) micro- and macro-analytic therapeutic jurisprudence distinction, and I included a

meso level to reflect general observations made of the court and its functioning. My goal

was to structure the findings in terms of micro, meso and macro considerations of the

application of therapeutic jurisprudence in the Children’s Court.

Drawing on my observational material, I also tell the story of my research journey. A

description of the people and place of the court is presented in order to capture the

research arena of the Perth Children’s Court. My presence in the chaos of the court, and

how I obtained a snapshot in time of these families’ lives is considered. The complexity

of this research and what it meant to me is explored.

PART THREE: THE RESEARCH

Part Three presents my analysis of the findings. I bring together the data collected

through observations and interviews, and present these in the form of a collage of views.

A range of themes connected to people, process and law, and access to justice emerged

from the interview and observation data when gathered and analysed. In discussing the

themes and data, in order to understand processes and outcomes, I move between the

accounts provided by parents, family members, lawyers, magistrates and court staff and

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my own observations.

Chapter 6 presents the stories of what parents and families told me about their

experiences of the child protection legal and court process. These stories are

predominantly about their feelings, and as such have been framed around the feelings

articulated by them relating to: trauma; invisibility and silence; stress; intimidation;

confusion; support and advocacy needs.

Whereas the voices of parents and families focused on feelings and emotions, the voices

and perspectives of the magistrates, legal representatives and court staff who were

interviewed related more to ‘issues of concern’ which arose through working in the

system. The four key issues of concern that were identified from these latter interviews

related predominantly to legislative processes, court practices, the legal representation of

parents and children, and the current jurisdictional arrangements for the management of

child welfare issues in Western Australia, topics which are all explored in Chapter 7 and

Chapter 8.

In chapters 7 and 8, I use a therapeutic jurisprudence framework to consider many of the

issues that were raised in interviews and observations in the light of two overarching

concepts that are central to therapeutic jurisprudence and that were discussed in detail in

Chapter 4 — participation in the legal system and access to justice. The way in which

people participate in the legal system and their capacity to access justice has an inherent

impact on their experience of the justice system and the court as an institution.

Therapeutic jurisprudence focuses on these very interactions between people and the

law. In chapters 7 and 8, I am privileging the voices of research participants and

drawing on observations, as it is what they said, and what I observed, that are informing

my analysis rather than the therapeutic jurisprudence literature.

While the notions of participation and access to justice are related, I have separated the

concepts. Participation in the legal system in the context of the Children’s Court relates

predominantly to micro procedural and process issues, and the roles of legal actors.

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These issues might include what happens in the waiting room areas, what happens in the

mention list process, the pre-hearing conferences and in a trial. Access to justice on the

other hand relates more to general observations of the court and its functioning.

Chapter 7 therefore explores the participation of parents and families appearing in child-

protection court proceedings in Western Australia. This chapter presents the first set of

findings within a framework of ‘participation in the legal system’. The discussion

concentrates on issues of overcoming delays within the court process, the nature and

formality of proceedings, and the organisation, structure and administration of the court.

All of the material presented in Chapter 7 points to broader meso level considerations

about the court and its functioning including issues of access to justice, and access to

legal representation, the courts and support. Chapter 8 therefore presents the second set

of findings within a framework of ‘access to justice’ issues for parents and families. The

discussion concentrates on issues around access to legal assistance, court resources,

service delivery approaches and legislative considerations.

The primary consideration for this research is about practices and processes in the

Children’s Court. The bulk of procedural considerations that take place in child-

protection court proceedings sit in chapters 7 and 8. Findings presented in these chapters

indicate there are many ways in which components of the Children’s Court can be

improved at the micro and meso level to reflect a more enhanced therapeutic

jurisprudence practice. It is noted that all of the concepts presented in Chapter 8 sit

within a much larger context of macro issues, such as existing court culture,

relationships of power, space and ethics.

Chapter 9 presents a synthesis of the major findings. In this chapter, I analyse all of this

material with a view to the therapeutic jurisprudence literature, and the findings are

placed within the broader context of this scholarly literature. In this chapter, I suggest

that change is also required at a macro conceptual level, most notably in relation to the

nature and place of the law, cultural practice in the Children’s Court, and ethics in the

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practice of law. It is noted that exploring such macro level change presents an exciting

opportunity for future research.

Central to this thesis is the way in which a collage of voices and experiences of the

people of the court is interwoven through the discussion and analysis chapters. These

voices are central to this research in finding the answers as to what works in meeting the

needs of children and families who appear in the Children’s Court in Western Australia.

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CHAPTER 1

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INTRODUCTION

1.1 THE CONTEXT

In this chapter the impetus for the research and the research aims are introduced. The

broader policy frameworks in which this thesis is set are presented. The intersection of

social policy and the law, and the changing face of the law are described within the

context of the theory of therapeutic jurisprudence, and these are linked to child

protection and the jurisdiction of the Children’s Court.

The legal resolution of issues to do with the protection and care of children or family

conflict has occurred in the context of an adversarial legal system. In recent years, both

the legal and wider communities have become increasingly aware of how the legal

process can affect the wellbeing of those involved, and how an adversarial approach to

resolving family conflict can often aggravate rather than entirely resolve that conflict

(King, Freiberg, Batagol & Hyams, 2009).

While adversarialism is a central tenet of the common law on which the Australian

legal system is built, basing the child protection legal process on an adversarial system

is increasingly being called into question. Of particular concern is that in the protection

and care jurisdiction, an adversarial system runs the risk of turning decision-making in

relation to a child’s best interests into a competition to present the best argument, and

as such encourages disputation rather than cooperation in the protection of children. It

has been suggested that a system that adds such a degree of conflict should be

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reconsidered by Government, and an assessment should be made as to whether better

outcomes for children and families could be achieved through an improved model

(Ombudsman Victoria, 2009).

Many scholars have described the negative impact of the adversarial legal system can

have on children, parents, extended family members, professionals, court staff and the

judiciary (Wexler, 1990; Brooks, 1999, 2001; Allen, 2001; Hay, 2003; Madden &

Wayne, 2003, King, 2005). My own previous professional experience and observations

of the Children’s Court provided an acute appreciation of the need for that system to be

based on practices that reflect legal approaches that are more therapeutic and humane

for dealing with families in crisis and with complex problems.

Particularly pertinent to this research is the work of Reich (2005) whose own research

investigated the adversarial nature of child-protection court proceedings in the United

States, and focused on how agents of the State adjudicate the fate of parents whose

children have been identified as needing protective services. Reich’s analysis of the

way in which power is negotiated between individuals and the State over the meaning

of family provided a comprehensive insight into the impact that such a contested

system has on the children, mothers, fathers and relatives involved in these matters.

Reich’s work presented a most powerful anthropological analysis of therapeutic

jurisprudence in action in the Children’s Court, and it was this work that in part

provided the impetus for this research.

The study of therapeutic jurisprudence, which is explored in greater detail in Chapter 4,

has emerged in response to many of the criticisms of the traditional legal system and its

processes. Therapeutic jurisprudence suggests that legal rules, legal practices, and the

way in which participants in the legal system play out their roles have inevitable (if

unintended) consequences for the mental health and emotional and physical wellbeing

of a range of persons affected by the law (Wexler, 1990, 1999; Winick & Wexler,

2003; Freckelton, 2007; King, 2009a; Wexler, 2009). People affected by the law can

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include court participants, those close to court participants, those representing and

assessing them, and those making decisions about them. The therapeutic jurisprudence

model incorporates a conscious ‘down-playing’ of the adversarial or ‘conflict’ approach

so commonly seen in the legal system, and challenges the traditional ‘heavy-

handedness’ of the adversarial ‘culture of critique’ approach to law and offers an

alternative which, by its nature, is subjectively inclined and relationally focused

(Brookbanks, 2001).

Australia and indeed Western Australia are considered by some key commentators to be

on the cutting edge of work with therapeutic jurisprudence and the courts (Wexler &

Winick 1996; Stolle, Wexler & Winick, 2000; King & Ford, 2006; Wexler, 2009; King,

Freiberg, Batagol & Hyams, 2009; Australasian Therapeutic Jurisprudence

Clearinghouse, 2010a). Therapeutic jurisprudence has successfully underpinned much

of the recent reforms to the Family Court of Australia, and various jurisdictions across

Western Australia, with the almost exclusive exception of the protection and care

jurisdiction of the Children’s Court. My research has emerged from this identified need

in the landscape of therapeutic jurisprudence.

My research is based on the assumption that conducting the child protection legal and

court process in such a way as to decrease or avoid anti-therapeutic or negative effects

of the court process, will reduce the stress and trauma that many parents and families

report experiencing through involvement with child protection services and lead to

better outcomes for children and their families (McConnell, Llewellyn & Ferronato,

2000; Swain, Goodfellow, Lee, Cameron & Bennett, 2002; Karras, McCarron, Gray,

Ardasinski & May, 2006; Bennett & Sadrehashemi, 2008).

Following extensive reading around the forensic, legal and court components of the

child protection process, I had a sense that therapeutic jurisprudence may offer some

ideas for developing a more relational legal approach for dealing with families in crisis.

I wanted to explore the application of therapeutic jurisprudence thinking to the area of

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child welfare, and consider the extent to which therapeutic jurisprudence practices are

in place in the Children’s Court. My main interest was to better understand the

experience of parents and families involved in the child protection legal system, in

order to assess how the Children’s Court and its legal response to families in adversity

can be more therapeutic and promote family healing.

This thesis is situated within a number of broader policy frameworks, including the

intersection of social policy and the law, and the changing face of the law, both of

which will be described within the context of the theory of therapeutic jurisprudence in

the following section.

(i) The intersection of social policy and the law

The law works as a set of rules that structures society by granting rights, imposing

duties, and regulating power. Due process is intended to protect an individual’s rights,

and legal procedures are intended to help preserve fairness. These views of the law are

based on the assumption that there is a causal link between a legal intervention and a

positive outcome for the individual or society (Braye & Preston-Shoot, 1994). There

are many circumstances however, in which laws, legal procedures, or the behaviour of

legal actors produce outcomes for individuals that are harmful or anti-therapeutic, even

when the intent was to produce a positive outcome (Wexler, 1990).

Consumers of legal services often find their dealings with the judicial system to be

painful, an invasion of their privacy, and out of their control (Weinstein, 1997). Legal

strategies designed to protect a fundamental right may actually result in a systematic,

albeit unintentional ignoring of the environments and life circumstances of the

individuals involved with the legal system (Babb, 1997). In considering the unintended

consequences of legal strategies, Madden and Wayne (2003) highlight the importance

of legal actors asking their clients if the proposed means justify the anticipated ends.

The authors state that when this sort of discussion takes place, clients are able to

exercise self-determination and regain control over the legal actions taken on their

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behalf. Such actions are particularly important when clients are in a vulnerable state as

a result of a family crisis, mental health difficulties, or environmental deficits.

The law has traditionally assigned legal problems arising from family conflict into

traditional categories of family, civil or criminal law and determined that they be

resolved in courts having jurisdiction in that area. Often this means the one family may

find themselves in a family court in relation to financial, child residence and contact

issues, and a civil or criminal court in relation to child protection issues, restraining

orders or apprehended violence orders. It can be particularly problematic for families

when they are required to deal with family and children’s issues in both the Family and

Children’s courts concurrently (Jackson, 2009).

Solutions to such family and child welfare problems are increasingly being sought from

the court. Child protection workers are increasingly turning to the courts to confirm

welfare concerns and justify their involvement in a family’s life. Magistrates play a

significant role in the child protection legal and court process. Their role is to control

these court proceedings, to decide matters of legal interpretation and argument, to

weigh the facts and issues, and to make a considered decision that has consequences for

the direction of the child protection workers’ role, but more importantly, for the child,

the family and the community (Sheehan, 2001).

The legal resolution of issues to do with the protection and care of children has

occurred in the context of an adversarial legal system, and international and Australian

scholars have described the negative impact that these processes can have on children,

parents, extended family members, professionals, court staff and the judiciary (Wexler,

1990; Brooks, 1999, 2001; Allen, 2001; Hay, 2003; Madden & Wayne, 2003, King,

2005). Much of this literature suggests that child-protection court proceedings are

predominantly aggressive and adversarial, with the process highlighting all alleged

inadequacies and failures by the parents. Of particular concern is that the nature of this

process can set up a strained relationship between the parents and child protection

6

workers from the outset, and can lead to the parents feeling further alienated from the

process.

The relationship between parents and child protection workers is a key issue of concern

consistently identified in the literature. Freymond’s (2003) study on Mothers’ Everyday

Realities and Child Placement Experiences found that in situations when a child was

removed from the care of their parents or caregiver and placed into State care, families

were engaged by child protection workers in a highly adversarial manner that set the

tone for working relationships where mistrust and fear were central. Research on The

Experiences of Parents and Families of Children and Young People in Care conducted

in Western Australia by Harries (2008) found that most participants in that study

described the legal and court systems they confronted as overwhelming, frightening,

confusing and alienating. The powerlessness expressed by many participants in that

study related in some part to the entire legal process, not simply court proceedings in

which they found themselves.

Australian research indicates that the nature of the legal and court process in child

welfare decision-making can be anti-therapeutic and further traumatising for children

and parents. Researchers who have considered the impact of the Children’s Court

processes have highlighted the need for more research in this area (McConnell et al.,

2000; Swain et al., 2002; King, 2005). It is clear from the literature that the way in

which the law has traditionally been invoked to deal with issues of social concern,

particularly relating to family and children’s issues, can often have serious and

unintended negative consequences.

The past few decades have seen the law change in relation to emerging social issues,

increasing public pressure, and the need to address more recent concerns such as how

criminal matters are addressed. The following section will describe in greater detail

some of the changes seen in the law.

7

(ii) The changing face of the law

A number of broad social changes have occurred in Australia over the past decades that

have included the reorganisation of publicly funded welfare, a decline in full-time

permanent employment, increases in the number of post-separation and blended

families, and the ageing of the Australian population (McAllister, Dowrick, Hassan,

2003; Roach Anleu, 2010). Social concerns such as unemployment, drug addiction,

welfare dependency, homelessness, mental illness and suicide have subsequently

worsened as a result of these broad social changes (Roach Anleu & Mack, 2006).

The law has often been used as a route, a resource, or strategy to implement desired

social change. The Victims’ Rights movement and the subsequent changes in the law

that increased the emphasis on restoration and reparation is one example of how the law

has been used as a strategy for social change. Human rights, international law and war

crimes trials, as well as citizenship and migration law, are all areas where the law has

been used as a route to implement desired social change (McAllister et al., 2003).

In Australia, the role of the criminal justice system has been reconceptualised in recent

years. New areas of multidisciplinary study built specifically on the intersection of the

law and the social and behavioural sciences are emerging in the research and scholarly

literature. Restorative justice, holistic law, preventive law, community justice and

therapeutic jurisprudence are ideas or theories that have evolved, that share a goal of

moving towards a more comprehensive resolution of legal problems. An increasing

interest in rehabilitation within the criminal justice system, the use of victim–offender

mediation, institutionalised victim-impact statements, the use of administrative

tribunals, and the increasing use of family conciliation and mediation centres can all be

seen as part of the significant shift away from the traditional adversarial legal system

(Roach Anleu, 2010).

The emergence of problem-solving courts can also be seen to be part of the wider trend

in the justice system towards a more comprehensive resolution of legal problems. In

8

acknowledging the view that alternatives to the traditional judicial process should be

considered if the resolution of legal problems is to be effective, the Chief Justice of

Australia, the Honourable Robert French stated:

There are nevertheless classes of case in which the judicial process cannot be quarantined from underlying, interdependent, personal and social issues. A judicial process with no awareness of those underlying issues and unable to fashion outcomes informed by such awareness is likely to be ineffective in contributing to their long-term resolution. In this respect drug courts, family violence courts, community courts, re-entry courts and mental health courts represent important developments (French, 2009: vii).

The Australian legal system and its processes have been criticised in relation to issues

of access, expense, complexity, technicality and comprehensibility. In a speech on The

Australian Justice System in 2020 by the Chief Justice of Western Australia, the

Honourable Wayne Martin acknowledged these criticisms when he said:

There can be no serious argument with the proposition that at least when compared with the expectations of our citizens, the Australian legal system is generally perceived to be out of touch, expensive, slow, technical, complex, and in many respects incomprehensible (Martin, 2008:4).

Further, Justice Martin stated that in the context of the civil justice system in Western

Australia, there are a number of key areas that are likely to see changes in the next

decade including the use of less adversarial approaches, a reduction in the number of

trials, and a much greater emphasis on Alternative Dispute Resolution (ADR)

processes, case management approaches, and pre-trial processes (Martin, 2008).

The area of family law in Australia has recently seen significant change in how the

traditional legal system deals with these matters. Changes to family law practices and

processes have witnessed a therapeutic approach to the resolution and determination of

disputes in many different forms. Many of these changes have been based on the

successes of the Magellan project in the Family Court of Australia (Brown, Sheehan,

Frederico & Hewitt, 2001) and the Columbus project in the Family Court of Western

9

Australia (Pike & Murphy, 2006) and a greater understanding of the implications of the

family court process on children and families (Australian Law Reform Commission,

1997; Allen, 2001; Hay, 2003; Bryant & Faulks, 2007). Many of the reforms in the area

of family law have been underpinned by therapeutic jurisprudence in its efforts to

reduce the adversarial nature of family court proceedings, including the use of less

adversarial trials (Family Court of Western Australia, 2010). The therapeutic

jurisprudence basis of these reforms is discussed in greater detail in Chapter 4.

(iii) The emergence of therapeutic jurisprudence

Therapeutic jurisprudence has emerged within an area of scholarly interest that focuses

on the therapeutic and anti-therapeutic consequences of the law in action. It is based on

the premise that the processes used by courts, judicial officers, lawyers and other justice

system personnel can impede, promote or be neutral in relation to outcomes connected

with participant wellbeing (Wexler & Winick, 1996).

The study of therapeutic jurisprudence emerged in the 1980s in the area of mental

health law, although quickly expanded to other areas of the law including criminal law,

family law and medical law. Today, therapeutic jurisprudence is applied to many areas

of the law and across cultures, and is the subject of international study and

development. Much of the research in this area has looked at the role that therapeutic

jurisprudence has played in transforming court processes (Wexler, 2000).

To date, there has been little attention paid to the application of therapeutic

jurisprudence to the area of child welfare and the protection and care jurisdiction of the

Children’s Court in Australia. Former magistrate Michael King’s (2005) contribution is

an exception. King’s writing on the development of the first Family Care Program at

the Geraldton Magistrates Court in Western Australia suggests that therapeutic

jurisprudence has the potential to address the issues that bring families with protection

and care concerns into the Children’s Court, and highlights the importance of

addressing the root problems that may include low income, substance abuse, mental

10

health issues, or burdens of sole parenting. Similarly, in the United States, Brooks

(1999) was one of the first to write about the application of therapeutic jurisprudence in

child welfare matters. Brooks’ (1996, 2001) work has focused on therapeutic

jurisprudence and preventive law in child welfare proceedings, and the use of a family

systems paradigm for legal decision-making affecting child custody and adoption. Such

initiatives have led to ideas about how courts may play a creative and motivational role

in promoting the resolution of underlying issues.

Therapeutic jurisprudence offers a framework for questioning the way in which the

child protection legal system currently operates. A therapeutic jurisprudence framework

can assist in the analysis of the child protection legal response, by exploring the

therapeutic and non-therapeutic elements of the legal and court process. As a

framework, it can help challenge the way we think about the law and the way the law

works, including the notion of adversarialism. It can be used to assist our questioning of

how the adversarial legal process is experienced by the court participant, in this case, by

parents and families.

Therapeutic jurisprudence, creative problem solving, restorative justice and holistic

approaches to the law all share the goals of promoting the concepts of voice, validation,

respect, self-determination, autonomy and active participation. Research and scholarly

literature in this area suggest that these concepts have largely been absent from the

parents’ and families’ experiences of statutory child protection intervention. This

research seeks to explore the ways in which the Children’s Court and its processes can

promote the therapeutic concepts of voice and validation, active participation, self-

determination and autonomy for parents and families who are involved in child-

protection court proceedings.

Limited research has been conducted on the Children’s Court processes in Western

Australia, although a national assessment of Children’s courts is currently underway.

King’s (2005) work has thus far shown support for a therapeutic jurisprudence based

approach in protection and care applications; however, the scope of his study was

11

relatively small, thus limiting the research to the efficacy of the process. My research

draws on King’s conceptual framework on therapeutic jurisprudence and its application

to protection and care matters as a launch pad for further enquiry.

1.2 THE STUDY INTENT

The purpose of my research is to determine how existing laws, practices and procedures

in the Children’s Court can be most therapeutically applied for the benefit of parents

and families involved in child-protection court proceedings. Central to this objective is

to develop a stronger profile of the potential for therapeutic jurisprudence elements to

be incorporated into the Children’s Court practices and processes.

1.3 THE RESEARCH QUESTIONS

The primary research question of this thesis is:

How can existing laws, practices and procedures in the protection and care

jurisdiction of the Children’s Court be most therapeutically applied?

I will address this primary question by answering the following two secondary research

questions:

i) What do the experiences of people involved in protection and care

proceedings say about how therapeutic jurisprudence is operating in the

Children’s Court?

ii) How can the Children’s Court be designed to empower and promote

wellbeing in court participants who are either personally or professionally

involved in its proceedings?

1.4 SIGNIFICANCE

The child protection literature highlights the need to form a better understanding of the

parents and families who had a child or children removed from their care by statutory

authorities, via the experiences of these parents so that they — a primary consumer

12

group — can inform policies and practices that will benefit children, young people and

families involved in child protection practices (Family Inclusion Network

[Queensland], 2007; Harries, 2008). It is important to note that consumers in the child

protection context extend beyond children, parents and families, to include (among

others) child protection workers, mental health workers, carers, and adults who grew up

in Australian orphanages, children’s homes and foster care.

Previous Australian Children’s Court research, including that of McConnell et al.

(2000), and Swain et al. (2002), focused specifically on parents with disabilities and

their experiences of the child protection legal and court process. My research builds on

these previous studies in its design and intent. In my research, both court observations

and participant interviews are used to provide a detailed understanding of the process of

this type of court. One notable addition to past research is the inclusion of the voices of

all parents who are involved in child-protection court proceedings, rather than a

particular cohort of parents such as those with disabilities or an identified illness. The

experiences and perspectives of the magistrates, legal representatives and court staff

who work in the protection and care jurisdiction of the Children’s Court are also

captured in this research.

My research seeks to explore in detail the specific elements of the child-protection

court process that can be seen to support or negate the principles and concepts valued

by therapeutic jurisprudence. The use and application of a therapeutic jurisprudence

framework to analyse Children’s Court processes in-depth in Australia has to date

never been undertaken.

The curiosity that stemmed from my earlier professional work in the child protection

field parallels the current debate about the status of child protection services in Western

Australia and at a national level. The significance of this investigation is that it will

happen at a time when major challenges are being identified and articulated about how

we manage child welfare decision-making in Australia. It is hoped that my research will

13

contribute to our contemporary knowledge base about what is happening to families in

a way that will give insights about how to improve the outcome for children and

families.

My research intends to make a theoretical and practical contribution to knowledge of

the child protection legal and court process. It will provide a strong intellectual and

empirical base for research, interpretation and innovative approaches to improving

policy, practice and court processes for families involved in the Children’s Court. This

research will have practical application for magistrates, lawyers, advocates, policy

makers and advisors, and child protection workers for applying therapeutic

jurisprudence principles within the protection and care jurisdiction of the Children’s

Court specifically, and to child welfare decision-making in general.

1.5 PRESENTATION OF THIS THESIS

In this chapter, I have described the impetus for the research and the research aims, and

introduced the broader policy frameworks in which this thesis is set. The intersection of

social policy and the law, and the changing face of the law have been described within

the context of the theory of therapeutic jurisprudence and these have all been linked to

child protection and the jurisdiction of the Children’s Court.

In Chapter 2, I describe the Australian legal system, and the statutory basis of child

protection in Australia and its working relationship with the Children’s Court. I do this

in order to explain the contemporary legal context within which child protection

operates. In Chapter 3, I review the key challenges and controversies facing

contemporary child protection systems around Australia. Both of these chapters provide

a backdrop for Chapter 4, in which the theory and application of therapeutic

jurisprudence is discussed at a micro, meso and macro level, and in which I provide an

extensive description of its contemporary application and potential role within the

Children’s Court. Chapter 4 begins by identifying the core tensions that have been

articulated in the literature about the way in which the law responds to child protection

14

matters. It then describes how therapeutic jurisprudence has emerged in response to

these tensions, specifically in relation to family law and child welfare.

Chapter 5 sets out the research design, its epistemology and methodology. In that

chapter, I also reflect on my research journey and draw on my observational material to

provide a detailed description of the people and place of the court in order to capture

the research arena of the Perth Children’s Court.

Chapters 6–8 report on the findings of this research, bringing together the data collected

through interviews and observations. In Chapter 6, I present the stories that parents and

families told me about their experiences of the child protection legal and court process.

These stories are framed around the feelings and emotions articulated by the parents

and families.

In Chapter 7, a collage of the voices and experiences of court participants and my

observations of the court is presented within a framework of ‘participation in the legal

system’ for parents and families appearing in child protection court proceedings. That

chapter is about how things could be done differently to augment better outcomes in the

Children’s Court and focuses on the potential for change at the micro procedural level.

Chapter 8 uses the voice of all the interviewees and participants, and observations of

the court to identify how aspects of the child protection legal system can affect broader

access to justice issues for parents and families. The potential for change in that chapter

is considered at the meso policy level.

Chapter 9 provides the conclusion to this study. That chapter presents a synthesis of the

main findings from this research, and describes how in response to the large number of

micro and meso issues identified, change is also required at a macro conceptual level.

The chapter draws on the literature to place these findings within a broader context.

15

CHAPTER 2

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LEGAL SYSTEMS

2.1 INTRODUCTION

The purpose of this chapter is to describe the Australian legal system, and the statutory

basis of child protection in Australia. I do this in order to explain the contemporary

legal context within which child protection operates.

The chapter has been divided into two sections. The first section describes the

Australian legal system for the purpose of establishing the framework within which the

Children’s Court operates. The origins of the Australian legal system and defining

features of it are outlined. Tensions that exist within the broader context of the legal

system are described, most notably in relation to justice and access issues. The second

section outlines the statutory basis of child protection in Australia, and describes the

way in which the Children’s Court operates, both in relation to matters of law as well as

in relation to the processes by which significant decisions about the lives of children

and young people are made. The guiding principles of the child protection legislation

and specific provisions within it are outlined. Although these particulars are not the

focus of this research, they are the principles and provisions that guide the decision-

making activities of the Children’s Court.

2.2 THE AUSTRALIAN LEGAL SYSTEM

Since the late 19th century, western societies have recognised the protection of children

from abuse and neglect as an area of public policy. Countries such as the United

Kingdom, the United States, New Zealand and Australia have adopted a ‘legislative’

16

approach in responding to the protection of children from abuse and neglect (Scott,

2006). A number of western European and Scandinavian countries have alternatively

adopted a ‘family services’ approach to address the issue of the protection and care of

children. A family services approach, which is discussed in greater detail in the

following chapter, can broadly be characterised as the State provision of a range of

family and community support services that are designed to assist in raising children to

avoid or reduce child abuse (Ford, 2007).

(i) Snapshot of the Australian legal landscape

In this section, the traditional legal values and processes that act as the foundation of

the Australian legal system are outlined in order to understand the framework in which

a legislative approach sits, the positives and negatives of such an approach, and for

understanding how and why significant change has occurred in the law and legal

system in Australia over the past decades.

Political and philosophical ideas have shaped the development of modern law and legal

traditions in countries such as Australia, Canada, New Zealand, the United Kingdom

and the United States. While the law has developed differently in each of these

jurisdictions, some of the fundamental values are shared. At the forefront of these legal

cultures have been the political values of ‘liberalism’ that place particular value on key

ideals including equality, liberty, individual rights and notions of justice — and view

certain interests such as personal autonomy and property as paramount (Bottomley &

Bronitt, 2006). These liberal ideals have been interwoven into Australian laws and

procedures.

Australian law has developed from the traditions of the English common law. Some of

the characteristics of Australian law which derive from the English heritage include the

common law system, the rule of law ideal, due process, a system of representative

democracy using parliament to make laws, a legal profession divided either formally or

informally into solicitors and barristers, decision-making in courts after an adversarial

17

trial, and a court system for dispute resolution (Bottomley & Parker, 1997).

The Australian legal system is built on the common law legal system that also exists in

New Zealand, the United States, Canada and India. This system is often contrasted with

other legal systems, such as the civil law system, which is based on Roman law.

Countries that are based on a civil law legal system include Scotland, France,

Switzerland, Greece, Spain, Germany, Thailand and Taiwan, and these systems are

broadly characterised as ‘inquisitorial’, as opposed to ‘adversarial’ as seen in common

law legal systems. The distinction between the adversarial and inquisitorial systems is

explored in the following sub-section.

Liberal legal rhetoric and popular culture provide a definitive image of the litigation

process. Both tell us that litigation centres on the courtroom and that in the Australian

court system, trials are formally structured on an adversarial model (Bottomley &

Bronitt, 2006). While the dominant pattern in the Australian legal system is adversarial,

some aspects of it are inquisitorial, and it has been suggested that by an ‘ad hoc’

development of rules, we now have a ‘hybrid’ system based on adversarial ‘elements’

(Law Reform Commission of Western Australia, 1999).

Similarly, the child-protection court proceeding process seen in the Children’s Court of

Victoria has been described as a ‘hybrid’ between an adversarial model and a modified

inquisitorial model (Mitchell, 2006). Magistrate Mitchell has stated that where there are

disputed matters of fact, the Children’s Court more closely follows a traditional

adversarial model of cross-examination, and where there are not factual issues in

dispute, the procedure more closely follows an inquisitorial model.

Australian courts have inherited a great deal of formality and tradition from the courts

of the past, particularly English courts. The legal system itself consists of a hierarchy,

and within a given court, the officials have clear roles and rank. Judges and magistrates

are considered the most important people in a courtroom; where they sit and how they

18

dress can indicate their authority. In many jurisdictions in Australia, court proceedings

are marked by a greater degree of overt judicial intervention than is envisaged by the

adversarial ideal. Rather than the judges traditionally sitting as a detached ‘umpire’,

now an accepted part of their role is to manage the business of the court. This shift in

the role of the judge has been formalised throughout court systems in Australia as part

of what is termed ‘case management’.

Traditional legal values can be translated into legal processes, and can be reflected in

physical and structural spaces. Some of the fundamental principles of the law can play

into the spaces that are created in the courtroom: for instance, legal values that are

translated into physical spaces can be seen in the design of the court building, in the

design and layout of the courtrooms and in the waiting room areas and spaces. The

raised bench for the judge or magistrate, the seating arrangements of the parties, the

lawyers’ position and location in the courtroom, are all examples of how legal values

can play out in physical spaces. The intersection of power and the creation of physical

space is also evident in courtrooms where there is a jury which is usually located on a

platform higher up than the lawyers and the parties, but below the judge. Clear

messages are sent by such layouts — often indicating who has power over whom. The

traditional use of wigs and gowns worn by the authority figure are also examples of the

way in which values can be translated to further bestow power to the authority figure.

The legal landscape in Australia has seen an increasing interest in the area of courtroom

architecture and design. At a Jury Research Conference held in 2005, Brawn (2005)

proposed that architecture can prompt psychological and cultural responses in some

communities. He identified how non-verbal cues such as steps rising to a courthouse,

and pillars outside a court building have particular connotations for some cultures,

including that they were intimidating. Brawn described the symbolisms of the

courtroom and noted how environments and spaces may sometimes ‘serve’ and

sometimes ‘hinder’. He suggested that historically, courtrooms and jury spaces had no

sense of comfort and noted that the symbolism of courtrooms in Australia was

19

generally ‘Anglo-Saxon centric’ (Brawn, 2005:8).

Research in the area of courtroom architecture and design and architectural psychology

(St John Kennedy & Tait, 1999; Tait, 1999, 2001; Missingham, Heywood & Brawn,

2002; Brawn, 2005; Richardson, 2005) has largely focused on the design of criminal

rather than civil courts. Much of this literature suggests there is opportunity for research

in the area of the physical design of Children’s courts, most notably in exploring the

ways in which the physical spaces and design of Children’s courts can ‘silence’ or

hinder, or ‘make space’ for the parents and families involved in child protection court

proceedings.

(ii) Adversarial and inquisitorial legal systems

In very broad terms, an adversarial legal model refers to the common law system of

conducting court proceedings in which the parties, and not the judge, have the primary

responsibility for defining the issues in dispute and for investigating and advancing the

case (Australian Law Reform Commission, (ALRC), 2000). The adversarial legal

model — with passivity on the part of judges, the heightened role of lawyers, the use of

oral testimony and cross-examination — characterises the legal system of Western

Australia and other common law jurisdictions (Law Reform Commission of Western

Australia, 1999). The principles of partisanship, zealousness and the duty of

confidentiality are defining features of the adversarial system. In theory, these

principles are supposed to interlock with the adversary system by “requiring each

combatant to be represented by a loyal gladiator” (Bottomley & Bronitt, 2006:179).

Conversely, an inquisitorial system is a legal system where the court or a part of the

court is actively involved in determining the facts of the case, as opposed to the

adversarial system where the judge's role is that of an impartial referee. The

inquisitorial system applies to questions of procedure as opposed to questions of

substantive law and is most readily used in many, but not all civil law legal systems.

20

Often the advantages and disadvantages of the adversarial system are compared with

the inquisitorial justice system. As previously indicated, the legal system in a number of

western European and Scandinavian countries operates according to an inquisitorial

justice model. These countries have adopted a ‘family services’ approach to address the

issue of the protection and care of children. In such countries, the grounds for

intervention imply a welfare rather than a rights basis, and the court system is also

relatively informal (Hetherington, Cooper, Smith & Wilford, 1997). The court conducts

‘inquiries’ and is not confined to deciding between the submissions of the opposing

parties.

In contrast to the ‘family services’ approach is the ‘legislative’ approach seen in

Australia, which is based on an adversarial system, and is characterised by a high

degree of partisan behaviour, partial autonomy, judicial passivity and dependence on

lawyers (Law Reform Commission of Western Australia, 1999). Often there are

differences in the way the adversarial model operates within adversarial jurisdictions.

For instance, such differences can be seen in how tribunals rather than courts handle a

significant number of cases, and how they generally rely on inquisitorial rather than

adversarial procedures. There is also an increasing reliance on the use of pre-litigation

alternative dispute resolution procedures by the courts, reflecting a more inquisitorial

based process. According to the Chief Justice of Western Australia:

The future years will see the strict rigors of the adversarial approach modified to encourage a more collegiate approach to the identification of the real issues in contention, and the most efficient and inexpensive means of resolving those issues (Martin, 2008:5).

The Chief Justice has also stated that the fairness and efficacy of the adversarial process

presumes that each party will have access to legal resources, and according to him, this

is not a valid assumption in contemporary Australia (Martin, 2008). He states that if

parties have unequal access to legal resources, the adversarial process can become an

instrument of unfairness, and impede the administration and delivery of justice. The

adversarial nature of the justice system — based on competing interests, arguments,

21

evidence and judgments — is regarded as contributing to barriers experienced by

people, particularly by vulnerable groups. The Disability Council of NSW (2003)

reports that for people with disabilities, this is a practical reality across jurisdictions —

in criminal matters, civil proceedings and also within alternative dispute resolution

processes.

The protection and care jurisdiction in Australia is based on an adversarial approach

(Australasian Therapeutic Jurisprudence Clearinghouse, 2010a). The adversarial

approach adjudicates cases brought by the State, and decides whether or not there is

sufficient evidence of child maltreatment to justify statutory intervention in family life.

This approach is marked by the use of highly structured and standardised risk

assessment measures and by the need to gather evidence in a manner acceptable to the

court. Because child protection systems are based on the legal requirement to

demonstrate parental incapacity or misconduct before the State can intervene, much

time is spent by workers gathering evidence suitable for use in formal legal proceedings

(Allen Consulting Group, 2003).

The adversarial nature of protection and care proceedings is perhaps the most widely

criticised component of the jurisdiction in both Australia and internationally (Swain,

1996; Weinstein, 1997; Brooks, 1999; Swain et al., 2000; McConnell et al., 2002; King,

2005; Ombudsman New South Wales, 2006; Bennett & Sadrehashemi, 2008; Wood

Inquiry, 2008; Ombudsman Victoria, 2009). While there is a well-established critique

in the research about the impact of the adversarial legal system, it was noted in the

Special Commission of Inquiry into Child Protection Services in New South Wales

(Wood, 2008:512) that the term ‘adversarial’ can, however, be somewhat subjective.

For instance, the spectrum of what the term ‘adversarial’ may cover could include

anything from the mere testing of evidence in court, the presence of a number of legally

represented parties, to combative, hostile and ‘point-scoring’ behaviour, and it may

relate to procedures, processes or the conduct of participants.

22

The following observation captures the essence of how an adversarial approach to

protection and care proceedings can be experienced by families:

Proceedings of this kind in the Children’s Court almost always commence in an atmosphere of acrimony and of great concern on the part of the family that they might lose their child; as well as concern on the part of DoCS staff as to the safety, welfare and well-being of the child, and of the need to be able to establish a positive working relationship if the child is in fact removed, either temporarily or on a long term basis (Wood, 2008:416).

(iii) Tensions within the system of common law

The English common law tradition that all people are equal before the law, gives rise to

the idea that the courts should be equally accessible to all. Despite this, there exists a

tension between access to justice and legal costs. In a review of the criminal and civil

justice systems in Western Australia, it was noted that people in a free and democratic

society regard justice not as a privilege but as a right. Accordingly, there is something

inherently inconsistent in the notion that justice is a right that must be paid for, in order

to gain access to it (Law Reform Commission of Western Australia, 1999).

Access to the court system is both formally guaranteed and structured by rules of

standing and procedure. Access to justice has come to be regarded as synonymous with

or crucially dependent on, ideals of due process or the rule of law (Bottomley &

Bronitt, 2006); ideals which are considered as the cornerstone of civil democratic

society, and are the basis on which the justice system is founded (Disability Council of

NSW, 2003). Access to justice can involve more than access to formal legal

representation and the courts. It can include issues of overcoming conceptual, physical

and attitudinal barriers within the court system itself. It can also consider procedural

issues such as overcoming delays within the court process, efficiency, formality and

cost of proceedings, and the organisation, structure and administration of courts and

tribunals.

Access to, and participation in, the justice system has been described as being central to

23

the notion of citizenship (Disability Council of NSW, 2003). Despite this, a growing

body of evidence suggests that parents and families involved in child-protection court

proceedings are being denied equal access to, and participation in, the justice system

through a range of barriers (Swain, 1996; McConnell et al., 2000; Swain et al., 2002;

Family Inclusion Network [Queensland], 2007; Bennett & Sadrehashemi, 2008;

Harries, 2008).

Critical to the subject matter of this thesis is the understanding that access to the legal

system does not necessarily mean access to equal treatment in that system. Barriers to

justice within the legal system can include restrictions in the provision of legal aid,

social or economic disadvantage, cultural issues and language barriers. Research has

clearly demonstrated that people who experience mental illness, addiction, disability,

socioeconomic difficulties or personal misfortunes face far greater challenges in

relation to accessing justice (McConnell et al., 2000; Swain et al., 2002; Forell,

McCarron & Schetzer, 2005; Karras et al., 2006; Bennett & Sadrehashemi, 2008).

Research conducted by the Family Inclusion Network in Queensland found that a key

concern of parents involved in protection and care matters was in relation to the cost of

the legal system in obtaining advice, and the eligibility for legal aid being based on the

probability of winning the case rather than on fair and due process (Family Inclusion

Network [Queensland], 2007).

A number of the reports and publications listed above have described barriers to

accessing legal assistance and barriers to participating in the legal system, particularly

by economically and socially disadvantaged and vulnerable people. Some of the

personal barriers noted in the research include communication difficulties, stress, time

management and perceived lack of credibility, as well as limited availability of

affordable legal services, time constraints placed on legal service provision and the

physical court environment.

24

In response to escalating concerns expressed about the insufficient levels of public

funding for legal aid that were progressively alienating more and more disadvantaged

Australians from the justice system, the Law Council of Australia, in conjunction with

the Australian Institute of Judicial Administration, National Legal Aid and Aboriginal

and Torres Strait Islander Legal Services undertook research that led to the report The

Erosion of Legal Representation in the Australian Justice System (Law Council of

Australia, 2004). That report demonstrates unequivocally how the erosion in the level

of legal representation has had a detrimental impact on the legal system and the

delivery of justice in Australia. The report recommends urgent increased and secure

funding for those bodies responsible for managing and delivering publicly funded legal

representation. The report also focuses on self-represented litigants and their effect on

the Australian justice system. The increasing number of self-represented litigants

expected in the coming decade is particularly interesting in terms of foreshadowing the

direction in which access to public funding for legal representation will likely go in the

future.

Western Australia has attempted to address issues of justice and access in recent years.

In 2009, the Department of the Attorney General released the comprehensive

publication Equality before the Law Bench Book (Department of the Attorney General,

Western Australia, 2009) to address the need for Western Australian judicial officers to

better understand the range of values, cultures, lifestyles and life experiences of people

from different backgrounds. The Bench Book contains information about the potential

difficulties, barriers or inequities people from different backgrounds may face in

relation to court proceedings.

In the foreword of the Bench Book, the Chief Justice of Western Australia states that

our ability to ensure the equal treatment of all those who come into contact with the

justice system of Western Australia is constrained by our ability to identify and

appreciate the many and varied causes of disadvantage and inequality (Martin, 2009).

He argues that our task is to eliminate or ameliorate disadvantage and inequality

25

without causing prejudice to other participants in the justice process, and that the best

way of doing this is often neither self-evident nor intuitive — it often needs to be

informed by specialised knowledge and experience (Martin, 2009:vi).

The statutory basis of child protection in Australia and the way in which the Children’s

Court operates, both in relation to matters of law as well as in relation to the processes

by which significant decisions about the lives of children and young people are made,

will now be described.

2.3 STATUTORY BASIS OF CHILD PROTECTION IN AUSTRALIA

In Australia, child protection is a State or Territory responsibility and each of these

jurisdictions has its own child protection legislation, policies and practices in relation to

child protection (Australian Institute of Health and Welfare, 2009). While there is some

contention between the states in relation to the respective State and Territory

legislation, in essence all states and territories follow a relatively similar structure. It

has been noted that the processes and core activities being undertaken by child

protection practitioners across the states and territories of Australia, including the

gathering of information, assessment, case planning and case management are broadly

similar. However, the procedural and legislative frameworks guiding this work and

defining the child protection population vary greatly between jurisdictions (Bromfield

& Higgins, 2005).

(i) Role and structure of the Children’s Court

In 1988 the Children's Court of Western Australia Act 1988 (WA) was passed and a

new Children’s Court was established and became known as the Children’s Court of

Western Australia. It comprises the Perth Children’s Court, located immediately

outside the central business district of Perth City, metropolitan Children’s courts in

Armadale, Fremantle, Joondalup, Rockingham and Midland, and outside the

metropolitan area the Children’s Court can sit wherever the Magistrate’s Court of

Western Australia sits. In country areas there are magistrates who exercise both

26

Magistrate’s Court and Children’s Court jurisdiction (amongst other things). The

President and magistrates based at the Perth Children’s Court operate on a rotating

basis throughout metropolitan and regional Western Australian courts.

The Children’s Court of Western Australia is constituted by a President (also referred to

as the Chief Judge), magistrates and Justices of the Peace (JPs). Currently the personnel

based at the Perth Children’s Court comprises a President, four full-time magistrates,

and one part-time magistrate (Children’s Court of Western Australia, 2010). In country

areas there are magistrates who exercise both Magistrate’s Court and Children’s Court

jurisdiction – these magistrates are also Children’s Court magistrates. The President of

the Court is a judge of the same status as a Western Australian District Court Judge

(Children’s Court of Western Australia Act 1988 (s.7(9)) and can hear appeals against

decisions of Children’s Court magistrates or Justices of the Peace (s.6(5)(a)).

Magistrates and Judges (other than the Chief Judge of the Family Court of Western

Australia) in both the Children’s Court of WA and Family Court of WA have the same

judicial status, which, for Magistrates, they share with Magistrates of regional

magistrates courts.

In Western Australia, the Children’s Court is separated into two jurisdictions — the

criminal jurisdiction and the civil jurisdiction. In its criminal jurisdiction, the court

deals with all complaints of offences alleged to have been committed by a young

person between the ages of 10 and 17 years (inclusive). If the young person charged has

turned 18 after the date of the alleged offence, this young person will still appear before

the Children’s Court (Children’s Court of Western Australia, 2010). Anecdotal

evidence suggests that approximately 80% of the matters heard in the Perth Children’s

Court are criminal matters, and 20% are protection and care matters.

In its civil jurisdiction, the court deals with all protection and care matters relating to

children, and as such, the action taken in this jurisdiction is not called a ‘charge’ or

‘complaint’ but an ‘application’. If a child has suffered, or is likely to suffer neglect or

27

abuse, an officer of the Department for Child Protection, herein referred to as DCP, or a

police officer, can remove a child and take them into provisional protection and care

(Children and Community Services Act 2004 (WA), s.28). The DCP will then make an

application to the Children’s Court of Western Australia for a protection order

(Children’s Court of Western Australia, 2010).

(ii) Child protection legislation at a glance: principles, provisions and

regulations

The most significant piece of legislation governing the administration of the protection

and care jurisdiction of the Children’s Court of Western Australia is the Children and

Community Services Act 2004 (WA) (referred to as the Act in this chapter), the major

provisions of which came into effect in March 2006. This Act repealed the Child

Welfare Act 1947 (WA), the Community Services Act 1972 (WA) and the Welfare and

Assistance Act 1961 (WA).

The power of DCP to intervene in the lives of children and young persons derives from

legislation, primarily the Act, and the Children and Community Services Regulations

2006 (WA) (the Regulations). The Act allows the Chief Executive Officer, herein

referred to as the CEO, to apply for a protection order for a child. The Act establishes a

regime under which the ultimate decision-making about the removal of children from

their families without their consent, and the consequent allocation of parental

responsibility rests with the courts. The Children’s Court of Western Australia is the

court with primary responsibility for making these decisions.

Prior to the enactment of the new legislation in 2006, the Minister for Community

Development had the power to extend administratively a wardship order for a child,

discharge a child from wardship, commit a child to the care of the Department (with

parental consent or where the child was abandoned or orphaned), and approve a child in

State care travelling outside of Western Australia. Under the new legislation, the CEO

has neither these powers, nor the administrative power to extend a period of care. The

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new legislation enacted in 2006 changed the way that care and protection matters are

dealt with by the Children’s Court. The Department of the Attorney General Western

Australia Annual Report 2005–06 (2006:54) states that major changes in the new

legislation include the following:

• the magistrate may refer a pre-trial conference to an external mediator

• Department of Community Development (DCD)1 field officers can make an

application for a warrant to be issued by the court in the first instance, to

apprehend a child assessed to be in need of care and protection

• the Court can direct an independent professional report (e.g., psychological

report) to be prepared in a care and protection matter

• the Children’s Court can hear applications for extension of care orders

• all children to be separately represented rather than only those considered

capable of giving instructions

• appeals against case-planning decisions will be dealt with by the State

Administrative Tribunal.

Under the previous legislation, the Child Welfare Act 1947 (WA), the child who was

the subject to the protection and care application was required to be ‘sighted’ or

physically seen by the magistrate on the first day the matter was listed to be heard in the

court. Under the new Act, children are no longer sighted and are not expected to be

present in court for any of the proceedings. This is in accordance with research that

indicates that the less time a child is required to spend in court proceedings, the better

(ALRC, 1997; Hay, 2003).

1 Department of Community Development (DCD) is now known at the Department for Child Protection (DCP).

29

The key principles and provisions that guide decision-making activities of the

Children’s Court will now be briefly described.

Principles of the Act

The Chief Executive Officer of the DCP is empowered by the Act to safeguard and

promote children’s wellbeing, investigate allegations of abuse or neglect, apply to the

Children’s Court for protection orders, make arrangements for children to be placed in

the CEO’s care and provide for children leaving care.

In exercising any of the powers under the Act, DCP (and others) must adhere to the

principles set out in the Act. The Act confers functions in relation to the provision of

social services, financial and other assistance, and other matters concerning the

wellbeing of children, families and communities. It makes provisions for the protection

and care of children, the employment of children, and childcare services.

The Act contains principles that must be observed and considered in the administration

and carrying out of functions under the Act, including the following:

• Principle that the best interests of the child are paramount (s.8)

• Principle of child participation (s.10)

• Aboriginal and Torres Strait Islander child placement principle (s.12)

• Principle of self-determination (specific to Aboriginal and Torres Strait

Islanders) (s.13)

• Principle of community participation (specific to Aboriginal and Torres Strait

Islanders) (s.14).

Guiding Principles

Guiding principles of the Act (s.9) that direct the work of the DCP and the Children’s

Court of Western Australia include the following:

(a) That the parents, family and community of a child have the primary role in

safeguarding and promoting the child’s wellbeing

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(b) That the preferred way of safeguarding and promoting a child’s wellbeing is to

support the child’s parents, family and community in the care of the child

(c) That every child should be cared for and protected from harm

(d) That every child should live in an environment free from violence

(e) That every child should have stable, secure and safe relationships and living

arrangements

(f) That intervention action (as defined in section 32(2)) should be taken only in

circumstances where there is no other reasonable way to safeguard and promote

the child’s wellbeing

(g) That if a child is removed from the child’s family then, so far as is consistent

with the child’s best interests, the child should be given encouragement and

support in maintaining contact with the child’s parents, siblings and other

relatives and with any other people who are significant in the child’s life

(h) That decisions about a child should be made promptly having regard to the age,

characteristics, circumstances and needs of the child

(i) That decisions about a child should be consistent with cultural, ethnic and

religious values and traditions relevant to the child

(j) That a child’s parents and any other people who are significant in the

child’s life should be given an opportunity and assistance to participate in

decision-making processes under this Act that are likely to have a significant

impact on the child’s life

(k) That a child’s parents and any other people who are significant in the child’s life

should be given adequate information, in a manner and language that they can

understand.

Best Interests Principle

In relation to the principle that the best interests of the child are paramount (s.8), the

Act states the following:

8(1) In determining for the purposes of this Act what is in a child’s best interests the

following matters must be taken into account —

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(a) The need to protect the child from harm;

(b) The capacity of the child’s parents to protect the child from harm;

(c) The capacity of the child’s parents, or of any other person, to provide for the

child’s needs;

(d) The nature of the child’s relationship with the child’s parents, siblings and other

relatives and with any other people who are significant in the child’s life;

(e) The attitude to the child, and to parental responsibility, demonstrated by the

child’s parents;

(f) Any wishes or views expressed by the child, having regard to the child’s age

and level of understanding in determining the weight to be given to those wishes

or views;

(g) The importance of continuity and stability in the child’s living arrangements and

the likely effect on the child of disruption of those living arrangements,

including separation from —

i. The child’s parents;

ii. A sibling or other relative of the child;

iii. A carer or any other person (including a child) with whom the child is,

or has recently been, living; or

iv. Any other person who is significant in the child’s life;

(h) The need for the child to maintain contact with the child’s parents, siblings and

other relatives and with any other people who are significant in the child’s life;

(i) The child’s age, maturity, sex, sexuality, background and language;

(j) The child’s cultural, ethnic or religious identity (including any need to maintain

a connection with the lifestyle, culture and traditions of Aboriginal people or

Torres Strait Islanders);

(k) The child’s physical, emotional, intellectual, spiritual, developmental and

educational needs;

(l) Any other relevant characteristics of the child;

(m) The likely effect on the child of any change in the child’s circumstances.

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Aboriginal and Torres Strait Islander Child Placement Principle

The Act contains specific provisions regarding the needs of Indigenous children and

young people. The Aboriginal and Torres Strait Islander Child Placement Principle

provides that certain considerations and preferences must be taken into account in

relation to the placement of an Indigenous child or young person. All Australian states

and territories have adopted this principle, demonstrating a shared commitment towards

preserving familial or at least cultural or community links for children and young

people in care.

The Act outlines a preference for the placement of Indigenous children and young

persons with Indigenous people when they are placed outside their families. Section 12

of the Act states the general order of preference for placement is that an Indigenous

child or young person be placed: with a member of his or her family; or if this is not

practicable, a member of the Indigenous community to which he or she belongs; or if

this is not practicable, a member of another Indigenous family; or if this is not

practicable, placement with a person who is not an Indigenous person but who, in the

opinion of the CEO, is sensitive to the needs of the child and capable of promoting the

child’s ongoing affiliation with the child’s culture, and where possible, the child’s

family.

The Act also contains specific provisions regarding the needs of Indigenous children

and young people. Section 13 relates to the principle of self-determination and states

that in the administration of the Act, Indigenous people should be allowed to participate

in the care and protection of their children and young persons “with as much self-

determination as possible”. Section 14 of the Act relates to the principle of community

participation, and states that in the administration of the Act, a principle to be observed

is that a kinship group, community or representative organisation of Indigenous people

should be given, where appropriate, an opportunity and assistance to participate in

decision-making processes that are likely to have a significant impact on the life of a

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child who is a member of, or represented by the group, community or organisation.

A lack of availability of Indigenous carers and there being no requirement that children

be placed via an Indigenous agency have acted as a barrier to the proper

implementation of these principles, and these concerns have been raised in the literature

(Valentine & Gray, 2006; Wood Inquiry, 2008).

Specific provisions within the Act

There are specific provisions within the Act that determine how the legislation shapes

the operation of the Children’s Court of Western Australia. A number of these

provisions have specific implications for the parents and families who are involved in

protection and care court proceedings.

Section 145 of the Act relates to the general conduct of protection proceedings, and

states that proceedings are to be conducted with as little formality and legal technicality

as the circumstances of the case permit (s.145(1)). Under this provision, the judge or

magistrate of the Children’s Court is not to wear traditional wigs and gowns, in an

attempt to reduce the formality of proceedings. Similarly, they should proceed as

expeditiously as possible in order to minimise the effect of the proceedings on the child

and the child’s family (s.145(2)). These provisions are underpinned by concepts valued

by therapeutic jurisprudence.

Section 153 of the Act relates to the Children’s Court facilitating the parties’

participation in proceedings, and states that in protection proceedings the Court must,

as far as is practicable, ensure that each party understands the nature, purpose and legal

implications of the proceedings and of any order or decision of the Court (s.153(1)).

Section 146 of the Act relates to the Children’s Court not being bound by the rules of

evidence. This provision raises a number of questions relating to equity and access

issues in the legal system. In protection proceedings, while the court is not bound by the

34

rules of evidence, it may inform itself on any matter, in any matter it considers

appropriate (s.146(2)). Rules of evidence limit the information that can be considered

by a court, but also assist the court in determining the strength and reliability of the

information that is before it (Wood Inquiry, 2008). The ‘burden of proof’ requirement

is different from the criminal court where the standard of proof has to be ‘beyond

reasonable doubt’.

There appears very little information in the literature pertaining to the consequences of

the rules of evidence not being applied in the Children’s Court. However, it has been

suggested that this major concession can work in favour of the applicant (in this case,

the Department for Child Protection) and some people have argued that this is one of

the reasons why a proposal for relocation of the protection and care jurisdiction to the

Family Court of Western Australia, where the rules of evidence do apply, does not have

the full support of the DCP.

Children and Community Services Regulations 2006

The Children and Community Services Regulations 2006 (WA) cover rules and

regulations and administrative matters relating to the Act, including procedures and

administration of pre-hearing conferences (specifically in relation to the appointment of

convenors and the people who may attend the pre-hearing conferences), transitional

care arrangements, and approval of carers for children in the care of the CEO.

Mandatory reporting

Amendments to the Act to include the mandatory reporting of child sexual abuse by

certain professionals in Western Australia came into effect on 1 January 2009. Western

Australia was the last state or territory in Australia to have such laws enacted. Under

the new amendments, doctors, nurses, midwives, teachers and police officers are

required to make a report to DCP if they form a belief on reasonable grounds, that a

child has been sexually abused or is the subject of ongoing sexual abuse. Other

mandatory reporting provisions include the provision in the Western Australia Family

35

Court Act 1997, which requires court personnel, counsellors and mediators to report

allegations or suspicions of child abuse in Family Court cases (s.160), and regulations

in the Children and Community Services Act 2004 (WA) that require childcare

personnel to report suspected child abuse.

(iii) Protection applications and protection orders

A protection application by the DCP to the Children’s Court seeks a determination that

a child or young person is “in need of protection”. Under Section 28(2) of the Act, “in

need of protection” is defined as where: —

(a) the child has been abandoned by his or her parents and, after reasonable inquiries —

(i) the parents cannot be found; and (ii) no suitable adult relative or other suitable adult can be found

who is willing and able to care for the child; (b) the child’s parents are dead or incapacitated and, after reasonable

inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;

(c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following —

(i) physical abuse; (ii) sexual abuse; (iii) emotional abuse; (iv) psychological abuse; (v) neglect, and the child’s parents have not protected, or are unlikely or unable to

protect, the child from harm, or further harm, of that kind; or (d) the child has suffered, or is likely to suffer, harm as a result of — (i) the child’s parents being unable to provide, or arrange the

provision of, adequate care for the child; or (ii) the child’s parents being unable to provide, or arrange the

provision of, effective medical, therapeutic or other remedial treatment for the child.

36

Protection applications can only be made by the CEO under section 44(1) of the Act.

The protection application must specify the particular type of protection order sought,

and the grounds on which it is sought (s.44(2)).

Protection orders

The Children’s Court can make a protection order in relation to a child or young person

if it is satisfied that the child or young person is “in need of protection”. If the

Children’s Court determines that a child or young person is in need of protection, it can

make a protection order allocating some or all aspects of responsibility for the child or

young person to the CEO. Previously in Western Australia, the Children’s Court

determined the length of guardianship orders under which children or young people

were placed. The Act enables the Children’s Court to make one of four types of

protection orders according to the needs and circumstances of the child or young

person:

- Protection Order (time limited —2 years)

- Protection Order (until 18 years)

- Protection Order (supervision)

- Protection Order (enduring parental responsibility).

Protection orders (time limited —2 years) and protection orders (until 18 years) confer

parental responsibility on the CEO, and protection orders (enduring parental

responsibility) confer parental responsibility on a third party. For a full description of

each of the four types of protection orders, see Appendix A.

In Western Australia in 2008–09, 1185 protection applications were lodged in the

Children’s Court — 657 were new applications, 228 were applications for extensions of

orders, and 300 were replacement and revocation applications. Of the 657 new

applications, 229 were granted protection orders, 383 were in process, 3 were dismissed

and 42 were withdrawn (Department for Child Protection, 2009).

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(iv) Legal representation in the Children’s Court

If a parent of a child or young person arrives at the Children’s Court of Western

Australia for their first mention and does not have legal representation, magistrates will

usually defer the matter until the parent has had an opportunity to speak to the duty

lawyer who is based at the Children’s Court. The magistrate and the duty lawyer

encourage parents to get legal advice as soon as possible, even if the parent is thinking

of agreeing to a protection order being made. Parents are advised that if they cannot

afford a lawyer, they can contact the Legal Aid Commission of Western Australia or

Aboriginal Legal Services and contact details are provided.

Duty lawyer service

In April 2006, the Legal Aid Commission of Western Australia, in conjunction with the

Children’s Court of Western Australia established a duty lawyer service called

Children's Court (Protection) Services. The service has been designed specifically for

respondents (i.e., parents) who are involved in protection and care matters. The service

is based at the Perth Children’s Court and is staffed by a full-time lawyer and a full-

time legal assistant who provide respondents with assistance with the following:

• legal and procedural advice

• representation in court, including: applying for adjournments; appearing on

behalf of clients on at least the first and second return dates of protection

applications on matters which can include interim contact and placement issues

(the duty lawyer cannot represent clients in trials)

• minor assistance services, including: negotiating on behalf of clients with the

DCP and other parties to the proceedings; and the preparation of court

documents such as applications for interim contact, placement, and minutes of

consent orders

• assistance with completing Legal Aid Commission application forms and

information about the likelihood of legal aid being granted

• referrals to private practitioners when there is a conflict, as well as referrals to

other legal aid services and non-legal support services

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• assistance with accommodation, social security and other issues that may arise

once protection proceedings begin.

Legal representation of parents

The Eligibility Guidelines for protection applications (Legal Aid Commission of

Western Australia, 2009) state the following:

1. Aid may be initially granted to a respondent (i.e., parent) to a protection

application for advice and investigation into the respondent’s likelihood of

successfully defending the application (italics added)

2. Aid may be granted to include representation up to and including a defended

hearing provided that:

(i) The level of representation required is outside the normal level of

representation that could be provided to the applicant through a duty

lawyer service; and

(ii) The applicant for aid has a reasonable chance of successfully

opposing the application (italics added)

The issue of how Legal Aid eligibility guidelines translate for parents, particularly in

relation to those parents who choose to contest (oppose) the protection application and

pursue the matter to trial, is one of the most significant areas of concern in relation to

access and barriers to justice in Western Australia. With the emergence of self-

represented litigants (i.e., parents) appearing in trials in the Children’s Court of Western

Australia, the question needs to be asked as to how equitable this practice is, in the light

of the immense disadvantages and vulnerabilities that many of the parents appearing in

the Children’s Court face when confronted with the resources of the State. The issue of

access to legal representation and the personal implications of this have emerged as key

issues of concern across various jurisdictions in Australia and internationally

(McConnell et al., 2000; Swain et al., 2002; Karras et al., 2006; Family Inclusion

Network [Queensland], 2007; Harries, 2008; Bennett & Sadrehashemi, 2008).

39

The Legal Aid Commission of Western Australia has reported receiving an increasing

number of applications annually for Grants of Aid for protection applications. The

Commission states that in 2007–08, the number of applications approved to assist

respondent parents in protection and care matters increased by 18% from 942 to 1112,

on the back of a 45% increase the previous year (Legal Aid Commission of Western

Australia, 2008).

In 2007, Ms Prudence Ford conducted the most significant independent review of the

status of Child Protection in Western Australia. This review has been extremely

influential in terms of child protection reform in Western Australia. The Legal Aid

Commission of Western Australia stated that the introduction of the new Act in 2006

and subsequent endorsement of recommendations made in the Ford review (Ford,

2007) resulted in significantly more interventions and additional caseload for the

Children’s Court and Legal Aid (Legal Aid Commission of Western Australia, 2008).

Legal representation of children

In accordance with the Act, in protection and care proceedings in Western Australia, if,

it appears to the Court that the child ought to have separate legal representation, the

Court may order that the child be separately represented by a legal practitioner

(s.148(2)). In protection proceedings, a child can be legally represented by a lawyer

known as a Child Representative who acts either ‘on instructions’ where the child is

deemed to have sufficient maturity to understand the nature of the proceedings and is

able to provide instructions to their lawyer in relation to their views, or when a child

does not have that capacity, a lawyer represents the child ‘on best interests’ (s.148(4)).

Appointments of a Child Representative in protection and care proceedings are referred

to the Legal Aid Commission and the work is allocated to a practitioner (lawyer) who is

either employed by the Commission, or engaged by it on its Care and Protection Panel.

The Panel comprises private practitioners who have been accepted by the Legal Aid

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Commission as being eligible to carry out legal work in protection proceedings.

(v) Court process

When it is established that a child cannot be made safe in their family, the Act enables

DCP to provide immediate safety by taking the child into provisional protection and

care, with or without a warrant. If the child is assessed to be in need of protection, DCP

will make an application to the Children’s Court within two working days for a

protection order. DCP are not required to advise the parents that they are making an

application for a warrant. A copy of the application is filed in the Children’s Court and

a copy is served on the parents. The application is called a ‘Case Outline’: it is a

statement of facts and issues and sets out a summary of allegations being made by

DCP. Upon receipt of the application for a protection order, the parents have one of two

choices:

1. To respond to the protection order sought (Contest)

2. To agree to a protection order being made (Consent)

The following description of the court process is based on information contained in the

Act, the Children’s Court Practice Directions and the Regulations. A flow chart

describing the Children’s Court process when a matter is contested (opposed) is

included in Appendix B, and a flow chart describing the process when a protection

application is consented (agreed) is included in Appendix C.

The first appearance that is required of parents will usually happen within two to three

days of DCP filing the protection application in the court. Often, at the first hearing of

the matter, the court will adjourn the case for a period of up to two weeks. The court

will make an order on where the child should live until the matter returns to court. The

magistrate’s decision about where the child should live until the matter is finally

resolved is called an Interim Order. If parents choose to respond to the orders sought

(that is, if they oppose or ‘contest’ the application), they are required to file a response

to the Case Outline in the Children’s Court. In this case, there may be several

41

appearances at court.

If the matter is contested, there will be a few brief appearances so the court can check

on the progress of the case and to allow the court to make directions. These appearances

are referred to as ‘mentions’. Mentions are brief court appearances that occur between

the initial hearing date and the final decision. The court can adjourn (postpone) the

proceedings and set another mention date. ‘Directions’ are instructions by a magistrate

about how a case is to proceed and may include dates for filing of documents, pre-

hearing conferences and the trial. Adjournments may be granted to allow for legal

advice, to get specialist reports or to allow time for further assessments and

negotiations. Most matters in the Children’s Court are resolved before going to trial.

Often an agreement is reached at a pre-hearing conference between parties. Sometimes

the parents or carers will not challenge or oppose the protection application being

sought and the magistrate will make a protection order ‘by consent’ or agreement by all

parties.

If the application is challenged by the parents or carers, then the matter is resolved at a

pre-hearing conference or a trial. The pre-hearing conference is an opportunity for all

parties to discuss the case and try to reach agreement without the need for a trial. Pre-

hearing conferences are held at the Children’s Court of Western Australia, in a small

room located away from the courtrooms. The conferences are facilitated by a magistrate

or external convenor, and parents, their lawyers, DCP lawyers and caseworkers and any

other parties or their lawyers attend.

Where an agreement is reached in the pre-hearing conference, protection orders can be

made. If no agreement or if a part-agreement only is reached then a trial will be

necessary. If the pre-hearing conference does not result in consent for final orders

(protection order), the magistrate can adjourn the case to another pre-hearing

conference. The magistrate chairs the conference and can facilitate an agreement on any

issue of dispute between the parties. If no agreement is reached between the parties, this

42

time can be used to prepare for trial. If one or more of the respondents (i.e., parents) fail

to attend the pre-hearing conference at which the consent was reached, or if the court

decides that the application should be heard and determined ex parte, this can occur.

Ex parte means a decision can be made by the court without the parents being present.

If no agreement is reached at a pre-hearing conference, a final hearing (trial) will be

held. At the trial, everyone involved in the case can call witnesses and introduce

relevant documents. As previously noted, the rules of evidence are suspended in these

proceedings. If a case goes to trial in the Children’s Court, DCP will have a lawyer and

the child may have a lawyer, a Child Representative. Parents are advised to have a

lawyer but are also told they may choose to represent themselves. Parents are advised to

bring to the trial any witnesses who might help their case, usually including family and

friends who have seen them with their child. Witnesses wait outside the courtroom until

they are called in by the magistrate to give evidence. Should parents or carers wish to

have the child released from the protection order, they may apply to the court for

‘revocation’ of the protection order. The Children’s Court has the power to extend,

vary, revoke or replace a protection order. At the end of the trial, the court will decide

whether or not to make a protection order, and what type of protection order should be

made.

It can take several months before the court makes a final decision on a matter. Of the

limited data on protection proceedings available from the Children’s Court of Western

Australia, statistics indicate that in 2008, 92% of protection and care matters were

finalised within the standard 52 weeks of the initial application being lodged, and the

average number of court appearances for parents in protection and care matters was

seven (Department of the Attorney General Western Australia, 2008).

According to the Department of the Attorney General, in Western Australia in 2007–

08, 32% of protection and care cases were finalised by trial (Department of the

Attorney General, Western Australia, 2008). This reflects a relatively high proportion

43

of trials in comparison to research conducted by the Boston Consulting Group on the

Children’s Court of Victoria that indicated that less than 3% of all protection

applications proceed to a trial (Children’s Court of Victoria, 2010a:23).

2.4 SUMMARY

In this chapter, I have described the Australian legal system, and outlined the values

and processes that act as the foundation of that system. The presentation of this

backdrop is important for understanding the framework in which sits the ‘legislative’

approach to dealing with protection and care matters, and the limits and challenges of

such an approach. The adversarial model underpinning this legislative approach is

contrasted with the inquisitorial model that underpins the ‘family services’ approach to

address similar issues as seen in a number of western European and Scandinavian

countries.

This backdrop also provides a context for understanding the significant changes that

have occurred in the Australian legal system over the past decades. Key tensions that

exist within the broader context of the legal system were identified, most notably

around issues of justice and access. Barriers that economically and socially

disadvantaged people face in accessing legal assistance and participating in the legal

system that have been identified in the literature were described.

Various concerns and criticisms relating to the adversarial model on which the

protection and care jurisdiction in Australia is based have been highlighted, and a

number of implications for children and families are explored in greater detail in the

following chapter. The literature suggests that a child protection legal response that is

based on combined features of both the inquisitorial and adversarial models (one that is

not confined to deciding between the submissions of the opposing parties) may be the

most appropriate approach to dealing with children and families in adversity.

This chapter, which describes the legal system in Australia, and Chapter 3 which

44

reviews the key challenges and controversies facing contemporary child protection

systems around Australia provide a backdrop for Chapter 4, in which the theory and

application of therapeutic jurisprudence is discussed at a micro, meso and macro level,

and in which I provide an extensive description of its contemporary application and

potential role within the Children’s Court.

45

CHAPTER 3

---------------------------------------------------------------------------------------------------------

CHILD PROTECTION IN AUSTRALIA

3.1 INTRODUCTION

In this chapter, I provide an overview of the broader public policy context of child

protection in Australia. I include a brief overview of the origins, intentions and current

status of child protection in Australia and outline the key challenges and controversies

facing contemporary child protection systems nationwide. I also highlight some of the

tensions identified in the literature around accommodating prevention, early

intervention and family support in child protection practice. In a later chapter, I will

consider the potential intersection between some of these tensions and therapeutic

jurisprudence.

I also focus on the vulnerable families and communities who become involved in child

protective services, and I report on what we already know of these families and their

experiences of the child protection legal and court process more specifically. I highlight

the significance of hearing from families and children themselves about their real, lived

and private experiences. These voices are central to this research, in finding the answers

to the question of what works in meeting the needs of children, families and

communities in adversity.

A significant proportion of this chapter is about the problems relating to the legalistic

approach to the issue of child protection. Much of the debate around the traditional

child protection orientation has been in relation to the legalistic and forensic approach

46

that has dominated Australian child protection systems over past decades. The

Children’s courts and their practices and approaches are being questioned, particularly

in relation to how the courts manage and deal with the increasing complexity of cases

being heard and numbers of families moving through the courts. This chapter provides

an important backdrop for Chapter 4, in which the theory and application of therapeutic

jurisprudence is discussed at a micro, meso and macro level.

3.2 IDEAS AND IDEOLOGY OF CHILD WELFARE IN WESTERN

ENGLISH- SPEAKING COUNTRIES

Historically, there has been a significant shift in our understanding of what constitutes

child protection and child welfare in Australia. In describing how the past has shaped

present child protection policies, Foundation Chair in Child Protection and Director of

the Australian Centre for Child Protection at the University of South Australia,

Professor Dorothy Scott describes three ‘eras’ or ‘waves’ of the child protection

movement (Scott, 2006). The first wave, or what was originally called the ‘child

rescue’ or ‘child saving’ movement, was included as an area of public policy in western

societies in the late 19th century, and led to legislation to protect children from what

was called ‘cruelty’. This gave rise to statutory government intervention in the lives of

families and subsequently, countries such as the United Kingdom, the United States,

Australia and New Zealand adopted a legislative approach as discussed in the previous

chapter. Conversely and concurrently, some countries, particularly the Scandinavian

countries, adopted a ‘family services’ approach which can be broadly characterised as

the State provision of a range of family and community support services designed to

assist in raising children and to avoid or reduce child abuse.

The second wave of the child protection movement occurred in the 1960s, and marked

the inclusion of previously undetected fractures in infants resulting from non-accidental

injuries in the classification of child maltreatment. The Birrell and Birrell (1966) study

of the undiagnosed fractures and non-accidental injuries of children admitted to the

Royal Children’s Hospital in Melbourne, Australia, followed the classic study in the

United States, The Battered Child Syndrome (Kempe, Silverman, Steele, Droegmueller

47

& Silver, 1962). Scott (2006) states it was these studies that caught the attention of the

press, the public and professionals alike which led to legislation such as the mandatory

reporting of suspected child maltreatment throughout the United States and Australia.

By the 1970s, all Australian states and territories had enacted legislation that

empowered child protection authorities to investigate reports of child maltreatment, and

to remove children from situations deemed to be ‘abusive’ or ‘neglectful’. It was during

this time that child protection — which traditionally, was a private endeavour

undertaken by charitable societies — was transformed from a community responsibility

into a sub-department of the State and the job of government agencies (Ford, 2007).

According to Scott (2006), we are currently living in the third wave of the child

protection movement. Scott states that the laws and policies developed in the aftermath

of the discovery of The Battered Baby Syndrome have, over time, come to be applied to

a much wider, less specific range of acts and behaviours (or omissions or commissions)

which could result in child abuse and neglect. Others have suggested that evolving

social, political and academic trends have led to the expansion of the scope of child

welfare legislation, and it is these changes that have been the driver of increased

demand on child protection services (Bromfield & Holzer, 2008).

The current ideology of child welfare has been shaped in some part due to the

recognition of the impact of cumulative harm done to children by chronic parental

neglect and abuse. In response to this, there have been a number of legislative and

practice developments seen in recent years. Corresponding systemic changes that have

occurred at the same time have included the creation of centralised child reporting

systems and mandatory reporting regimes (Tomison, 2002; Cashmore, 2002; Harries &

Clare, 2002; Ainsworth, 2002; Scott, 2006; O’Donnell et al., 2008; Allen Consulting

Group, 2009).

48

3.3 THE CURRENT STATUS OF CHILD PROTECTION IN AUSTRALIA:

A SYSTEM IN CRISIS

The Australian child protection system has been described by many key commentators

as being in a state of crisis (Scott, 2006; Ford, 2007; Australian Government, 2008;

Bromfield & Holzer, 2008; O’Donnell et al., 2008; Wood, 2008; AIHW, 2009; Allen

Consulting Group, 2009; Council of Australian Governments (COAG) 2009; Goddard,

2009). Common descriptors of the child protection systems throughout Australia are:

overstretched, under-resourced, poorly staffed, unresponsive, and error-prone and

overwhelmed (Ralph, 2009). It is well accepted that there are many issues and

challenges confronting contemporary child protection systems around Australia. Many

of these issues are not unique to Australia and are evident in various parts of the

western, English-speaking world (Melton, 2005; Munro & Calder, 2005).

The deepening crisis seen in child protection systems across Australia has prompted

numerous official reviews, inquiries and commissions into each of the State and

territory child-protection services over recent years, reflecting the debate in ideas and

ideology occurring internationally in the literature. Many of these reviews have been

associated with or triggered by critical events, revelations of severe abuse and/or death

of children in State care. Some of the key inquiries in Australia are: -

• Western Australia: Gordon, Hallahan and Henry, 2002; Ombudsman Western Australia, 2006; Ford, 2007.

• Victoria: Allen Consulting Group, 2003; Ombudsman Victoria, 2009; Ombudsman, Victoria, 2010; Victorian Law Reform Commission, 2010a, 2010b.

• New South Wales: New South Wales Parliamentary Committee Report on the Department of Community Services, 2002; Wood Inquiry, 2008.

49

• South Australia: Layton, 2003; Mullighan, 2008.

• Queensland: Crime and Misconduct Commission, 2004.

• Australian Capital Territory:

Vardon, 2004a; Vardon, 2004b.

• Tasmania: Jacob and Fanning, 2006.

• Northern Territory: Department of Health and Community Services, 2009; Northern Territory Government, 2010.

A number of these inquiries highlight the fact that children are being admitted to

protection orders for increasingly complex factors including parental substance abuse,

mental health and family violence. The Wood Inquiry (2008) observes that many of the

families who come into contact with the child protection system are experiencing a

range of complex and often chronic problems at any one time. Factors such as low

income, unemployment, substance abuse, limited social supports, imprisonment,

domestic violence, and mental health issues are often interrelated and therefore the

elimination or reduction of each of these factors would significantly lower the number

of children and young people reported as being at risk of harm (Wood Inquiry, 2008).

Australia is facing an overloaded child protection system with increasing rates of

children and young people being notified to child protection authorities, substantiations

and placements in out-of-home care escalating rapidly and creating severe pressure

within child protection systems (O’Donnell et al., 2008). The increasing pressure on the

child protection system is evident in the fact that in 2009–10, there were more than

286,437 notifications or reports of abuse or neglect in Australia, and of them, more than

46,187 were substantiated (AIHW, 2011).

50

In addition to the increasing number of notifications or reports of abuse or neglect, the

number of children on protection orders in Australia has risen by almost 100%, from

17,811 to 35,409 in the decade from 1999 to 2009. It has been suggested that the

increase in the number of children on care and protection orders may be attributed to

the flow-on effect from greater community awareness of child abuse and neglect, and

also the cumulative effect of the growing number of children who enter the child

protection system at a young age, and remain on protection orders until they are 18

years of age (AIHW, 2009). Annual statistics also indicate an increasing number of

children are living in out-of-home care, and many of them experience multiple

placement moves (AIHW, 2009). Research has demonstrated that these children

achieved significantly poorer long-term outcomes, particularly when they did not

experience stable care placements (Cashmore & Paxman, 1996, 2006).

Other concerns that have been highlighted in the literature include the decreasing pool

of available foster carers (McHugh, 2002; Siminski, Chalmers & McHugh, 2005), the

large proportion of children and families who are repeatedly reported to authorities, and

the fact that children and young people do not receive the degree of assistance that is

needed when leaving care (Wood Inquiry, 2008).

In addition to the concerns identified above, another significant challenge to the sector

is the high cost of operating existing child protection systems around Australia.

Recurrent expenditure on child protection and out-of-home care services in 2007–08

was approximately $2.0 billion across Australia, an increase of 13.6% on the previous

financial year (Productivity Commission, 2009). Yet despite such investment into child

protection and family support services by government, systems efforts continue to fail

many parents, children and young people.

Much debate surrounds the suggested reasons for the crisis in child protection in

Australia. Some believe it is due to the over-reporting of child abuse and neglect

(Ainsworth, 2002; Cashmore, 2002; Harries & Clare, 2002; Tomison, 2002; Scott,

51

2006; Bromfield & Holzer, 2008; O’Donnell, Scott & Stanley, 2008; Wood Inquiry,

2008; Allen Consulting Group, 2009; COAG 2009; Goddard, 2009), whereas others

consider that ‘bad parents’ are more likely to be blameworthy (Mathews & Bross,

2008; Sammut, 2009; Tucci, Mitchell & Goddard, 2010).

Mandatory reporting is the legal requirement to report suspected cases of child abuse

and neglect. All jurisdictions in Australia have mandatory reporting requirements of

some description. However, the types of abuse and the people mandated to report them

vary across Australian states and territories (Higgins, Bromfield, Richardson, Holzer &

Berlyn, 2009). Some of the criticisms and concerns about mandatory reporting relate to

the lack of any satisfactory evidence that it is an effective protective strategy (Harries &

Clare, 2002), and other concerns relate to how such laws have ‘widened the net’ and

‘inflated’ the number of inaccurate reports, which has subsequently led to the ‘over-

flooding’ of the child welfare system in Australia (Ainsworth, 2002; Cashmore, 2002;

Tomison, 2002).

It has also been argued that not only does mandatory reporting inflate the number of

inaccurate reports, or allegedly inappropriate ‘less serious’ reports of ‘suspected’ child

maltreatment (Mathews & Walsh, 2004) resulting in administrative burden; it distracts

authorities from investigating higher risk reports regarding families in crisis and wastes

resources by diverting them from deserving cases (ALRC, 1981; Mendes, 1996;

Ainsworth, 2002; Harries & Clare, 2002). Significantly, these authors highlight that not

only does this harm those who are unjustly accused, but it also affects the children who

are the subject of the report.

There is an emerging view of the need to raise the threshold for mandatory reporting to

ensure only higher risk reports are referred to child protection authorities (Scott, 2006;

Australian Government, 2008; Bromfield & Holzer, 2008; O’Donnell et al., 2008;

Wood Inquiry, 2008; Allen Consulting Group, 2009; COAG 2009; Goddard, 2009).

Despite the warnings present in so much of the contemporary scholarship, a Bill was

52

proposed (and has since been delayed) to expand the scope of mandatory reporting laws

in Western Australia. A recent proposal was made to insert a new provision into the

Children and Community Services Act 2004 (WA) to extend the scope of the laws in

order to incorporate the definitions of ‘harm’ and ‘neglect’ (Explanatory

Memorandum). The Minister recently foreshadowed the expansion of such mandatory

reporting law in 2012 (McSweeny, 2010).

The overwhelming majority of contemporary Australian child protection experts have

expressed concern at the implications of these centralised child reporting systems and

mandatory reporting regimes that have resulted in an ‘over-extension’ of the child

protection system, evident in the escalating number of unsubstantiated child protection

notifications seen throughout all states and territories in Australia (Mendes, 1996;

Tomison, 2002; Cashmore, 2002; Harries & Clare, 2002; Ainsworth, 2002; Scott, 2006;

O’Donnell et al., 2008; Allen Consulting Group, 2009). An overloaded child protection

system has been likened to an overloaded hospital casualty department, which is said to

be very dangerous — for children at high risk, for children at some risk, for children at

low risk, for children already in care, and for those who work in the child protection

system (Scott, 2006).

In contrast, a view clearly not shared by another cohort of commentators in the field is

that the creation of mandatory reporting regimes and its “mass screening of

disadvantaged families has worked spectacularly well” (Sammut, 2009:xiii) and has

ensured the early and prompt identification of dysfunctional families and child

maltreatment (Taylor, Moore, Pezzullo, Tucci, Goddard & De Bortoli, 2008; Mathews

& Bross, 2008; Tucci et al., 2010).

Others suggest the crisis is due in part to the fact that the law has not been used well in

its response to families in adversity (McConnell et al., 2000; Swain et al., 2002;

Freymond, 2003; Bennet & Sadrehashemi, 2008) and that the overemphasis on a

legalistic and forensic approach to manage and deal with the increasing complexity of

53

cases being heard by the Children’s Courts is now affecting the entire child protection

system.

Child protection in Australia is a state and territory responsibility and each of these

jurisdictions has its own child protection legislation, policies and practices in relation to

child protection. Despite the eight different state and territory legislative frameworks, it

has been noted that the processes and core activities being undertaken by child

protection practitioners (including the gathering of information, assessment, case

planning and case management) are broadly similar (Bromfield & Higgins, 2005). For a

general overview of the child protection process in Australia, see Appendix D.

Much of the research, commentary and inquiries identify the difficulties that states have

in providing effective child protection services, and how these systems have struggled

to meet demand, struggled to provide an appropriate level of service to vulnerable

children, and in many cases failed in their attempt to keep children safe (Gordon et al.,

2002; Wood Inquiry, 2008; Victorian Ombudsman, 2009). The inquiries have also

highlighted the conflicting responses in the coordination and integration of service

provision. The extent of these inquiries and reviews seen in both Australia and

internationally reflects the increasing challenges to child protection as a concept in

western English-speaking countries.

Many of the problems and issues facing statutory child protection systems across the

country also apply in Western Australia. Ford (2007) described child protection in

Western Australia as being close to collapse, with public confidence shaken by a series

of reports of preventable child deaths and inquiries into allegations of abuse in care

(Gordon et al., 2002; Murray, 2005; Ombudsman Western Australia, 2006).

Following a spate of media reports in August 2006 drawing attention to the status of

child protection within Western Australia, as well as the release of the Ombudsman’s

report (2006) and the Report by the Select Committee on the Adequacy of Foster Care

54

Assessment Procedures (2006), the Minister announced that a review of the Department

for Community Development (DCD) would begin immediately. That review was

conducted by an independent reviewer who observed that the child protection system in

Western Australia was already “operating precariously beyond capacity, and that the

Department’s ability to provide adequate placements and quality support for children in

care had been seriously eroded” (Ford, 2007:37). The review concluded that there were

a number of key reasons the child protection system in Western Australia was

overwhelmed, including the following:

• The number of children and young people being taken into the care of

the CEO had increased by 75% between 2000 and 2007

• Children and young people in care were on average staying longer in

care

• There were staffing issues, particularly with respect to workloads,

education and retention. Staff shortages meant that some children did not

have an allocated caseworker

• Children were experiencing multiple placements

• Placement breakdowns were found to be common as a result of out-of-

home care services being over-crowded and stretched to breaking point

• Therapeutic services to children who had been harmed or abused were

not available, partly due to a shortage of services for the whole

community and partly due to poor inter-departmental cooperation and

shared accountability between the Department for Community

Development and other government agencies, in particular the health

system of Western Australia.

• The role of DCD was too broad and caused confusion

55

• There was insufficient performance management, quality assurance and

accountability

• There were departmental culture and practice issues

The review made 70 recommendation about ways in which the Government and the

community’s child protection capacity could be refocused and strengthened. The

Government subsequently endorsed the recommendations of the Ford review and the

formation of the Department for Child Protection with its stronger focus on protection

and care matters. This focus has been associated with an increase in protection and care

applications heard in, and orders granted by, the Children’s Court of Western Australia

(Spiranovic, Clare & Clare, 2009; Department for Child Protection, 2008).

While the Ford review did not specifically look into the operation of the Children’s

Court of Western Australia in its protection and care jurisdiction, the subsequent

restructuring and formation of the Department for Child Protection had implications for

the number of protection and care matters heard and processed by the Court

(Spiranovic et al., 2009; Department for Child Protection, 2008). The trend in

increasing numbers of protection orders issued in Western Australia in the five years

between 2005 and 2009 can be seen in Figure 1.

Figure 1. Number of children and young people on protection orders at 30 June 2005-2009.

Source: Annual Report 2008–09, Department of Child Protection (2009:24).

56

3.4 TENSIONS AND ALTERNATIVE APPROACHES IN CHILD

WELFARE DECISION-MAKING

A number of State inquiries and key reports by government and non-government bodies

have highlighted tensions in the coordination, alignment and functioning of child

protection service provision in Australia. Tensions also exist in attempting to

accommodate prevention, early intervention and family support in child protection

practice. It has been suggested that the question the child protection model has

struggled to answer is “when to empower families to solve their own problems, when to

intervene forcefully to protect children, and importantly, how can these two very

different approaches coexist without undermining each other” (Harris, 2010:1). It is this

balance between child protection and family intervention that has been described as the

core problem that poses an unresolved challenge for western democracies (Collins,

2006; Cocozza, Gustafsson & Sydsjö, 2010).

A pendulum shift of priorities

Researchers have commented on the historical operation of a ‘child protection

pendulum’ (Tilbury, Osmond, Wilson & Clark, 2007) where practices differ markedly

on a continuum, from erring on the side of caution and removing children in order to

guarantee their safety, to introducing more family support measures which keep

children with their families (Family Inclusion Network [Queensland], 2007). These

shifts have reoriented child protection work away from child rescue and towards family

support, leading to significant change in child protection philosophy, policy and

practice.

As previously indicated, the two broad government approaches to child abuse and

neglect have traditionally been described as falling into either a legislative (or ‘child

protection’) orientation or family service orientation. The different approaches are

based on differing views about what can and should be done by government to protect

children from abuse and neglect, and to ensure their wellbeing. These approaches have

57

developed in different socioeconomic and cultural contexts, and are founded on

different perceptions of children and families (Allen Consulting Group, 2003).

How countries frame the problem of child abuse and neglect differs significantly. For

example, some countries such as the United Kingdom, the United States, Australia and

New Zealand view child abuse as requiring the protection of children from alleged

abusers and ‘the need to protect children from harm’. These countries have traditionally

ascribed to the child protection approach, where government intervention is legal and

investigative, and where the role of the legal system is adversarial, formal and evidence

based. It has been suggested that one of the problems with the child protection approach

is that it looks at child abuse and neglect as a ‘point-in-time event’, which is arguably a

mistake given that most families involved in child protection have long-term problems

and concerns (Allen Consulting Group, 2009).

Alternatively, other countries such as Sweden, Denmark, Finland, Germany, Belgium

and the Netherlands view child abuse predominantly as an issue concerning familial

and societal dysfunction that requires amelioration. As previously discussed in Chapter

2, this view is in line with a family service approach, where the starting point for

intervention in the family is recognition that children are best cared for within the

family. The emphasis is placed on family unity and working with families as a whole to

support and strengthen the parent–child relationship and family wellbeing. Within this

concept, abuse and neglect are perceived most often as a result of family dysfunction

and social, economic and psychological difficulties.

The basis of government intervention in the family service orientation is to provide

supportive or therapeutic services, embedded within public health services. Resources

are available to more families at an earlier stage, rather than concentrated on families

where risks are high and immediate, as in the child protection approach. In these family

service systems, the option to use formal and legal authority is still available; however,

coercive and legally mandated interventions are regarded as last resorts and are

generally avoided if possible. Legal processes that are informal and inquisitorial are preferred.

58

Currently there are limited available data to answer the question of which approach to

the problem of child abuse (i.e. legislative/child protection or family support services)

results in better outcomes for children. Swedish researchers Cocozza et al. (2010),

attempted to describe what characterises the child protection process in family-service

organisations, and found that even if families are offered services, they do not seem to

accept them any more frequently than do families in countries with a child protection

approach. In other words, the family-service orientation in that study did not seem to

lead to the provision of services for a greater percentage of children than does a

distinctive child-protection system.

It has been suggested that there is clear evidence that family service systems provide

children and families with easier access to a wider range of services and assistance than

a child protection system (Ford, 2007). Family service systems also place more

emphasis on working voluntarily with parents over longer periods of time to address

problems, compared with jurisdictions with a child protection orientation that are far

more restrictive and coercive in their responses to parents (Allen Consulting Group,

2003).

Australia and many western English-speaking countries are indeed moving towards

systems that are preventive and family-service oriented. Parton (2006) refers to the

passage of the Children's Act (UK) in 2004 as marking a significant watershed in

thinking about children's services in Britain, which has seen a shift from a distinctive

child-protection system to a more service-oriented and preventive approach to dealing

with maltreated children.

There is increasing interest and recognition of the need to move responsibility and sole

provision of services from the state child-welfare departments to the wider community

(Melton, Thompson & Small, 2001; Ainsworth, 2001; Cashmore & Ainsworth, 2004;

Scott, 2001, 2006; Liddell, Donegan, Goddard & Tucci, 2006). It has been suggested

that the Australian child protection system would benefit from moving towards an

59

approach where partnerships, prevention, participation and early intervention would act

as more effective mechanisms for engaging families than adversarial investigation and

risk assessment (Harries, Harris, Diamond & Mackenzie, 2004; Scott, 2006; O’Donnell

et al., 2008).

Reconceptualising child protection work as essentially preventive

At the forefront of the tension that exists in debates about child protection reform in

Australia is the notion of ‘getting in early’ with a refocus from a forensic approach to

incorporating prevention, early intervention and family support in child protection

practice. There is increasing recognition of the need for alternative approaches to

reduce the pressure on overloaded child protection systems, and the need to place a

greater focus on prevention and diverting all but the highest risk cases away from child

protection services (COAG, 2009).

Reconceptualising child protection work as essentially preventive forms the basis of

current directions in service-system reform in Australia. The focus on prevention has

formed the basis of international conferences (Asia Pacific Conference on Child Abuse

and Neglect 2009) and international organisations (International Society for Prevention

of Child Abuse and Neglect; National Association for Prevention of Child Abuse and

Neglect).

In 2009, the Council of Australian Governments, the peak inter-governmental forum in

Australia released the first National Framework for Protecting Australia’s Children

2009–2020 (COAG, 2009). The framework, which is based on a public heath approach,

provides the foundation for national reform, and a long-term approach that significantly

emphasises the importance of early intervention and prevention programs in protecting

Australia’s children. Under this framework, all state and territory governments retain

responsibility for statutory child protection, and reforms to these systems will continue

and are said to be critical to the success of the national framework. The framework

specifies 29 ‘indicators of change’ to measure achievement of six supporting outcomes,

60

all aimed at achieving a substantial and sustained reduction in child abuse and neglect.

The ‘public health model’ of child protection represents this reconceptualisation and it

has significantly influenced the direction of child protection reform in Australia. This

model has particular appeal because of its focus on preventive efforts, its recognition

that all new families need some support, and its acknowledgement of the wish of

individual families and the wider society to prevent intergenerational transmission of

vulnerability and disadvantage (Jordan & Sketchley, 2009). The application of a public

health approach to child abuse and neglect emphasises providing services at the

population level in order to foster healthy children, families and communities. Leading

researchers and practitioners both in Australia and overseas have suggested that

applying a public health model to child abuse and neglect will deliver better outcomes

for children, young people and their families (Scott, 2001, 2006; O’Donnell et al.,

2008; Wood Inquiry, 2008; Australian Government, 2009; Allen Consulting Group,

2009; COAG, 2009).

A family service system that is based on a public health approach is commonly

described using a three-tiered model comprising primary, secondary and tertiary

prevention interventions. The essential elements of service provision under a public

health model applied to child abuse and neglect described by O’Donnell et al. (2008)

are summarised below:

• The use of universal services for all children and families as a ‘platform’ for

preventing neglect and abuse (primary prevention);

• The provision of specialist services addressing specific risk factors that

compromise parenting in vulnerable families (secondary prevention); and

61

• The protection and treatment of children who have experienced abuse and

neglect, and statutory child protection services (tertiary prevention).

It has been suggested that the problem of ‘over-reporting’ can be addressed by two of

the key reforms of the Australian child protection system. Firstly, by raising the

mandatory reporting threshold from ‘suspected risk of harm’ to ‘risk of significant

harm’; and secondly, by creating a dual or alternative reporting and referral pathway to

stream ‘genuine’ child protection cases from ‘less serious’ and ‘lower risk’ family

support cases (Wood Inquiry, 2008). The logic to these approaches is that ‘boosting’

family support services will decrease demand for child protection services by

preventing family situations spiralling into crises and serious abuse and neglect. In

boosting family support services, a public health approach would therefore seek to

reduce the burden on the tertiary end of the system and the number of families caught

up in the system in a forensic way (Scott, 2006; O’Donnell et al., 2008). These

recommendations of the Wood Inquiry are currently being implemented across various

states in Australia.

The public health approach to child protection acknowledges that prevention and early

intervention efforts will not always be effective for all families. Further, there is

recognition that there will always be a need for coercive interventions for a small

proportion of children and families (O’Donnell et al., 2008; COAG, 2009). It has

become very clear however, that coercive and deterrent responses are not ideal for

engaging with families and support agencies.

A fascinating reconceptualisation of the child protection system is currently happening

in the area of regulatory reform. Harris (2010) provides an interesting perspective on

the implications of how contemporary child protection systems rely on formal

assessment when first attempting to engage with families. This represents emerging

scholarship on the regulatory systems of child protection.

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Braithwaite, Harris and Ivec (2009) from the Regulations Institutions Network at the

Australian National University are leading figures in this scholarship. A number of

researchers including O’Donnell et al. (2008), Harries (2009) and Harris (2010), have

looked at the challenge the child protection system faces from the perspective of

responsive regulation theory (Braithwaite, 2002). This small but emerging scholarship

looks at the concept of ‘responsive regulation’ as a way of reviewing the regulatory

systems of child protection. The notion of ‘responsive regulation’ (Braithwaite, 2002)

offers an alternative approach to intervening in 'regulatory' contexts, through a

framework that systematically encourages families to work voluntarily with authorities

and increases the capacity of those authorities to be more responsive to cooperation.

Harris (2010) suggests that responsive regulation has a place as an alternative approach

to engaging with families at an earlier point in time, prior to the process of screening

cases into a dual or alternative reporting and referral pathway as suggested in various

reports (Allen Consulting Group, 2009; COAG, 2009). Within the proposed public

health approach, responsive regulation is essential in both the primary and secondary

intervention stages, most notably in the secondary stage. Following Harris’ (2010)

questioning of the role of formal assessment processes when attempting to engage with

families, there is similarly much to be learned on how the legal system and its processes

can better engage with parents and families who are involved in child-protection court

proceedings.

Alternative approaches in child welfare decision-making

A number of emergent alternative models and approaches to decision-making in child

welfare have been noted in the literature. International and national literature is now

replete with new and well-researched models, many of which are still in trial. Family

Group Conferencing, the Unified Family Court model and the recent emergence of pre-

adjudication conferencing approaches, Koori Courts and Care Circles represent

alternative decision-making models and approaches in child welfare in Australia and

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overseas that empower parents and their extended community to solve the family’s

problems.

The use of Family Group Conferencing began in New Zealand in the late 1980s and has

been adopted by child protection agencies in a number of countries, including

Australia, Ireland, the United Kingdom and the United States. A number of states in

Australia including Tasmania, Queensland, and Victoria now support its use. A Family

Group Conference brings together the child or young person, members of their

immediate and extended family, and child protection professionals to discuss issues,

come to a resolution, and develop a plan for future action. The underlying philosophy

that led to the introduction of conferencing was that nuclear families and their

immediate communities, such as extended family and friends, have a right to be

involved in making decisions about their children, and that empowering this extended

community to solve problems is more likely to result in better outcomes for children

(Harris, 2008). The degree to which these conferences empower families has been

noted as a unique feature (Adams & Chandler, 2004; Burford & Adams, 2004; Pennell,

2004).

In Western Australia, the DCP initiated a ‘Multi-agency Early Intervention: At-risk

newborn babies’ project in 2008, and a ‘Pre-adjudication Conferencing’ project in

2010. In accordance with the Family Group Conference model, these mediation

conferences, held away from the Children’s Court, are intended to improve

collaborative work with families, information sharing and safety planning at an earlier

stage. These conferences are intended to result in fewer disputes between parents and

the DCP leading to litigation or trial, and instead being resolved based on consent

(Jackson, 2009).

The Multi-agency Early Intervention: At-risk newborn babies’ project was initiated in

response to a significant increase in the previous five years in the number of children

less than six months of age who had been the subject of protection and care orders, and

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had been in out-of-home care. This project involves Legal Aid, DCP, the Children’s

Court of Western Australia and King Edward Memorial Hospital working together to

implement lawyer-assisted conference-based child mediation case-management

processes, both before and after protection proceedings are commenced (Jackson,

2009). These conferences occur during the woman’s pregnancy to discuss safety plans

and if necessary, identify alternative options for the baby prior to the birth.

The Pre-adjudication Conferencing project is intended to incorporate legal

representation where possible and appropriate, both in resolving concerns for children

who are, or are likely to be in need of protection (pre-application), and with the

assistance of the Children’s Court, in resolving concerns for children who have been

deemed by the DCP to be in need of protection (post-application) (Department for

Child Protection, WA, 2009).

The Care Circle has been designed as an alternative and more sensitive approach to

resolving protection and care matters involving Indigenous children and young persons,

and is intended as a model for the increased participation of the child’s or young

person’s family and community in relation to their future care arrangements (Wood

Inquiry, 2008). The Care Circle requires voluntary participation of the child or young

person, and includes their parents, legal representatives for themselves and their

parents, respected Indigenous community members, the statutory agency legal officer,

caseworker and casework manager, Care Circle coordinator and the magistrate

(Department for Community Services, NSW, 2008). In 2008, the first Care Circle pilot

program commenced in New South Wales.

Having discussed the origins, intentions, formal state processes and current status of

child protection in Australia, it is equally important that we understand the consumers

of the child protection systems. The following discussion centres on the significance of

the complex consumer voice of the child protection system (Tomison, 2002; Harries, 2008).

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3.5 THE VOICE AND PERSPECTIVE OF THE CONSUMER

The voices and perspectives of the children living in out-of-home care, youth who have

‘aged-out’ of the care system, the parents and families of children and young people in

care, adults and young people, both Indigenous and non-Indigenous, who experienced

institutional or out-of-home care as children, the voices and perspectives of

professionals working in the field and the voices of concerned community members are

coming to the fore. It is these voices that are increasingly informing policies and

practices that will benefit children, young people and families, and are critical to

guiding the delivery of services.

(i) Vulnerable parents and families

As a group, parents of children removed into care have been typecast as cruel and

uncaring, and undeserving of sympathy or support (Scott, 2006). Numerous authors

have pointed out that this is despite the fact that the overwhelming majority of reports

made to child protection agencies do not allege the intentional or overt abuse of

children, and that many more children enter care through neglect and minor incidents,

or risk of maltreatment rather than severe abuse (Cary et al., 2007; Ford, 2007; Harries,

2008; Higgins & Katz, 2008; Harris, 2010).

We have known for a long time that child protection cases typically involve children

and families marginalised by poverty, social isolation, ill health, domestic violence,

young parenthood, problematic substance use, disability and/or minority status (Pelton

1989; Sheehan, 1997, 2001a, 2001b; McConnell et al., 200l McConnell, Llewellyn &

Ferronato, 2002; McConnell & Llewellyn, 2002; Swain et al., 2002; Brophy, 2006;

Ford, 2007). In other words, these families often belong to vulnerable populations.

Much of the research on parents of children in care demonstrates that child abuse and

neglect rarely occur in isolation. Many of these families often live complicated lives

and experience multiple and multilayered problems, and often these issues overlap.

Government analyses conducted across the states and territories have indicated that

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children are being subjected to protection orders for increasingly complex factors

associated with parental substance abuse, mental health and family violence (AIHW,

2006; COAG 2009).

Various Children’s Court demographic studies conducted both in Australia and

internationally have indicated that parents with a disability, a mental illness, a

substance misuse problem, single parents and parents living in poverty are more

vulnerable, as are their children, to having parenting and child welfare concerns

(Murphy, Jellinek, Quinn, Smith, Poitrast & Goshko, 1991; Taylor, Norman, Murphy,

Jellinek, Quinn, Poitrast & Goshko, 1991; McConnell et al., 2000, Swain et al., 2002).

Parental drug use has also been described as one of the most serious issues confronting

the child welfare sector in the past 20 years, and is reported as bringing more children

to the attention of protective services than any other single issue (Child and Family

Welfare Association of Australia (CAFWAA), 2002). Parental mental health issues

have also been identified as some of the main reasons for child protection concerns in

Australia. Adult mental illness brings with it other psychosocial problems such as

financial management concerns, maintaining accommodation and employment, and

social isolation (Sheehan & Levine, 2005). Studies undertaken at the Melbourne

Children’s Court in Victoria indicated that children of parents with mental health

problems comprise at least one-quarter of all new child protection applications brought

to that court (Sheehan, 1997, 2001). The research demonstrated that cases involving

parents with mental illness are often characterised by child neglect, domestic violence,

financial and accommodation difficulties, family disorganisation and relationship

difficulties (Sheehan, 1997; Sheehan & Levine, 2005).

There is by now an abundance of evidence that a strong link exists between poverty and

child abuse and neglect. International and Australian research has overwhelmingly

indicated that poverty is a critical variable affecting child-protection court proceedings,

as poor families appear to be over-represented in the research literature (Pelton, 1989;

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Tomison, 1996; CAFWAA, 2002; Gelles, 1992; Callahan & Lumb, 1995; Thomson,

2003; Reich, 2005). Many of these families often experience poverty-related problems

such as unemployment, poor education, dilapidated and overcrowded housing,

household safety and health hazards, and other physical, psychological and social

problems (Pelton, 1989).

Research also indicates that parents with disabilities often live on the margins of society

in conditions of poverty, social isolation and vulnerability (McConnell et al., 2000,

McConnell, Llewellyn & Ferronato, 2002; Swain et al., 2002). Australian researchers

have demonstrated that parents with a disability are at an increased risk of involvement

with child protection agencies (Swain, 1996; Swain et al., 2000; McConnell et al.,

2002; Bowden, 1994; Llewellyn, McConnell & Ferronato, 2003), and international

research has indicated similar concerns (Gillberg & Geijer-Karlsson, 1983; Accardo

&Whitman, 1990; Mirfin-Veitch, Bray, Williams, Clarkson & Belton, 1999). The

majority of these research findings demonstrate that these parents appear more

frequently in statutory child protection proceedings compared with estimates in the

general population. These authors have reported that conditions of adversity and

deprivation are sometimes overlooked as potential contributors to poor parenting and

child maltreatment.

There is much agreement in the literature and published reports about the problems

facing Indigenous communities (particularly those in remote areas), and the causes of

those problems. It has been suggested that the over-representation of Indigenous

children in the Australian child welfare system today has as its root cause a failure to

deal with the dire circumstances experienced by many of these families and

communities. The Wood Inquiry (2008) referred to the rate of involvement of

Indigenous children and young persons in the child protection system as occurring

within a broader context of disadvantage and vulnerability experienced by Indigenous

families. The circumstances experienced by many of these families have been described

comprehensively in various reports (Gordon et al, 2002; Pocock, 2003; Silburn,

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Zubrick, Lawrence, Mitrou, DeMaio & Blair, 2006; Anderson & Wild, 2007; Ford,

2007; Secretariat of National Aboriginal and Islander Child Care (SNAICC), 2007;

Wood Inquiry, 2008; Northern Territory Government, 2010). Many of these

commentators agree that addressing Indigenous disadvantage is critical to addressing

the factors that put vulnerable Aboriginal and Torres Strait Islander children at risk of

abuse and neglect. A number of issues relating to the experience of Indigenous children

and families, and the system’s response to Indigenous child protection are explored in

the following section in greater detail.

(ii) Indigenous children and families

In 2010, the rate of Indigenous children on child protection orders across Australia was

more than nine times higher than that of non-Indigenous children (AIHW, 2011). In

Western Australia, 49.1% of children on protection orders at 30 June 2010 were

Indigenous — compared to only 4% of their presence in the general population (AIHW,

2011). Research has also indicated that not only are Indigenous children more likely to

be placed in out-of-home care, but they are also more likely to enter care at a younger

age and to remain in care longer than are other children (SNAICC, 2010).

In Western Australia as in all other states, Indigenous Australians have experienced a

complex history and relationship with Government, including the child protection

system. The forced removal of Indigenous children from their families, which was

official government policy in Australia from 1909 to 1969, became known as the

‘Stolen Generations’. “Government officials theorised that by forcibly removing

Indigenous children from their families and sending them away from their communities

to work for non-Indigenous people, this mixed descent population would, over time,

‘merge’ with the non-Indigenous population” (HREOC, 1997, chapter 2). The stories

and experiences of the Stolen Generations were told in the Bringing Them Home Report

of the Australian Human Rights and Equal Opportunity Commission (HREOC, 1997)

and highlighted the impact and trauma on children, biological parents, extended family

and their communities that resulted from this forced separation. Since the release of the

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Bringing Them Home Report, South Australia, the Northern Territory, New South

Wales, Queensland, Victoria and Western Australia have released reports that have

discussed the experience of Indigenous people and considered at least some aspects of

the involvement of their children and young people in child protection systems in

Australia.

Some of the underlying causes of the over-representation of Aboriginal and Torres

Strait Islander children in the child welfare system include the legacy of past policies of

the forced removal of children from their families, intergenerational effects of previous

separations from family and culture, poor socioeconomic status, high rates of substance

abuse, high levels of violence within Indigenous communities, perceptions arising from

cultural differences in child-rearing practices, and individual, family and community

dysfunction (HREOC, 1997; Dodson, 2003; Gordon et al., 2002; Pocock, 2003;

Richardson, Bromfield & Higgins, 2005; Ford, 2007; Productivity Commission, 2009;

AIHW, 2009; Northern Territory Government, 2010). There is a general acceptance in

Australia, Canada and to an extent the United States, of the failure to address

Indigenous minority disadvantage. Canadian indigenous people similarly experience

worse health and welfare than the non-indigenous population — including higher rates

of unemployment, hospital utilisation, poverty and number of children in the child

welfare system (Bell & Libesman, 2007). There is unanimity among these

commentators that addressing disadvantage is critical to addressing the factors that put

vulnerable Australian Indigenous children at risk of abuse and neglect.

There is now compelling evidence and an overwhelming consensus from Indigenous

groups about the need for an Indigenous response to the child protection crisis in their

communities (HREOC, 1997; Pocock, 2003; Anderson & Wilde, 2007; SNAICC,

2008). Much of the recent literature suggests an Indigenous response needs approaches

that are holistic and culturally sensitive, and that empower families and communities to

develop and take responsibility for community-identified solutions (Atkinson, 2002;

Gordon et al., 2002; Pocock, 2003; Aboriginal Child Sexual Assault Taskforce, 2006;

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Silburn et al., 2006; Higgins & Butler, 2007; Anderson & Wild, 2007; Northern

Territory Government, 2010).

Response to Indigenous child protection

In mid-2007, the Federal Government proposed a massive intervention strategy to

combat what was termed a ‘national emergency’ in the Northern Territory involving

high rates of child abuse of children in Indigenous Communities. The ‘Northern

Territory Intervention’ was announced one week following the release of the Anderson

and Wild (2007) report Ampe Akelyernemane Meke Mekarle — Little Children are

Sacred: Report of the Northern Territory Board of Inquiry into the Protection of

Aboriginal Children from Sexual Abuse, and involved the enacting of legislation,

changes to welfare provision (specifically the quarantining of a proportion of welfare

benefits for food and clothing), law enforcement and land tenure, and restrictions on

alcohol.

The construction of the ‘Intervention’ and its approach was widely criticised. While

operating commanders of the Emergency Response Taskforce reported that the

Intervention was about targeting what created an environment that allowed sexual

abuse to occur at a rate that was much higher than the rest of the community, Toohey

(2008) argued that the real issue was not about sexual abuse, but rather a more general

neglect of children. The Intervention was criticised for its lack of expert guidance in the

area of child protection, for its measures being too short-term in focus, for failing to

provide a way for stakeholders to contribute their expertise so the measures could have

a lasting effect on the safety and welfare of children, and for implementing only 2 of

the 97 recommendations made in the ‘Little Children are Sacred’ report (SNAICC,

2008; Australian Government, 2008).

The child protection response with its systemic failure and reliance on legal and

forensic processes, has been indifferent towards Indigenous families and children, and

has been widely noted and commented upon (HREOC, 1997; Pocock, 2003; Dodson

2003; Anderson & Wild, 2007; Bell & Libesman, 2007; Bamblett, 2007; SNAICC,

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2008). With the exception of the recent emergence of Children’s Koori courts in the

Victorian Children’s Court, there appears to have been a lack of differential approaches

adopted by or available to the Children’s courts that would take into account, and

would be more conducive, to kin and community participation in decision-making

concerning the future of Indigenous children and young persons (Wood Inquiry, 2008).

Contemporary thinking by Indigenous Australians highlights the need for appropriate

cultural responses with a focus on prevention and early intervention (as opposed to

reaction), where health, housing and education are prioritised. This view is endorsed by

key authorities including Bamblett (2007) and SNAICC, who have stated that they

firmly believe that it is in the best interests of all children and families to focus on

strengthening preventive support, and minimising the need for removal of a child.

SNAICC have stated that where a removal is necessary, comprehensive support for the

child and the family must be provided, with the aim of reunification where possible

(SNAICC, 2010).

A particularly important recent inquiry that builds on Bamblett’s (2007) and SNAICC

work is the Inquiry into the Child Protection System in the Northern Territory. The

foremost finding of the inquiry was that there needs to be organisational reform in child

protection in the Northern Territory which includes a reorientation towards a more

collaborative approach to the task, as well as an immediate investment in more staffing

resources for statutory child protection and out-of-home care services (Northern

Territory Government, 2010:2).

Promising practices and approaches to Indigenous child protection identified in the

literature include the Indigenous ‘Positive Parenting Program’ (Triple P) that is based

on a preventive approach for behavioural, emotional and developmental problems in

children, and includes alcohol-supply reduction programs, and Indigenous maternal and

infant health strategies (Stallman & Sanders, 2007). Evaluations of community

maternity services have found them to increase significantly positive outcomes for

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Indigenous women and children (NSW Health, 2005; Higgins & Butler, 2007;

Rumbold & Cunningham, 2008).

The Lakidjeka Aboriginal Child Specialist Advice and Support Service (ACSASS), run

by the Victorian Aboriginal Child Care Agency (VACCA), provides an Indigenous-

specific response to statutory child protection intervention. Child protection services are

required to consult with Lakidjeka before making any key decisions, and Lakidjeka

staff provide support to Indigenous children and their families, and cultural guidance to

child protection practitioners at the key decision-making points of investigation,

substantiation, removal and reunification or permanency planning. The program has

been reported as being instrumental in assisting child protection staff in Victoria to

make better-informed decisions about Indigenous children (Higgins & Butler, 2007).

The overrepresentation of Indigenous Australians in the criminal and juvenile justice

systems persists. An important strategy for addressing this has been Indigenous

participation in sentencing — a focus of many of the recommendations of the Royal

Commission into Aboriginal Deaths in Custody (1991). While formalised Indigenous

courts and sentencing circles have been in place for over a decade, the first formal

Children's Indigenous Court — the Children's Koori Court of Victoria — began

operation at the end of 2005. The Koori Court deals specifically with criminal matters

and not protection and care matters. The two major goals of the court are to reduce

recidivism (and, in turn, overrepresentation) and to increase Indigenous ownership of

the administration of justice. The Koori Court is a non-adversarial sentencing court and

the atmosphere of the court is relatively informal (Borowski, 2010). A Koori elder sits

next to the magistrate or judge and provides them with cultural advice to help them

understand the young person’s situation. Currently the Koori Court sits one day per

fortnight in the Children’s Court of Victoria. An evaluation completed in 2009 found

that the Koori Court fostered positive participation by youth, their families and their

community in the court, and increased accountability of the Koori community for their

youth (Borowski, 2010).

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(iii) Culturally and linguistically diverse children and families

The overrepresentation of Indigenous as well as ethnic minority groups in child welfare

systems has been a long-standing concern in many countries (Tilbury & Thoburn,

2009). Research has shown that an increasing number of families arriving in Australia

through humanitarian settlement schemes are coming into contact with the child

protection system (Lewig, Arney & Salveron, 2009).

As previously indicated, the number of child protection notifications in Australia is

continuing to increase. However, the exact number of children and young people from

culturally and linguistically diverse (CALD) backgrounds coming to the attention of

child protection agencies is unknown (Kaur, 2009). It would appear that, in Australia,

data have only been collected on Anglo-Australian and Indigenous communities, and

children and families who identify as CALD have not been included.

Many of the CALD families that come to the attention of child protective services are

from African and Middle Eastern countries, and often share common experiences of

trauma, dislocation and loss, and many have been victims of genocide, war and torture

(Lewig et al., 2009). Pre-migration experiences and challenges associated with settling

into a new country can affect family wellbeing and parenting practices. For many of

these families, parenting styles that were normal in their countries of origin are not

acceptable in Australia (Kotchick & Forehand, 2002).

Response to culturally and linguistically diverse child protection

The literature on the needs of CALD groups in Australian child protection systems

highlights the significance of developing culturally sensitive approaches that include

the role of migrant community members as facilitators and leaders in community

service strategies targeting their own communities (Freiberg, Kirby & Ward, 2004;

Harries, Harris, Diamond & Mackenzie, 2004; Lewig et al. 2009; Kaur, 2009;

Dimopoulos, 2010).

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Culturally sensitive strategies and models for child protection intervention include:

knowing about appropriate supports within the service sector and migrant communities

that enable families to stay together; understanding cultural practices including gender

roles, child rearing, views on health and mental health and help-seeking behaviour; and

developing an understanding of the pre-migration and post-migration experiences of

families.

(iv) Hearing the complex consumer voice

The voices of parents and families have notably been absent in much of the literature on

child protection systems and best practice approaches. We have only recently begun to

see and hear the voices and perspectives of the children living in out-of-home care,

adults who experienced institutional or out-of-home care as children themselves, and

parents and families of children and young people in care.

There is now a considerable amount of research being undertaken about the needs and

experiences of children living in out-of-home care. This research includes work

undertaken as part of the ‘Looking after Children Project’ (Wise & Eggar, 2007), and

research on creating better outcomes for young people leaving state care (Cashmore &

Paxman, 1996, 2006; Mendes & Moslehuddin, 2006). It is evident that there is an

increasing emphasis on consulting children and young people themselves about their

experiences of the care process (Northern Ireland Commissioner for Children and

Young People, 2006), and their participation has been reported as being critical to

guiding the delivery of services (Wood Inquiry, 2008). This emphasis extends to

organisations such as the CREATE foundation in Australia that works specifically with

and for children and young people in out-of-home care. Similarly, the Care Leavers

Australia Network (CLAN) is a network for people who grew up in Australia’s

orphanages, children’s homes and foster care, and its website includes an extensive

listing of publications and reports in this area.

There have been three recent national inquiries into children who had been removed

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from families and placed into state care — Bringing Them Home, the removal of

Indigenous children (HREOC, 1997), Lost Innocents, the removal, transport and care of

child migrants (Commonwealth of Australia, 2001) and more recently, Forgotten

Australians, the Senate Inquiry into Australians who experienced institutional or out-of-

home care as children (Commonwealth of Australia, 2004).

The Inquiry into the Forgotten Australians allowed many people who had been in the

Australian institutional and out-of-home care system as children to tell their stories —

often for the first time. Their stories revealed a history of neglect and cruelty, of

abandonment and exploitation, that left approximately half a million Australians, as

well as many child migrants, physically and psychologically scarred (Families

Australia, 2008). All three of the inquiries highlighted inadequacies of policies and

practices related to the removal of children from families, and highlighted the

significance and importance of hearing from families and children themselves about

their very real and personal experiences.

Until recently, there has been very little research into parents’ experiences of having a

child removed, and specifically how they experience and understand the child

protection legal and court process. The issues these parents face, their voices, and their

stories of negotiating the child protection system have only just begun to emerge.

Recent research by the Family Inclusion Network in Queensland (2007) and Western

Australia (Harries, 2008) sought to involve the parents of children and young people in

care in finding the answers to what works in meeting the needs of children and families

in adversity. It was clear to those researchers that what was needed was an opportunity

to form a better understanding via the experiences of these parents so that they — a

primary consumer group — can inform policies and practices that will benefit children,

young people and families involved in child protection practices.

Parents’ experiences of the child protection system

The interface between child protection agencies and parents has long been a cause of

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concern, drawing criticism for both alienating parents and for failing to put sufficient

emphasis on protecting children (Harris, 2010).

It is well known that for children, the consequences of child abuse and neglect are

nothing short of devastating. An emerging research base is similarly demonstrating that

the consequences for many parents and families involved in the child protection system

can also be devastating. A picture has emerged of the pain, grief, distress and sense of

loss that many parents and families experience as a result of having a child removed

from their care by statutory authorities (Bergheim, 2002; Freymond, 2003; Thorpe &

Thomson, 2004; Drumbrill, 2006; Family Inclusion Network [Queensland], 2007;

Harries, 2008). Many of these parents live with unresolved anger, guilt, shame and

despair — and their experiences have left them feeling powerless and fearful of seeking

assistance (Harries, 2008). Lonne, Parton, Thomson and Harries (2009) refer to this as

evidence of ‘iatrogenesis’ in the system, — the inadvertent adverse effects resulting

from involvement with the child protection system — emerging in families, young

people, Indigenous communities, non-government organisations, researchers, and

practitioners themselves.

Canadian researchers (Freymond, 2003; Cameron & Hoy, 2003) demonstrated that the

removal of a child from the care of a biological mother and the subsequent placement

of that child in the foster care system is a powerful, emotionally laden experience for

mothers. Undoubtedly, the intensity of the despair and powerlessness evoked by the

removal of a child had a negative impact on the mothers who were interviewed in that

research. One of the earliest Australian reports by Thorpe and Thomson (2004)

observed that parents who lose their children into care not only experience profound

loss, but many also suffer from extreme powerlessness in relation to the child

protection system of government departments, non-government agencies and

Children’s courts.

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One of the key criticisms of the child protection system in Australia is its inability to

engage positively with a greater proportion of families (Harris, 2010). A major

criticism by parents of the current child protection model is that it is antagonistic

towards them (Drumbrill, 2006; Klease, 2006; Harries, 2008; Harris, 2010), alienating

(Freymond, 2003; Thorpe & Thompson, 2004) intrusive (Parton, 1997) and confusing

(McConnell et al., 2000; Swain et al., 2002). Just as concerning are findings that many

parents believe that interventions provide them with very little practical support beyond

the formal ‘protective’ functions provided by investigation (Harris, 2010). Parents have

expressed frustration at being unable to access assistance prior to investigation, and

receiving limited assistance after problems are exposed by investigation (Dale, 2004;

Palmer, Maiter & Manji, 2006).

The issue of power has been noted to be a central dynamic to an understanding of

parents’ experiences of the child protection system. Reich’s (2005) research conducted

in the United States focused on the negotiations of power between parents and the

State. Reich considered how power is negotiated at several critical moments of

interaction, such as: when a social worker investigates allegations of abuse and neglect;

when a parent participates in reunification services, court proceedings, or meetings with

social workers to regain custody of their children; and when the court ultimately

decides whether a parent will regain custody and/or retain legal rights over their

children. Reich suggests that these critical moments of interaction provide a unique

opportunity to examine how power is negotiated between individuals and the State.

Findings such as these can facilitate our understanding of structural disadvantage and

family relationships, the role of power in parent–worker interactions, and our

understanding of the complexities of achieving participation and partnership (Reich,

2005; Drumbrill, 2006; Family Inclusion Network [Queensland], 2007; Harries, 2008).

Parents’ experiences of the child protection legal and court process

Only a handful of published studies have specifically examined some section of the

child protection legal process, and even fewer have considered this from the perspective

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of parents. Research conducted in British Columbia by Bennett and Sadrehashemi

(2008) indicated that parents found the Children’s Court system to be not only

overwhelming in its complexity, but also plagued with inordinate and unreasonable

delays. Many parents in that research reported that despite having legal representation,

many did not feel adequately informed of what to expect at court appearances, and

often did not understand the outcome. Many parents reported feeling helpless and

unheard, frustrated and alienated by the court process in which they felt they had little

voice and little opportunity to meaningfully participate — even when represented by a

lawyer.

Australian research on parents with disabilities and their experience of the child

protection legal system exposed the immense difficulties and confusion parents face in

trying to navigate through the complex child protection legal process (Bowden, 1994;

Swain, 1996; McConnell et al., 2000; Swain et al., 2002; Llewellyn, McConnell &

Ferronato, 2003). The work of Swain et al., and that of McConnell et al., has been a

fundamental impetus for this research.

Research conducted in Western Australia similarly found that for parents involved in

the child protection system, the challenges in confronting the legal or statutory system

were a preoccupation (Harries, 2008). Not one participant in that research study said

they understood their rights at the time of the statutory intervention, where to get advice

about legal representation, or what legislation or rules applied. Participants in that

research described the legal and court systems they confronted as overwhelming,

frightening, confusing and alienating. It was reported that “the powerlessness expressed

by many participants related in some part to the whole legal process, not simply court

proceedings in which they found themselves” (Harries, 2008:18). A lack of information

about court hearings was mentioned as a cause of despair by a large number of

participants in that study. Participants spoke of the confusion, the delays and the fear as

they grappled with court processes — many of them having no supports or advocates.

Child protection court proceedings are predominantly aggressive and adversarial, the

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process highlighting all alleged inadequacies and failures by the parents. The

adversarial nature of this process can set up a strained relationship between the parents

and child-welfare agency workers from the outset, and can lead to the parents feeling

further alienated from the process. When families are engaged by child welfare workers

in a highly adversarial manner, this can often set the tone for working relationships

where mistrust and fear are central (Freymond, 2003). Given the extreme

marginalisation of many parents involved with the child protection process, especially

where there has been a history of a negative relationship with government (e.g. for

Indigenous children and families), and the life-altering consequences of decisions,

Bennett & Sadrehashemi (2008) make the important point that it is imperative that the

Children’s Court system be one that instils confidence in those most affected by it.

3.6 SUMMARY

This chapter offers a broad overview of the child protection context in Australia. A

number of significant issues and challenges facing contemporary child protection

systems around Australia are identified. A significant proportion of this chapter focuses

on a range of tensions that exist in the child protection literature, including the

problems relating to the legalistic and forensic approach to the issue of child protection.

I have also focused on the vulnerable families and communities who become involved

in child protective services, and I report on what we know of these families and their

experiences of the child protection legal system and the court process more specifically.

I highlight the significance of hearing from families and children themselves about their

real and lived experiences, in order to find the answers as to what works in meeting the

needs of families in adversity.

In the next chapter, I discuss the theory and application of therapeutic jurisprudence at a

micro, meso and macro level, and I provide an extensive description of its

contemporary application and potential role within the Children’s Court.

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CHAPTER 4

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THERAPEUTIC JURISPRUDENCE

4.1 INTRODUCTION

The previous chapter provided a broad overview of the child protection context in

Australia. A number of key challenges and controversies facing contemporary child

protection systems around Australia were identified. Some of the tensions in the

literature around accommodating prevention, early intervention and family support in

child protection practice were outlined. The discussion of those tensions in Chapter 3

provides a launch pad for the introduction of the concept of therapeutic jurisprudence.

In this chapter, a number of core tensions are identified that have been articulated in the

literature about the way the law is seen to have traditionally responded to child

protection matters in western liberal democracies. The chapter then describes how

therapeutic jurisprudence has emerged in response to many of these tensions. The

theory and application of therapeutic jurisprudence is discussed at a micro, meso and

macro level, and an extensive description of its contemporary application and potential

role within the Children’s Court is provided.

The key concepts and goals valued by therapeutic jurisprudence are identified in this

chapter, and the way in which these concepts have the potential to promote motivation,

successful action, positive behavioural change, confidence and satisfaction in court

participants is discussed. These concepts and goals are related to the notions of

participation in the legal system and access to justice, as they share the same

overarching goal of enabling a more therapeutic process for the court participant. It is

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noted that these larger issues contribute to informing the analysis of the child protection

legal and court process that follows in chapters 7, 8 and 9.

The emergence of therapeutic jurisprudence

The notion of therapeutic jurisprudence has emerged in response to the significant

challenges and tensions seen in the legal system in recent years. There is an increasing

awareness that the law and its formal application is not always ideal for dealing with

families who have complex problems. It is also clear that a disjuncture exists in meeting

the needs of families in crisis with an approach that has traditionally been adversarial,

reactive and formalistic. As a concept, therapeutic jurisprudence challenges this notion

of adversarialism, and questions the way we think about the law and the way the law

works.

In Western Australia, the Children and Community Services Act 2004 (referred to as the

Act in this chapter) includes the provision that protection proceedings are to be

conducted with as little formality and legal technicality as the circumstances of the case

permit (s.145). In New South Wales, the Children and Young Persons (Care and

Protection) Act 1998 is more specific, stipulating that protection proceedings “are not

to be conducted in an adversarial manner” (s.93). Yet despite these provisions, there

remains a view that child-protection court proceedings continue to be conducted in an

adversarial manner (Wood Inquiry, 2008; Ombudsman Victoria, 2009; Children’s

Court of Victoria, 2010a; Victorian Law Reform Commission, 2010a, 2010b).

Sheehan (2010) highlights that while child protection in Australia is a shared

responsibility between legal, health and welfare professionals, it is now so closely

aligned with judicial and adversarial processes that it is separated from core social work

practice in the broader child welfare and family support systems. Further, legal

measures, rather than child development and wellbeing, decide findings of child abuse

and neglect, although it is child welfare professionals who identify whether there are

child welfare concerns that justify statutory intervention. Much of the research

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highlights not only the emotional implications of the child protection legal process, but

also the financial implications and substantial resources that are absorbed by the legal

process.

There are many concerns expressed about the design of the legal framework of child

protection systems in Australia. The Victorian Law Reform Commission recently

published their final report Protection Applications in the Children’s Court (2010b)

which examined the viability of alternative child protection legal models. Much of the

recent discussion by national and state law reform commissions has been in relation to

other legal models that are centred on the increasing role of alternative dispute

resolution in protection proceedings, and models that take a more administrate case-

management approach to child protection issues. In relation to current trialling of

processes that assist the resolution of matters by agreement rather than adjudication,

questions and tensions remain as to whether ‘pre-adjudication’ merely changes the

location of these discussions out of the courtroom setting and into an alternative

location, given that the rate of parents consenting to protection orders remains high.

The previous chapter presented a number of tensions that exist in the contemporary

response to child protection in Australia, including concerns about calls for even more

legal criteria to define risk and procedural standards for intervention (mandatory

reporting), which contrast with what we know about how people experience the child

protection system and its legal process. The previous chapter also presented the

growing support across the sector for recent reform proposals in Australia that would

see the child protection system closer to a public health approach, that would focus on

the ‘front-end’ of the system and on preventive efforts rather than on reporting,

screening and investigating processes.

Legal systems in most western European nations, in Scandinavia and to some extent in

the United Kingdom, look to broad-ranging approaches that go beyond immediate

safety problems and emphasise negotiation and diversion away from the legal system

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(Sheehan, 2010). These ideas are based on the notion that if families are better

supported at the front-end of the system, this may obviate the need to initiate court

proceedings. Strong pre-court mediation, provision of appropriate services and other

early intervention programs would therefore lessen the number of matters brought to

court (Children’s Court of Victoria, 2010a, 2010b). Support for such reform is coming

from all major stakeholder groups including the consumers and the Children’s courts.

The essence of these tensions and what they mean for this chapter is that while the law

is an important safeguard, it is often an ineffective remedy for the long-term and

complex individual and family problems seen in the Children’s Court. Many Children’s

Court practices and approaches are currently being questioned, particularly in relation

to how the courts deal with the increasing complexity of cases heard, and the number of

families moving through the courts. While many of these tensions have been articulated

and debated in recent years, currently we do not have the evidence as to what is, or is

not working in the context of the Children’s courts. The application of therapeutic

jurisprudence to the area of child welfare and the Children’s Court is a reaction to these

tensions, and whether therapeutic jurisprudence is able to address some of these

tensions remains to be seen.

4.2 THE CONCEPT OF THERAPEUTIC JURISPRUDENCE

The term ‘therapeutic jurisprudence’ was first used by David B. Wexler, Distinguished

Research Professor of Law, Rogers College of Law, in a paper written in 1987 where

he defined the phrase as “the study of the role of the law itself as a therapeutic agent”

(Wexler & Winick, 1996:xvii). Wexler and co-originator of the concept, Professor

Bruce Winick, suggested a need for a new perspective to study the extent to which

substantive rules, legal procedures, and the role of lawyers and judges, produce

therapeutic or anti-therapeutic consequences for individuals involved in the legal

process.

While the therapeutic jurisprudence scholarship initially emerged in the area of mental

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health law, the scholarship quickly expanded to many other areas including criminal

law, family law, juvenile law, health law, preventive law, tort law, commercial law,

workers compensation law, human rights law, the law of evidence and the legal

profession (Wexler, 1999, 2010a, 2010b). Therapeutic jurisprudence scholarship

developed as an interdisciplinary perspective, drawing on insights from the social and

behavioural sciences, particularly psychology, psychiatry, criminology and social work

(Wexler, 1990; Winick & Wexler, 2003). While the early writing on therapeutic

jurisprudence concentrated on legal reform, most notably in the mental health field, the

concept is now seen to apply to almost every aspect and area of the law and across

cultures, and is the subject of international study and development.

Until recently there has been no general theory concerning the impact of legal processes

upon participant wellbeing and its implications for attaining justice system objectives

(Australasian Therapeutic Jurisprudence Clearinghouse, 2010b). Much of the

therapeutic jurisprudence thinking has grown from an increasing awareness of the need

to humanise the law. As noted by the Australasian Therapeutic Jurisprudence

Clearinghouse (2010b) for many years judges, lawyers and justice system officials were

aware in individual cases of how the legal process impacts upon the wellbeing of those

involved. While there were examples of judges using what could arguably be called a

therapeutic approach, these approaches were piecemeal and scholarship in the area was

limited.

Many scholars have noted that therapeutic jurisprudence is not new territory, as legal

scholars have examined the consequences of law (for example, sociological

jurisprudence) and advocated for laws that evolve according to the needs of society

(Madden & Wayne, 2003). Others suggest that many courts had already been practising

therapeutic jurisprudence before it had been given a name (Slobogin, 1995; Sales &

Shuman, 1996; Roderick & Krumholz, 2006) arguing that these courts had been

experimenting with programs which were intended to be therapeutic in process and

outcome, by using legal processes to improve the psychological wellbeing of offenders,

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and by using the social sciences to determine the best outcomes for offenders (Freiberg,

2003). What is new, however, is the effort at making the perspective explicit and

conceptualising it as a field of inquiry.

The proponents of therapeutic jurisprudence suggest that our job is to see whether the

law can be made or applied in a more therapeutic way so that other values, such as

justice values and due process can be fully respected (Winick, 1991, 1992, 1997;

Wexler & Winick, 1996). Therapeutic jurisprudence and the concept of restorative

justice share many similar values and a common recognition of the importance of

factors such as trust, procedural fairness, emotional intelligence and relational

interaction. It is argued that if applied more broadly, these concepts can provide a

constructive alternative to the flawed adversarial paradigm that presently dominates the

protection and care jurisdiction (King & Tatasciore, 2005).

Therapeutic jurisprudence studies how the law, its officials, processes and institutions

affect the people who come under its influence. The study of therapeutic jurisprudence

highlights the reality that processes used by the courts, legal rules and the way in which

participants in the legal system play out their roles can impede, promote or be neutral in

relation to outcomes connected with the mental health and emotional and physical

wellbeing of court participants, those close to court participants, those representing and

assessing them, and those making directions about them (Wexler, 1990; Freckelton,

2007; King, 2009a).

It is very clear from the literature that therapeutic jurisprudence is difficult to define.

This is due in part to the fact that therapeutic jurisprudence is an organic concept that

changes according to the context in which it is applied. The aim of therapeutic

jurisprudence scholarship is to apply its philosophy to a particular legal context: for

example, in this research it is applied to the child protection legal context. Because

therapeutic jurisprudence is an approach rather than a ‘theory’ as such, it produces an

array of studies that are illustrative of the ‘approach’ rather than confirmatory of a pre-

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existing hypothesis (Freiberg, 2003:9). Therapeutic jurisprudence is essentially

practical, as it reframes the social science and psychological literature and applies it to

the legal context by suggesting techniques that legal professionals can use to do their

job better.

Therapeutic jurisprudence has been referred to as many things in the legal and social

science literature — a framework, an approach, a perspective, a legal theory, a vector, a

movement, a mechanism, a prism, a heurism, a field, a concept, a notion, and a lens

(Winick, 1997; Abrahamson, 2000; Petrucci, 2002; Birgden, 2002, 2006; Wexler, 2009;

Madden & Brooks, 2010). Madden and Wayne refer to therapeutic jurisprudence as “a

framework for assessing legal rules, applying social science research to legal questions,

and structuring interventions in the legal environment” (2003:338). For the purposes of

this research, therapeutic jurisprudence is understood as a framework for organising

and structuring the analysis of the child protection legal system in Western Australia,

and components of its legal process.

While each of the views stated above are justified within their own frame of reference,

therapeutic jurisprudence has been criticised for suffering from a “definitional

dilemma” (Slobogin, 1995:195). Other criticisms of therapeutic jurisprudence include

its lack of novelty, covert paternalism, and its unclear application to legal decision-

making, conservatism, its unnecessary conceptualisation, and intrusion upon civil

liberties, arrogance and its self-referentialism (Slobogin, 1995; Sales & Shuman, 1996;

Roderick & Krumholz, 2006). In the foreword to the Solution-Focused Judging Bench

Book, the Chief Justice of Australia, Robert French states that while the term

‘therapeutic jurisprudence’ may continue to ‘raise eyebrows’ amongst some members

of the judiciary, he believes it has been broadly recognised as reflecting an important

endeavour to improve the administration of justice, in areas where the traditional

judicial model of decision-making operating in isolation is inadequate to the task (King,

2009b:ix).

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While its definition may be somewhat contentious, there is general agreement about the

key concepts and goals that are valued by therapeutic jurisprudence including voice,

validation, voluntariness, respect, self-determination, autonomy and active

participation. Proponents suggest that it is these concepts and goals that at a micro level

have the potential to create a “shared respect process” (Petrucci, 2003) and promote

motivation, successful action, positive behavioural change, confidence and satisfaction

in court participants (Winick, 1992; King, 2009a). It is also important to note that the

concepts and goals valued by therapeutic jurisprudence sit within a larger macro

context of issues such as the nature and place of the law, relationships of power and

existing court culture, issues that are explored in more detail in Chapter 9.

A framework to critique the child protection legal system

In this research, I have used therapeutic jurisprudence as a framework for organising

and structuring the analysis of the child protection legal system and components of its

legal process. Such an assessment can provide guidance for a more therapeutic and less

adversarial, reactive, formalistic and overly bureaucratic child protection legal

response.

A critique of the child protection legal system can focus on the adversarial nature of its

processes and consider how these processes can be made more collaborative. It can

consider how the involvement of many stakeholders and wide support network for the

court participants can be encouraged, or the impact that the formality and hierarchical

structure of the legal system has on court participants, or it can consider what a less

formal courtroom would look like. Such a critique can also consider how therapeutic

relationships between parents and legal and court personnel can be fostered and

developed. In this context, the words chosen or language used by magistrates, their

body language and manner, behaviour and interpersonal interactions are all deemed to

have an impact on the court participants, due to their strong positive or negative effect.

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4.3 MICRO- MESO- AND MACRO-ANALYTIC THERAPEUTIC

JURISPRUDENCE

Within the literature, a distinction between micro- meso- and macro-analytic

therapeutic jurisprudence has been made by a number of scholars (Wexler, 1995;

Brooks, 1999; Madden & Wayne, 2002, 2003; King, Freiberg, Batagol & Hyams,

2009). This distinction has been described by Madden and Wayne (2002, 2003) as

being consistent with professional thinking and action that guide the social work

profession. They state that by assessing the entire system within which human beings

operate, social workers are able to target their change efforts at harmful policies (macro

level interventions), dysfunctional institutions (meso level interventions) as well as

destructive individual behaviours (micro level interventions).

Madden and Wayne (2002) suggest that in a legal context, the application of

therapeutic jurisprudence at the micro level may relate to the way an individual judge

speaks to a criminal defendant during a sentencing hearing, a meso level intervention

may relate to the creation of separate waiting rooms for plaintiffs and defendants in

domestic violence courts, and a macro level intervention may be the passage of

therapeutically sound juvenile laws.

Other literature suggests that micro-analytic therapeutic jurisprudence scholarship

relates to procedural-level court process considerations. For example, this scholarship

may consider the therapeutic administration or application of existing law, and focus on

particular rules, procedures or processes, or propose adjustments to that law (Wexler,

1995; King et al., 2009). Macro-analytic therapeutic jurisprudence scholarship on the

other hand, focuses on broader constructs such as an entire body of law, or broader

conceptions of law, or consideration of the therapeutic impact on society, or legal

doctrines. Scholars may analyse the roots of the law and call for fundamental,

transformative, societal changes, and psycho-legal architects may propose the creation

of new service systems (Wexler, 1995).

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Earlier therapeutic jurisprudence scholarship by Brooks (1999) in the area of child

welfare law and practice in the United States proposed that the creation of legal

arrangements such as kinship care, subsidised guardianship, co-operative adoption, the

creation of alternative legal processes for conflict resolution such as Family Group

Conferencing and mediation, and implementation of innovative legal structures such as

the Unified Family Court, were all examples of macro-analytic therapeutic

jurisprudence thinking and practice in action. It is interesting to note that the majority

of therapeutic jurisprudence scholarship to date has related more to micro level rather

than macro level issues, suggesting that people generally see therapeutic jurisprudence

in micro terms.

In considering the relevant ‘levels’ (micro, meso and macro) in attendances at the

Children’s Court and its processes, micro-analytic therapeutic jurisprudence may

consider the implications of certain legal provisions within the Act such as the court not

being bound by the rules of evidence (s.146). Micro-analytic therapeutic jurisprudence

may also look at the role of legal actors and consider how the behaviour or dialogue

between magistrates and parents can have a positive or negative impact on parents and

their experiences of the court system. Macro-analytic therapeutic jurisprudence thinking

and practice in the context of the Children’s Court may question how the adversarial

trial process could potentially damage the relationship between parents and the child

protection workers and agency, or it may consider the impact of pre-adjudication

conferencing on parents and families, or the use of pre-trial conferencing as alternative

legal processes for resolving contested matters.

In this research, the micro, meso and macro distinction is adapted and used as a

framework for structuring the analysis of the Children’s Court. For the purposes of this

research, micro level considerations relate to: procedural issues to do with participating

in the legal system; meso level considerations relate to access to justice issues; and

macro level considerations relate to relationships of power, existing court culture and

the comparative resources of the State. The following section will focus on the

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application of therapeutic jurisprudence in practice, and will concentrate specifically on

the areas of problem-solving courts, justice architecture, and family law and child

welfare.

4.4 APPLYING THERAPEUTIC JURISPRUDENCE IN PRACTICE Court is a stressful experience for most witnesses. The contested cases in the Children’s Court are more bitterly fought and emotional than all other jurisdictions because the decision the Court has to make is whether to remove the child from his/her family. These cases are traumatic for all involved, including the Magistrates and staff at the Children’s Court (Attorney General, Victoria, 2009:57)

This section considers therapeutic jurisprudence in practice, and pays particular

attention to the way in which it underpins problem-solving courts, its potential role in

court architecture and design, and its application to the area of family law and child

welfare.

Australia has been recognised internationally for making substantial contributions in

the areas of therapeutic jurisprudence, restorative justice, Indigenous courts, problem-

solving courts, and to the ‘Non-adversarial Justice’ movement as a whole. Australia’s

contribution to the body of therapeutic jurisprudence literature has been extensive

(Allen, 2001; Birgden, 2002; Freiberg, 2003; King, 2003, 2005, 2006; Bryant & Faulks,

2007; King et al., 2009), and its application can be seen in various specialised court

settings in Western Australia including the Adult Drug Court, Youth Drug Court,

Domestic Violence Court, Yandeyarra Circle Court and the Wiluna Aboriginal Court.

Many of these initiatives have received worldwide recognition (McMahon & Wexler,

2003).

A number of important forums in Australia have shown continuing support for the

growth of therapeutic jurisprudence initiatives. For instance, the Australian Institute of

Judicial Administration (AIJA) has sponsored the Australasian Therapeutic

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Jurisprudence Clearinghouse and has hosted international conferences in the field. In

2009, the AIJA and the Department of the Attorney General Western Australia

demonstrated their ongoing commitment to this important area by publishing a number

of judicial bench books all of which are underpinned by therapeutic jurisprudence

thinking.

Therapeutic jurisprudence as an approach to the law has proved extraordinarily

successful in a wide range of contexts within a relatively short space of time.

Resolutions have been passed to apply therapeutic jurisprudence in United States courts

and in Western Australian courts (Conference of Chief Justices Resolution, 2000;

Western Australian Country Magistrates Resolution, 2004), and therapeutic

jurisprudence has been included in the national curriculum for judicial development for

Australian judicial officers (National Judicial College Curriculum, 2008). Today, the

International Network on Therapeutic Jurisprudence lists over 1608 items in its website

bibliography database. With over 900 articles and over fifty books written and

published on therapeutic jurisprudence, the breadth and international interest in the area

is apparent.

The Chief Justice of Western Australia, the Honourable Wayne Martin stated in his

address to the 3rd International Conference on Therapeutic Jurisprudence held in Perth,

Western Australia in 2006, that he was firmly of the view that:

The concepts discussed at this conference have application in virtually every field of the law and are therefore of the utmost importance to lawyers and to the courts, and, more importantly, the community we all serve (Martin, 2006:11).

(i) Problem-solving courts

Although having application in all areas of the law, therapeutic jurisprudence has

become the underlying philosophy behind problem-solving courts. These include

mental health courts, Indigenous courts, drug courts, neighbourhood justice courts,

family courts and domestic violence courts (AIJA, 2009a). The past decade has seen

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an increase in the number of problem-solving courts internationally and in Australia.

The overarching goal of these problem-solving courts has been a focus on promoting

wellbeing and contributing to the resolution of problems underlying the legal issue,

rather than punishment as a primary goal of the court.

These courts require adequate judicial time to conduct the problem-solving court

program: additional court appearances are required of the court participants;

allowing more time for engagement and judicial interaction with participants; and

greater levels of judicial expertise to apply solution focused approaches. All of these

things can reportedly contribute to promoting court participants’ motivation,

confidence and satisfaction in the court process and court system (King, 2009a).

The value of therapeutic jurisprudence to problem-solving courts has been studied

by authors worldwide, and significant research on its application in particular forums

includes that of Hora, Schma and Rosenthal (1999), Brooks (1999, 2001), Allen

(2001), Birgden (2002), Petrucci (2002), Popovic (2003), Flynn (2005) and King

(2005). The following comparison table by Warren (1998) has been widely cited in

the therapeutic jurisprudence literature and is included to summarise the

‘transformed’ court process seen in problem-solving courts.

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Figure 2. Comparison of traditional court process and transformed court process

Traditional Court Process Transformed Court Process Dispute resolution Problem-solving dispute

avoidance Legal outcome Therapeutic outcome Adversarial process Collaborative process Claim or case oriented People oriented Rights based Interest or needs based Judge as arbiter Judge as coach Backward-looking to precedent Forward-looking and planning

based Emphasis placed on adjudication

Emphasis placed on post-adjudication and alternative dispute resolution

Few participants and stakeholders Wide range of participants and stakeholders

Individualistic Interdependent Legalistic Commonsensical Formal Informal Efficient Effective Interpretation and application of law Interpretation and application of

social science

Source: Comparison table by Warren (1998)

A major difference I would have with Warren and what is highly relevant to my thesis

is that I see transformed court process as the interpretation and application of law

within the context of social science.

When referring to the emergence of problem-solving courts, the Chief Justice of

Western Australia observed that all of these courts work on the basis that an

intersection between the law and social sciences within the justice system, provides the

potential to identify and address the underlying causes that have brought a person

before the court and subsequently the opportunity for a beneficial intervention (Martin,

2008).

While the Children’s Court does not purport to be a problem-solving court or provide

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such services, much can be learned from the methods and approaches used in problem-

solving programs. These approaches include consideration of the need to promote

positive behavioural change and the wellbeing of participants, increasing awareness of

how people experience the court process, and raising awareness of the ways in which

the judiciary and lawyers interact with court participants — and the impact of such

interactions.

(ii) Justice architecture

The study of therapeutic jurisprudence can inform the spaces which we use in all forms

of litigation. This emerging area in the therapeutic jurisprudence literature relates to

people’s experience of the courts’ design and court spaces. Kennedy and Tait (1999)

refer to this area of study as the social and architectural psychology of people and

courts environments. Architectural psychology as an academic discipline examines the

psychological and social experience people have in an environment.

The Law Reform Commission of Western Australia conducted a Review of the

Criminal and Civil Justice System in Western Australia (1999) and the final report

included a chapter on Architecture, Psychology and Law Reform in Western Australia.

That chapter, which approached law reform from an architectural psychology

perspective, considered how the court environment influences people’s experience of

justice. In this context, the ‘environment’ consists of a combination of the physical with

the social and psychological experience people have in the court setting. A number of

important recommendations were made in the report including that careful

psychological studies on the effects of court environments should be made prior to

commencing any significant construction or renovation projects, and that psychological

research should be reviewed, and appropriately tailored studies undertaken, to consider

the design variables which may influence aggressive behaviour and affect the safety of

participants in the justice system (Kennedy & Tait, 1999:1073).

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Architectural psychology research conducted in Australia suggests that the physical

layout and design of the court building, courtrooms and waiting room areas can all have

a significant impact on how court participants experience the justice system. Australian

research, including the work of Tait (1999), Missingham, Heywood and Brawn (2002),

Brawn (2005) and Karras, McCarron, Gray, Ardasinski and May (2006), while not

explicitly referring to therapeutic jurisprudence as such, highlights the importance of

space in enabling legal and court systems to be more therapeutic for the people

involved.

McConnell, Llewellyn and Ferronato (2000), in their research on parents with

disabilities who are involved in protection and care matters in the Children’s Court

observed that at the most basic level, the physical court environment is alienating for

parents and is ‘stress magnifying’. One legal representative who was interviewed in that

research referred to the court environment as “The cauldron where you can observe the

fears and frustrations of parents brewing” (p.54). McConnell and his colleagues found

parents with psychiatric or intellectual disability were particularly disadvantaged by

having to wait for long periods of time in crowds of anxious and angry people, because

of the added stress that this can promote. Environments such as these were found to

exacerbate what was already a tense situation, and could potentially affect parents’

presentation in court.

In a broader look at the legal needs of people with a mental illness in New South

Wales, Karras et al. (2006) highlighted how the physical environment of a legal service

and its day-to-day office procedures may act as a barrier to using legal services for

someone who has a mental illness. Karras and her colleagues indicated that physical

environmental considerations that are seemingly minor, such as fluorescent lighting and

extraneous noise can potentially distract people with a mental illness and prevent them

from engaging effectively with legal service providers.

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Other research that has looked at the ways in which court users interact with space has

indicated how environments and spaces can sometimes ‘serve’ and sometimes ‘hinder’

(Brawn, 2005). In her PhD study, Richardson (2005) looked specifically at the impact

that courtroom symbolism can have on court participants’ emotional state, and she

separated these into ‘fixed’ symbols (buildings and architecture), ‘semi-fixed’ symbols

(wigs, robes, coat of arms) and ‘non-fixed’ symbols (the behaviour of lawyers, police,

bailiffs).

The literature on therapeutic jurisprudence and court space and design highlights the

importance of considering the physical barriers to the participation of parents and

families in the legal system. Much of this research is based on the idea that both the

physical surrounds and a person’s state of mind are important. The research suggests

that the physical environment of the court and its impact on the experience of court

participants may be an essential component to improving the child protection legal and

court system.

(iii) Family law and child welfare

My research was prompted in part by my awareness of the emerging developments of

court initiatives and programs in Western Australia that were underpinned by

therapeutic jurisprudence thinking and philosophy, and in part by my acute appreciation

of the fact that the children and parents appearing in the Children’s Court are in

desperate need for that system to similarly be underpinned by practices that reflect

more therapeutic and humane legal approaches for dealing with families in crisis and

with complex problems.

While Australia and indeed Western Australia have benefited from major changes to

the Family Court, there has been very little published work on the child-protection

court process in the Children’s Court. Apart from the work of King and Tatasciore

(2005) and their writing on the Geraldton Family Care program, and the work of

Weinstein (1997), Brooks (1996, 1999, 2001) and Babb (1997) in the area of child

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welfare law and practice, this area has been relatively under-represented in the

therapeutic jurisprudence literature. Because of the significance of the Family Court

developments, (many of which are underpinned by therapeutic jurisprudence) in

relation to my research, I summarise them now in some detail.

Australia recently benefited from major reforms to the Family Court that included

amendment to key legislation in 2006, and a move towards less adversarial and more

conciliatory methods of resolving family conflict. Therapeutic jurisprudence thinking

informed many of these key changes. The change from a traditional common law

approach to a less adversarial one has had significant implications, not only for the

conduct of family law litigation, but also for the conduct of litigation as a whole.

The application of therapeutic jurisprudence to the area of family law has generated

much interest both in Australia and internationally. The Family Court of Australia’s

‘incursion’ into the terrain of therapeutic jurisprudence has been discussed by various

authors (Allan, 2001; Holden, 2001; Nicholson, 2001; Pike & Murphy, 2006; Bryant &

Faulks, 2007). Therapeutic jurisprudence scholarship in the area of family law has

considered the impact of court and other legal processes on the wellbeing of family

members and the family unit, and whether there are options that are more therapeutic

consistent with other justice system values that should be considered in resolving

family law disputes. Research has also examined the therapeutic effect of the family

law process, and considered approaches to dispute resolution, the opportunity to testify,

the admission of evidence and privilege.

A significant amount of research has clearly demonstrated the negative impact that the

adversarial legal process can have on children and families involved in Family Court

matters (ALRC, 1997; Weinstein, 1997; Babb, 1997; Allen, 2001; Hay, 2003; Bryant &

Faulks, 2007). As a result of much of this research, the past decade has subsequently

seen dramatic changes in the practices of the Family Court and its Western Australian

equivalent. These changes have been in response to the recognition of the negative

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impact that Family Court processes can have on children, parents and families, and

particularly on the relationship between the parents (Weinstein, 1997). In Australia,

processes adopted by the Family Court were found to be drawn out and costly, which

resulted in parental and professional dissatisfaction (ALRC, 1997).

In 1998, the Family Court of Australia piloted a program called Project Magellan,

which represented the first effort to case manage rather than to litigate highly complex,

difficult and troubled family situations. Project Magellan was introduced to the

Melbourne and Dandenong registries of the Family Court during 1998 and 2000, and

following a positive evaluation (Brown, Sheehan, Frederico & Hewitt, 2001) the

program received the support of the Commonwealth Attorney General’s Department,

State and Territory Legal Aid commissions, and child protective services, and was

subsequently rolled out into other registries in 2003, where it remains in place.

The potential advantages of a therapeutic jurisprudence-based approach to managing

child issues were also explored in 2001 by the Family Court of Western Australia, in its

Columbus Project (Pike & Murphy, 2006). The aim of this project was to promote

stable residence and contact regimes in cases of allegations of child/family violence. It

was conceptualised as an early intervention strategy whereby highly conflicted cases

with the potential for lengthy litigation could be identified, confirmed, assessed, and

then case managed through a series of conferences that were jointly chaired by the

registrar/counsellor team (Holden, 2001; Nicholson, 2001).

The Magellan and Columbus initiatives have been fundamental to the far greater

emphasis that is now placed on using mediation and conferencing approaches in the

Family Court, rather than on litigating highly complex and difficult family situations.

These changes encourage non-litigious dispute resolution, utilise ‘family reports’ to

provide information to the court, and draw on expert evidence by mediators and

counsellors. The use of social scientists’ expertise is also an acknowledgment that

family litigation can be extremely emotionally distressing and that parties, where

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possible, should be assisted throughout the legal process. An important point here is

that the potential for distress has been acknowledged by the Family Court, yet has not

been acknowledged in the legal response to child protection.

Much can be learned from these initiatives in terms of how the Children’s Court and its

processes can be improved. The Wood Inquiry (2008) compared key elements of the

Children's Court jurisdiction with the Family Court jurisdiction and found that there

were a number of improvements based on Family Court processes that could be made

to Children’s courts in relation to the following issues:

• Case management and listings

• Alternative Dispute Resolution and less adversarial trials

• Training and accreditation of lawyers

• Emphasis on resourcing the early stages of proceedings.

In Australia, the Family Court exercises original and appellate jurisdiction throughout

the country, with the exception of Western Australia in which it is a State Court,

although it is funded by both the Commonwealth and the State governments. The

Family Court of Western Australia decides family and child support disputes, and the

judges of that court also hold commissions as judges of the Family Court of Australia.

Western Australia saw significant family law reform in 2006, with the enactment of

new legislation and the introduction of family relationship centres, as well as the

Children and Community Services Act 2004 (WA) commencing operation in the

protection and care jurisdiction. Jackson (2009) has observed that many families

presenting at the Family Court also have involvement with the state child protection

agency (DCP), and are required to move between the Family Court and the Children’s

Court depending on their circumstances at any particular time, and that sometimes these

families ‘fall between the gaps’ of both jurisdictions.

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An issue generating much interest in Western Australia relates to this interface between

the Children’s Court and Family Court. It has been suggested that Western Australia is

uniquely placed to be the first Family Court in Australia to develop and implement a

Unified Family Law/Child Protection Court to manage all cases involving the welfare

of children, with the same judicial officers able to determine both public and private

family law matters (Jackson, 2009).

A number of reasons have been put forward by Jackson (2009) as to why the protection

and care jurisdiction would be better served by being relocated to the Family Court of

Western Australia and these reasons include the following:

• In both jurisdictions, the protection of children (private law) and family law

(public law), the “best interests of the child” is the paramount consideration in

determining care arrangements for children.

• Families who present to the Family Court of Western Australia with multiple

issues are referred to the ‘Child-related Proceedings Program’ and are

individually case managed from the beginning to the end of proceedings by a

judicial officer, a family consultant (a social worker or psychologist) and case

coordinator. Services such as these are not currently available at the Children’s

Court.

• Extended family members, particularly grandparents, are increasingly taking on

the care of children due to protection concerns, and are required to go to the

Family Court seeking orders. Often these families find themselves appearing in

both courts. There are many challenges for them, most notably concerning

differences between the courts’ protocols, documentation, processes and

terminology.

• The Family Court has all the powers of the Children’s Court in relation to

protection proceedings, therefore only a small number of legislative

amendments would be required if the protection and care jurisdiction were to be

relocated to the Family Court of Western Australia.

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• The Family Court provides for a range of onsite non-court based services

including family counselling, family dispute resolution and arbitration, services

that are not currently available in the Children’s Court.

The issue of merging courts so that all family matters are consolidated in a court of

expertise has been put forward as a recommendation in some reports and research both

in Australia and internationally (National Council of Juvenile and Family Court Judges,

1989; Weinstein, 1997; Dessau, 1999; Nicholson, 2003; Flango, 2007). The need to

consolidate Children’s courts and Family courts was explored in a discussion paper

‘The Best Interests of the Child? The Interaction of Public and Private Law in

Australia’ by the Family Law Council of Australia (2000) and in an article by Kelly

and Fehlberg (2002) that described Australia’s fragmented family law system and the

jurisdictional overlaps in the area of child protection.

It has been suggested that the proposed Unified Family Law/Child Protection Court in

Western Australia would closely resemble a number of overseas models (Jackson,

2009). In the United Kingdom, the state welfare authority can apply to their equivalent

Family Court for a protection order, and the United States and Canada both operate

under a unified model dealing with both family disputes and child welfare issues.

Family law matters under this model can include divorce, child support, protection and

care, and juvenile justice matters.

4.5 SUMMARY

This chapter begins by identifying the core tensions that have been articulated in the

research about the way the law has traditionally responded to child protection matters in

western liberal democracies. It then describes how therapeutic jurisprudence has

emerged in response to many of these tensions. The theory and application of

therapeutic jurisprudence is discussed at a micro, meso and macro level, and an

extensive description of its contemporary application and potential role within the

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Children’s Court is provided.

The chapter covers key concepts and goals valued by therapeutic jurisprudence

including voice, validation, voluntariness, respect, self-determination, autonomy and

active participation are identified, and the way in which these concepts have the

potential to promote motivation, successful action, positive behavioural change,

confidence and satisfaction in court participants. The way in which problem-solving

courts and recent developments and initiatives seen in the area of family law reflect

therapeutic jurisprudence principles and goals are identified, and it is observed that

these goals have largely been absent from parents’ and families’ experiences of

statutory child protection intervention.

These concepts and goals valued by therapeutic jurisprudence are related to the notions

of participation in the legal system and access to justice, as they share the same

overarching goal of enabling a more therapeutic process for the court participant. These

larger issues of participation and access contribute to informing the analysis of the child

protection legal and court process that follows in chapters 7, 8 and 9. Chapter 5 sets out

the research design, its epistemology and methodology.

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CHAPTER 5

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CONCEPTUALISING THE STUDY: THE THINKING AND DOING

5.1 INTRODUCTION In the first part of this chapter, I present the theoretical framework that has guided and

informed my inquiry and approach for this research. I outline research design-and-

methods decisions, and describe the participants and the setting. The way in which the

data were collected and analysed is presented. Ethical considerations in conducting

qualitative research of this nature, and more specific ethical and relational issues I

considered important in conducting research in this very sensitive area are also

discussed.

In the second part of this chapter, I reflect on my research journey, and draw on my

observational material to provide a detailed description of the people and place of the

court in order to capture the research arena of the Perth Children’s Court. I include this

reflection to provide another layer and lens to help place my research in context. The

reflection of my research journey captures the process, the relationships, the culture and

the tensions evident in the court. I explore the complexity of this research and what it

means to me in this part of the chapter. This reflection provides a context for my

analysis and findings.

5.2 RESEARCH QUESTIONS

This research seeks to assess how the Children’s Court of Western Australia and its

legal response to families in adversity could be more therapeutic. To do this, the

research sought to answer the following research questions:

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Primary Research Question:

How can existing laws, practices and procedures in the protection and care

jurisdiction of the Children’s Court be most therapeutically applied?

In order to answer the primary research question, I used a therapeutic jurisprudence

framework for organising and structuring the analysis of the child protection legal

system and components of its legal process. I addressed the primary research question

by answering the following two secondary research questions:

(i) What do the experiences of people involved in protection and care proceedings

say about how therapeutic jurisprudence is operating in the Children’s Court?

(ii) How can the Children’s Court be designed to empower and promote wellbeing

in court participants who are either personally or professionally involved in its

proceedings?

5.3 DESIGNING THE RESEARCH: A THEORETICAL FRAMEWORK

The absence of the voice of parents and families in the child protection system as a

whole was a key motivator for this research, the goal of which is to present to a wider

public a view of the lived experience of parents and families involved in child

protection court proceedings in the Children’s Court.

Areas of legal need and access to justice for parents and families in child protection

court proceedings have not been well addressed in the research and scholarly literature.

A research design that involved few assumptions about the nature of individuals’

experience and range of legal needs experienced by this group was therefore deemed to

be most appropriate. The purpose of the research was to assess how the Children’s

Court of Western Australia and its legal response to families in adversity could be more

therapeutic.

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A qualitative rather than quantitative paradigm is chosen for this study because the

research is exploratory in nature. It combines naturalistic enquiry with the gathering of

qualitative data, to gain as much understanding as possible as to how parents and

families, magistrates, lawyers and court staff experience the child protection legal and

court process. The conceptual research design-and-methods decisions, key texts I have

drawn on include Miles and Huberman (1994), Creswell (1994), Punch (1998), Patton

(2002), Denzin and Lincoln (2000), Stake (2010) who all generally agree that

qualitative research involves an interpretive, naturalistic approach to the world, where

researchers study things in their natural settings, attempting to make sense of, or to

interpret, phenomena in terms of the meanings people bring to them. Qualitative

techniques have been chosen in both the collection and analysis of data.

(i) Data collection

The literature review identified a number of key studies on parents’ experiences of the

child protection system (Freymond, 2003; Reich, 2005; Family Inclusion Network

[Queensland], 2007; Bennett and Sadrehashemi, 2008; Harries, 2008). With the

exception of McConnell et al. (2000), and Swain et al. (2002), there has been very little

research on parents’ and families’ experiences of the child protection legal and court

process in Australia.

The case study method is used to study one case in detail, that case being the Children’s

Court of Western Australia. The general objective of this approach is to understand the

case in-depth, in its natural setting, recognise its complexity and its context, an

approach which is generally agreed by Stake (1995), Punch (1998), and Yin (2003,

2009). Case studies have been described as the preferred strategy when ‘how’ or ‘why’

questions are being posed, when the investigator has little control over events, and

when the focus is on a contemporary phenomenon within some real life context (Yin,

2003, 2009). In this research, one particular case is examined in order to contribute to

our understanding of how the process in the Children’s Court of Western Australia in

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particular, but Children’s courts in general, can foster strengths and skills in parents,

and promote family healing.

The exploratory nature of this research led to a choice of qualitative methods of data

collection: semi-structured interviews with parents and families, magistrates, lawyers

and court staff, and participant observation of the Children’s Court. The data gathered

through the interview and observation stages are analysed in terms of the themes which

emerge from the interview narratives and the observed behaviours of the court.

Participant observation was considered essential to this research in order to understand

the context in which magistrates, lawyers and court staff work, and that parents and

families experience. Patton (2002) states that this approach makes it possible to observe

nuances, routines and ignored aspects which might escape the conscious awareness of

participants and discover things no-one else ever really paid attention to, and to move

beyond the selected perceptions of others.

It was originally intended that a comprehensive secondary analysis of court-related

documentation (including legislation and policy) would be undertaken in order to

determine whether or not therapeutic jurisprudence principles could be interpreted as

being present in the policy. However, due to the already considerable data gathered

through the interview and participant observation stages, it was decided that a more

comprehensive analysis of those data would take place rather than extending to a third

source of data.

Data collection setting

All data collected come from two courtrooms at the Perth Children’s Court, which is a

specialist court and headquarters of the Children’s Court of Western Australia. The

President of the Children’s Court of Western Australia supported this research, and the

significance of his formal support cannot be underestimated. The literature highlights

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the importance of such formal support in giving research legitimacy (Marshall &

Rossman, 1999; Patton, 2002).

The Children’s Court of Western Australia operates statewide and comprises the Perth

Children’s Court, metropolitan Children’s courts, and outside the metropolitan area the

court sits wherever the Magistrate’s Court of Western Australia sits. When appointed,

commonly magistrates receive dual commissions to sit in both the Magistrate’s Court

and the Children’s Court. While the Children’s Court of Western Australia comprises

many courts, this research focused specifically on the processes at the Perth Children’s

Court. The decision was made to focus on one court, rather than on courts throughout

the State of Western Australia for very practical reasons. The importance of

understanding the similarities and/or differences between metropolitan and regional

areas particularly around cultural and linguistic issues is acknowledged. For example,

some regional magistrates who exercise both Magistrate and Children’s Court

jurisdiction can carry significant child protection caseloads and in some areas, the

caseload can be almost entirely Indigenous cases. In this research, one particular Court

is examined in order to contribute to our understanding of how the process in the

Children’s Court of Western Australia in particular, but Children’s courts in general,

can foster strengths and skills in parents, and promote family healing. I remain mindful

in analysing the data that I focused on one metropolitan court location and there may be

differences with regional court settings, which may well limit the generalizability of the

findings state-wide”.

Collecting the data occurred in two stages. Stage One involved participant observation

and Stage Two involved semi-structured interviews and continuing participant

observation. The following section describes these stages in more detail.

Data collection Stage One: participant observation

The purpose of the participant observation was to understand the context, the process

and the participants of the Perth Children’s Court. The Perth Children’s Court building

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consists of six separate courtrooms. Four courtrooms (courtrooms 1 to 4) are designated

to criminal matters (juvenile justice) and two courtrooms (courtrooms 5 and 6) are

designated specifically to protection and care matters. For security reasons, Courtroom

6 has been designed with a separate and secure entry and exit point for the Department

for Child Protection (DCP) lawyers and caseworkers. Adjoining Courtroom 6 by the

separate entry is a waiting room area specifically for DCP personnel. This separate

entry is located on the opposite side of the courtroom to the main entry used by parents

and other parties, The court building has security personnel who can be contacted

immediately at any time in the event that a guard is needed within the courtroom during

proceedings. While Courtroom 6 has a separate and secure entry point for DCP staff,

the courtroom does not currently have a video link-up facility.

While Courtroom 5 has not been designed with the separate and secure entry points,

this courtroom does have video link-up facilities. All parties to proceedings (parents,

their lawyers, DCP caseworkers, and DCP lawyers) in this court are required to wait

together in the same general waiting room areas and enter and exit the court from the

same door. The video link is required for any matter where the parent or parents are in

custody, or a parent or legal representative resides in a rural or remote location. The

video link is used regularly; therefore the majority of matters are heard in Courtroom 5

so that magistrates and lawyers do not need to relocate between courtrooms. The

protection and care matters commence at 9.00 a.m. each week day and the protection

list usually runs for approximately 45 minutes, which is then followed by the video

link-ups. Approximately five to fifteen protection and care matters may be heard on any

one-day in the protection and care court.

The waiting room area at the Perth Children’s Court is a large open space with rows of

bench seating. The waiting room area is usually very full and busy on weekday

mornings at 9.00 a.m. For many parents involved in protection and care proceedings,

this is often the only time they see and speak with their lawyer (if they have one) about

the direction of their case. Generally, all parties to protection and care proceedings are

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required to wait together, often seated side-by-side.

In early 2009, the Children’s Court front-entry security was upgraded to include an

airport-style X-ray security door. This upgrade was due to a number of incidents

involving youth in warring gangs who were found to be carrying weapons into the

courtroom. Visitors to the court are required to identify themselves to the front-door

security staff. The protection and care court is a closed court to the general public. At

times there are extended family or support persons seated at the back of the courtroom.

In these instances, the magistrate will often ask the extended family or support person

to identify themselves and their relationship to the parent and child.

The court registry desk has over a dozen brochures and booklets available for youth

who are involved in criminal matters. There are brochures on Victim Offender

Mediation, Youth Drug Court, Child Witnesses, ‘What to expect at (Juvenile) Court,

Victim Support and Counselling (in relation to criminal matters) and ‘How to use

video-link facilities’. Interestingly, there are no brochures or booklets available for

parents involved in protection and care proceedings regarding the process, or what to

expect. While there is an information booklet available on the internet on protection and

care proceedings process, this resource is not widely known nor publicised by the staff

at the court.

The Perth Children’s Court has a voluntary court welfare service that is located in the

main waiting room area. Again, this service is specifically designed for the criminal

jurisdiction and not for the protection and care division. The role of the volunteer is to

help the young person involved in a criminal matter to fill out their Legal Aid

application paperwork while they wait to see a duty lawyer prior to their matter being

called, as this helps to free up the lawyer’s time.

The President of the Children’s Court notified all magistrates of the purpose of my

research, and explained that I would be attending the protection and care court on a

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regular basis over the following nine months. Following a personal introduction to all

magistrates by the President, I sent email correspondence to each magistrate containing

an explanatory statement about the research, an information sheet about the research

(see Appendix E), a sample consent form (see Appendix F) and a request for their

participation in the study by way of an interview (see Appendix G).

Participant observation of protection and care proceedings included observation of

mentions, hearings, pre-hearing conferences and trials that took place in Courtroom 5

and Courtroom 6 (the two designated protection and care courts) two days a week, for a

three-month period from November 2007–January 2008 (Phase One), and one day a

week for a six-month period from February 2008–July 2008 (Phase Two).

Phase One of the observations allowed immersion in the courtroom setting, and an

opportunity for me to gain familiarity with the roles and tasks of the research

participants, and the legislative framework. This first phase was an opportunity to note

emerging patterns relevant to the study, and an opportunity to allow specific interview

questions to be framed. Phase Two of the observations allowed me to study more

intently the court participants, their behaviours, interactions and activity taking place in

the courtroom, in the light of the interview questions that had been established. This

second phase of the observations enabled a more multi-faceted perspective of the

workings of the Children’s Court. Over 300 protection and care matters (approximately

12 matters per day) and 48 pre-hearing conferences were observed over the study

period.

The cases observed in the observation phases may be described as an availability

sample, as they were cases being heard on the days I attended court. The daily

protection list of matters (cases) did not include fixed appearance times so I would

observe only those matters heard in courtrooms 5 and 6 and those heard in the pre-

hearing conference room on the days I attended court. I most often observed the court

on Mondays, because this was the busiest court calendar day, but observations also took

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place during other days of the week. The protection list would usually run for

approximately 45 minutes to 90 minutes, and between five and twenty matters could be

heard by the magistrate each morning. Availability sampling is described as sampling

the first available appropriate sampling units (Seaberg, 1985).

A ‘passive’ method of participant-observation as described by Spradley (1980) was

used where I was visible in the setting, but did not take on a role specific to the setting.

I was immersed in the setting for a considerable period of time in order to experience it

as those in the setting might (Marshall & Rossman, 1999). In the courtroom I sat at the

back of the court, in seats reserved for family or support persons, court security, and

legal representatives who were waiting for their matter to be called. In this way I was

able to see and hear all that was said in the court. I was also able to unobtrusively take

notes between (not during) matters being heard. I had minimal interaction with court

participants during court proceedings. On occasion, I was approached by legal

representatives who enquired as to the purpose of my presence in the court. I revealed

my status as a researcher and the overall goal of the study to anyone who enquired.

During observations of the pre-hearing conferences, I sat to the side of the conference

room, away from the oval desk where all parties to proceedings sat. I was introduced to

the conference attendees by the magistrate convening the conference and the purpose of

my observations was briefly described. Attendees to the conference were asked if they

had any concern with me observing the conference, in which case I would leave the

room. No attendees made this request. Attendees were given the option to take a copy

of my Information Sheet, which outlined the research in more detail.

Field notes were not taken during court proceedings or during the pre-hearing

conferences in accordance with the judges’ request, University ethics approval, and as

stipulated on the research Information Sheet and Consent Form provided to research

participants. It was not considered appropriate to take field notes during court

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proceedings given that parents were unaware of the purpose of my observations. I

reviewed the daily protection list prior to the court sitting and made note of who was

the presiding magistrate for the day, the number of matters to be heard and the purpose

of the matter (mention, hearing, pre-trial conference, etc.).

Detailed field notes were taken at the conclusion of each pre-hearing conference and in-

between matters on the protection list being called, allowing a few minutes for me to

make notes when parents were not in the courtroom. I maintained anonymity in my

field notes, never using first and last names of individuals. More detailed field notes

were made at the end of the morning protection list when I would sit in the waiting

room area outside the courtroom. Detailed field notes were used to document and

describe activities and interactions, to detail concrete descriptions of what I observed

happening in the court, to describe the setting, to record basic information relating to

the legal representation of parents, and number of court matters and conferences heard

on any given day. Field notes were later typed up in more detail and included notes on

my thoughts and impressions as recommended by a number of authors including

Marshall and Rossman (1999).

Data collection Stage Two: semi-structured interviews

(a) Interviews with magistrates, lawyers and court staff

Stage Two of the data collection involved semi-structured interviews with magistrates,

lawyers and court staff who worked in the Children’s Court. The primary focus of these

interviews was to gain their perspectives on how parents and families experience the

protection and care proceeding process in the Children’s Court. Prompts that were

based around a number of themes that emerged from prior reading and early court

observations were used. Stage Two also involved continuing participant observation to

enable a more multi-faceted perspective of the workings of the Children’s Court.

Drawing on information gathered through the research literature, from informal

discussions and early court observations, a series of broad questions emerged about

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how parents and families experienced the child protection court process. I employed a

semi-structured interviewing strategy that traditionally uses prompts beginning with

something like “can you tell me about…”, or “what are your impressions about…” The

use of a series of prompts was chosen in this research in order to allow participants the

freedom to provide detailed descriptions of their experiences, particularly for parents

and families, and so that the analysis would not be informed by my assumptions. As

stated by Punch (1998), this sort of qualitative data is appealing to researchers who are

keen to capture directly the lived experience of people, as was the case here.

A semi-structured interview framework was developed for interviews with magistrates,

lawyers and court staff in the research (see Appendix H). The interviews were

structured around the following prompts:

• How parents experience the court process

• The mention list process

• The pre-hearing conference process

• The trial process

• Availability and/or access to legal representation

• The impact of the new legislation

• Language used in the court

• Spaces and design in the Children’s Court

This interview framework was pre-tested by a lawyer to ensure the prompts were clear

and relevant to the overall research aims and questions. The use of prompts allowed me

more flexibility in probing, and more decision-making flexibility in determining when

it was appropriate to explore certain subjects in greater depth, or even to undertake new

areas of inquiry that were not originally included or envisaged in the interview

framework. The interviews were conversational in nature. As much as possible, I

followed the interview framework; however, many interesting issues arose that I was

keen to explore further. There were a number of identifiable issues and preoccupations

that came up during the interviews which had not been anticipated. At the conclusion of

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the interview, the interviewees were asked if they had any suggestions for change.

The interviews were conducted in various locations that ensured privacy. Magistrates

and court staff who voluntarily agreed to be interviewed were variously interviewed in

court chambers, the chambers library or at a near-by coffee shop. While lawyers were

given the option to be interviewed in the chambers library, they all opted to be

interviewed at either their office or at the coffee shop near the court building. All

interviews lasted between one to one-and-a-half hours.

(b) Interviews with parents and families

Semi-structured interviews with parents and families who were involved in an active

protection and care matter took place. A semi-structured interview framework was

developed for interviews with parents and families (see Appendix I). This interview

framework differed slightly from that used with magistrates, lawyers and court staff.

Prompts in relation to the purpose of the pre-hearing conference and implementation of

the new State child-protection legislation were excluded from the interview framework

for parents and families. Therefore the interviews with parents and families were

structured around the following prompts:

• How parents experience the court process

• The mention list process

• Impressions of the pre-hearing conference process

• The trial process

• Availability and/or access to legal representation

• Language used in the court

• Spaces and design in the Children’s Court

Parents and families were given the option to be interviewed in an interview room

made available by the Children’s Court, at a local coffee shop near to the court, their

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place of work, or in their home. I sought to maximise the participants’ cooperation and

so was flexible with preferences for location, day and time of interview.

Interviews with parents and families lasted anywhere between one to two hours. The

issue of timing of the interview was significant. Initially it was anticipated that it would

be more convenient that the interviews with parents and families take place directly

following the pre-hearing conference. However, parents were quite clear in saying to

me that they did not want to stay within the court building for any longer than they had

to. Most parents opted for the interview to be conducted in their home, their place of

work, or at a public space.

For all of the interviews, voluntary consent to participate in the research and use of

information gained in the interview was gathered from all interviewees through a

written informed consent. All interviewees were provided with an Information Sheet

and Consent Form (see appendices E and F). The form outlined that participation was

anonymous and voluntary, that the participant could choose not to answer any

questions, and they could stop the interview at any time.

I asked all interviewees for their permission for the interview to be audio-taped, then

transcribed and word-processed. It was explained that the tape recording allowed a

complete and accurate record of participant responses, and allowed me to concentrate

solely on the interview process. Interviewees were advised that they had the right to

stop the recording at any time, and after the interview, they had the right to listen to the

recording, review the transcript, and indicate if there were portions of the interview that

they wanted to be deleted.

Once the interviewee and I signed the consent form, I commenced the interview by

asking interviewees about their overall impressions of how parents experience the

protection and care court process. Interviewees were then asked for their perspective of

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the mention list process, the pre-hearing conference process, trial process, access and

availability of legal representation in the Children’s Court, court language, and of the

spaces and layout of the Children’s Court building.

(ii) Sampling

The intention of the research was to gain in-depth information from a small number of

people, an approach Patton (2002) states can be very valuable, especially if the cases

are information-rich. The number of interviews remained flexible.

The sampling strategy for this research began as a search for information-rich cases

(Patton, 1990) to study individuals who had either direct professional or personal

experience and involvement in protection and care court proceedings. Two types of

purposeful sampling strategies (Patton, 2002) were used: a maximum variation

sampling strategy was used for lawyers, and an intensity sampling strategy was used for

magistrates, court staff, parents and families.

A maximum variation sampling strategy (Patton, 1990) was used for lawyers. This

sampling strategy involves intentionally selecting a wide range of variation on

dimensions of interest. Denzin and Lincoln (1994) refer to maximum variation

sampling as a process of deliberately selecting a heterogeneous sample and observing

commonalities in their experiences. In this case, the heterogeneous sample of lawyers

was drawn from a broad range of agencies that appeared regularly in the protection and

care court at the time of the observation phase of the study. It was considered important

to gain as wide a cross-section of lawyers for the interview sample as possible, given

that perspectives of the court process would likely vary depending on which party to

the proceedings the lawyer represented — for example, lawyers representing the State

would likely have different perspectives from lawyers representing parents and

families. Lawyers from the Department for Child Protection (DCP), Aboriginal Legal

Services, Legal Aid and private practitioners representing parents and children

constituted the interview sample. All lawyers approached for an interview agreed to be

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interviewed, with the exception of two private practitioners who initially agreed, but

then cancelled the interview due to scheduling difficulties.

An intensity sampling strategy (Patton, 1990) was used for magistrates, court staff,

parents and families. This strategy dictates that the sample consists of “information-rich

cases that manifest the phenomenon of interest intensely, but not extremely” (Patton

1990:171). In this case, all magistrates working at the Children’ Court of Western

Australia were approached for an interview, and the full-time court staff who work

predominantly in the protection and care courts were approached for an interview.

There was no bias of magistrates interviewed, given that they all rotated on their circuit

schedule throughout the data collection timeframe. This rotating basis allowed the

researcher to observe all magistrates in the court and pre-hearing conference settings.

An intensity sampling strategy was used to identify parents and families who had

specifically participated in a pre-hearing conference on the days that I attended the

court (usually Mondays) between February 2008 and July 2008. In the case of parents

and families, attendance and participation in a pre-hearing conference was the

eligibility criterion for selection in the interview sample. The pre-hearing conference

usually takes place two to four months into the court proceedings; therefore,

participation at a pre-hearing conference signals that parents and families would have

experience of, and some insight into the court process. It was presumed that they were

likely to have a more neutral and objective perspective of the court process at the point

of the pre-hearing conference, rather than at the end of the court proceedings when the

case outcome could likely affect their perspective of the actual court process. Hence,

parents and families were approached following the pre-hearing conference. For the

timing of the pre-hearing conference and therefore the interview, see the flow chart of

court process in the Children’s Court of Western Australia (appendices B and C).

A number of Children’s Court demographic studies conducted both in Australia and

internationally have indicated that parents with a disability, a mental illness, a

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substance misuse problem, single parents and parents living in poverty are more

vulnerable, as are their children, to having parenting and child welfare concerns

(Murphy et al., 1991, Taylor at al., 1991; McConnell et al., 2000, Swain et al., 2002).

These variables were not accounted for or considered in the sampling of parents and

families in this research.

Research by Reich (2005) on parents in the child protection system in the United States

highlighted the importance of identifying parents’ race or ethnicity of the people she

studied, stating that “without a doubt race shapes the system processes and the

experiences of those within it” (2005:23). In terms of the demographics of this study,

all but one of the parents interviewed in this research were Caucasian. One mother who

was interviewed identified herself as Indigenous and none of the parents identified

themselves as of culturally and linguistically diverse background. It is important to note

that research shows evidence that the proportion of Indigenous families involved in

child protection court proceedings is much higher than the sample in this research

indicates.

All magistrates and court staff approached agreed to be interviewed. The recruitment of

parents and families proved to be more difficult than had originally been anticipated

due to the fact that while some parents initially agreed to be interviewed, a number of

them later cancelled on the day of the interview, or changed their minds due to practical

difficulties in making arrangements to meet at a later date. As a consequence, a number

of interview arrangements were initiated and never commenced.

The views of children involved in protection and care proceedings were not included in

this research. Since the enactment of the Act in 2006, children are no longer required to

be sighted by the magistrate in the Children’s Court and are not expected to be present

in the court for any of the proceedings. Children’s experiences and perspectives of the

child protection process are of critical importance and pose different research questions

to the ones that this research has sought to explore. The absence of children’s voices in

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this research does not suggest a lack of empathy for the children, nor their experiences

and histories. To adequately acknowledge the voices of children, who these children

are, and their perspectives of the child protection process, a thorough and rigorous

separate investigation would be required. My hope would be that in a court system,

their voice could be heard more strongly. I hope this research can contribute to

increasing the realisation that their views are also central to informing a process of

change.

Initially, it was hoped that the perspectives of caseworkers employed by the statutory

child protection agency in Western Australia would be included in the interview

sample. However, the DCP employment policy guidelines state that caseworkers are

prohibited from participating in external research, and from being interviewed by any

outside body regarding the agency and its practices. Special dispensation is required by

DCP employees to participate in external research. A decision was made to not request

a sample of caseworkers from DCP for this research due to the anticipated difficulties

in obtaining approval, as well as the fact that caseworkers rarely have an active role in

protection and care court proceedings. The majority of caseworkers arrive at the court

just prior to their matter being called, usually only to observe the matter being heard,

and then often leave the court building immediately following the hearing.

In total, twenty-seven interviews were conducted, including: magistrates (six

interviews), court staff (two interviews), legal representatives (eleven interviews) and

parents and family (eight interviews). Key Australian and international court studies

such as those of McConnell et al. (2000), Swain et al. (2002) and Petrucci (2002)

included a similar sample size of 29 or 30 participant interviews in their respective

research. The following chart details, with pseudonyms, the profile of the participants

in the sample.

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Table 1. Profile of participants in the sample

Pseudonym Interview Number

Gender Role Agency Location of Interview

1 M Lawyer DCP UWA 2 M Lawyer DCP Café 3 F Lawyer Legal Aid Children’s Court 4 F Lawyer Legal Aid Café 5 F Lawyer Legal Aid Legal Aid 6 M Lawyer ALS ALS 7 M Lawyer ALS ALS 8 F Court staff Children’s Court Children’s Court 9 F Court staff Children’s Court Children’s Court 10 F Parent / Family Parent / Family Café 11 F Lawyer Legal Aid Legal Aid 12 F Lawyer Legal Aid Children’s Court 13 M Magistrate Children’s Court Children’s Court 14 M Magistrate Children’s Court Children’s Court 15 M Magistrate Children’s Court Children’s Court 16 M Magistrate Children’s Court Children’s Court 17 F Magistrate Children’s Court Children’s Court 18 F Magistrate Children’s Court Office 19 F Parent / Family Parent / Family Café 20 F Parent / Family Parent / Family Office 21 M Parent / Family Parent / Family Office 22 M Lawyer DCP DCP 23 F Parent / Family Parent / Family Parents’ home 24 F Parent / Family Parent / Family Parents’ home 25 F Parent / Family Parent / Family Parents’ home 26 M Parent / Family Parent / Family Parents’ home 27 M Lawyer DCP DCP

During the participant-observation phase of the study, numerous short conversations

were held with court staff and lawyers in the waiting room areas before, during and

after mentions and in-between matters being called in the court. These conversations

and interactions have not been counted or tallied as official ‘interviews’; however, these

conversations have been recorded as part of the participant-observation notes.

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(iii) The ethics of researching

Traditional ethical concerns in research have revolved around the topics of informed

consent: the consent received from the participants after they have been carefully and

truthfully informed about the research; the participants’ right to privacy; protecting the

identity of the participants; and protection from harm (Fontana & Frey, 1994).

There are a number of important ethical considerations in conducting qualitative

research of this nature. Ethical practice issues, presentation of self, integrity in how I

report my research and an awareness of bias have all been considered in this research.

It was important that my questions were seen to be free of perceived interviewer bias by

a majority of legally trained interviewees, particularly given my social work and

psychology background. Other ethical considerations in conducting this research have

included maintaining a non-partisan research position, and not passing judgment based

on my own personal values and ideals. Adhering to the research purpose and paying

careful attention to the research aims has been important to ensure that only activities

and findings relating to that aim were researched.

Conducting research of this nature also requires ethical considerations around

professional and relationship ethics. Given the particularly sensitive nature of the

information heard during data collection, specifically in relation to the names of

children, and nature of the information disclosed during the proceedings, it was

essential to ensure the data collected were properly managed and reported, the privacy

of the children and families was respected, and their identities protected. Choosing to

leave the courtroom when I recognised a parent who was personally involved in

protection proceedings is an example of respecting a family’s privacy. Consideration

also had to be given to protecting the identity and views of the magistrates and lawyers

interviewed, given the relatively small size of the protection and care jurisdiction and

legal profession in Western Australia.

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Participants were given the right to refuse or withdraw from the research at any time,

without prejudice or bias. I have been mindful that on occasion this may have been the

parents’ first (and perhaps only) opportunity to ‘tell their story’ and to have someone

listen, an opportunity to share their feelings about their process with a neutral but

interested listener. For some of these families, this was the first time they had shared

some of their most personal and private stories. This required my adherence to

managing the interviews sensitively, as there was a very real risk of interviews and

questions about their court experience ‘opening old wounds’.

Human subjects research ethics approval was granted by the Human Research Ethics

Committee (HREC) at the University of Western Australia (see Appendix J for the

approval documentation). Adhering to the ethics committee requirement to offer

referral for counselling when necessary, or offering to cease the interview at any point

without judgment or bias, were important ethical practice issues for me to consider and

be prepared for. It was important and necessary to assure research participants of

confidentiality, that University ethics approval was obtained for the research, and they

had the right to decline any question or withdraw from the research at any time, without

question or prejudice. It was also gratifying that no-one withdrew from or needed

referral for counselling services.

Interpersonal considerations such as building trust, maintaining good relations,

respecting norms of reciprocity, sensitively considering ethical issues, thinking about

my role in the setting and considering how this may affect participants’ willingness to

engage, were all important considerations to make prior and during the research

process. Awareness of implications of covert/overt fieldwork was relevant to my

participant observations, given that I did not publicly identify myself in the courtroom,

whereas in pre-hearing conference I did identify myself and the reason for my presence.

Building rapport with research participants was essential to being able to conduct this

research. How I introduced myself, how I acknowledged my appreciation for

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participants’ involvement, interest and time in the research, how I introduced the

research, its purpose and the importance of participants’ involvement, were all

important considerations in conducting this research. Balancing appropriate formality

and rapport was at times challenging, and required staying attuned to my role and

position within the research.

In terms of presentation of self, it was important that I considered how I would locate

myself in the research and what role I would take. Would I be seen as a neutral

observer, a former caseworker of the Department for Child Protection, a social worker,

a 30-year-old female Caucasian, a pregnant woman? How I presented, how I was

interpreted, and how I explained myself as a pregnant woman seeking to interview

parents about their very recent separation from their own child caused a number of

concerns for me. How I made sense of this experience in the context of the world of

child protection is explored in greater detail in the story of my research journey that

follows in the second part of this chapter.

(iv) Data analysis

Analysis of Phase One — participant observation data

In this research I used a mix of both manifest and content analysis (Tashakkori &

Teddlie, 1998) as I had pre-determined categories of interest based upon a therapeutic

jurisprudence framework prior to data analysis (manifest content analysis), and I was

also interested in seeing more specific themes emerge from these broad constructs

(latent content analysis).

The first level of analysis took place during the first phase of the data collection.

According to Miles and Huberman (1994), this form of analysis during data collection

lets the fieldworker ‘cycle back and forth’ between thinking about the existing data, and

generating strategies for collecting new and often better quality data. Further, these

authors state that this approach makes the analysis an ongoing, lively enterprise that is

linked to the energising effects of fieldwork. In this research, the data collection and

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analysis were interwoven from the beginning.

A qualitative data analysis approach was used to analyse the information collected

during the first observation stage of the study. An inductive analysis approach was

used, an approach that is reported to work well when the terrain is unfamiliar, when a

single case is involved, and the intent is exploratory and descriptive (Miles &

Huberman, 1994). The inductive analysis uses the content analysis technique, where

patterns emergent in the data are sought (Tashakkori & Teddlie, 1998).

Using a grounded approach, participant observation data were analysed. Themes and

patterns that emerged from the participant observation data were teased out. Issues seen

to be significant to the protection and care court proceeding process that were suitable

for inclusion in the interview framework were also identified. The themes which

emerged were related back to the original research questions. Recurring themes and

patterns in the data were identified, and informed the development of prompts that were

used for the semi-structured interviews (see Appendix H & I).

These prompts were sorted into three main categories reflecting the different

components of the Children’s Court and its operation, and were based on a category

structure drawn from Allen’s (2001) analysis of the therapeutic elements of the family

law process. These categories included the following:

• Structural elements

• Attitudinal elements

• Physical elements

Analysis of Phase Two — interview data

The same qualitative analysis approach was used to analyse data gathered in the semi-

structured interviews. The first stage of the analysis of the interview data was a

preliminary thematic analysis of interview transcripts. Miles and Huberman (1994)

suggest that in thematic analysis, one looks for repetition of issues and themes, and for

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similarities and differences in themes and patterns. Points of interest and emerging

concepts were noted. This thematic analysis was done first according to the prompts

used in the interview framework. My original intention was to sort the prompts and data

according to the analytic framework suggested by Allen (2001). I had an expectation

that my data would fit well into the scaffold described by Allen whereby the therapeutic

elements of the Children’s Court would be categorised into three groups — structural,

attitudinal and physical elements.

In Allen’s view, structural elements included conferences, or interviewing processes;

attitudinal elements included levels of adversarialism, how people speak in the

courtroom, body language of lawyers, or the inclusion of graduation ceremonies for

completed treatment or reunification programs; concrete or physical elements included

courtroom layout and design considerations, or the physical presentation of the arbiter

or authority figures.

While my original goal was to use the analytic framework suggested by Allen, in

analysing the research data I found that all of the participants viewed their experiences

to be associated with relationships and processes, and in particular with space and

power as important factors.

Responses to each prompt were analysed for relevant themes that emerged. From this

prompt-by-prompt analysis, specific categories were identified according to their

relevance to the study area (Patton, 2002). How findings related to previous research

and the theory of therapeutic jurisprudence was also noted in this process.

The process of coding and analysis that I used involved sorting. I started by identifying

a number of the broadest categories. I put important pieces of data that included quotes

from interviewees, a vignette, or an associated insight recorded during note taking on

individual pages. I then sorted the pages by putting them into categories. Ten categories

were developed:

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• Court appearances

• Duration of protection proceedings

• Stages of protection proceedings

• Court environment

• Nature of protection proceedings

• Legal representation

• Magistrates

• Protection Orders

• Negotiating outcomes — trials and consents

• Legislation

Transcripts were then coded for these particular categories. The use of codes helped

organise the data according to themes that I recognised and allowed the data to be

reorganised to areas central to this research (Minichello, 1990).

The second stage of the analysis of the interview data involved interpreting the data for

associations between the issues. At this time propositions started to emerge from these

associations and patterns which had already emerged in the interview data. Similarly to

the analysis of the participant observation data, the content analysis technique was used

to analyse and classify the interview data as themes, concepts and meanings. Some of

the themes were developed prior to the analysis, a number of which were based on

themes identified in earlier research (McConnell et al., 2000; Swain et al., 2002). Other

themes developed as the analysis progressed. In total, 34 themes were developed and

were sorted into five broad overarching concepts:

• Feeling silenced and invisible

• The nature of proceedings

• Space and power in the courtroom

• Legal representation

• Jurisdictional arrangements

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Analysis of Phase Three — observation data

Further triangulation of the interview and observation data offered me the opportunity

to combine strategies which allowed the development of a more multi-faceted

perspective and broad investigation of the research problem. The thematic analysis of

the literature and Phase One of the participant observation data were linked to the

development of prompts used in interviews. The interview data were then linked with

Phase Three of participant observation.

In further triangulating the interview and observations data, three levels emerged

according to the potential for change at the micro procedural level, meso policy level,

and macro conceptual level. Micro level considerations that were identified relate to

issues of process, procedures and roles of actors in the legal system. These

considerations are presented within a framework of ‘participation in the legal system’

and include the following:

• Communication and time

• Nature of the court process


• The role of the magistrate

• Provision of information

• Nature of negotiations

• Locating the protection and care jurisdiction

Further triangulation and analysis of these micro level considerations pointed to broader

access to justice issues, suggesting that change is also needed at a meso level to effect

policy level considerations. These considerations are presented within a framework of

‘access to justice’ and include the following:

• Legal assistance

• Court resources

• Rigidity vs. flexibility

• Legislative considerations

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Further triangulation of the data indicated that in better facilitating participation and

access to justice in the legal system, there is also a need for change at a broader macro

level. The macro level considerations that were identified were in relation to the

following areas:

• The nature and place of the law

• The culture of adversarialism

• Inherent power imbalances in practice

• Relationships

• Existing court culture

Throughout the following chapters, excerpts from the interview transcripts are

presented to qualify the findings. Links are made between interview and observation

findings to establish whether they support each other, and to discover what similarities

and differences there are in issues and associations. Prior to presenting the results of the

data, I reflect on my research journey. I do this in order to provide a context for my

analysis and findings that follow.

5.4 MY RESEARCH JOURNEY

Within the writings on qualitative methodology and ethnography, there is a well-

established tradition of reflecting on the researcher’s own social location as a factor

influencing both observation and analyses (Bell & Encel, 1978; Finlay & Gough,

2003). While this tradition is not recognised across all disciplines, I chose to include it

here as it provides another layer and lens to help place my research in context.

Drawing on my observational material I provide a personal description of the people

and place of the court, in order to capture the research arena of the Perth Children’s

Court. I describe my presence in the chaos of the court, and a snapshot in time of these

families’ lives. The reflection of my research journey captures the process, the

relationships, the culture and the tensions evident in the court. I explore the complexity

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of this research and what it means to me in this part of the thesis. This reflection

provides a context for my analysis and findings. While all of this covers the people, the

place and interpretations of me as a female research student, I have captured my

reflections under three main themes: the people, the distress, the non-distress; the

meanings of space; and my pregnant pause.

When I recall a statement attributed to the former Family Court Judge, Justice John

Fogarty that ‘The Children’s Court is the most important court we have’, I think about

how crucial decisions for children that will last a lifetime are made here. Yet, as an

institution that had been constructed specifically for and about children and their

families, the Children’s Court seemed to carry out its business oblivious to the

emotional reactions that are experienced by the people within the walls of the court.

Arguably, when one looks through the front door of the Children’s Court, past the

airport-style security X-ray machine, society’s priorities are evident insofar as it

appears to send a message that its job is the protection of children. The Children’s

Court deals with the most important members of society, yet to me, the stress, the pain,

and the sadness of the children and parents in the protection and care court is palpable.

As a researcher, I am grateful that young children rarely physically appear in protection

proceedings. The odd baby that is nursed by its nervous mother, who is attending a

‘mention’, served as a reminder to me of the vulnerability of both mother and child.

I commenced the research on a Monday morning, the court’s busiest day of the week.

By 9.15 a.m., the cramped waiting room area adjoining the two protection and care

courts is full with thirty or more parents, relatives, court workers, lawyers and

caseworkers. The protection and care waiting room area is now too small to contain the

increasing number of families, lawyers and caseworkers who attend the court each day.

The shortage of space within the court means that lawyers and caseworkers are forced

to consult with parents and families in the cramped waiting room areas, or they stand in

the hallways, in clusters of three or four. It is easy to overhear details of personal pain

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and suffering. It is easy to hear children’s names. It is very apparent that privacy in

these spaces is not an option or has not been considered.

Child protection court proceedings can be very distressing, and the overcrowding can

contribute to the distress, anxiety and agitation of those who are at the court. Lawyers

are walking to and fro between caseworkers and anxious parents. The atmosphere is

tense. Parents look confused and nervous. Lawyers look relaxed, perhaps because they

know what to do. One by one, families are summoned by loudspeaker into Courtroom 5

or Courtroom 6 for mention, their names being broadcast throughout the court building.

By 10.15 a.m., the crowd has thinned, their matters listed for contest concluded, stood

down, mediated or adjourned.

I watch as in the majority of cases, parents inevitably consent to a protection order.

Some say they have no other option. On particularly sad days I watch the parent who

defends their case at trial, either with the assistance of a lawyer, or in some

circumstances, where they represent themselves. On occasions, I watch the magistrate

hand down the decision as to whether a protection order will be granted by the court, I

see some parents’ response and reaction to this decision, and often leave feeling that the

Children’s Court is possibly the saddest place on earth, where there are rarely, if ever,

any happy endings.

As I conduct the research, I am aware of carrying my own tensions about how a court

can balance the needs of children and families, and my determination to maintain a

non-partisan research position. These feelings arise more often than not, when I watch

or read horrific stories of child abuse. A recent documentary on the failings of the

Northern Territory child protection system gave examples of some tragic cases where

innocent children died in the most horrific of circumstances, at the hands of their

parents or carers. I am struck by the immense challenges that many of these parents

face, each and every day. I also observe some matters where the actions of parents are

so inexcusable it is difficult to listen to the court proceedings. But more often I am left

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feeling a sense of sadness for some parents whose situations, poor choices, or histories

had led them into the web of child protection.

Reflecting on the children for whom the court system was created, and the children

whose lives and futures are at the hands of the magistrates of the court, I think about the

almost 34,000 children and young people in care at any one time in Australia. As I

undertake the research, I am mindful throughout that I am researching the future of

children’s lives being determined, yet they seem disembodied beings in the court

context. In this thesis it would seem there is little discussion of the children, of their

experiences or of their thoughts about the child protection legal and court process. The

absence of children’s voices in this research does not suggest a lack of empathy for the

children, nor their experiences and histories.

When I think about my experience of collecting data in the Children’s Court, I am

reminded that my presence as an outsider was apparent in a courthouse where virtually

all the lawyers and magistrates and court staff seemed to know each other well. At

times people were unsure how to treat me. Most people working within the court knew

I was a research student. The security staff who were unaware of my research topic or

aims seemed more apprehensive and suspicious of my presence than others.

Understandably, because of their role perhaps, security staff questioned me with an

attitude that appeared to suggest they had no understanding of my place. While not all

lawyers were initially aware of the reasons for my presence in the court, this changed in

time when I was able to explain the nature and purpose of my research. I was mindful

of how responses of security staff and lawyers can set the scene for a very alienating

experience for parents who are already anxious.

The Children’s Court is small, with a handful of lawyers appearing each day, and a

small number of court staff overseeing security, announcements and assisting the

presiding magistrate. Between each matter being heard, a staff member clears the

courtroom so that the only people sitting in the gallery are those directly involved in the

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case or lawyers who are awaiting their case to be called. Outside the courtroom,

lawyers move in and out of small groups where they meet their clients, while parents

who are waiting for their case to be called wait in the hallways or in the waiting room

area. Cases are heard very quickly, and lawyers who already know each other talk

loudly about the cases in abbreviations, code and jargon both during and between

proceedings.

I regularly heard lawyers say during proceedings that they were requesting section 240

leave, or they referred to section 143(2)b of the Act, or section 148, or a 143 proposal,

ex parte final orders or a minute of consent, and I was reminded that I was a stranger in

a strange land, and often wondered what this would all mean to parents. It was

immediately apparent to me that this milieu could not be easy for parents, many of

whom spent only a few minutes in the courtroom compared to the hours I spent each

day observing proceedings. When I began my courtroom observations, I attended court,

I sat in the waiting room areas, I watched court proceedings, and attended pre-hearing

conferences. When the proceedings or conference concluded I would immediately

summarise my observations of the proceedings. I also documented separately the legal

references and codes that were referred to in court each day. Returning home in the

evenings I would type up the observation notes and explanations of the legal references.

I watched as magistrates made decisions about children and families and over time,

began to understand the flow of cases, the statutory requirements, and the vocabulary of

the system.

On some occasions I was able to follow a specific case over time by attending the next

scheduled mention. I also began interviewing parents. Once I had undertaken a number

of observations and I was more familiar with the court and its processes, I began

approaching parents at the end of their pre-hearing conference. I would ask parents if

they would be willing to talk with me about their experiences of the Children’s Court.

The interviews with parents took place at a nearby coffee shop or at parents’ homes and

in one case, at their place of work. It concerned me that my research was an added

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burden to parents who had already gone through a difficult time, although none of the

parents reacted negatively, and all thanked me and indeed a large number of them said

they had never been able to tell their story before, and that gaining an interested

audience was something they said they rarely experienced.

Children’s courts are full of raw emotion. As a researcher I had to stay detached and

separate from what I heard (as many in the court do) although there were some

occasions when I struggled with the emotions and the non-partisan research position,

and developed an even stronger understanding of the complexity of these families. On

one occasion I observed court proceedings in a case where a father was in prison after

continually sexually abusing his two young daughters, to the knowledge of their

mother. For reasons unknown to me, the eldest of the two daughters was sitting in the

courtroom with her grandparents when the case was heard, and I felt overwhelmed with

sadness and horror at seeing this innocent little girl in front of me. It was an occasion

when I understood why decisions are sometimes made not to allow children to live with

their parents again.

Returning to earlier observations about the significance of space, the formality and

tradition of the court and legal system is immediately apparent as everyone bows to the

magistrate who enters the waiting courtroom. Courtroom symbolism such as the

elevated bench, the coat of arms that sit on the wall behind the magistrate, is a reminder

to all of the relationships of power evident in the courtroom setting.

Clearly, much thought has gone into the design and layout of the Perth Children’s

Court. A little natural light peeps in at the top of the courtroom. The inside of the

courtroom has soft neutral coloured walls. Simple and unobtrusive colours have been

used on the exterior and interior of the court building. The courtroom layout is simple

and uncluttered in its design. The chairs are comfortable, and it seems the room has

been decorated in an attempt to create a sense of calm. The curved walls in both the

main building and in the chambers reflect a more peaceful sense of space than sharp,

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straight walls. A small internal courtyard which is located off the main waiting room

area lets in natural light and the prospect of air and freedom, but unfortunately is

permanently locked.

The courtrooms contain video-conferencing facilities to enable parents to participate in

court proceedings if they are located in remote areas or are in prison. The use of video

conferencing seems to reduce the tension, anxiety and feelings of stress that were

apparent over a decade ago when I was a caseworker sitting in the courtroom, and

parents who were in prison were brought into the courtroom, with accompanying armed

security guards and handcuffs.

During the court-observation phase of my data collection I spent some time in the

Family Court of Western Australia. I was interested in how the internal spaces of that

court worked. When I entered the building I noticed a sign saying there were child-

minding facilities available within the court, and noted that this was something the

Children’s Court did not offer. In the waiting room areas I noticed there were more

private, partitioned spaces where estranged family members did not have to see each

other while they waited for their matter to be called. I noticed coffee, drinks and

vending machines for families while they waited and passed the time. I noticed higher

ceilings, more light and a more open, calming sense of space.

As I am sitting in the court, my mind goes back to a visit in 2006 to the Melbourne

Children’s Court, a purpose-built court that opened in 1999. I was struck by a number

of things about that building and its spaces. The design philosophy of the building was

based on openness, accessibility and respect, and these features were obvious in the

physical reality. I noticed immediately the geographical separation of the family

division from the criminal division, something I had not seen before. Upon entering the

court building, there are two separate staircases: one that leads upstairs to the right hand

side of the building, to the family division, and the other staircase leads upstairs to the

left hand side of the building, to the criminal division. These divisions are physically

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separated, are mirror images of each other, and they share one court registry.

I noticed almost immediately the internal spaces of the family division. There was a

large window allowing much natural light into the main foyer that doubled as the

waiting room. While there were many parents and children milling around and waiting,

some even sitting on the floor, the atmosphere was busy yet open. Parents and families

could have a coffee from a vending machine while they waited, they could have a

coffee in the Salvation Army room where chatty, approachable and happy volunteers

were working, or they could buy a snack from the vending machines. Parents also had

the option to call into the Court Network office, a service providing free voluntary

support to parents and families appearing in protection and care matters. The walls of

the Court Network office were covered in colourful, bright images, and brochures and

pamphlets on support services for parents and families were available. The office was

staffed by caring and supportive volunteers who would help parents and families on the

day of their court appearance, either by guiding parents through the court process,

through the actual court or sit with them in court. While the Court Network office was a

small space, it had a warm, friendly and approachable atmosphere.

The second thing that struck me about the Melbourne Children’s Court was a bronze

plaque that hung on the entry wall of the court building that read “The future will judge

us by the way we treat our children”. I scribbled it down, I thought this was symbolic.

At the back of my mind I wondered if one day the quote might read as the heading for

my thesis. The former Victorian premier John Cain quoted this phrase in his speech for

the triumphant opening of the Melbourne Children’s Court building in 1999. A number

of Victorian commentators have since made reference to this plaque, and many of these

comments seem to sum up the current state of the child protection system. One

commentator said: “It’s a bad joke in brass”; others have said; “The plaque is hard to

miss, and so is the irony”; and others have stated; “The homily on the plaque remains

unheeded”.

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When reflecting on the perception of me as a female research student, I think about my

‘pregnant pause’ during my research journey. When I think about the unique experience

of being pregnant during portions of my data collection and about the implications of

this in terms of my research, I am reminded of some of the unique insights that this

circumstance provided and that I had not anticipated.

More than three-quarters of my data collection was done while I was pregnant. I

continued in court until my ninth month of pregnancy. Early into my court observations

I tried to hide my pregnancy under loose clothing. In doing so, I imagined that I would

be less obvious or visible to those I was observing. I was worried about being pregnant

during my data collection for a number of reasons. Initially I had worried that my

pregnant status could be interpreted as being cruel or uncaring towards the parents I

interviewed about their experience of having their own child removed and the ensuing

court process. I had also worried that my pregnancy could influence people taking me

as a serious researcher, particularly by the judge and magistrates who were supportive

of seeing this research completed.

I came to realise that the source of my anxiety and much of my concern were mixed

with my anxieties about being pregnant while trying to complete my doctorate, about

balancing motherhood and a fulfilling career. During the course of my writing I became

more aware of how women struggled to balance family and professional life.

Midway through my pregnancy, when I was no longer able to conceal it, it became part

of the discussion with the mothers and fathers that I interviewed. I was reminded of my

experience as a caseworker when many parents were largely distrusting of caseworkers

who did not have children of their own, whom they viewed as being unable to fully

understand their experience. I think being pregnant provided me access and a level of

credibility with parents. The sense of automatic disclosure that comes with being

obviously heavily pregnant, I think acted as a form of connection between the mothers I

interviewed and me.

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My pregnancy seemed to be an important source of shared understanding with various

people in the court. Female lawyers seemed more willing to approach me and ask about

the progress of my research and pregnancy, and often shared anecdotes of their

experience of pregnancy or motherhood or balancing all of this with work life. These

conversations offered a sense of instant inclusion in what seemed like a closed group of

professionals who work together each day.

When I began this research, I was childless and unmarried, and by the time I completed

this thesis I was married with a two-year-old daughter. I had wondered throughout this

research journey if having a child of my own would make my research topic and

experience of observations too difficult to study. I wondered if my own experience

would change my observations.

My previous experience as a caseworker had given me an insight into the range of

actions or inactions of parents who come to the attention of DCP. Rather than feel

outrage or over-protectiveness by being a parent myself, I believe I am more conscious

now of the fine line that exists between parents with access to resources and parents

without access to resources. I regularly look at my daughter’s bruised knees from an

active life, a passion for challenge in the playground, a messy house, and wonder how

this would all appear to a young, inexperienced and overwhelmed caseworker, as I was

once. I think my own experience of having a child and the insight this has brought me,

has played a significant role in this research.

5.5 SUMMARY

This chapter sets out the theoretical framework that has guided and informed my

inquiry and approach. Decisions about research design and methods are outlined, and

the research participants and the research setting are described. The way in which the

data were collected and analysed is presented. Ethical considerations in conducting

qualitative research, and more specific ethical and relational issues I considered

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important in conducting this research are also discussed.

In the second part of this chapter, I present a story of my research journey. By drawing

on my observational material I provide a detailed description of the people and place of

the court in order to capture the research arena of the Perth Children’s Court. The

reflection of my research journey captures the process, the relationships, the culture and

the tensions evident in the court. This reflection provides a context for my analysis and

findings. The reflection is included to provide another layer and lens to help place my

research in context.

The presentation of the results of the data begins in Chapter 6 by presenting the stories

of what parents and families told me about their experience of the child protection legal

and court process. Chapter 7 follows by exploring the participation in the legal system

of parents and families appearing in child protection court proceedings in Western

Australia and focuses on the potential for change at the micro procedural level. Chapter

8 presents the second set of findings that relate to access to justice for parents and

families and focuses on change at the meso policy level. The final chapter draws

together all of the findings, along with the therapeutic jurisprudence literature, to argue

that change is also needed at a broader, macro conceptual level.

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CHAPTER 6

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PEOPLE AND THE PROCESS OF LAW

6.1 INTRODUCTION

As previously discussed in Chapter 3, many of the parents and families involved in

child-protection court proceedings often are experiencing multiple and multi-layered

problems. These parents and families are already coping with significant life stresses

including marginalisation through poverty, social isolation, addiction, disability and/or

minority status (Pelton 1989; Thorpe 1994; Fernandez 1996; McConnell et al., 2000;

Sheehan, 1997, 2001b; Swain et al., 2002; McConnell & Llewellyn, 2002). What

comes with belonging to such vulnerable populations is the disempowering position

that many of the parents and families find themselves in — many have struggled to

have a voice, to be heard, or to participate in finding the answers as to what works in

meeting the needs of those who appear in the Children’s Court.

In this chapter, I present the stories of what parents and families told me about their

experiences of the child protection legal and court process. The stories that are

presented in this chapter are predominantly about the feelings of parents and families,

and as such have been framed around the following six themes:

• Trauma

• Invisibility and silence

• Stress

• Intimidation

• Confusion

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• Support and advocacy needs

For the purposes of this chapter, reference to the ‘legal and court process’ includes

attendance at court for mentions, hearings and trials, attendance at pre-hearing

conferences, and the process of obtaining, engaging and retaining legal representation.

See Glossary for a definition of these terms.

6.2 TRAUMA

I really think the bottom line is that this is probably one of the most unsupported groups of people, in any of the kind of ‘welfare areas’, and yet it’s the one area that makes the biggest life changing decisions, for children, for parents, for families, for siblings, and I think that’s really unfortunate. I guess at some level, it’s easier to get assistance if you’re a criminal — ’cause you get Legal Aid, you get advocacy, you get all kinds of things, if you’ve actually committed a criminal offence, than you can as a parent going through this process, and that’s sad.

Interview #10, Parent

Interviews with parents and families indicated there is an absence of attention to the

trauma and emotional reactions of parents and families involved in child-protection

court proceedings. Interviews highlighted the need for court staff and professionals to

have a genuine understanding of that distress and its implications for families. The

devastation that many parents experienced when long-term protection orders were

imposed was also mentioned as a cause of such trauma.

Interviews and observations indicated that the early court process often involves parents

who are still suffering distress and trauma following the removal of their child by the

statutory child protection agency. A general lack of appreciation for the genuine

distress that parents go through when a child is removed from their care was an issue

highlighted by the majority of parents in this research. One mother described her pain

and sense of loss in the following way:

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A lot of parents, when their kids are apprehended go downwards emotionally, mentally, and they are criticised and judged to be incapable because they are depressed, and guess what sparked the depression…You know, separation from your kids is pretty traumatic, as long as your kids are away from you, you’re going to have that hole in you, I mean that only they can fill. The Department [DCP] doesn’t take into consideration the trauma involved, both on the kids and on the parents, and they wonder why we get upset and angry, you know they wonder why we don’t trust them anymore, so there’s a lot of misunderstanding there, a lot of not taking seriously the trauma involved in the apprehension process.

Interview #23, Parent During the early court proceedings, parents may or may not be aware of the location of

the out-of-home care placement of their child, adding to the distress and trauma. The

circumstances and manner in which the child was removed, whether a warrant was

issued, or whether police were involved can also contribute to the distress, shock and

confusion which many parents reported experiencing in the early stages of the court

proceedings. A number of magistrates and lawyers voiced a similar sentiment. One

lawyer commented:

The legal procedures such as apprehension and non-warranted apprehensions are really non-therapeutic for getting the result that the system needs and that means getting a child into care.

Interview #7, Lawyer

It is important to note that a number of lawyers were extremely sensitive and attuned to

parents’ experiences and their situations. While the following comment was made in

relation to the need for legal representation for parents, it highlights such insight and

sensitivity:

Ideally, everyone would be represented no matter which application is given, you know, taking people’s children away from them is worse than a jail sentence in many ways. You know, having your own liberty deprived is different from having somebody who is the centre of your life taken away. It’s a grief, it’s a loss, and it’s a death almost. So ideally everyone should be represented; at least given advice, given a lawyer to negotiate the scope and resolve all of the issues whether it goes to trial or not. That would be ideal.


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A key issue that emerged from the data was the need to recognise the importance and

have a genuine understanding of the distress that many parents and families experience

as a result of the child protection system and process. Each interview that was

conducted with parents and families for this research highlighted this important point.

One lawyer put it this way:

So the children are highly distressed and the parents are highly distressed. If they react poorly to that, they are often penalised. The Department [DCP] will often say, “Well when we did this, you called us this name, or you got angry and threatened us”. There doesn’t seem to be any appreciation for the genuine distress that parents — even those who are dysfunctional or have huge problems — the genuine distress of having their children taken into care. So I think that that’s the starting point that people really need to realise


Another significant issue that was raised was the absence of attention to the genuine

trauma and devastation that many parents experienced when the Children’s Court

imposed a long-term protection order (until 18 years of age). Various interviews

touched on the magnitude and emotional implications of such an intervention on

children and their parents. One lawyer made the following comment in relation to such

long-term protection orders:

For a brand new baby who comes into care for an order till 18, people get less for murder. Eighteen years committed to the Department [DCP] — it could be the best thing that’s ever happened to you for some children or the worst.


Experiences of grief and loss have been identified in the literature as dominant

experiences with far reaching implications for parents who had a child or children

removed from their care. The literature reports and this research demonstrates, that it is

particularly important for professionals, members of the judiciary and lawyers working

in the court context to develop at least a basic understanding of parents’ reactions due

to grief, particularly that of depression. The literature reports that developing an

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understanding of these grief reactions can prevent misinterpreting the reactions as

disengagement and/or lack of interest (Fernandez, 1996; Thomson & Thorpe, 2004).

Furthermore, understanding parents’ and families’ experiences of grief and loss may

also assist in explaining why some parents struggle to maintain contact with their

children in care.

Research suggests that parents can be far more effective in meeting the needs of their

children in care and achieving positive relationships if their own pain is sensitively

acknowledged and worked with (Thomson & Thorpe, 2004). The same authors report

that particularly for caseworkers, a deeper understanding of loss could help clarify

appropriate ways of working with parents: to understand the life course impact of child

loss, non-finite loss and disenfranchised grief. The research highlights the importance

of acknowledging the parents’ trauma and emotional state when they enter the

Children’s Court and court proceedings commence.

6.3 INVISIBILITY AND SILENCE

One of the main challenges or difficulties parents face in participating in the legal process is being heard, absolutely, it’s a challenge to get a voice in the courts, and to be recognised that you know…that I’ve got rights, my child has rights.


A significant number of parents interviewed in this research spoke of feeling ‘silenced’

by the child protection legal system, specifically by the court processes, and of feeling

‘invisible’ during court proceedings. One parent referred to feeling “bullied by the

whole court process” and commented that all he was able to do was stand up and say

“yes I’m here, I’m present” (Interview #26, Parent).

A common concern mentioned by various parents was in relation to how they would

often find themselves surrounded by professionals — lawyers, magistrates, and

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caseworkers — who would be discussing them and the welfare of their child in their

presence, without actually addressing or including them in the discussion. One parent

described their feelings in the following way:

The only time I was specifically addressed was when I put my hand up and said “can I say something?” because all this stuff was being said, I mean I was in the room, but it was almost like I was invisible somehow, you know, and I felt very strongly about some of the things that were being said and wanted to amend some of that stuff.


A number of parents in this research commented on how the style and approach of the

individual magistrate could have a significant impact on their experience of feeling

either silenced by, or included in court proceedings. Lawyers and magistrates

acknowledged the significant variation in individual magistrates’ style and approach,

with some preferring to take a more ‘interventionist’ role, and others to remain

somewhat detached. The significance of this relates to the potential implications for

parents feeling either supported and encouraged to participate in court proceedings, or

intimidated and silenced by the presiding magistrate. One magistrate made the point

that ‘diffusing’ the tension and antagonism of the parents early in the process is

essential, “so that you can actually start being productive” (Interview #16, Magistrate).

It is evident in the research literature that there has been a lack of inclusion of parents

and families themselves in finding the answers as to what works in meeting the needs

of families who are involved in child protection matters, a theme that was reiterated in

this research. Previous Australian Children’s Court research similarly found that for

parents with disabilities, there is little opportunity throughout the court process for their

voices to be heard (McConnell et al., 2000). These problems can be exacerbated when

parents do not file an affidavit and/or are not given the chance to speak by the

magistrate during proceedings. Interviews with parents in this research highlighted the

common experience of them feeling invisible and silenced during court proceedings,

which goes against the increasing realisation of the need to include this primary

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consumer group to inform policies and practices that will benefit children and young

people, and families involved in child protection practices (Harries, 2008).

6.4 STRESS

Legal processes are often criticised for being lengthy, complicated and stressful, adding

to already complex issues for parents. Interviews with parents and families suggest that

stress may act as a barrier to engaging in the legal process, continuing with the legal

process, or preventing them from participating effectively during court proceedings.

One parent interviewed in this research described the feeling of having to return to

court regularly in the following way:

I didn’t attend court every time, because I had a lawyer that could do that for me, and I didn’t have to go through all that trauma again. Initially I went with my lawyer every time, then when I felt like I was basically drowning, and that I did not have a hope, because I wasn’t being heard, I wasn’t being listened to, anything that was brought up was basically manipulated or not listened to.

Interview #10 Parent

The stress and trauma that many of these parents reported experiencing as a result of

having their child removed may also lead to problems with understanding what is

occurring during court proceedings. This is a common concern that has similarly been

noted in research on parents with disabilities who are involved in child protection

proceedings in the Children’s Court. Magistrates and lawyers also commented that

court proceedings can be extremely stressful and confusing for parents. One lawyer

stated:

I would imagine if the question is from the parents’ perspective, then I think it’s a living nightmare. And you’re confronted with — you don’t have information, you’re struggling with this huge emotional devastation of having your children removed. You’ve got to deal with the Department [DCP] and let’s be honest, they’re inflexible. They don’t return phone calls. I think they do their best, but they’re under-resourced.


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The majority of parents interviewed in this research made reference to the stress and

negative impact that frequent delays and lengthy court proceedings have on parents and

families in the Children’s Court, issues that can be exacerbated for those parents who

have a mental illness or disability. Research has indicated that people with a mental

illness can become overwhelmed by their legal issues and that as a result, they may

avoid addressing them and seeking legal assistance (Karras et al., 2006).

A number of parents and lawyers who were interviewed reported that depression among

parents appearing in the Children’s Court is common, most notably as a result of the

loss of their children and life circumstances. Of particular concern are the parents who

may be overwhelmed by their problems, and then not motivated to seek or follow

through with legal representation, resulting in them not showing up at court on mention

dates and in the worst case, the matter being determined ex parte.

6.5 INTIMIDATION

I think as soon as you walk in the front door, you’re on the back foot. It really is intimidating — from walking in the front door of the court, to walking out of the court, the whole thing.


It was overwhelmingly clear from the interviews with parents and families that the

court process can be extremely intimidating and confusing for them. Many of the

parents spoke of feeling overwhelmed by the court process, and one parent who

commented on the court process being “very disempowering”, said “and I think that’s

what it’s been designed to do” (Interview #25, Parent).

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It was particularly concerning that almost all parents interviewed mentioned that at the

time they attended court, they did not fully understand the court process or what was

expected of them. The complexity and speed at which court proceedings took place was

also mentioned as an issue that contributed to parents feeling intimidated by the legal

and court process. The lack of privacy while waiting for proceedings to commence and

during proceedings was also mentioned by parents as a factor that increased this

feeling. One parent described this sense of intimidation in the following way:

The mention list is a really daunting and overwhelming process, you really don’t know what is happening, your name gets called out, and there’s a courtroom full of case managers and a whole lot of people you don’t really know, and it’s an incredibly intimidating process. I think a lot of people automatically assume “mmm I wonder what she’s done” kind of attitude.


A number of parents who were interviewed also spoke of feeling powerless and

intimidated by having limited or no legal representation, being unable to obtain legal

representation, and in some cases being self-represented in contested matters that went

to trial. Lawyers and magistrates who see these parents provide an insight into the

challenges that they face in attempting to participate in the Children’s Court. One

lawyer commented:

If I was a parent in that situation I’d feel like the game was lost before I could even start. I’ve seen examples of where I think really the parents have a great deal of difficulty getting a fair hearing. It’s pretty necessary to have legal representation.


One lawyer made the point that by virtue of a built-in time delay between parents

appearing in court for their first mention and the time taken to apply for, and obtain

legal representation, parents are at an immediate disadvantage by not being able to get

their views across to the magistrate quickly, particularly in relation to the interim

(temporary) care orders and arrangements of their children until the court process is

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well underway. This can lead to a process that is immensely stressful and

disempowering for parents. A number of lawyers and magistrates spoke very openly

about the daunting and negative impact that the court process can have on parents. The

following comment captures some of these feelings:

And then of course I think it’s a big, big issue to expect these people who have got, the parents in the Children’s Court, who have got massive issues, that the court process is really going to assist them a lot. Most parents find it very disturbing and distressing to go through.


Research conducted in Western Australia on the experiences of parents and families of

children and young people in care found that many parents in that study similarly spoke

of feeling helpless facing a set of systems that were themselves overwhelming (Harries,

2008). The legal process itself was a major issue of concern to all participants in that

research study who had been to court during the course of engagement with the

statutory authorities. Those parents described the confusion, the delays and the fear as

they grappled with court processes — many of them having no supports or advocates.

Delays in, and lack of information about court hearings were mentioned by a large

number of participants in that study as a cause of despair. These themes were reiterated

by many parents interviewed for this research.

6.6 CONFUSION

If there was a detailed description of how the process normally works, what happens in what order, and also what would be required of you to make it speedier, this is a mention, it can happen for this long, what to expect from the process, rather than you going in blind and all them telling you is “turn off your mobile phone”, “don’t wear a hat”, “only speak when addressed to” and all that, but they don’t tell you what to expect from the court process, or what’s going to happen in what order.


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A common theme throughout the interviews with parents was that the court system is

confusing, alienating, and difficult to participate in. Despite the inclusion of specific

provisions in the legislation that stipulate protection and care proceedings are to be

conducted with as little formality and technicality as the circumstances of the case

permit (s.145(1)), there was a general consensus among parents and a number of

lawyers that court processes did not reflect the intent of the legislation. A number of

parents spoke of feeling disadvantaged from the very beginning, as a result of their

confusion and not understanding the court process. One parent commented:

It’s all over in five seconds [and] without interpretation by a lawyer as to what had just happened parents wouldn’t have a hope of understanding the court process.

Interview#26, Parent

For parents with disabilities, these concerns are likely to be exacerbated. One father

who has an intellectual disability put it this way:

It’s always confusing; I’ve always had to ask my mum afterwards what they’re

trying to do


The following comment by a lawyer highlights many of the themes that emerged from

the interviews relating to the confusion, the delays, the use of complex legal language

or ‘legalese’, the lack of information, and the implications of limited departmental

(DCP) and legal resources for parents experiencing the court system:

The parents rock up on their first court appointment and what happens? It gets adjourned, and everybody speaks in this legal language, and lawyers do deals with lawyers, and it takes two-and-a-half seconds, and you’re told you’re coming back in four weeks’ time. You want to speak but the magistrate goes “well look, this is the process, I don’t have a solution for that, it is the process”, but I would imagine if the question is from the parents’ perspective, then I think it’s a living nightmare.


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6.7 THE NEED FOR SUPPORT AND ADVOCACY

I really think that there needs to be specific services provided — to provide support and advocacy for parents who have children in the child protection system, and to go through that court process, I mean it’s a horrendously…it’s a really difficult process, it’s very difficult to understand, you’ve got a whole lot of trauma already because your child has been removed. I can really easily see why people don’t turn up, why people give up. It’s very, very tough.


When asked about the support that parents and families required in order to navigate

their way through the child protection legal and court process, many identified a need

for emotional support during this time. When lawyers and court staff were asked the

same question about supports needed by parents, the majority commented that the Duty

Lawyer service based at the Children’s Court and subsequent legal representation was

the most important form of support. This raises the issue of the large proportion of

parents who do not have ongoing legal representation, and who report feeling

“pressured” to consent to a protection order due to the risk of losing their legal

representation and having to face a trial self-represented.

One family member who was interviewed spoke of the support and advocacy needs of

her son who has an intellectual disability, and who was involved in a protection and

care matter in relation to his children. The family member made the point that for any

parent in this situation the legal process will be daunting: however, for “someone who

doesn’t have a lot of knowledge about how any of these systems work, it’s even more

so” (Interview #20, Family member). Further, the family member raised the concern

that her son continued to be asked questions in departmental (DCP) meetings he simply

did not understand.

That’s the dilemma I’m left in all the time, how do you support parents like this so that they get a fair go, so they understand what’s happening to them, so that you’re able to do anything at all, that’s a big dilemma.

Interview #20, Family member

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The issue of appointing an Independent Guardian for certain parents appearing in

protection and care proceedings was raised by a number of lawyers as an additional

service that could assist the court. In the United Kingdom, every child protection case is

allocated an Independent Guardian on the first day the application is put to the court.

Guardians in the United Kingdom are social workers, and their primary role is to assist

the court. The Guardians choose the lawyer to represent them and the child, so that each

child has a lawyer and a social worker dedicated to them, who are independent from the

child protection agency.

6.8 SUMMARY

In this chapter, I have presented the stories of what parents and families told me about

their experiences of the child protection legal and court process. Parents and families

described feelings of confusion and pain, of feeling silenced and invisible, of feeling

overwhelmed and stressed, of feeling intimidated and confused, of needing support and

advocacy, and of an overall feeling that there was a lack of appreciation for the genuine

trauma and distress that parents go through when a child is removed from their care.

The stories of these parents and families illustrate the frustrations parents experience

when trying to understand and participate in the legal and court process. A number of

lawyers and magistrates were sensitive and attuned to parents’ experiences and

situations.

In the next chapter, I discuss the data in relation to the participation in the legal system

of parents and families appearing in child protection court proceedings in Western

Australia. More specifically, I identify how specific practices, processes, people and

structures in the Children’s Court can enhance or restrict participation and I discuss

these things in relation to the concepts valued by therapeutic jurisprudence.

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CHAPTER 7

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PARTICIPATION IN THE LEGAL SYSTEM

7.1 INTRODUCTION

In this chapter, I discuss the data in relation to the participation in the legal system of

parents and families appearing in child-protection court proceedings in Western

Australia. This involves an analysis of all data including court observations and

individual views of parents and families, magistrates, lawyers and court staff relating to

procedures and practices of the Children’s Court. I use a micro-analytic therapeutic

jurisprudence perspective to consider the way in which participation can be either

restricted or enhanced. More specifically, I identify how specific practices, processes,

people and structures in the Children’s Court can enhance or restrict participation and I

discuss these elements in relation to the concepts valued by therapeutic jurisprudence

This includes the role of the lawyer and magistrate in terms of how their style, approach

and manner can either encourage or discourage the participation of parents. In the

following chapter, which focuses on the potential for change at a meso level, I also

discuss the role of the lawyer, but in terms of how having legal representation can

enhance parents’ access to justice.

Based on the analysis of the data provided by court observations and interviews with

parents and families, magistrates, lawyers and court staff, this chapter highlights a

number of individual and procedural barriers to participation in the legal system that

result from specific court practices, processes, rules and regulations in the court. The

complex interplay between these barriers is also noted. The ways in which certain court

processes, judicial approaches and different legal structures can facilitate participation

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are also identified. The focus of this chapter is on the detail of the practices of the

Children’s Court of Western Australia. Features of the legal system that affect the

participation of parents and families at a micro level have been categorised into the

following six themes:

• Communication and time

• Nature of the court process


• Role of the magistrate

• Provision of information

• Nature of negotiations

Findings presented in this chapter suggest there are many ways in which the Children’s

Court can be improved at the micro level, in order to increase the therapeutic potential

of the court. The data indicate that parents who are involved in child-protection court

proceedings need an approach which is more flexible, and they need more assistance

and time than is currently afforded in order to participate most effectively in the legal

system.

For the purposes of this chapter, ‘participation’ in the legal system relates to the various

components of the child protection legal process including mentions, trials and pre-

hearing conferences in the Children’s Court.

7.2 COMMUNICATION AND TIME

The personal experiences of parents and families were discussed in Chapter 6. Parents

described their emotional reactions to the court experience, of feeling silenced and

invisible, of feeling overwhelmed and stressed, and of feeling intimidated and confused

by the process. The way in which individual and personal challenges can restrict

meaningful participation in the legal process was mentioned by almost all interviewees

in different ways. These factors related predominantly to communication difficulties

and problems with time.

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Communication difficulties

The Western Australian Children and Community Services Act 2004 (referred to as the

Act in this chapter) contains specific guiding principles that relate to the need for

parents to understand what is happening to them and their children during the court

process. The principles state that a child’s parents and any other people who are

significant in the child’s life should be given adequate information in a manner and

language that they can understand about the decision-making processes under the Act

(s.9(k)). The Act further stipulates that the outcome of any decision about the child,

including an explanation of the reasons for the decision, and of any relevant complaint

or review procedures is required (s.9(k)). However, despite these guiding principles, the

data from this research clearly indicate these goals rarely translate into a reality for

parents appearing in the protection and care jurisdiction in Western Australia.

Communication difficulties emanating from the use of complex legal language and

jargon were identified in the data as a significant barrier to the participation of parents

and families in child-protection court proceedings. The formality and complexity of the

language used in the courtroom can be confusing and anxiety provoking for court

participants, particularly for those who are new to the court system. Observations

indicated how communication difficulties can add to parents feeling stressed, confused,

powerless, angry and alienated by the court process. It was also noted that the frequent

references that lawyers made to sections of the Act added to parents’ confusion,

exclusion and ability to follow the proceedings. The frustration and emotions of parents

were observed to have an impact on their capacity to articulate clearly their views on

significant issues relating to their child’s and their own needs. The data indicate that the

language used by legal and court personnel can act as a mechanism of exclusion. One

parent spoke about “drowning without legal representation”, and that without it “you

just wouldn’t understand what was happening at all” (Interview #19 Parent).

The speed and pace at which mentions and court lists are heard in the Children’s Court

can create additional hurdles for parents being able to effectively participate and

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communicate during court proceedings. In interviews, some lawyers and magistrates

dismissed the need for parents to understand the language and the purpose of the court

process, stating “the mentions are not really designed for anything other than the

lawyers, who are expected to explain it to the respondent fully” (Interview #14,

Magistrate). This expectation is based on the presumption that all parents have legal

representation in the first place, and are fortunate enough to have the process explained

to them by their lawyer. Data suggest that not all parents in this jurisdiction are

afforded that privilege.

It was evident from the court observations that problems relating to communication can

be exacerbated for parents who do not have legal representation. If parents have

problems communicating or understanding what is happening during the court

proceedings, it is intended that their legal representative will assist them by explaining

events, advocating on their behalf, and ensuring that the parents participate as much as

possible in the court process. It was apparent from the court observations and

interviews that parents who did not have appropriate or sufficient legal representation

were at a significant disadvantage, and did not participate as effectively in court

proceedings or have as positive outcomes as did parents with legal representation.

A therapeutic jurisprudence approach to dimensions of communication considers the

impact of non-verbal cues and body language on participants in the courtroom.

Observations indicate that the use of complex legal terminology and jargon are related

to the attitude, style and approach of the individual magistrate. A magistrate made no

apologies for the fact that in his view “parents are unlikely to understand the

proceedings anyway, which is just unfortunate for them” (Interview #14, Magistrate),

and therefore from his perspective there was no point in amending magistrates’

language. The same magistrate remarked: “If we’re using legal terms and jargon,

they’ve got no idea what it is, and we haven’t got time to explain it”. Other magistrates

were observed to be more aware and mindful of how their communication style and

body language could restrict participation, and accordingly made attempts to use plain

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English, and to speak clearly and slowly during court proceedings. Some magistrates

were observed to make efforts to explain the processes or outcomes in language and

terms that the parents could understand.

The interactions between magistrates and parents were observed to have a direct impact

on the level of participation of the parents. It was clear from the observations that some

magistrates and lawyers had better communication skills than others. This was evident

in the way that one particular magistrate regularly spoke to parents at a pace that was

too fast to follow, often used legal jargon, rarely gave parents an opportunity to speak,

and rarely made any eye contact with them. Other magistrates were observed to be

sensitive to communication issues, and took the time to ask parents if they had any

questions and appeared to listen attentively to them. All of these things can reduce the

anxiety of parents not knowing and understanding what is happening, and generally

feeling overwhelmed by it all.

Magistrates can clearly convey messages to the parent through their demeanour, tone of

voice, body language and whether they actively listen to the parent. All of these

considerations can have an impact on whether parents and families feel empowered to

participate in the court proceedings. As stated by one lawyer, all of these things can

contribute to “whether people think there is a court there that’s really interested in their

case” (Interview #3, Lawyer).

Communication difficulties can be further exacerbated for parents who have a

disability, and for parents who are illiterate. Research has demonstrated that people

with a mental illness who appear in court can be so overwhelmed by the whole court

process that they lack clarity in the delivery of their answers (Karras et al., 2006).

Research has also indicated that the communication problems of people with

disabilities can be compounded by the courts’ excessive reliance on legal terminology

and complicated language (Disability Council of NSW, 2003). These difficulties were

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captured in the comments by a parent who has an intellectual disability and was

interviewed for this research:

They use too many…they use their own language, they shorten their words and muddle their words, like they’ve got their own language they speak, it’d just be like someone like myself having to put up with some lawyer that can only speak Greek or Spanish, and it’s just like they’re trying to hide what they’re really want to say, they speak in their own language, it’d just be like someone like myself putting up with Italians and Japanese people, Chinese people any other race besides my own. It makes me feel like they’re being a bit rude. I wouldn’t change my language so they wouldn’t be able to understand me so why should they do that to me?


Parents appearing in protection proceedings who are illiterate or for whom English is a

second language face additional hurdles in participating in the court process. The need

to understand legal documents and technical bureaucratic processes can create even

more barriers in attempting to understand and follow the court proceedings. The

Children’s Court of Western Australia has endeavoured to address these difficulties for

parents by implementing protocols to support the provision of interpreters for parents

for whom English is a second language.

Observations of the Children’s Court demonstrate how speech can also act as a

mechanism for the exercise of influence and power in the court. Across the justice

system and at all stages of contact, language can and does exclude people from

participation. The particular use of language can emphasise the gap between those with

knowledge and power, and those without (Disability Council of NSW, 2003). This

issue of power is inextricably linked with parents’ experience of the child protection

system generally, and specifically in relation to the legal and court process. The

dominance of speech in the legal professional context is reflected in its importance as a

conveyer of power and influence in the wider community — in education, business,

politics, community organisations and families (AIJA, 2009a). The issue of power and

how this relates to court culture is briefly discussed in the context of macro-analytic

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therapeutic jurisprudence in Chapter 9.

There are a number of ways in which the Children’s Court and its legal and court

personnel can be more attuned to the communication difficulties experienced by many

parents appearing in this jurisdiction. An example of how magistrates and lawyers

could use plain English could be to say: “ok we’re going to come back to this court in a

couple of weeks’ time to just see how things are going then”, rather than say “we’ll

adjourn for mention”. The Chief Justice of Western Australia, the Honourable Wayne

Martin notes that more can be done in this area — and a greater use of plain English,

simplification and standardisation of forms and procedures, and publication of plain

English guides to court processes for litigants, including self-represented litigants,

could greatly benefit the public and court participants (Martin, 2008:12).

Problems with time

As previously described in Chapter 3, parents and families involved in the child

protection legal system are often experiencing multiple and multi-layered problems,

and are already coping with considerable life stresses. Therefore, many of the parents

appearing in the Children’s Court lead chaotic lives and face many challenges in

meeting daily tasks including managing time commitments.

The data indicate that problems with time and time management can act as a barrier to

the participation of parents and families in the legal system. Parents in particular

identified issues of time as a barrier to their effective participation. Many, if not all the

parents interviewed in this research mentioned that they were reliant on public

transport, and did not have access to childcare facilities, family support or resources —

all factors that can make managing time commitments more challenging. For some

parents and families this can lead to turning up to court late, missing court appearances,

not responding to timeframes, and not filling in paperwork on time — all factors that

can exacerbate their legal situation.

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Court observations indicated that the court starting time of 9.00 a.m. was particularly

difficult for parents and families appearing in this jurisdiction. A lawyer who was

interviewed made the suggestion that the Children’s Court of Western Australia could

be aligned with other courts in the state and commence proceedings at 10.00 a.m. rather

than 9.00 a.m., which could alleviate some of the challenges parents face in attending

the court on time, particularly for those reliant on public transport. As discussed in the

previous chapter, a significant problem is the current limited face-to-face time that

parents have with their lawyer, which is often restricted to the minutes prior to or

directly following the court appearance. A later court starting time would allow a

greater opportunity for parents to meet with their lawyer prior to their court appearance,

and would allow caseworkers and lawyers the opportunity to meet at the court at 9.00

a.m. to discuss matters, which in turn could prevent court proceedings from being so

delayed and protracted.

7.3 NATURE OF THE COURT PROCESS

The whole process is not just anti-therapeutic...but it’s detrimental.


From observation and oral evidence, it became very clear that there are many ways in

which specific court processes can restrict, and in some instances enhance, the

participation of parents and families in the child protection legal system. The speed at

which court proceedings are heard, delays in proceedings, protracted processes, and the

nature of proceedings have all been identified in the data as affecting the capacity of

parents and families to participate effectively in the legal system.

The therapeutic jurisprudence literature, which is informed by the social sciences and

psychology literature, overwhelmingly indicates that court processes can be a highly

stressful, isolating and confusing experience for court participants (Wexler, 1990;

Brooks, 2001; Allen, 2001; Madden & Wayne, 2003; King, 2005; Bennett &

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Sadrehashemi, 2008). Much of this literature has described the negative impact that the

Children’s Court and Family Court processes can have on children, parents, extended

family members, professionals, lawyers and court staff. Many of the changes seen in

the law in Australia in recent years, particularly those towards less adversarial and more

conciliatory methods of resolving conflict, have been driven in part by an increasing

awareness and acceptance of these views and perspectives.

Pace of proceedings

The issue of time is repeatedly identified in the data as a source of frustration and

concern for all interviewee groups. Observations and interviews indicate that

timeframes in this jurisdiction simply compound the stress that many respondent

parents are already experiencing. The Act includes specific provisions that relate

directly to the Children’s Court facilitating parties’ (parents or guardians) participation

in protection proceedings. The Act states that the Court must, as far as is practicable,

ensure that each party understands the nature, purpose and legal implications of the

proceedings, and of any order or decision of the Court (s.153(1)). Yet, despite these

provisions, the data clearly indicate that there are many ways in which court processes

restrict rather than facilitate the participation of parents and families.

The insufficient allocation of time and the speed at which court proceedings take place,

specifically the mention list, were identified as issues of concern in relation to the

exclusion of parents and families in the court process. Observations of court

proceedings indicated that the speed at which the mention list was heard would often be

so rushed that parents walked out of the courtroom having no idea about what just

happened. The discussion between magistrate and lawyers about the status of the case

and planning for the next court date was often observed to take no more than one

minute. Parents in interviews did not seem to differentiate their experiences of the

various court processes, but rather they spoke of their overall experiences and of feeling

confused, pushed and overwhelmed by the speed at which their matters were often

heard.

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Many of the lawyers who were interviewed were critical of the limited amount of time

that is allocated to hear each matter, as well as the need for some magistrates to move

from the protection and care court once the protection list is complete across to the

criminal court. A number of lawyers suggested this is largely a resource issue.

However, regardless of resources, it is argued that there are ways in which the court, the

magistrates and lawyers can be more attuned to the impact of the speed at which

proceedings are conducted, the importance of use of plain English and the significance

of taking the time to explain the process and outcomes to parents.

The data and the literature suggest that with more resources and therefore more time,

magistrates could be in a better position to play a more monitoring and therapeutic role,

which would enable better judicial involvement. Additional time could also allow the

magistrate to take on a greater case-management role, in order to look at what is

happening in the case, to consider who is doing what, why they are doing it, or why

they are not doing it. A case management approach would reflect practices seen in

problem solving and specialist courts in Western Australia, and in the Family Court of

Western Australia. One lawyer made the following comment:

One of the things they’re doing in the Family Court is they’re talking to the parent. The magistrate will actually say to the parent — “so what do you say is going on?” The time is set aside. When you’re trying to squeeze a mention list into between 9 o’clock and 10 o’clock there’s just no time for that stuff. And the sense you get when you’re trying to talk about things is that the Court wants to close you down because we’ve got to get onto the next thing.


From a therapeutic jurisprudence perspective, court proceedings that are rushed can

further alienate, silence and intimidate parents and families, which can therefore act as

a barrier to their effective participation in the legal system. There are many tensions

around the issue of time in the Children’s Court, both in terms of the speed at which

matters are heard, and also the impact that delays and protracted processes have on

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parents and families. These tensions are captured in the following comment by a lawyer

working in the jurisdiction:

Generally there’s a lot of matters on the [protection] list, I don’t know — maybe 20 maybe more. So there’s lots of people, lots of lawyers, lots of social workers, lots of parents milling around. All the matters get called one by one and each one probably averages two minutes, probably less. So that in itself is probably not therapeutic. Generally the Department [DCP] lawyer would say “we want to adjourn this for four weeks” and the magistrate would say “okay adjourned”. And that’s it. The parents don’t even have a chance to say anything at all. They probably don’t feel heard and whatever issues they have aren’t brought up. Interview #5, Lawyer

Delays and protracted processes

The issue of delays and protracted processes was also noted in the data as restricting the

participation of parents and families. While the Act states that decisions about a child

should be made promptly having regard to the age, characteristics, circumstances and

needs of the child (s.9(h)), this research found most participants were frustrated with

the built-in time delays and the protracted nature of protection and care court

proceedings. The frequency with which matters were adjourned and the general lack of

progress at each court date were mentioned as a major source of frustration in the

majority of interviews conducted.

In terms of procedure in the Children’s Court of Western Australia, the Act stipulates

that the court must list the protection application within three working days of a care

application being made (s.36(3)). When an application for a protection order is made,

the matter is listed for mention. At this first mention, all parties usually seek an

adjournment and this is often granted to enable the legal representatives to take

instructions from their clients (the parents) and to file evidence. The data indicate there

is much criticism about how these built-in time delays at the commencement of

proceedings can act as a barrier to parents being informed about the case that is being

made against them in the first instance.

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The data indicate that it is common for delays for up to five days from the time a child

is placed in care, to the time the application is heard for the first time in the court. One

magistrate described this built-in time delay as being particularly problematic. This

magistrate commented that caseworkers are often not in a position to have extensive

dialogue with parents and families in the initial days following the removal of their

child, as their priority is usually in finding a safe environment for the child or in putting

their application together for the court (Interview #16, Magistrate). Parents described

this stage as extremely difficult, given that some of them were unaware at that time

where their child or children had been placed. These delays can also lead to parents

experiencing significant problems establishing initial contact with their children

immediately following the removal. One magistrate described this common situation in

the following way:

And then people come to court a number of days later and the first thing that’s said to them is “well you’ll need to get some legal advice about this, they’ve given you a two-week adjournment to do that” and of course the question is “well that’s all well and good but where are my children?

Interview #16, Magistrate

A key issue of concern identified in the data was that of drawn-out proceedings.

Despite the fact that the legislation states that protection proceedings are to be

concluded as ‘expeditiously as possible’ in order to minimise the effect of the

proceedings on the child and the child’s family (s.145(3)), in Western Australia, the

average number of court appearances required in protection and care matters is seven

(Department of the Attorney General, 2008). The protracted nature of protection

proceedings is particularly problematic in situations where a new baby is removed from

its parents’ care, which can have serious implications on the capacity for bonding

between baby and mother. One mother described her experience of these delays in the

following way:

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My experience of the court process was horrible, it took 18 months to get to the pre-hearing conference, it took forever, 18 months is a long time, especially with a child who was two-and-a-half when she was taken, it’s a really long time.


Parents and lawyers commented that these built-in time delays can also affect a parent’s

capacity to present their views to the court until a few weeks into the proceedings.

Particularly in cases where a parent opposes or contests the protection application, they

are required to file an affidavit in support of their application, which can result in

further delays in parents being able to have a say in the court proceedings. For parents

who have a disability, are illiterate, or for whom English is a second language, the

requirement to file an affidavit can act as an additional barrier to their prompt

participation in the early stages of the court proceedings. In this regard, it is particularly

concerning, that research by McConnell et al. (2002) demonstrated that less than half

the parents with a disability who appeared in the New South Wales Children’s Court in

relation to protection and care matters actually filed an affidavit.

The data suggest there are a number of procedural and practical problems that can

prolong protection proceedings, including multiple adjournments of mentions, the

schedules of the parents’ solicitors and DCP lawyers, and the timing of the filing of

documents. Observations indicated that cases could be adjourned for up to three or four

weeks when documents were not filed on time. Parents and court officials commented

that the impact of such delays and the uncertainty while proceedings are ‘on foot’ can

be painful for families and can lead to immense frustration and difficulties. These

problems are congruent with results of the Wood Inquiry (2008) which found undue

delays were caused by parties not filing evidence on time, parents not attending court,

parents awaiting legal representation, and the granting of adjournments by the court.

However, an important point made in that inquiry was that while expedition is in the

best interests of children and young people, it should not be at the expense of a fair and

considered hearing.

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Observations of court proceedings, particularly mentions, indicated there were

situations when parents had taken time off work, travelled significant distances, and

even cancelled contact visits with their child in order to attend the court for their

mention, only to find their matter adjourned. In the light of the impact that these delays

have on parents and their family, and also due to the fact that families rarely see

anything ‘substantive’ happen at the mentions, the requirement that parents attend the

mention was challenged by a number of lawyers who were interviewed. A number of

lawyers and parents commented that many parents may be better off having their

lawyer act on instructions, rather than attend themselves, to reduce the negative impact

of these delays. One lawyer made the important following point:

Procedural adjournment, I mean my client doesn’t need to go through that. And revisiting the Court is revisiting the trauma that’s brought them to Court.


The flipside of this suggestion is that parents could easily find themselves in a difficult

situation: on the one hand, repeatedly attending the court for mentions that are

adjourned is frustrating for parents; on the other hand, their non-attendance at mentions

could also send the wrong message to the court, or be interpreted by the DCP as a lack

of commitment to the process, or worse, to their children.

Above all, what this highlights is the significance of communication between lawyers

and parents, a responsibility that rests with both parties. Open communication is

particularly important when it is known to lawyers that the scheduled court date is

likely to be adjourned, or if there are likely to be any outcomes of significance for the

parents. As parents have mentioned in interviews, this could reduce their frustration and

disillusionment with the process.

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The adversarial nature of protection proceedings

“So why waste my time negotiating, we’ve got the power and we’re bringing the application, we’ve got the evidence. If your client doesn’t agree, we’ll go to trial”— that whole litigious model.


Participants overwhelmingly stated that the adversarial nature of protection proceedings

precluded the meaningful participation of parents and families in the legal process. The

participation of parents in the legal system is inextricably linked with the issue of

power, which in turn plays out in the adversarial nature of protection proceedings in the

courtroom. Parents’ stories of their experiences of the court process clearly demonstrate

that an imbalance of power exists between parents and representatives of the DCP (both

legal and caseworkers). One parent said:

One of the main challenges or difficulties parents face in participating in the legal process…is being heard, absolutely, it’s a challenge to get a voice in the courts, and to be recognised that you know…that I’ve got rights, my child has rights.


Observations of court proceedings demonstrated that this adversarial nature is

commonly reflected in the combative tone and approaches adopted by the various

parties, and in the manner adopted by some DCP caseworkers and team-leaders in the

pre-hearing conference. It was suggested by one magistrate that parents view the DCP

as a ‘prosecutorial department’ and as being a ‘prosecutor in a police mode’, rather than

necessarily as a department that is there to help them (Interview #16, Magistrate).

The adversarial nature of protection proceedings is also reflected in the way in which

evidence and information is documented. Formality governs how and when evidence is

filed — for example, evidence must be submitted in affidavit form, a requirement that

can be particularly difficult for parents appearing in this jurisdiction. The adversarial

nature of protection proceedings can also be reflected in the language adopted by the

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different parties. This was evident in how parents referred to the “opposition” and of

“feeling ambushed”. One lawyer used metaphors of war to describe cases that were

won or lost: he commented, “so we’re not used to losing, and when I say losing, it’s not

a win or lose thing” (Interview #2, Lawyer).

Participants explained that when a parent contests a protection application and the

matter goes to a trial, adversarialism is at its peak. Adversarial components of the trial

process can include the calling of witnesses, the presentation of evidence, and the

examination and cross-examination process. The adversarial nature of the trial process

and the combative approaches adopted by the respective parties can lead to parents and

families feeling intimidated by the court process, an experience which can disable court

participants, particularly those who are vulnerable. The adversarial trial process can

also potentially damage the relationship between parents and caseworkers, a

relationship that is extremely important in the event that a protection order is made and

a child is placed in out-of-home care. An ongoing, open relationship between the

parents and caseworkers is of great significance and relevance to the child.

In the Family Court of Australia and its Western Australian equivalent, less adversarial

trials have become a particularly important part of the approach to resolving conflict

concerning child issues. The Family Law Act 1975 (Cth) (Division 12A of Part VII) and

the Western Australian legislation (Family Court Act 1997 (WA)) have been amended

to reflect a less adversarial approach to trials in child related proceedings. The key

features of less adversarial trials include the following, found in the Family Court

Bulletin (p.5):

• No affidavits are filed before the trial — parents only complete a questionnaire

• The judge, rather than the parties or their lawyers, decides how the trial is

conducted

• The judge controls the case and keeps everyone focused on the major

disagreements about the children’s best interests

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• Parents and carers can speak directly to the judge, not simply through their

lawyer/s

• The judge identifies the issues to be decided and the evidence to be heard

• The judge is assisted by evidence from a family consultant who has specialist

knowledge and expertise in working with children and families experiencing

relationship difficulties after separation.

Drawing on such models and the concepts valued by therapeutic jurisprudence, there

are a number of ways in which the Children’s Court can support the autonomy, self-

determination and participation of parents in the trial process. Self-determination is

described in the therapeutic jurisprudence literature as being vital for motivation and

successful action. The exercise of free will to make choices as to how one thinks,

speaks and acts allows one to choose action that is personally meaningful for them

(Winick, 1992, 1997). The court can support parents by being more flexible in meeting

the needs of the individual parent and his or her situation, by being more inclusive in so

far as promoting the parents’ involvement in the process, by processes being less

formal and more aligned with how pre-hearing conferences are run, and by explaining

the process and the outcome directly to parents in a manner and language that they can

understand.

7.4 THE PRE-HEARING CONFERENCE PROCESS

To what extent should we create further incremental change? I would suggest that any required hearing of all parties and parents and support persons should only be in a pre-hearing conference format, always have a robust constructive issue delving inquiry at every mention. It’s about not having to drag the parents through that process 5-6-7-8 times before they get to a pre-hearing conference. Why, when it is such a negative emotionally inducing process?


Under the Children and Community Services Act 2004 (WA) the Children’s Court may

order a pre-hearing conference to give parties to the proceedings an opportunity to

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discuss, and reach agreement on any matter relevant to the application (s.136(2)). The

pre-hearing conference process is based on the alternative dispute-resolution model of

conferencing matters in an informal setting.

The pre-hearing conference is a key component of the decision-making process as

reflected in the legislation and Children’s Court Practice Directions. The Act states that

a child’s parents and any other people who are significant in the child’s life should be

given an opportunity and assistance to participate in decision-making processes that are

likely to have a significant impact on the child’s life (s.9(j)).

If a protection application is contested by the parent or caregiver, then the matter is

resolved at a pre-hearing conference or a trial. The purpose of the pre-hearing

conference is to try to reach agreement on the matter without the need for a trial. If an

agreement is reached, final orders can be made and the application can be finalised. If

one or more of the respondent parents fail to attend the pre-hearing conference at which

the consent was reached, or if the court determines that that the application should be

heard and determined ex parte, this can occur. If the pre-hearing conference does not

result in consent for final orders, the magistrate can adjourn the case to another pre-

hearing conference. Alternatively, if no agreement is reached between the parties, the

pre-hearing conference time can be used to prepare for trial.

Everything discussed in a pre-hearing conference is confidential and cannot be used as

evidence in any later court hearing about the case. The magistrate convening the pre-

hearing conference can also give a non-binding opinion of the probable outcome of the

hearing/trial based on the limited evidence (Children’s Court of Western Australia,

2010a).

Pre-hearing conferences are conducted onsite at the Perth Children’s Court, and some

conferences are conducted by the court sitting at other locations – such as in regional

courts. In the Perth Children’s Court, pre-hearing conferences are held in a small

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training room located away from the courtrooms. The pre-hearing conferences can be

convened by a judge, magistrate or an external convenor appointed by the court.

Attendees may include parents or guardians of the child/children, their lawyers, DCP

caseworkers and team leaders, DCP lawyers, legal representatives of the children and

the magistrate or convenor.

A number of issues emerged in the data in relation to the disparity in purpose of the

pre-hearing conferences, the way in which the conferences are conducted, the time that

is allocated to the conferences and cultural considerations of how the conferences

should be run. Each of these issues will briefly be discussed in relation to how it affects

the participation of parents and families.

Disparity in purpose of pre-hearing conference

Observations of the pre-hearing conferences and interviews indicate there is significant

disparity in the perspectives of magistrates as to the purpose and function of the pre-

hearing conferences, and inconsistencies in how they are conducted. Some of the

magistrates described the pre-hearing conference as simply a management tool, a

procedural step, and an opportunity to reach agreement and failing that, to narrow the

issues down so that the trial is focused on what is in contention. These magistrates were

observed to engage predominantly with the DCP lawyer in terms of dialogue, body

language and eye contact, and not with the parents or their lawyers.

Other magistrates appeared to hold a different view, and spoke of the pre-hearing

conferences as being a genuine opportunity to conduct mediation between the parties.

These magistrates were generally observed to give parents and their lawyers the

opportunity to speak, to update the parties and contribute their views on how they see

the matter going forward. One such magistrate described his approach in the following

way:

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I take a fairly interventionist role in pre-hearing conferences. I don’t see them merely as an opportunity to set directions in preparation for trial. I like to get all the issues out on the table with a view to settlement of the matter. Whether that be by the Department [DCP] withdrawing their application or the parents agreeing to the order that’s asked for, or a reduced order like a protection order supervision or move from an 18-year order to a 2-year order. So I think the conferences are quite a valuable opportunity, there’s no doubt. It depends, I suppose, on the magistrate and the view that that particular magistrate has of them.


While the majority of pre-hearing conferences are convened by magistrates, there is

provision within the legislation for these conferences to be convened by an external

facilitator, although it has been reported anecdotally that this has only occurred on three

or four occasions to date. It is suggested that in order to address this disparity in how

the pre-hearing conferences are run, and perhaps more importantly the disparity in their

usefulness and potential value, these conferences could all be exclusively convened by

external mediators who have specialist training in child protection mediation. Practices

such as these are already in place in Children’s courts throughout Australia. As noted in

the following comment by a lawyer, the use of external mediators would also free up

magistrates’ time, to allow more time to be spent on the mention list:

Pre-hearings in Melbourne weren’t chaired by a magistrate, so that meant that there wasn’t the pressure on magistrates to finish up the mention list to go and do pre-hearings. The pre-hearings were in the hands of people who had been trained to facilitate them.


Many comparisons were made in interviews between the pre-hearing conferences in the

Children’s Court and the mediation that is conducted in the Family Court of Western

Australia. One lawyer referred to the pre-hearing conferences conducted in the

Children’s Court as a “lost opportunity” for effective mediation. Mediation as seen in

the Family Court was described by another lawyer as “effective text book mediation”,

which enabled meaningful resolutions for people that were valid for them, and ones that

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they themselves would stand by because they felt that they owned the process and the

decisions made. The same lawyer commented:

I’ve never seen that process happen in the Children’s Court. You’d have to say, I mean procedurally, from a fairness point of view, the Children’s Court is an abomination really.


Magistrates’ style and approach in the pre-hearing conference

The data clearly indicate that the attitude, style and approach of the magistrate

convening the pre-hearing conference can have a significant impact on the participation

of parents and families, on their experience of the pre-hearing conference process, and

can also affect the outcomes of the conference.

Some magistrates were observed to have a style that had a purely litigious focus. Other

magistrates were criticised for having a ‘perfunctory attitude’ to the pre-hearing

conference (Interview #11, Lawyer) and for more or less just checking what everybody

wanted — if the parties were not in agreement then they would just be ‘off to a trial’.

Another lawyer was critical of the fact that parents were so intimidated by the pre-

hearing conference that they just “shut-up”, and that the conferences were

unproductive, “not counter-productive, but they just don’t add anything or any value to

it” (Interview #2, Lawyer).

Observations also indicated that other magistrates clearly had a different approach to

those described above. Some magistrates were observed to have communication skills

and a style that empowered, included and validated parents and their role in the process.

These magistrates were observed to say things like: “well where are we heading with

this and how can we help today”? Or others would say: “what do the parties want to

talk about today?” “What are the issues to discuss”? “How can we move it forward?”

“What are the concerns?” “Is there anything we can do to try and work with the issues,

or work out the issues in between?” There was a general consensus among interviewees

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that the pre-hearing conferences that ‘work better’ are the ones where the magistrate or

convenor attempts to find a path to resolution, a way forward, or perhaps a compromise

position. The following is an example of how this can play out:

In the pre-hearing conference, when the mother wanted to talk about how she was feeling the magistrate gave her an opportunity to do that, where some magistrates would say “okay, well, we don’t have time for that but let’s just go on to the Department’s position.” Position-focused rather than interest-focused.


Observations suggest that the role and approach of the magistrate or convenor of the

pre-hearing conference is not prescriptive. The convenors appear to have relative

autonomy and flexibility in their approach to how they conduct the pre-hearing

conference, and in what they see as the goal of the conference. As to the conduct of the

pre-hearing conference, The Children’s Court of Western Australia Practice Direction

No 6 of 2006 (which are the procedural guidelines for the Children’s Court) refers

specifically to the procedure if the parties reach consent on final orders at a conference

(paragraph 17.1), and the procedure for where a conference does not result in consent

for final orders (paragraph 17.2), but there is no reference to the manner in which the

conference should be run.

The Practice Direction No 3 of 2009 includes the guiding principle that these

conferences are intended to facilitate the early resolution of protection applications

through a less adversarial dispute-resolution conference process based on the Signs-of-

Safety child protection framework. While the practice direction states that the aim of

the conference is collaboration and future protection for the child (paragraph 2.5), there

is no reference made to the way or manner in which these conferences should be run. In

order to adopt a potentially more therapeutic process, practice directions could include

or reflect mediation principles and processes that value the voice, self-determination

and active participation of parents, which could instil more satisfaction in the process

and could potentially achieve greater outcomes for all concerned.

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The data suggest there is a role for all magistrates and lawyers working in the

jurisdiction to participate in child-protection mediation training in order to get a better

sense as to the role and value that mediation can play in these conferences, particularly

in relation to the potential to create a therapeutic process with more meaningful

outcomes for all participants. Child-protection mediation certification programs with

extensive training material and modules already exist, and it would seem that these

modules could be easily adapted to be relevant in the Western Australian context.

Allocation of time to the pre-hearing conference

Pre-hearing conferences in the Children’s Court of Western Australia are scheduled on

a daily basis and are allocated a 30-minute block of time, although sometimes these

conferences run over the 30-minute timeframe. Some pre-hearing conferences were

observed to be double-listed and set only 15 minutes apart, leading to most of the

discussion between the lawyers being conducted outside the conference room, which

was often followed by magistrates commencing the conference by saying “so do we

have a basis for agreement yet?”

An insufficient allocation of time for the pre-hearing conference is identified as a

barrier to the effective participation of parents and families in the legal process. The

allocation of time was observed to be insufficient as it restricted and inhibited the

opportunity for any significant discussion or mediation, which could affect the capacity

to reach meaningful outcomes. It could also mean that parents were rarely given a

chance to speak and be heard, and it could also restrict the capacity to discuss at length

any issues of concern.

The bulk of the child-protection mediation literature states that the time that is allocated

to a mediation session is extremely important, particularly in terms of the message the

court is sending to parties about the significance and centrality of the process. An

insufficient allocation of time runs the risk of suggesting to parents and their lawyers

that the conference is merely a procedural step or management tool, rather than a

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genuine opportunity to discuss and problem-solve the issues in dispute. Therefore, the

way in which the conference is structured can build in an expectation of how the

conference should work, and what is expected from it. Many research participants who

were interviewed were also critical of the fact that pre-hearing conferences were often

too rushed.

In the State of Florida in the United States, child-protection mediation sessions are

allocated a standard three-hour block of time, appropriately reflecting the complex

nature of these matters. Many lawyers who were interviewed commented on the length

of time that was allocated to mediation and conciliation sessions in the Family Court of

Western Australia, and some of them noted that these sessions could often take a half-

day or a full day before a matter was decided. This timeframe is clearly not afforded in

the Children’s Court of Western Australia. Many of these concerns have been captured

in the following comment by a lawyer who was interviewed for this research:

I think any mediator who watched a pre-hearing conference in the Children’s Court would be horrified by it. I have been in mediations, pretty skilful mediations in the Family Court context and that’s not what goes on in the Children’s Court. Not even a shadow of it. There’s no real process to it. Sometimes the caseworker will say something, usually not. Sometimes the parents will say something, but usually not. And the lawyers would kind of say well you know, we think it’s up to this point. And then a decision is made.


Parents’ perspectives of the pre-hearing conference

It was overwhelmingly clear from the data that many parents saw the pre-hearing

conference as the only potentially therapeutic or helpful component of the entire

legal process. Many parents described the informal nature of the conference as being

beneficial. Parents generally spoke of the conference as being the first opportunity

they had to have a voice in the court process, and a number of them said this was the

first time they felt there was some level of progress being made, and the first time

processes, issues and expectations were explained to them in ways that they could

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understand. When magistrates took the time to explain things to parents, they felt

more included and empowered to participate in the process. Importantly, every

parent who was interviewed commented that they would have preferred to have had

the opportunity to ‘sit around a table together’ and discuss their case and the issue

much earlier:

With that other one, when you’re all around the [pre-hearing conference] table, it makes you feel better even if you don’t achieve anything, that you can actually say something in your defence, and you can actually hear what the accusation is, you’re allowed to talk, and everyone’s sort of equal instead of there being this big special person and you’re just a nobody.


Observations indicate that the pre-hearing conference forum is one of only a few

opportunities parents have to genuinely exercise self-determination. King (2009a)

suggests that it is this capacity for choice, to speak or to ask questions, that promotes a

person’s motivation, confidence and satisfaction. From a therapeutic jurisprudence

perspective, giving court participants choice, whether it be to enter a particular

program, to use goal setting, or be involved in problem-solving, are means of

promoting participant self-determination, motivation and commitment to change.

Cultural considerations in the pre-hearing conference

Participants suggested that there are a number of cultural considerations that should be

taken into account in how the pre-hearing conferences are convened, and in how parties

conduct themselves in the conference. A number of lawyers commented that cultural

differences between Indigenous and non-Indigenous parents and families can affect

their experience of the pre-hearing conference forum. It was suggested that the informal

nature and components of the conference such as the way in which conferences are

conducted in “something other than a courtroom”, and that “break down the hierarchy”

are of no benefit to Indigenous clients (Interview #7, Lawyer). Participants commented

that the physical setting, the location where the pre-hearing conferences are run, can in

fact create additional cultural barriers and can put some Indigenous clients at greater

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unease. “Generally, some of these clients find it easier to be in a formal setting where

the roles are clearly defined”. (Interview #7, Lawyer). Arguably the informality and

location of the conference away from the courtroom setting does not necessarily benefit

all cultural groups. It was also noted that for some, body language including direct eye

contact and direct comments across the table, can create more pressure on Indigenous

clients.

When pre-hearing conferences are informal and inclusive in nature, when they are held

at a ‘round table’ where participants are treated equally and with respect, when

sufficient time and resources are allocated to them, and when convenors and lawyers

demonstrate a style and approach that is inclusive of parents, the values of therapeutic

jurisprudence and goals of self-determination, autonomy and active participation can be

enhanced.

Participants suggested that procedurally there are many changes that could potentially

make for a more therapeutic process for all participants in the court system. These

procedural considerations include the rushed pace of proceedings in the mention list,

the delays and protracted processes resulting from the high number of adjournments

made, the high number of court appearances required of parents, the time allocated to

the pre-hearing conference, the variation in the purpose of the conference according to

the individual magistrate, as well as important cultural considerations of how the

conferences should be run — particularly in relation to body language, the behaviour of

the convenor and lawyers — and how informal processes are experienced by

Indigenous and CALD parents and families.

7.5 ROLE OF THE MAGISTRATE

As previously noted, the style and approach of the magistrate can have a significant

impact on a parents’ experience of the pre-hearing conference process. It is also clear

that the interpersonal and communication skills of the magistrate can have either a

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positive or a negative impact on the parents’ capacity to participate in the mention and

trial process.

The therapeutic jurisprudence literature refers to how the roles and behaviours of legal

actors can be therapeutic or anti-therapeutic, and suggests that much of what legal

actors do has an impact on the psychological wellbeing or emotional life of people

affected by the law (Winick & Wexler, 2003). Some magistrates were observed to be

more aware of the potential impact of their role. One magistrate commented:

What I find is usually, if you take time with people, and I think that’s the essence — if you actually take some time with people, explain things, allow them to have their say, you can be quite active in assisting matters being settled or at least just helping people in their own rehabilitation. It’s really important — sometimes it’s just them having their say, them being heard.


The attitude and behaviour of a judicial officer can be extremely important to how

parents and families perceive their experience of the court. Whether concern or

compassion is conveyed to the parents and whether their crisis is acknowledged, are

important factors in facilitating parents’ participation in the legal and court process.

Parents attending the Children’s Court for their initial court appearance following the

removal of their child are usually traumatised, in crisis mode, and may be quite

reactionary. One particular magistrate was observed to use his role to diffuse a lot of

that tension at the outset, so that everyone could refocus on the children and their best

interests.

Magistrates who appeared to be more sensitive to therapeutic processes were observed

to give compliments and encouraged parents who were doing well in meeting their

respective requirements or contact arrangements. Not all magistrates were observed to

demonstrate concern and compassion for the parents’ position. The therapeutic

jurisprudence literature highlights that an interest in others, empathy and willingness to

engage with and involve participants in problem-solving processes are at their most

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powerful in promoting participant motivation and compliance when judicial officers

appear to be genuine (King, 2009a).

A number of interpersonal dynamics, personality factors and cultural differences may

also have the potential to impact on court participants’ experience of the court process.

For example, salutations, developing rapport, the manner and politeness of the

magistrate, whether explanations are provided to parents, and whether the parents are

legally represented, all appear to have an impact upon the perceived inclusiveness of

the court process (AIJA, 2009a).

The key features of approaches adopted by traditional judicial officers compared to

approaches adopted by problem-solving court judicial officers have been summarised

in the following table by Popovic (2003). She discussed these problem-solving

approaches in the context of complementing conventional law and changing the culture

of the judiciary. The approaches adopted by problem-solving judicial officers clearly

reflect approaches that are more therapeutic and are relevant to magistrates presiding in

the protection and care jurisdiction.

Figure 3. Comparison of approaches adopted by traditional judicial officers and problem-

solving court judicial officers

Traditional Judicial Officers Problem-Solving Court Judicial Officers

Dispassionate Interested (in litigants’ welfare) Impersonal Personal Decisions made in legal language Decisions made in language

understood by parties Limited communication Open communication Impervious to nuance Attention to nuance and special

needs of litigants Omnipotent Empowering others Punitive Positive/affirming

Source: Popovic (2003)

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In addition to the impact that the role of the magistrate can have on parents’

participation, the role and behaviour of lawyers can also have a powerful influence on

parents’ participation in the decision-making process, compliance with the court

process, engagement with the DCP and overall experience of the child protection legal

and court process. Literature in the area of procedural justice, such as the work of Tyler

(2006) has found that where courts (and other legal authorities) allow people to present

their story, listen to them, treat them with respect and demonstrate that they care about

litigants, litigants are more likely to respect the court process and obey court orders.

Lawyers using a motivational approach rather than confrontational approach, allow

parents to make decisions and take responsibility (i.e., autonomous decision-making).

While lawyers are not responsible for delivering treatment to their clients, it has been

suggested that they can harness psychological principles regarding positive behavioural

change (Birgden, 2006:6).

Rotating basis of magistrates

There are currently six magistrates working in the Children’s Court of Western

Australia who are based in Perth, although in regional areas, some magistrates working

in regional Magistrate’s Courts are already dealing with child protection and family law

issues. The magistrates who are based in Perth work on a circuit system that sees them

rotate on a weekly basis between the protection and care court, the criminal court,

metropolitan and regional courts, and trials. Every parent who was interviewed

commented on the fact that each time they attended the court, they had a different

magistrate presiding over their matter.

This lack of consistency of magistrate was noted to be a barrier to the effective

participation of parents and families. The rotation system can lead to great variation in

parents’ experience of the court process and in pre-hearing conference outcomes. Many

parents expressed great frustration with this system, which can be particularly difficult

for them when it is obvious the magistrate of the day is unfamiliar with their case. This

lack of consistency was seen by some parents as a disadvantage, with one parent

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questioning how a new magistrate could make such significant decisions if they did not

have prior knowledge and familiarity with a case. Research has similarly found that

outcomes for court participants in drug courts – courts that seek to promote therapeutic

outcomes – are better where there is consistency in relation to the judge that hears the

case (Dive, 2011). The issues outlined by Dive are consistent with the findings from

this research in relation to the Children’s Court.

On the one hand, the circuit system and rotating basis allows magistrates an opportunity

to gain a broad experience of both child protection and juvenile justice issues, and a

better understanding of the complex way in which welfare concerns can often underlie

youth criminal activity. On the other hand, court participants would likely benefit from

magistrates having a specialisation in one area or the other.

It was noted that the clear majority of the magistrates working in the Children’s Court

of Western Australia who are based in Perth have a background in criminal law. This is

relevant and beneficial to approximately 80% of matters heard in the Children’s Court

that are of a criminal nature. It is argued that despite only 20% of matters being

protection and care related, parents and families would benefit from having a presiding

magistrate who has a background in family law rather than criminal law. It has

previously been noted that there are already criminal procedure overtones evident in the

culture and practices of the Children’s Court of Western Australia. It was suggested by

a number of lawyers that magistrates presiding over protection and care matters could

benefit from spending some rotation time in the Family Court to allow for an

opportunity to broaden their perspective and knowledge of family relationship issues

and dynamics.

7.6 PROVISION OF INFORMATION

A key area of concern from the perspective of parents and families interviewed for this

research relates to the confusion and lack of understanding about the Children’s Court

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and its processes. While the Act stipulates that a child’s parents and any other people

who are significant in the child’s life should be given adequate information in a manner

and language that they can understand about the decision-making processes under the

Act (s.9(k)), people said that this does not always occur. Insufficient information about

the court process and a lack of communication and information-flow between parents

and caseworkers, can add to the stress and confusion so often described by parents, and

can also act as a barrier to their participation in the process. One lawyer described this

situation in the following way:

The child’s parents and any other people should be given adequate information in the manner and language that they can understand, about the decision-making processes, the outcome and any relevant review and complaint procedures. That never happens. The Department isn’t held accountable despite the fact there’s a guiding principle under the Act about information flow.


Information for parents in the early stages of the court process can have a direct impact

on their capacity to participate in the proceedings. Information flow is extremely

important so that parents clearly understand the reason for the removal, what the court

process is about in terms of what is happening to them and their children, and what

their role will be in the legal and court process. A meeting in the initial stages of the

court proceedings can also allow the caseworkers to guide the parents to appropriate

information and resources, such as the Family Inclusion Network (FinWA) Information

Kit for parents, and can allow the parents an opportunity to ask questions and to feel

that their initial concerns have been heard.

Participants suggested that information for parents that includes an explanation of court

processes should be made available in plain English, in languages other than English,

online, on audio tape, on video or DVD, captioned for people with hearing disability,

and in poster form. The Children’s Court of Western Australia has recently begun to

address the need for more informal supports for parents and families appearing in

protection proceedings. The provision of information on court websites has emerged in

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recent years as a major strategy for providing information and assistance to court

participants, particularly for self-represented litigants.

In 2009, the Children’s Court of Western Australia launched a new website that

provides a link to a ‘Child Protection Proceedings Brochure’ for parents and guardians.

This brochure contains a brief section on trials (referred to as ‘hearings’ in the

brochure) and outlines what a trial is, how to ‘call a witness’, introduce relevant

documents, and explains how the court decides whether or not to make a protection

order, and who will likely be present at the trial. The brochure defines terms such as

examination, cross-examination, re-examination and closing address, suggests how to

avoid asking leading questions, and explains the etiquette of the court. The website

includes a link to the court practice directions, and a link to the Act.

Previous research and this research suggest that it would be beneficial for the court

website to include other types of information such as a virtual tour of the court, an

online video presentation or power point presentations of what parents and families can

expect from the child protection legal and court process. One lawyer suggested that the

court could produce an information video to be played in the waiting room areas, on

what parents can expect to occur in the courtroom and a demonstration on how to

address the magistrates, all in an effort to help parents feel more prepared for their court

experience.

While such web-based information represents significant change in terms of assisting

parents involved in protection and care proceedings, there are additional resources that

parents could be alerted to. The Family Court of Western Australia has developed a

‘Self-represented Litigants’ Handbook’ which is free and available online, and includes

over 15 pages to assist self-represented litigants prepare for trial. Much of this

information is relevant to parents preparing for trial in the Children’s Court. The

Family Court of Western Australia has addressed the issue of court participants either

not having access, or having limited access to computers, internet, printers and

photocopy machines by installing six dedicated personal computers in the court foyer

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for litigants’ use, which further supports and empowers them to be actively involved

and participatory in the legal process.

7.7 NATURE OF NEGOTIATIONS

What takes place in the courtroom is just the tip of the iceberg. The negotiation process is mostly informal, occurring between the respective lawyers outside the courtroom. The pre-hearing conferences are formal venues for negotiation. In practice, these are often a final attempt to arrive at a mutually acceptable resolution when informal negotiations between the parties have failed.

(McConnell et al., 2002:60)

This research indicates the centrality and extent to which informal negotiations take

place during protection proceedings in the Children’s Court. Swain and Rice (2009)

refer to these informal negotiations as taking place ‘in the shadow of the law’, that is, in

the background, in the corridors of the court, and in the waiting room areas before and

after the formal court mention or appearance. Observations indicated the extent to

which the process of negotiation, open dialogue and decision-making takes place

outside the formal courtroom settings. These informal discussions were often observed

to take place only between lawyers, and concerns about the manner of these discussions

were dismissed by some magistrates and lawyers as simply ‘the way things get done’.

Of particular significance to this research is the way in which these informal

negotiations conducted outside the courtroom effectively exclude parents and families

from having a voice in the system, from actively participating in decision-making and

disempowering them in the court process. One parent described this experience in the

following way:

I don’t like the way the lawyers go off and go into a separate sort of room, I don’t like that, I think that shouldn’t be allowed, like they’re talking about my things, I think I should know what’s going on


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Another parent expressed the following view:

The lawyers seem to talk to each other while you’re waiting, they may be sorting things out but they don’t tell you anything, they don’t tell you what they’re saying, they might come and ask you one question about something.


On the other hand, one parent who was interviewed for this research stated that she was

aware of the nature and significance of these informal negotiations, and that she saw it

as being in her best interests to take an active role in these conversations and

negotiations. This same parent commented that she found the informal negotiating

process as being extremely beneficial:

Depending on how strong you are, you can get valuable information while you are waiting. You can brainstorm and throw ideas around as to what we’re going to do once we get in there. Again, it depends on your rapport with the people involved. I’m not scared to say to them “this is what I want to achieve today, what do you want to achieve”?


Unfortunately, the majority of parents who were interviewed for this research did not

share the same level of confidence in their ability to find themselves a place in the

negotiations. Observations indicated that the processes for achieving outcomes for

children and parents are very much dependent on, and guided by the parents’ lawyers

and the DCP legal representatives being open to negotiating, and open to new

suggestions and the capacity to think laterally.

Previous research by McConnell et al, (2002) has also raised concerns about the nature

of the formal negotiations that take place between parties during court proceedings.

McConnell et al, state that the language used, the conventions adhered to and the

interactions between articulate and educated personnel are often incomprehensible to

parents and particularly so to parents with intellectual disabilities, and can all serve to

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further alienate and disempower those for whom there is real and justifiable concern

that they are left ignorant of what has been, or is about to be agreed.

7.8 LOCATING THE PROTECTION AND CARE JURISDICTION

I think that the people who work in the protection and care jurisdiction at the moment are committed. I think that the Court does want a better system. I just don’t know — I think we’re in a bit of a stalemate and we don’t know how to break the stalemate.


One of the most significant and unexpected issues that emerged from the data was in

relation to the current jurisdictional arrangements for the management of child welfare

matters in Western Australia. It was evident in all interviews with lawyers and

magistrates that this issue was clearly gathering interest and momentum. It was argued

by many that the protection and care jurisdiction would be more appropriately located,

and better served, being based within the Family Court of Western Australia rather than

the Children’s Court of Western Australia. A number of reasons were put forward as to

why the Family Court would be a more appropriate location. Primarily people spoke of

the ‘inextricable link’ that protection and care issues have with family issues, and one

lawyer explained this link in the following way:

You go to the Family Court and it’s much calmer, much more open, the ceilings are much higher. The Children’s Court doesn’t inspire anyone to think about the higher issues, the love and the affection of family relationship, the care. It confronts. It’s got that aggression that the criminal setting has where it’s all about incarceration or having people potentially locked up and all that sort of stuff, and people’s liberty being at risk in the criminal context. It’s totally different in the Family Court context, which is about relationships. And that’s where it should be, that’s where care and protection matters should be.


The issue of the location of the jurisdiction was raised independently by interviewees

on many occasions, and many different reasons were given for the relocation. The side-

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by-side nature of the protection and care court with the criminal court was criticised for

the negative association with the criminal court, and for sending the wrong message to

children, parents and families involved in protection proceedings. It was also suggested

that the criminal procedure overtones in the protection and care jurisdiction are not in

fitting with what civil procedures in a civil jurisdiction should look like. One magistrate

described this situation in the following way:

The process also smacks of some criminal procedure as well and that goes to the fact that the parents view the Department [DCP] as being prosecutorial. The very nature of the removal of children really stands it aside from a civil proceeding in a sense because it’s such drastic action that’s taken and it’s done under the authority of warrants or by police officers. So it’s a jurisdiction that doesn’t necessarily sit neatly with the term ‘civil’ jurisdiction, I don’t think anyway.


While the majority of lawyers and some magistrates argued for the jurisdiction’s

relocation, not all magistrates were supportive of this position. The arguments against a

potential move have not been clearly defined or presented in the literature, and

consequently much of the discussion against a move is largely based on anecdotal

evidence. Magistrates who were opposed to relocation argued that the Children’s Court

is the most appropriate location for the protection and care jurisdiction because of the

nexus between youth offending and child welfare issues, and therefore one court should

deal with all of these problems under the same roof. Further, it was argued that the

Children’s Court, whether it deals with children who are offenders or children who are

in need of care and protection, is fundamentally dealing with welfare problems in

relation to children, and those two things are one and the same (Interview #16,

Magistrate).

This issue of where the jurisdiction is located is clearly a complex one, with many

factors to consider. One of the tensions that exist in this debate is in relation to

evidence. The Act states that the Children’s Court is not bound by the rules of evidence

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(s.146), and that the court may inform itself on any matter, in any manner, it considers

appropriate, and that evidence is admissible despite the rule against hearsay. This is

different to the Family Court of Western Australia where the rules of evidence apply. It

has been suggested anecdotally that the DCP may not be in support of such relocation

given that currently the legislation allows much greater legal power to DCP than what

would be afforded in the Family Court of Western Australia.

In relation to the proposal of transferring the protection and care jurisdiction to the

Family Court of Western Australia, it is noted that in regional areas, Magistrates Courts

are already dealing with family law, child protection and family violence issues.

Transferring these matters to the Family Court and Children’s Court could potentially

transfer these matters to a proposed unified family court as appropriate (Jackson, 2011).

Previous arguments for a potential relocation of the jurisdiction were described in a

conference paper by Jackson (2009) presented at the Western Australia Family

Pathways Network Conference, and these arguments were previously outlined in

Chapter 4. Jackson notes that Western Australia is in a unique position in terms of its

jurisdictional capacity, to be the first state in Australia to create a Unified Family

Law/Child Protection Court. This proposed court would be based in part on the United

Family Court model as seen in the United States. The Unified Family Court is a

specialised and separately administered court with jurisdiction over a wide range of

family-related cases, including divorce and custody, child support, paternity, domestic

violence, juvenile delinquency, child abuse and neglect, adoption and guardianship of a

child. Key features of this court model are the specialisation of its judges and staff, the

breadth of its jurisdiction, and its separate administration (Ross, 1998). Advantages of

this approach include a specialised and well-trained judiciary, specialised support staff,

and the ability to coordinate different types of litigation affecting the same family.

It was suggested by one magistrate that the ‘relative autonomy’ of the Family Court of

Western Australia could allow for the creation of an innovative child protection sub-

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jurisdiction within the Family Court. Another lawyer suggested this could be a ‘public

arm’ or ‘public chamber’ of the Family Court that deals specifically with protection

matters. It was also noted by both magistrates and lawyers that the Family Court’s

funding capacity, at both the state and federal levels, allows for greater access to

resources compared to the Children’s Court. It was also noted that the onsite

counselling and mediation services and facilities located within the Family Court

building could be of great benefit to the families involved in protection and care

matters.

Western Australia has recently benefited from major reforms to the Family Court that

included amendment to key legislation, and a move towards less adversarial and more

conciliatory methods of resolving conflict arising from relationship breakdown of

married or de-facto couples. As a result of these changes, mediation, conciliation and

case assessment conferences, rather than litigation, underpin the Family Court system,

which is another reason why the protection and care jurisdiction would benefit from

operating under such a court structure.

As already indicated in earlier chapters, in recent years the Family Court of Western

Australia has trialled a number of successful initiatives such as the Columbus Project

and the Children’s Cases Program, that have been underpinned by therapeutic

jurisprudence philosophy and practice. These initiatives, developed from an awareness

of the negative effects that lengthy and complex litigation have on children and

families, have since been found to have a positive impact on families’ and children’s

experiences of the Family Court legal process (Holden, 2001; Nicholson, 2001; Pike &

Murphy, 2006).

A number of people suggested that the Family Court is better resourced, positioned and

attuned to dealing with complex and difficult family situations compared to the

Children’s Court. Many people commented that the protection and care jurisdiction and

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the children and families that it serves could all greatly benefit from the jurisdiction’s

relocation to the Family Court of Western Australia.

7.9 SUMMARY

This chapter has presented the data in relation to the participation in the legal system of

parents and families appearing in child-protection court proceedings in Western

Australia. A micro-analytic therapeutic jurisprudence perspective was used to consider

the way in which participation can be either restricted or enhanced. A number of

individual and procedural barriers to participation in the legal system that result from

specific court practices, processes, rules and regulations in the court were identified.

Court processes, judicial approaches and legal structures were discussed in relation to

how they can facilitate participation.

What parents and families spoke about, and the issues they addressed related

predominantly to communication difficulties, time constraints, provision of information

and court processes. Almost everyone spoke about the difficulties they experienced as a

result of the complexity and formality of language used in the court as well as the

frequent use of legal jargon during court proceedings. They explained that these

difficulties were exacerbated during court appearances, particularly during mentions,

where the pace was described by parents as being too fast and too rushed, and where

the dialogue was predominantly between lawyers and the magistrate. People stated that

the pace often contributed to parents and families having difficulties in participating

and communicating during proceedings. Some lawyers agreed that this was a problem,

whereas others said they were unconcerned and simply spoke of how this was just “the

way things get done”. The majority of participants commented that the language used

in the court not only confused parents, but often alienated and excluded them from both

the court proceedings and the broader legal process. They all said that parents have a

general lack of understanding about the court and its processes, and many highlighted

the need for more accessible and specific information, about the process and the

preparation required when parents are representing themselves.

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Another issue raised was how individual magistrates’ style and approach could affect

parents’ capacity to participate. Parents talked about the significant variation in the

attitude and manner of the respective magistrates, which was particularly evident when

some of them displayed a sense of empathy and a willingness to engage the parents in

the process. The majority of parents and lawyers commented on the variation in

magistrates’ communication skills, — some made efforts to explain things in terms that

parents understood, by referring to them by name, by attempting to pronounce names

correctly, or by making eye contact when they spoke to them. Parents also stated that

the lack of consistency of magistrates (due to the circuit system and rotating basis in

which magistrates in the Perth Children’s Court work) was particularly frustrating and

difficult, and often left them with a sense that case information was lost along the way.

Many participants spoke about the common delays and frequent adjournments in

proceedings that resulted in a general lack of progress at each court date. Parents

described these delays as being emotionally detrimental to themselves and their

children, particularly during the time following the removal of the child, and also in the

early stages of the court proceedings when there was reportedly little communication

between the caseworkers and the parents.

The most poignant issue that participants raised and spoke about at length was the

absolute lack of voice of parents and families in the court process. Parents talked about

having no voice, no rights and no place in the court process. They explained that some

of this voicelessness was related to the way in which they experienced negotiations

taking place in the court, that is, informally between lawyers and outside the courtroom

setting. Swain and Rice (2009) aptly refer to such negotiations as occurring in “the

shadow of the law”.

Of particular note was that people said that the pre-hearing conference process acted as

a facilitator to parents’ participation and how this forum enabled progress and equality

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in the way people were treated; and most importantly, many people commented that

this was the only therapeutic or helpful component of the entire child-protection legal

process. Parents stated that they found the less formal structure of the conference

particularly helpful. Many people mentioned that there was great variation in

magistrates’ style and approach to convening the pre-hearing conference, and explained

how this could have a significant impact on not only how the conference was

experienced by participants, but also on the outcomes reached. Many suggestions were

offered about changes that needed to be made in the Children’s Court, and I capture

these suggestions in the concluding chapter when I review the research questions and

present the implications of my findings for therapeutic jurisprudence. In Chapter 8, I

address what the participants said about access to justice in the Children’s Court.

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CHAPTER 8

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ACCESS TO JUSTICE

8.1 INTRODUCTION

Having identified the key themes that emerged from the analysis of interviews, in this

chapter I explore the way in which the participation of parents and families can be

enhanced at a meso level, and I focus specifically on the provision of legal assistance,

court resources and non-legal support, service delivery approaches, and certain

legislative considerations. These components of the legal system are commonly

grouped under the term ‘access to justice’. The way in which these components relate

to the concepts valued by therapeutic jurisprudence is explored in this chapter.

This chapter draws on the experiences of all interviewees and participants and identifies

how access to justice may be enhanced by changes in practices, processes and

behaviours of legal actors within the existing system. The ways in which these changes

can enable greater adherence to therapeutic jurisprudence practices in the Children’s

Court are explored. This chapter is essentially about enhancing access to justice and

services in order to augment better outcomes for parents and families. The potential for

change is discussed in this chapter at a meso level.

For the purposes of this chapter, the term ‘legal assistance’ includes legal information,

legal advice, ongoing legal assistance and legal representation (see Glossary for

definitions of each of these).

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8.2 THE CONCEPT OF ‘ACCESS TO JUSTICE’

The term ‘access to justice’ resists a precise definition (Schetzer, Mullins &

Buonamano, 2003). Despite the volumes that have been written under the heading of

‘access to justice’ it remains a vague concept within which many assumptions and

perspectives are buried (Bottomley & Bronitt, 2006). Access to justice is usually

equated with fair, open, dignified, and careful processes (Macdonald, 1995), and

traditionally it referred to enhanced access to the formal processes of civil courts,

although more contemporary perspectives now include access to a range of informal

dispute-resolution options and processes. It also considers the impact that individual

factors such as culture, health status and minority status have on people’s capacity to

access justice. For some, the concept incorporates the issues of overcoming conceptual,

physical, attitudinal and procedural barriers within the court system itself.

Access to justice in this research will not be interpreted in such a broad fashion as to

consider contested political issues concerning broader notions of ‘rights’ and ‘justice’

(Karras et al., 2006) but rather, will investigate issues of access to justice according to

current Australian law. The 1994 Access to Justice Action Plan, produced by the

Commonwealth Government, argued that the concept of access to justice involves three

key elements:

• All Australians, regardless of means, should have access to high quality legal

services or effective dispute resolution mechanisms necessary to protect their

rights and interests

• All Australians, regardless of their place of residence, should enjoy, as nearly as

possible, equal access to legal services and to legal services markets that operate

competitively

• All Australians should be entitled to equality before the law.

The term ‘access to justice’ is most commonly used in reference to the various

mechanisms by which an individual may seek legal assistance. However, access to

justice in these terms involves more than access to formal legal representation and the

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courts. It also involves access to court resources and non-legal support, access to

flexible service delivery and other legal processes. Access to justice is noted to be a

major challenge in various legal contexts, but one with particular relevance to parents

and families who appear in child-protection court proceedings in the Children’s Court.

The data indicate that the way in which access to justice for parents and families can be

enhanced in the Children’s Court relates primarily to the following three areas:

• obtaining legal assistance (including legal information, legal advice, ongoing

legal assistance and legal representation)

• accessing court resources and non-legal advocacy and support

• flexible service delivery.

A number of major reports by bodies such as national and state law-reform

commissions, and government and non-government bodies have stated that there are

various critical issues which can reduce access to justice (ALRC, 1997, 2000; Law

Reform Commission of Western Australia 1999; Disability Council of NSW, 2003;

Disability Discrimination Legal Service, 2003; Victoria Law Foundation, 2004; Law

and Justice Foundation of NSW, 2003, 2006). These issues include: the complexity of

the rules of court and court forms which can create significant barriers for court

participants, especially those who are unrepresented; the physical environment of the

court; and an atmosphere that alienates, excludes or disempowers court participants,

which can impinge upon an individual’s access to justice and fair processes. Other

critical issues that can affect access to justice and participation in the legal system

include advocacy and support, the adversarial system, physical access, perception of

roles, consistency and continuity, consultation, flexibility, cost, time and accountability.

The issues of cost, timeliness, efficiency and accessibility to the justice system are

complex and interrelated, and many of these are magnified for vulnerable populations, a

large proportion of who are over-represented in the Children’s Court. A number of

these issues have been analysed and considered by a growing number of law reform

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bodies in both Australia and overseas. It is clear from the literature that many of these

problems continue to ‘bedevil’ civil justice systems around the world (ALRC, 2000).

Courts and tribunals have attempted to address these issues by introducing alternative

dispute resolution (ADR) mechanisms, in some cases as a statutory requirement and in

other cases as an option available to parties by consent. These mechanisms, which

include mediation, pre-trial conferencing and pre-trial conciliation, are introduced at an

early stage in the proceedings as a way of preventing the dispute or matters from going

to a trial. Federal tribunals, government and industry ombudsmen schemes, court and

community based ADR processes, conciliation schemes in the Human Rights and Equal

Opportunity Commission and the Australian Competition and Consumer Commission,

community justice and dispute resolution centres, and family and relationship

counselling, also all play a significant part in providing alternative mechanisms to deal

with and resolve legal disputes (ALRC, 2000).

While many of these processes have in part reduced the formality of the court process

for the participant, they have also raised other access to justice issues. For instance, the

Disability Council of NSW (2003) reported that certain alternative dispute resolution

processes in fact ‘camouflage’ the adversarial nature of mediation, which is particularly

problematic in situations and jurisdictions where there is a distinct power imbalance

between the parties involved in the ADR process.

The ALRC stated in their report ‘Managing Justice’ (2000) that access to justice can

only ever mean, in broad institutional and systemic terms, relatively equitable access to

the legal process. Further, that access to the system is no guarantee of a successful

outcome from the process, and thus is no guarantee of litigant satisfaction in all cases.

Critical to the subject matter of this thesis is the misunderstanding or misconception

that access to the legal system equates to access to equal treatment in that system.

Similarly, access to legal representation in the Children’s Court does not guarantee a

successful outcome, or necessarily equal treatment in the process, nor satisfaction with

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the system.

8.3 LEGAL ASSISTANCE

Much of the literature on access to justice and the legal needs of people with a mental

illness, disability or who are homeless has primarily focused on criminal justice issues

rather than access to justice within the context of the civil system. In practice, the terms

‘access to justice’ and ‘legal needs’ tend to merge, especially in the context of their

functions. People do not need legal services in and of themselves, their need rather, is

of the ends that legal services can bring about (Schetzer, Mullins & Buonamano, 2002).

These ends may be in the form of specific legal remedies, reconciliation with another

party, or, quite simply, a sense of fairness or closure from some dispute. This research

similarly highlights that while parents are potentially disadvantaged by not having legal

representation, they are particularly upset by the injustice of not being able to obtain

legal representation or when their access to legal services is restricted.

Access to legal assistance for parents appearing in protection and care proceedings in

the Children’s Court in Western Australia is the single issue that raised the greatest

level of concern in this research. A number of concerns emerged from the data relating

predominantly to the following four areas:

• Eligibility for legal assistance

• Implications of limited legal assistance

• Parents feeling pressured to consent

• Self-represented parents at trial.

In Western Australia, under the Act, parents or persons responsible for the child or

children have the right to legal representation and to appear in person in the Children’s

Court (s.147). The ‘right’ to legal representation is a complex issue, and as the data

from this research indicate, a parent’s right to legal representation does not

automatically ensure legal assistance throughout the court process.

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Chapter 3 outlined the literature indicating a link between parents and families involved

in child-protection court proceedings, and financial disadvantage. In Western Australia,

this situation commonly results in parents being unable to afford private legal

representation, and therefore being reliant on legal assistance from the Legal Aid

Commission of Western Australia.

Most people who were interviewed noted that while there has been significant

improvement in the area of legal representation for parents appearing in protection and

care proceedings since the introduction of the duty lawyer service in 2008, many

interviewees remained concerned about the proportion of parents who appear

unrepresented in these proceedings. These concerns related primarily to the significant

restrictions in Legal Aid Commission’s capacity to provide legal representation for all

parents appearing in protection proceedings, and also for parents who chose to contest

the protection application through to a trial.

In Western Australia, parents appearing in the Perth Children’s Court in relation to a

protection and care matter are usually represented by a duty lawyer whom they meet on

their first court appearance date. The duty lawyer service was designed to assist parents

when they first come to the court. The role of the duty lawyer is to give parents initial

legal and procedural advice and to represent the parents in court on their first mention

date.

The duty lawyer may apply for adjournments and they can appear on behalf of the

parents on at least the first and second dates in court. The duty lawyer can also provide

minor assistance services including: negotiate with the DCP and other parties to the

proceedings; help prepare court documents such as applications for interim contact,

placement and minutes of consent; and assist with accommodation and other issues that

may arise once protection proceedings begin. The duty lawyer can make referrals to

private lawyers and services, and can help the parents with their application for legal

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assistance. If they are successful in their application, subsequent representation may be

provided by Legal Aid lawyers or private lawyers funded by Legal Aid (Legal Aid

Commission Western Australia, 2010).

If parents presented at their first court appearance without any form of legal

representation, magistrates were observed to adjourn proceedings to later that morning

or to a subsequent date, to allow them an opportunity to meet with the duty lawyer and

receive initial advice and assistance. This is particularly important for parents who are

unfamiliar with courts and their processes. While the duty lawyer initiative is seen to

help parents in the early stages and ‘front end’ of the court proceedings, people

explained that a number of problems tend to arise for parents in the later stages of the

court proceedings, particularly when they choose to contest the protection application

through to a trial.

In Western Australia, parents apply to the Legal Aid Commission who determines their

eligibility by using a means test and a reasonableness test. In other words, parents who

apply for legal assistance must firstly qualify financially to be eligible for a Grant of

Aid, and then the legal and factual merits of the application are considered in

determining eligibility. Legal assistance can be granted for initial advice and

“investigation into the likelihood of successfully defending the application” (Legal Aid

Commission Western Australia, 2010). The Commission must be satisfied, based on the

information provided by the parent that the proposed action has ‘merit’ in the strict

legal sense to the extent that there is a reasonable likelihood of success.

From what the participants said, it is evident that significant concerns exist in relation

to the way in which eligibility for a Grant of Aid is determined. It is argued by some

lawyers that the merit test is necessary due to the potential financial implications for the

Legal Aid Commission if every parent was legally represented through to trial. One

magistrate stated that it is not appropriate to have a lawyer committed to a two or three

day trial when it is obvious that a child is in need of care and protection, particularly in

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light of the fact that those resources could be better spent elsewhere, such as in the

provision of more duty lawyers or allowing more time to be allocated to each pre-

hearing conference. It was also suggested that pursuing each matter through to trial

would not only escalate costs, but could also cause matters to be further delayed and

protracted.

On the other hand, it is argued by many participants that the determination of whether a

parent has a ‘reasonable prospect’ of successfully defending the application is not a fair

and equitable approach, given the massive disparity in legal and other resources

between the DCP and the parents. This issue was consistently raised in interviews as an

issue of concern across all interviewee groups. Interviewees observed that parents

commence these proceedings ‘on the back-foot’, and that their prospects of successfully

defending an application are diminished even before the case begins. They suggested

that defining the ‘merits’ of a case should instead be defined in a much broader sense

and should consider parents’ strengths, their needs and their wishes for the child.

Arguably, seeing or defining success or merits of a case in a narrow sense appears to

dismiss a number of principles on which the Australian legal system is built, most

notably respecting due process, equity, and preserving fairness.

In addition to the issue of how eligibility for legal aid is determined, interviewees

indicated there are a number of significant implications of the limited availability of

legal resources. It is apparent from interviewees’ comments that the hours of legal

assistance that the Grant of Aid allows are currently insufficient. This was evident in

parents’ frustration with the limited ‘face-time’ they had with their Legal Aid lawyer,

and in reports of their only contact with their lawyer being in the minutes prior to and

immediately following their court appearance.

Lack of adequate time for lawyers and their clients to meet is not a unique problem to

Western Australia. Research conducted in British Columbia by Bennett and

Sadrehashemi (2008) similarly found it common for lawyers to meet with parents

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involved in child-protection court proceedings at the courthouse, immediately prior to

their court appearance. Such limited face-time can contribute to parents’ feelings of

confusion and alienation, evidenced both in the literature and in this research. Parents

explained that meeting at the courthouse in the minutes prior to the court proceedings

put them under immense pressure to make difficult and significant decisions on the spot

about their families.

Drawing on a therapeutic jurisprudence perspective, the less time lawyers spend with

their client, the less likely it is that they will be able to build a trusting relationship

where the client feels safe to disclose information and become engaged in the process

(Silver, 2000; Madden & Brooks, 2010). Fostering the development of therapeutic

relationships between lawyers and their clients is extremely important for the court

participant, particularly for those who are vulnerable or powerless. This research

indicates that as a result of the restrictions on the Grant of Aid, there is very little time

or opportunity for such therapeutic relationships to be established.

Access to legal representation has implications for all parties involved in child-

protection court proceedings, not just the parents. Observations of pre-hearing

conferences suggested that parents were at a disadvantage when they did not have legal

representation. In order for these conferences to be truly effective, all parties should be

legally represented. A number of lawyers suggested that the limited Grant of Aid

affected their capacity to do their job —for example, it lead to restrictions on taking

instructions and preparing clients prior to the court hearing. Many interviewees

commented that the limited time could be quickly used up as a result of the delays and

protracted nature of protection proceedings in the Children’s Court. All magistrates

who were interviewed noted that legal services for parents who appeared in the

protection and care jurisdiction were overstretched and under-resourced.

One of the most concerning implications of limited legal assistance in Western

Australia relates to parents who choose to contest the protection application, and are

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then advised by the Legal Aid Commission that their Grant of Aid will cease (or not be

extended) and they will therefore be required to represent themselves at trial. All but

one parent interviewee wanted and believed in contesting the protection application, but

did not have access to legal assistance or the personal capacity to pursue a trial. This

was a very real concern for many participants who were interviewed. Lawyers and

magistrates likewise identified this situation as a cause for serious concern. One

magistrate described this situation in the following way:

One of the great frustrations of course, is that Legal Aid provides representation up to a certain point and then pulls the pin. Particularly when people say “well I don’t agree with the Department’s [DCP] position and I want to contest this”.


A significant proportion of parents said they felt coerced, pressured to consent, felt

railroaded to consent to the protection application, or were not given any other choice

but to “settle out of court”, because they felt they would lose their legal representation

if they opposed the application. A number of lawyers acknowledged this situation, with

one Legal Aid lawyer commenting that she was often required to say to her clients:

“Look you’re going have to agree to the protection order otherwise you’re going to

have to represent yourself” (Interview #4, Lawyer). One parent described her

experience of this situation in the following way:

When the Department filed all the paperwork relating to our case, my solicitor took one look at it and said “you don’t stand a chance, give in”, and he wouldn’t go to a trial….so what do you do? He forced us to consent and work with the Department as much as we can, as well as you can, which is what I’ve been doing for the past 7 years.


One magistrate described this situation as being “guilty for convenience, I guess”

(Interview #16, Magistrate). It raises the question of how many parents consent to a

protection application purely on the basis that if they choose to contest the application,

their only option would be to represent themselves at trial. The therapeutic

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jurisprudence literature suggests that approaches that are the opposite of self-

determination — paternalism and coercion — promote resistance and inhibit successful

action (King, 2009a:3). Arguably, these pressures to capitulate or self-represent at trial

challenge the Australian legal system’s commitment to justice, equity and fairness. The

actual practice of parents representing themselves at trial in the Children’s Court is

equally concerning. The data clearly indicate a number of serious concerns with this

practice. One magistrate described this situation of parents representing themselves by

saying:

They [self-represented parents at trial] leave us in some ludicrous situations. It’s become high farce for unqualified people to act for themselves, but they’re forced to do so, and the bizarre charades unfold.


In Western Australia, it is generally accepted that most protection and care matters are

resolved without recourse to a formal trial. Lawyers and magistrates generally

acknowledged that most protection orders made by the Children’s Court are made

without the need to go to trial. Interviewees reported that this was often because parents

would not have legal representation if they pursued a trial, and therefore many of them

consented to the protection order at the pre-trial stage; or alternatively, protection

orders were made because parents did not turn up to the court hearing and subsequently

orders were made ex parte.

Detailed statistics of court outcomes in the Children’s Court of Western Australia are

not readily available to show the actual proportion of matters that are resolved by trial.

It was suggested by one lawyer that of the 1000–1200 protection applications made per

year by DCP, approximately 40 or 50 of them would be listed for trial, and most of

those would settle beforehand (Interview #2, Lawyer). While the DCP Annual Report

states that in 2010 there were 2745 children in Western Australia on care orders

(2010:24), it does not state the number made by consent compared to the number of

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orders that were made as an outcome of a contested trial.

Lawyers and magistrates spoke candidly of the damage and devastation that can be

caused when parents go to trial self-represented. A number of interviewees highlighted

the negative impact the trial process can have on the parents and to their relationship

with the DCP — a relationship that is arguably very important for the sake of the child.

People also suggested that in situations where relatives or friends are involved in a trial

as witnesses, there is the potential for irreparable damage to the parents’ support

network as a result of the DCP cross-examination process. One magistrate described the

damage the trial process can cause by saying:

I always go into these proceedings as an “everybody loses situation”. I mean obviously at the end of the process a reconstructed family is a win for everybody. That’s superb. But to get to the point where we’re having a trial, there can be no winners there because the process itself is such a terrible experience for people to have to go through. Now I’m of the view that if a person wants a lawyer and can’t get one because they can’t afford one and have been refused Legal Aid, then they should not be forced to a trial.


For self-represented parents, the issue of them being unprepared for court was noted as

an additional area of concern. Interviewees talked of a lack of information, guidance or

structure in place for parents who are self-represented in the Children’s Court, a

situation which is “appalling given the stakes they’re playing for” (Interview #15,

Magistrate). One lawyer described this lack of direction or guidance in the following

way:

When you’re going to a trial there’s no clear process about self-represented parents and what they have to do. Say, for example, they have to file statements or subpoena material, all those types of things, it is very ad hoc. Parents need guidance as to how to do it and if the structure is not there to support it then, you know, trials often fall over.


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Trials involving self-represented parents were described by one lawyer as being

“painful to watch, and painful to be in” (Interview #2, Lawyer), and another magistrate

commented that: “It’s a false economy for people not to be represented” (Interview

#15, Magistrate). Observations indicated that parents often find the trial process

extremely difficult and struggle with the technical and complex procedures. In addition

to the emotional devastation that the trial process can have, interviewees raised

important questions as to whether parents who represent themselves in a trial, in fact

receive a fair trial.

Most interviewees commented that parents appearing in protection proceedings are

often confused and overwhelmed by the court and its processes, feelings that are

ultimately likely to be exacerbated for parents who are self-represented in a trial. One

magistrate made the important point that when parents are nervous and confused, and

the dispute is about their children, the expectation seems unreasonable that they

remember what leading questions are, or how they should conduct a cross-examination.

The Children’s Court has made recent efforts to address this need for better access to

information. In 2009, the Children’s Court launched a new website that provides a link

to a Child Protection Proceedings Brochure for parents and guardians. It includes

information on what happens after a child has been removed from its parents, tips for

going to court, information if the parents opposes the application, an explanation of pre-

hearing conferences and the trial, a link to the court’s Practice Directions, a glossary of

terms, and a brief overview of questioning witnesses in a trial.

The provision of legal representation for parents appearing in protection proceedings is

significant for a number of reasons. Prominent therapeutic jurisprudence commentators

commonly refer to how having a ‘voice’ in the legal and court process can empower

and validate the court participants’ experience of the court process. The presence of a

lawyer can promote a sense in parents that they have a genuine voice in the process.

Interestingly, not all parents in this research associated legal representation with having

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a voice in the system. As the following comment suggests, the presence of a lawyer

may not necessarily give parents a voice, although it can empower them to have options

and a choice, and to express self-determination:

I don’t think I could have done it without a lawyer…Initially I went every time, but then when I felt like I was basically drowning, and that I did not have a hope, because I wasn’t being heard, I wasn’t being listened to, I just decided that I wasn’t going to do it anymore, I rang up my lawyer and said “please represent me in there”.


Interviews and observations indicated that the presence of a lawyer often gave parents

the opportunity to be active participants in the proceedings, particularly during the pre-

hearing conference process. Interviewees spoke of how lawyers can help parents by

preparing them for what they can expect in the courtroom and from the proceedings, by

explaining terminology and legal references, and explaining the roles of key players.

By helping parents to participate more effectively in the proceedings, and by supporting

their inclusion in the legal process, lawyers can contribute to creating a process that is

fair and equitable for parents and families.

Lawyers who have the capacity to foster a therapeutic relationship with their client also

have the potential to validate parents’ position in the proceedings, which can contribute

to their satisfaction and confidence in the system and its process (Daicoff, 2008;

Madden & Brooks, 2010). Lawyers who support parents’ self-determination and

capacity for choice can also empower them throughout the process. Lawyers also have

the potential to motivate the parents towards positive behavioural change, and can

potentially act as a ‘buffer’ to the adversarialism that is commonly seen in this

jurisdiction.

The overwhelming majority of interviewees made reference to the fact that all parents

should be legally represented in protection proceedings. One magistrate said:

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The same as when one is charged with murder, there’s no merit test applied, you simply get aid, full stop…. …No matter how strong the evidence against the parents is, there’s always a role for counsel. And I think it’s a travesty of justice. It’s not fair to the parents. It’s not fair to the Department [DCP] who has to amend their approach where the parents are unrepresented. It’s not fair to the court who has to try and accommodate one party being unrepresented and it’s got the might of the State with virtually, compared to the parents, unlimited resources. It’s plain and simply wrong.


Many participants agreed that given the nature of protection proceedings, the magnitude

of the decisions being made by the Children’s Court and the outcomes for the child, and

for the parents who live with the long-term legal consequences of these court

proceedings, parents’ capacity to obtain legal representation should not be limited by

their income, the merit of their casse, or likelihood of success. These issues raise

serious questions about the adequacy of Legal Aid funding that is required in Western

Australia in order to provide parents with an appropriate level of legal assistance.

In addition to the capacity of the State to provide additional Legal Aid funding, it is

also important to consider that much depends on the training, experience, attitude and

personality of the individual lawyers and magistrates, and the extent to which they

demonstrate practices in accordance with therapeutic jurisprudence and procedural

justice that can also affect access to justice needs.

Access to justice is noted to be a major challenge in various legal contexts, but one with

particular relevance to parents and families who appear in child-protection court

proceedings in the Children’s Court. The data demonstrate that limited availability of

legal assistance by Legal Aid can obstruct access to justice for those who cannot afford

private legal representation. The following comment by a magistrate sums up of all of

these issues relating to the need for adequate legal assistance for all parents appearing

in protection and care proceedings:

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I just think our society has an obligation to ensure when the State takes the action it does, the State is tested, is put under pressure, and that that person has somebody beside her to help her through the process, because ultimately if she doesn’t get a lawyer, and she’s forced to a three- or four-day trial, with her intellectual disability, and she loses, which was inevitable from the beginning, she’s going to feel shafted and she’s going to be no better at understanding what happened at the end of it, than she was at the beginning.


8.4 COURT RESOURCES Change? Well, I think it would be good to have some more supports actually in the Court. As I say, better facilities for private interviewing, counsellors on tap as well as duty lawyers. Extra resources like that. A counter to that suggestion might be: well, those resources are there in the community, but in fact they are not. You will have heard: there are time delays and the waiting periods for people to get booked into counselling are crazy. Trying to get a psych report or psychiatrists report — you wait for a long time. We really do have a problem.

Interview # 13, Magistrate

The issue of resources was mentioned in most, if not all interviews in various contexts.

Significantly, this issue was raised in relation to the need for parents and families to

have better access to support services and non-legal assistance during their court

involvement, as well as better access to legal representation. Many magistrates and

lawyers raised the issue of resources in relation to the need for more court facilities

including interview rooms that would offer privacy, conferencing rooms and

counselling services. Three lawyers who were interviewed suggested that the provision

of onsite childcare facilities could assist parents in being better prepared for, and

focused on the court proceedings.

Parents and families talked about many needs other than legal representation. Most

spoke of their experience in the waiting room areas as being particularly distressing.

They talked about: a lack of privacy, particularly when they were required to meet and

talk with lawyers or caseworkers; the negative connotations of having their names

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called out on the overhead speaker to announce their matter was ready for court; the

long delays in the waiting room area being particularly stressful; these areas being so

over-crowded first thing in the morning. A number of parents articulated their need for

support and advocacy during the court proceedings, and others spoke of a need for

more accessible legal information to assist them with their court matter.

As discussed in Chapter 3, many parents appearing in protection proceedings often

have limited personal, family, economic or social supports around them, and many lead

complicated and chaotic lives. Observations and interviews indicate there is a real need

for additional non-legal services for parents appearing in the Children’s Court. Non-

legal services can provide different types of assistance including support to parents and

families during the court process, advocacy on parents’ behalf, or by providing general

support at court. In addition, there is a real need for extra court resources for parents

and families including onsite counselling services, voluntary court support, childcare

facilities and a child-friendly space within the court building. Each of these court

resources will now be briefly described.

Onsite counselling

The need for onsite counselling services was raised in many interviews. Parents spoke

of feeling stressed and overwhelmed by the court process, and magistrates spoke of

their frustrations with the delays in parents accessing external support services. Long

waitlists and delays in accessing counselling and parenting services in the community

were repeatedly mentioned as a source of frustration. One magistrate commented that

there is a real pressure on resources for actual therapeutic services, because so much

money is soaked up in the delays and protracted court processes (Interview #13,

Magistrate). He and others observed how these delays translate into a lack of feedback

to the magistrates and the court as to parents’ participation or progress in external

support services.

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A number of lawyers and magistrates contrasted the lack of court resources and

facilities within the Children’s Court with the Family Court of Western Australia. The

Family Court has seen many recent changes to its court practices, processes and its

legislation in order to better support families and their children. The Family Court Act

1975 (WA), under part 4, provides for a range of non-court based services within the

Family Court including family counselling, family dispute resolution and arbitration.

This research clearly suggests that the Children’s Court could benefit from having core

counselling services located onsite. The Family Court of Western Australia Counselling

and Consultancy Service, located onsite, is staffed by individuals with specialist

knowledge and expertise in working with children and families experiencing

relationship difficulties after separation. Family consultants in the Family Court assist

the court to individually case manage every child-related case before the court. This can

involve making referrals to other agencies, gathering information and reporting back to

the magistrate or judge who is responsible for the case. Importantly, the case

management approach means the same family consultant remains with the case from

the first day of court until the making of final orders. This creates an opportunity for

each family to have continuity during their time in the court. Individual case

management and the continuity that it brings is a practice steeped in therapeutic

jurisprudence thinking, and reflects how access to justice and participation of parents

and families can be enhanced in the context of family law.

Onsite assessments

The need for individual and family assessments to be conducted onsite at the Children’s

Court was raised in a number of interviews. Two of the magistrates who were

interviewed spoke of their frustrations with the long delays in obtaining court

assessment reports from external contractors. One magistrate said that three- to four-

month delays in obtaining completed assessment reports was normal, and another

magistrate gave an example of one occasion when the court waited eight months for a

report that effectively told them nothing that they did not already know.

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While the new Act has enabled the Children’s Court to order assessment reports, it has

been reported by magistrates that due to the delays in obtaining the completed reports,

these are now rarely requested. As noted by Bennett and Sadrehashemi (2008) in their

research on the child welfare system in British Columbia, goals in legislation are of

little value to the families they are meant to protect when the system is not provided

with adequate resources to achieve them.

Magistrates and parents could benefit from individual and family assessments being

conducted onsite at the court. This would likely ensure that reports are completed and

returned to magistrates in a shorter timeframe than what is currently the case.

Independent assessment reports can be extremely valuable for magistrates’ decision-

making, particularly given that they are an objective assessment of an individual or

family, separate from the assessments and reports conducted and submitted to the court

by DCP.

An onsite counselling service in the form of a Court Clinic could provide both the

infrastructure for these assessment reports to be conducted, and also the initial

counselling services for parents and families. This could be modelled on the Children’s

Court Clinic in Victoria, which is an independent organisation that conducts

psychological and psychiatric assessments of children and families for the Children’s

Court, and in some cases provides limited treatment. The reports provided by the Clinic

are used to assist the judge or magistrates in making decisions in the Family Division

cases. Only the judge or magistrate can request an assessment by the Children’s Court

Clinic, and these assessments are conducted by clinical psychologists and psychiatrists

who are engaged by the Director of the Clinic as needed. The majority of the

assessments are conducted onsite at the court. Importantly, in Victoria, the timeframe

for these assessment reports is usually a matter of days, rather than months as seen in

the Children’s Court of Western Australia.

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Court support

Legal and court participants were asked their opinion on the supports parents need in

terms of navigating their way through the Children’s Court legal process. As previously

mentioned, the overwhelming majority of interviewees commented that parents and

families need greater support during the court process, advocacy and general support at

court.

While the Perth Children’s Court has a ‘Voluntary Court Welfare’ desk located in the

central foyer area of the court, I observed that this desk was often unattended. The

voluntary court welfare officer whom I approached described her role as assisting youth

who are appearing in criminal matters to fill out their Legal Aid application and

paperwork, in order to expedite the intake process for the onsite duty lawyer. The

voluntary court welfare officer said that it was not her role to provide any assistance or

support services to parents or families appearing in protection and care proceedings.

Based on the data from this research, this seems somewhat surprising given the

overwhelming need for parents and families to access help and support when they

attend the Children’s Court for child protection matters.

An important non-legal support service currently in place in Western Australia is the

Family Inclusion Network (FinWA). The network, which was established in 2004,

provides various services for parents who are in crisis following the removal of their

children. In 2009, the network published a comprehensive Information Kit for parents

involved with the Department for Child Protection called “Finding Your Way with

DCP”. The kit provides detailed information on the child protection process in Western

Australia, and a large segment is dedicated to the court and legal process. This

information includes explanations on protection applications, legal and court

terminology, types of protection orders, court process flow charts and information on

preparing for court.

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Interviews and observations clearly indicate that the provision of this type of non-legal

support is greatly needed at the present time, and would benefit all parents and families

appearing in protection proceedings in the Children’s Court. It is particularly

concerning that only two parents interviewed for this research were aware of the

operation of FinWA, suggesting that the real issue is that parents and families need to

be better informed about existing services and supports. Services such as FinWA have

been designed specifically to support and help parents to be better prepared for, and

engaged in the child protection legal and court process.

Children’s courts in other states in Australia have addressed this need by providing

designated onsite services to assist parents appearing in protection proceedings. In the

Queensland and Victorian Children’s courts, the Court Network support service

provides non-legal support for parents and families involved in protection proceedings.

The Court Network was established in 1980 as a voluntary, free, non-legal court

support service that operates onsite in courts in various jurisdictions throughout

Queensland and Victoria, and currently has approximately 400 volunteers. They

support families, adults and children who attend court and require support, information

or referral services. In 2007–08, 5354 court participants were assisted in the Melbourne

Children’s Court by volunteers (Court Network, 2008). These figures suggest that the

Court Network has identified and addressed a much-needed service, and one that may

have relevance and applicability in the Children’s Court of Western Australia.

Creating a child-friendly space

Observations of the Children’s Court waiting room areas indicate that many parents

appearing in protection proceedings have young children or babies in their care, and are

often required to wait for long periods of time for their matter to be heard. Parents

described this waiting time as particularly stressful, which can be magnified if young

children or babies also have to wait in the confined spaces of the court.

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My observations of the waiting room areas were that the court spaces have not been

designed to accommodate families or young children. A counter to that observation

might be that courts are not an appropriate place to bring young children; however, as

previously discussed in Chapter 3, many of these families have limited social, familial

or economic resources to assist with childcare and therefore have no other choice but to

bring their children to the court with them.

The therapeutic jurisprudence and court architecture literature indicates that the

physical court design and court spaces can have either a positive or a negative impact

on how people experience the justice system (Kennedy & Tait, 1999; Missingham et

al., 2002; Brawn, 2005; Richardson, 2005). The physical spaces of a court can be

designed to elicit a sense of wellbeing in court participants, and can enable or facilitate

their access to justice. Both the literature and this research suggest that the physical

environment of the court, specifically the waiting room areas can be alienating for

parents and families. Waiting in crowds of anxious and nervous people can magnify the

stress that parents are likely to be experiencing, and can further affect how parents

present in the courtroom.

A number of Children’s courts around Australia have addressed the need for more

child-friendly spaces within the court building by creating small, designated,

partitioned-off areas with soft mats, toys and books for children. Observations of the

layout and design of the Children’s Court of Western Australia indicate that changes to

the existing space need not be major, in order to create an effective and friendly

‘Children’s Corner’. The Youth Court in South Australia and the Children’s Court

Clinic in New South Wales have created their child-friendly space by designating a

room that has toys and books for the children.

Onsite childcare facilities

A number of lawyers commented on the lack of childcare facilities within the

Children’s Court building. Comparisons were made by lawyers working in both

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jurisdictions to the onsite childcare facilities provided by the Family Court of Western

Australia. It was argued that such facilities could allow parents an opportunity to be

better prepared for, and focused on their court appearance, which has the potential to

support a more positive engagement for parents in the court process.

The Family Court of Western Australia provides an onsite childcare facility. This free

service is staffed by fully qualified childcare workers and has toys, videos, puzzles,

books, games and art activities. The childcare facility is promoted as a service “to

entertain your children while you attend to your court business” (Family Court of

Western Australia, 2010).

Interestingly, the Department of the Attorney General Western Australia website

promotes free access to child-minding services for those attending courts in Western

Australia. This free service reportedly uses local childcare centres and is available to

jurors, witnesses, defendants and litigants, and is promoted as “Helping you play your

part in the justice system without the added stress of finding a babysitter” (Department

of the Attorney General, Western Australia, 2010). The onsite childcare services are

currently available to litigants appearing in the Family Court, District Court,

Magistrates Court, Supreme Court and Coroner’s Court of Western Australia, but most

surprisingly, are not available to parents and families appearing in the Children’s Court

— a court which is all about children!

8.5 RIGIDITY vs. FLEXIBILITY

Interviewees identified flexible service delivery as an important strategy to address

barriers to access to justice and participation in the legal system. Key issues that many

people focused on related to the style and approach of the magistrate convening the pre-

hearing conference, and the willingness or otherwise of magistrates and lawyers to

being open to problem-solving and alternative solutions.

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Observations of pre-hearing conferences indicated vast differences in the convenors’

flexibility and willingness to engage in problem solving. During a number of pre-

hearing conferences that I observed there were discrepancies between caseworkers and

parents, particularly around negotiating better contact regimes for parents and their

children, or in relation to accessing services. It was also clear that some magistrates

were more open, flexible and willing to engage in problem-solving discussions in order

to find solutions:

One of the frustrations I have found is a need to actually become a hands-on caseworker. Rather than the court really refining its inquiry into whether children are in need of protection, we’re spending a lot of time working out how we sort out contact. For example “well if the resources aren’t here to do it on Wednesday, when can we do it?”… ...You’ve got to ask the question— is that what we’re really here to do? Because that sort of thing should be happening well and truly away from the courthouse, but at the same time, if the court’s used in that manner, and that starts building confidence and rapport between the parties, then maybe that’s how the court can best use its power, for people to give undertakings.


My observations of pre-hearing conferences clearly indicated that not all magistrates

appeared willing to engage in lengthy and involved discussions, and not all appeared

open and flexible to alternative solutions. However, some magistrates were observed to

show their interest in the parents meeting the DCP’s requirements and expectations,

most often exhibited by a caring concern and taking the time to problem-solve

important issues for parents. This of course is related in part to the issue of court

resources, in terms of the amount of time that is allocated to each pre-hearing

conference.

Observations of court proceedings and pre-hearing conferences as well as interviews,

indicated that an approach that was caring and genuine, and conveyed concern could

affect parents’ overall experience of the court system. This suggests that judicial

interaction that is flexible and promotes shared respect between magistrates and parents

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may also help to promote parents’ engagement and compliance with DCP.

A number of initiatives and alternative methods based on a more flexible service

delivery approach to traditional child-protection court processes have emerged in recent

years in response to the criticisms of the traditional legalistic, formalistic and forensic

approach that has dominated the child protection system. New processes that may

assist the resolution of child protection matters by agreement rather than by

adjudication have emerged, and have been implemented around Australia and some are

currently being trialled in Western Australia.

The Geraldton Family Care Program (King & Tatasciore, 2005) is an example of how

flexible service delivery can have positive outcomes for all parties involved in child-

protection court proceedings. A flexible service delivery approach saw the use of

regular case reviews via adjournments, in order to allow parents an opportunity to

participate in agreed programs, and allowed the court to review parents’ progress on

requirements stipulated by the court.

Initiatives such as the conferencing and mediation processes that have driven change in

the Family Court of Western Australia, and the broader creation of problem-solving

courts are all based on more individualised and flexible responses to family problems.

Other initiatives and alternative approaches to traditional child-protection court

proceedings that are driven by a need for greater access to justice and a more flexible

service-delivery approach include the creation of Care Circles (Wood Inquiry, 2008)

and Family Group Conferencing (Harris, 2008), and in the United States, the Unified

Family Court model and the Family Treatment Court model have emerged in response

to similar concerns.

The current focus on alternative dispute resolution processes, the growing international

movement to embrace restorative justice in criminal justice administration, and the use

of conferencing approaches in juvenile and family law are all examples of alternative

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approaches to the administration of justice, which are based on a relational approach to

the practice of law, and are driven by more flexible service delivery.

From a therapeutic jurisprudence perspective, situations that provide increased

interaction between magistrates and parents present an opportunity for magistrates to

use a flexible approach to demonstrate positive role modelling, and to promote

negotiation. From a micro-therapeutic jurisprudence perspective, the data also suggest

that a more flexible approach can be provided when the needs of parents are catered for

— allowing for breaks in the conferences or court proceedings, and allowing more time

for explanations. These strategies may assist in overcoming stress and communication

difficulties often experienced by parents appearing in protection proceedings.

The Disability Council of NSW made the observation in the report ‘A Question of

Justice’ (2003) that the justice system is rigid and inflexible, it operates according to

strict timeframes and is shaped by ‘norms’ that fail to acknowledge community

diversity. It further reports that procedures in the justice system are applied narrowly

and inflexibly because the system views flexibility as procedural unfairness.

8.6 LEGISLATIVE CONSIDERATIONS

Legal and court participants were asked about their impressions of the workings of the

new Children’s and Community Services Act 2004 (WA). Views and perspectives on

the new legislation in action were varied. Key issues of concern related to the

legislation being overly complicated, the limited protection-order options that the new

legislation allows, and the fact that there is no national, uniform child-protection

legislation currently in place.

A number of lawyers and magistrates were critical of the excessively complicated

nature of the new legislation stating that it was too long, included confusing

terminology, had inconsistencies in it, and that the layout was not ‘user friendly’. It is

particularly concerning that the new legislation was considered confusing by those who

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have legal training, let alone what this would mean for parents who are self-represented

and may require the use of the new legislation in preparing for their matter. The way in

which the complicated nature of the new legislation can affect families’ access to

justice is exemplified in the following comment:

Most of the clients that we deal with had problems enough dealing with the Child Welfare Act [1947] which was a very simple piece of legislation, which runs to only about 30 or 40 operative provisions compared to what is now a book.


The new legislation was criticised by the majority of magistrates and lawyers for the

limited protection-order options that it allows. Under the new legislation there are four

types of protection orders available to the Children’s Court: protection order

(supervision), protection order (enduring parental responsibility), protection order

(time-limited 2 years), and protection order (time-limited 18 years). For a full

description of each protection order option, see Appendix A.

The new legislation allows for only two protection orders with timeframes: either a 2-

year protection order or an 18-year protection order. Under the previous legislation,

there was an additional option of a 5-year protection order, as well as an option for a

protection order with an open timeframe to allow magistrates to use their discretion to

determine the duration of the order. It was suggested by many lawyers and magistrates

that children and parents would benefit from a temporary protection order, which could

be discharged by the parents showing evidence that they had addressed or rectified the

protection problems. It was also suggested that the protection order timeframe should

be left open to the discretion of the magistrate to decide, which could potentially give

parents greater hope, optimism and incentive to complete the DCP requirements in

order to reunite with their children.

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Other concerns were raised about the protection order options that are available under

the new legislation. The supervision order was criticised by one interviewee for not

specifying which parent the child would live with, an omission that would be

particularly problematic if parents separated or engaged in Family Court proceedings.

The supervision order was also criticised by two magistrates and a number of lawyers

because under the Act there is no provision for any sanction on parents for non-

compliance with court orders. It was argued that as a result, there would be no recourse

for the DCP when a parent did not comply with a court order, other than for DCP to

return to the Children’s Court and apply for an alternative protection order of increased

severity or longer timeframe.

Interviewees commented that on some occasions the supervision order can be a more

appropriate option than deciding whether or not an order is needed, as this can “open

more options and everyone can aim for something that’s slightly less of an intervention

for the family, which is a good thing” (Interview #5, Lawyer). Supervision orders were

used in the Geraldton Family Care Program (King & Tatasciore, 2005) and this option

was reported as being beneficial for parents and children, because by virtue of parents

having to attend the court on a regular basis as per the conditions in the order, the court

could better monitor the parents and the progress of the case. Court reviews also

provided the court with the opportunity to provide encouragement to parents, to praise

them when progress was made and to support their self-efficacy, and their confidence

in their ability to address their problems.

Another benefit of the new legislation was noted to be the way in which information is

now shared between DCP and parents and their lawyers. This was noted to be

particularly evident in relation to the way that documentation is now shared between

parties in advance of the court appearance. The changes seen around the issue of the

provision of information, which is explored in greater depth in the following chapter,

was described by one magistrate in the following way:

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The culture as to how a case is prepared, presented and made available to the opposition is different now as a result of the new legislation. So that has been good.


8.7 SUMMARY

This chapter has presented the data in relation to how participants perceive access to

justice can be potentially compromised or enhanced in the Children’s Court. The notion

of access to justice is discussed with reference to therapeutic jurisprudence values and

critiques of the legal system. The data presented indicate that access to justice as

defined for this thesis involves more than access to formal legal representation and the

courts. The issues people addressed and what they talked about related predominantly

to access to legal representation, court resources, non-legal support, and the need for

legal processes to be more flexible.

It was overwhelmingly clear that the key issue of concern of the participants was about

availability and access to legal representation. Many different concerns were mentioned

including how eligibility for a Grant of Aid is determined by the Legal Aid

Commission, implications of limited or insufficient Grants of Aid, and the options left

to parents who chose to contest the matter without legal representation. Many people

commented that the determination of whether a parent has a ‘reasonable prospect’ of

successfully defending the application is not a fair and equitable approach, given the

massive disparity in legal and other resources afforded to the State compared to parents.

This was consistently raised in interviews as an issue of concern across all interviewee

groups. Most parents who were interviewed spoke of feeling ‘pressured’ to consent to a

protection order, given their belief that their only option if they chose to contest the

protection application would be to represent themselves at a trial. The practice of

parents being self-represented in a trial against the State, and the devastation this can

cause, was noted by a number of magistrates and lawyers to be an issue requiring

serious and urgent attention.

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Many participants who work in the Children’s Court including magistrates, lawyers and

court staff talked about a need for onsite counselling and court support services for

parents and families involved in protection proceedings, as well as a need for

administrative facilities to enable court assessments to be done onsite. People said that

there was a need for such services, given the long waitlists for external counselling

services. The delays in obtaining individual and family assessment reports from

external contractors were said to contribute to drawn-out court processes and delays in

finalising cases. Many lawyers and magistrates made comparison with the onsite

counselling and assessment services of the Family Court of Western Australia. A

number of participants who work in the Children’s Court also said there was a need for

onsite child care facilities, although this was not mentioned by the parents who were

interviewed.

In relation to how the new legislation is working in the Children’s Court, some

participants criticised the overly complicated nature of the legislation, others were

critical of the limited protection order options that are available, and others commented

on the need for a national, uniform child-protection legislation to be in place.

People generally spoke about the need for greater flexibility in the way in which child

protection court processes take place. Some people said they would like to see more

problem-solving and alternative solutions rather than reliance on a “perfunctory

approach” to dealing with these matters. Many participants talked about their positive

experience of the pre-hearing conference forum, and commented on how the

conferences enabled greater flexibility in how discussions took place, how problems

were worked through and how solutions were reached.

The next chapter considers the implications of these data in relation to the research

questions and therapeutic jurisprudence, and in concluding, explores the potential for

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change at a macro conceptual level to address issues around the adversarial culture that

remains in place in the court and ethics in the practice of law.

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CHAPTER 9

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CONCLUSION 9.1 INTRODUCTION

This chapter provides the conclusion to this study. I summarise the research journey

and present a synthesis of the main findings. I describe the changes that this research

suggests are required in order to respond to the large number of process and practice

(micro) issues and policy (meso) issues identified in this research. I also identify the

change that may be required at a macro conceptual level most notably in relation to the

nature and place of the law, the inherent power imbalances in the Children’s Court, and

ethics in the practice of law.

Given the critique in contemporary scholarship, my primary purpose in doing this

research was to assess how the Children’s Court of Western Australia and its legal

response to families in adversity could be more therapeutic. Central to this objective

was to develop an understanding of the potential for therapeutic jurisprudence elements

to be incorporated into the practices and processes of the Children’s Court of Western

Australia in particular, but also to Children’s courts in general. A priority of the

research was to utilise the experience of parents and families involved in the child

protection legal system to inform this analysis.

The context for this research is a vigorous set of debates relating to increasing calls at

both the state and national level for the child-protection system to move towards a more

preventive and holistic approach. These calls have been accompanied by state reviews

and inquiries that have looked into alternative approaches to the traditional adversarial

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child protection legal response. This has occurred alongside mounting international

interest in therapeutic jurisprudence scholarship. The ongoing debates in all of these

areas provided a powerful and compelling backdrop and energy as the research

unfolded. This context has contributed to my excitement and reaffirmation of the

relevance of this research to not just the Children’s Court of Western Australia, but to

Children’s courts in general and the broader child protection system.

The primary research question was:

How can existing laws, practices and procedures in the protection and care jurisdiction

of the Children’s Court be most therapeutically applied?

In order to answer the primary research question, I answered the following two

secondary research questions:



Children’s Court?




A multi-method research design was used to gather rich data from a range of

participants involved in child-protection court proceedings in Western Australia. A case

study was undertaken of the Perth Children’s Court: twenty-seven semi-structured

interviews with parents, family members, magistrates, lawyers and court staff were

completed and analysed and participant observation was conducted in the Perth

Children’s Court over a nine-month period.

The research journey has been long and challenging, yet also exciting. The research had

deeply practical beginnings, and commenced with my intention to focus on the

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‘therapeutic elements’ of the Children’s Court. The framework I chose to guide my

thinking about the data was initially structured on Allen’s (2001) analysis of the

therapeutic elements of the Family Court. I had an expectation that my data would fit

well into the scaffold described by Allen whereby the therapeutic elements of the court

would be categorised into three groups — structural, attitudinal and physical elements.

While my original goal was to use the analytic framework suggested by Allen, I found

that I could not fit the data that was emerging into Allen’s framework. I found that all

of the participants viewed their experiences to be associated with relationships and

processes, and in particular with space and power as important factors. These ideas did

not accommodate Allen’s constructs but were easier to construct within a micro, meso

and macro analytical framework. Subsequently, the micro, meso and macro distinction

was adapted and used as a framework for structuring the analysis of the Children’s

Court.

Significantly, the experiences and views of the consumers provided a challenging new

perspective for this research. One of my many conclusions is that it is imperative that

the voice of a range of consumers must be attended to in the planning for child

protection reform.

9.2 A SYNTHESIS OF THE MAIN FINDINGS

A primary finding of this research is that in order for existing laws, practices and

procedures in the protection and care jurisdiction of the Children’s Court to be most

therapeutically applied, there is an urgent need for change at the procedural (micro),

policy (meso) and conceptual (macro) levels.

It was overwhelmingly clear that the preoccupation of parents and families was about

not being heard, and difficulties in engagement; and that of legal and court personnel

was about legislative and court practice processes. The compelling need for change at a

micro level was represented in the very powerful perspectives of the participants, not

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just the parents and families, but the legal and court personnel as well. At a micro level,

major issues raised were around barriers to participation of parents and families in the

child-protection legal system. These were amply demonstrated in the potency of the

voices around the sense of the powerlessness, overwhelming confusion, disadvantage

and alienation experienced by parents. Parents generally feel silenced, invisible,

intimidated and excluded by the child-protection legal system and its processes.

Parents experience the child protection legal and court system as distressing and

traumatic, and their stories reflect a kaleidoscope of individual pain. It was generally

explained by participants from all interviewee groups that lengthy and protracted court

processes, as well as the complex legal language commonly used during court

proceedings contribute to legal processes being experienced as extremely stressful.

They explained that this stress acted as a barrier to parents engaging and continuing in

the legal process, and prevented them from participating effectively in the legal process.

The research demonstrates that there are a number of barriers to the participation of

parents and families that result from specific court practices, processes, rules,

regulations and judicial approaches. Many of these barriers relate to communication

difficulties, time constraints, provision of information, the adversarial nature of court

processes, and the complexity and formality of language used in the court.

Communication difficulties emanating from complex legal language and legal jargon

act as a mechanism of exclusion and for the exercise of influence and power in the

court, leading to parents feeling stressed, confused, powerless, angry and alienated by

the court process.

Many people spoke of the variation in magistrates’ style, approach, attitude, manner,

empathy, willingness to engage and communication skills. These variations, as well as

the rotating basis on which magistrates work, has an impact on parents’ capacity to

participate and their experience of the court process. The lack of consistency resulting

from the roster system which rotates magistrates through different courts (protection

228

and care court, youth criminal court, trial court and regional courts) is a source of

frustration and stress for parents, and some parents saw this as a disadvantage to them

and their legal matter. The good communication skills (both verbal and non-verbal) of

particular magistrates and lawyers were observed to act as a potential enabler to

parents’ participation.

Time constraints in this jurisdiction compound the stress that many respondent parents

are already experiencing. The speed and pace at which court proceedings take place

(specifically the mention list) can exclude parents and families from the court process.

Delays and multiple adjournments resulting in a general lack of progress at each court

hearing were also found to be particularly detrimental to the children and parents

involved in the legal matter.

Some of the most poignant issues raised by parents were their lack of voice and their

feelings of being silenced by the court process. These issues related in part to the

manner in which negotiations take place in the Children’s Court, that is, informally and

privately between lawyers. Delays, which protracted the processes, and being silenced

by the court process, all contribute to the feeling that the Children’s Court process is

both outdated and unfair.

The adversarial nature of child protection proceedings clearly operates to preclude the

participation of parents and families in the legal system. Parents described that this

adversarialism was present and evident in numerous ways — the language, tone,

approach and manner adopted by the various parties, and in the way in which evidence

and information are filed in the affidavit. The trial process was observed to exemplify

adversarialism at its peak. The participation of parents in the legal system is

inextricably linked with the issue of power, which arguably plays itself out in the

adversarial character of protection proceedings. It is clear that an imbalance of power

exists between parents and representatives of the DCP (both legal and caseworkers) and

this was evident in many parents’ stories of their experiences of the court process.

229

Certain court processes, judicial approaches and legal structures were found to facilitate

participation. Participants were clear that the pre-hearing conference process acted as a

facilitator to the participation of parents, enabled progress, and fostered a sense of

equality in how people perceived they were treated. Many participants noted the less

formal structure of the pre-hearing conference as being particularly helpful.

The Children’s Court of Western Australia does not purport to be a problem-solving

court. However, evaluation of the initiatives in these courts has increased the awareness

of how people experience the court process, and the ways in which the judiciary and

lawyers interact with court participants – and the impact of such interactions. There is

much that can be learnt from the methods and approaches used in problem-solving

court programs that could enhance participation and promote positive behavioural

change and wellbeing.

The Children’s Court has significant potential to promote motivation, successful action,

positive behavioural change, confidence and satisfaction in court participants by

facilitating parents and families to have a voice in the system, by validating them and

validating their place in the process, by respecting and enabling parents to express self-

determination and autonomy in the process, and by facilitating active participation.

My research demonstrates that in order to enhance the participation of parents and

families in the legal system, there is a need for the following to be considered:

• Greater use of plain English

• Communication skills that demonstrate empathy, and sensitivity to non-verbal

communication including body language and active listening

• Using a case management approach to provide consistency and confidence in

the role of the judiciary, and in ensuring a fair process

• More flexible use of time, allowing for breaks if parents are distressed, and

more time to be allocated to the mention list and pre-hearing conferences —

considerations which are obviously resource dependent

230

• More accessible information about the court process

• A move away from adversarial processes towards more conferencing and

mediation approaches, and less adversarial trials in accordance with approaches

adopted by the Family Court of Western Australia

• Training of magistrates and lawyers in child protection mediation — for

consistency and to maximise opportunity for mediation in the pre-hearing

conference

• For the current jurisdictional arrangements for the management of child welfare

issues in Western Australia to be reconsidered in the light of key issues outlined

by Jackson (2009) which would see the protection and care jurisdiction of the

Children’s Court of Western Australia relocated to the Family Court of Western

Australia.

At a meso level, major issues raised were around access to justice in the Children’s

Court. Access to justice as defined for this thesis, involves more than access to formal

legal representation and the courts. It also involves access to court resources, non-legal

support, and an approach to legal service provision and other processes that are open

and flexible. Access to justice has particular relevance to parents appearing in child-

protection court proceedings, given the extreme vulnerability and marginalisation that

many of them already face as a result of leading often complex and complicated lives.

At the forefront of Australian legal culture are liberal ideals including equality, liberty,

individual rights and notions of justice — ideals that have been interwoven into

Australian laws and procedures. The English common law tradition that all people are

equal before the law gives rise to the principle that the courts should be equally

accessible to all. It is clear, however, that many parents and families involved in child-

protection court proceedings are being denied equal access to the justice system through

a range of structural and procedural barriers.

231

My research suggests that access to justice can be seriously compromised as a result of

the restrictions on parents’ eligibility and access to legal representation. In this instance,

this was exemplified by the Legal Aid Commission of Western Australia’s method of

determining ‘merit’ for eligibility for legal assistance. There was a general sense from

participants that this was not a fair and equitable approach given the massive disparity

in legal and other resources afforded to the State compared to parents. While a number

of participants were accepting of the current extent of publicly funded legal assistance

for parents, many magistrates and lawyers were of the view that this issue requires

urgent and immediate attention.

Onsite counselling services, childcare facilities and court assessments, the provision of

court support, and the creation of a child-friendly space within the court building were

explored in terms of how such services could enable, empower and enhance parents’

and families’ access to justice and support in the Children’s Court. These various court

resources and non-legal forms of support are acknowledged to be key enablers to

greater access to justice in the Children’s Court.

This research demonstrates that through legal and court personnel showing a greater

sense of empathy, by allowing more time for parents to speak, more flexibility in how

proceedings take place — including allowing for breaks and time with lawyers — and

with more accessible information about the process, preparations and availability of

court support, parents are more likely to feel empowered to participate in the court

process. All of these things highlight the need for greater access to information, better

court support and non-legal support and advocacy in the Children’s Court.

The recent inquiry into the child protection system in the Northern Territory noted that

family participation in decision-making and less adversarial processes are likely to

result in better outcomes for children (Northern Territory Government, 2010:44). This

research gives strong support to the increasing scholarship that argues for more parental

and family involvement in court problem-solving.

232

By enhancing informal processes and thereby reducing the adversarial nature of

protection proceedings, parents are more likely to participate and contribute to the

process, and greater cooperation between all parties is more likely to be achieved. The

findings suggest that consideration should be given to increasing the capacity for

parents to obtain legal representation in the Children’s Court. One suggestion is that the

Legal Aid Commission of Western Australia provides uncapped legal assistance for

parents involved in child-protection court proceedings.

9.3 THE NEED FOR MACRO LEVEL CHANGE

While this research demonstrates that change is required at a micro and meso level, it

also points to the need for change at a macro conceptual level. Brooks (1999) suggests

macro level change in the area of child welfare law and practice might include the

creation of alternative legal processes for conflict resolution such as Family Group

Conferencing, or the implementation of innovative legal structures such as the Unified

Family Court. Wexler (2005) suggests that change at a broader macro level might

include consideration of an entire body of law, or broader conceptions of law, or

consideration of the therapeutic impact on society, or legal doctrines.

The three primary (macro) matters of importance that I have articulated include the

culture of adversarialism, power imbalances and ethics in the practice of law. Each of

these matters will be briefly discussed.

i) Culture of adversarialism

Much of the data which related to participation and access to justice point to the need

for more fundamental changes to address the culture of adversarialism that remains in

place in the Children’s Court. As outlined in Chapter 2, adversarialism in the protection

and care jurisdiction is characterised by combative, hostile and ‘point-scoring’

behaviour. I propose that an adversarial approach, which sets up a contest where there

233

are winners and there are losers, does not in fact serve the ‘best interests’ of children

nor their families.

Despite many reforms that have been implemented across various jurisdictions —

including the use of case management and mediation practices and approaches — a

culture of adversarialism remains in place and undermines true change in Australian

courts generally (Young, 2006). This research indicates that this is also true of the

Children’s Court despite the degree of ‘hybridisation’ that has occurred in the

Children’s Court context and despite certain requirements under sections 145, 146 and

153(1) of the Act.

In questioning if it is possible to turn this adversarial child-protection legal system into

anything different, it will be interesting to see the outcomes and impact of recently

implemented pre-adjudication pilot conferencing approaches in Western Australia (as

discussed in Chapter 3) and whether these approaches instil in court participants

confidence and satisfaction in the system. It will also be interesting to see if the nature

of the pre-adjudication conferencing process promotes motivation, positive behavioural

change, and a sense of fairness and equity perceived by those families appearing in this

jurisdiction.

ii) The centrality of power in the Children’s Court

The issue of power imbalances in the Children’s Court is central when considering

broad conceptual change. This research clearly indicates that the dominant legal culture

in the child-protection court system appears to be predicated on power differentials. It

is clear that these power imbalances are present in adversarial modes of operating in the

Children’s Court. In Young’s (2006) article on change in legal culture, she states that in

order to understand barriers to change, we must look at the underlying culture of

clients, lawyers and judges — the three major constituent groups in the justice system

— and what fundamental beliefs feed that culture. The experiences and perspectives

captured in this research point to some of those beliefs, and suggest there is a need for a

234

shift in that culture from one that is based on adversarialism where power is central, to

one that is focused on building therapeutic outcomes and relationships.

It is evident the inherent power imbalances that exist within the court can create a

culture that intimidates, overwhelms and confuses court participants. The unfairness of

unequal bargaining power of the parties and the implications of the power of the State

on vulnerable people is clearly demonstrated in this research. As discussed in Chapter

3, the issue of power has been noted to be a central dynamic to an understanding of

parents' experiences of the child protection system. The centrality of power in the

cultural practice of the Children’s Court is significant and alarming. Importantly, the

issue of power is not a ‘problem’ per se with the law, but rather, it is an issue between

parents and the State, and the law and legal profession may exacerbate this power

imbalance. The greater challenge rests on new ways of thinking about how the

combined professions involved in the child protection system, including the legal

profession and the allied health professions, can work together with parents and

families to achieve better outcomes in the law.

iii) The way forward — an ethic of care and the law

A significant number of scholars are already writing about the failure of relationships as

a result of how things have traditionally been done in the legal system (Brooks, 1999;

Hay, 2003; King et al., 2009; Brooks & Madden, 2009, 2010). Important new

scholarship in this area includes that of Brooks and Madden (2009:24) who offer a

model of practice that they refer to as Relationship-Centered Lawyering that directly

responds to the call for a revitalised understanding of professionalism and professional

training when it comes to the practice of law. From a therapeutic jurisprudence

perspective, Hartley and Petrucci (2004:135) suggest that more effective lawyer-client

relationships can be developed with increased attention to race, ethnicity and culturally

competent practice.

235

Contemporary scholarship in the area of virtue ethics offers a natural and promising

approach to the ethics of professional roles. Oakley & Cockling (2001) outline how

virtue ethics can provide a plausible framework for evaluating professional roles and

they offer an interesting example of how this can be done in the context of the legal

profession. Much of this scholarship speaks to the need for macro level change in

relation to the centrality of relationships, and in addressing the power differentials and

adversarial culture commonly seen in the legal system.

An exciting field of research that relates to the law and potentially has an impact is the

literature in relation to the law and an ethic of care. Gilligan (1977, 1982) coined the

term ‘ethic of care’ and ‘ethic of justice’ in her research on moral development to

describe two modes of gendered moral reasoning. According to Gilligan, an ethic of

care centres on specific contextual circumstances and responsibility in relationships. An

ethic-of-care approach has also been described as one that is based on respectful and

proactive engagement with court participants, and one that pays attention to their needs,

rather than acting in a neutral but mechanical way (Cannon, 2007). Cannon describes

an ethic-of-care approach to judging as a ‘more exposed’ judicial role, compared to

what he refers to as the “relatively mute and remote figure who only pronounces at the

end and then in detached language” (Cannon, 2007:258). It has been suggested that the

general approach a judicial officer takes when judging in a problem-solving court is an

ethic-of-care approach (King, 2009a).

Arguably, therapeutic justice requires bringing an ethic of care to the law through the

efforts of lawyers, magistrates and court staff working in the Children’s Court. Town

(2008) suggests that families and children who come before the court would be required

to be treated with great civility, dignity and patience. In this approach, efforts must be

made to develop a rich source of information about the family’s problems, and the

family intervention should include prompt, front-end loaded, well-documented and case

specific services, rather than a bureaucratic, one-size-fits-all case plan that may in fact

fit none.

236

Consistent with due process, in bringing an ethic of care to the law, every effort should

be made to minimise the negative impact of adversary court proceedings so that

families may continue on their way without emotional and financial devastation. An

ethic-of-care approach would prioritise relationships and mutual respect, where efforts

would be made to be collegial, user-friendly, and prompt, and if a contested hearing is

needed, it would be conducted in a civil and productive manner. Importantly, these

changes need not occur at the expense of due process and sound legal outcomes.

This research has indicated that the way in which magistrates and lawyers interact with

parents — evident in the words chosen, body language and behaviour, attitude and

manner — can have a significant positive or negative impact on parents. A protection

and care jurisdiction that operates according to an ethic-of-care approach would focus

on developing positive therapeutic relationships between the professionals who work

within the Children’s Court and the court participants. Introducing an ethic of care into

court processes would focus on the qualities of respect, participation and

trustworthiness, and would require a refocus on treating parents and families with

civility, dignity and patience.

A court system based on macro level change would be one where the nature and place

of the law moves away from a culture of adversarialism and inherent power imbalances

in practice, to one that values an ethic of care where relationships are central.

Big questions remain about the nature of the law and legal processes; the relationship

and place of child-protection court proceedings; whether we have the best structure for

protecting vulnerable children; and indeed, whether we have the right legal framework

for dealing with these complex issues.

At the end of this research, it is evident that therapeutic jurisprudence has the potential

to redefine the functioning of the child-protection legal process, and can offer an

237

alternative approach to legal practice therein based on a model that encourages respect,

validation, voice, self-determination, relationships, and supports conciliation and

restoration. There is an emerging awareness from many lawyers and magistrates that

the principles of therapeutic jurisprudence provide the sector with much needed hope

— particularly as they build on the concept of ‘less adversarial justice’. A Children’s

Court underpinned and driven by therapeutic jurisprudence principles, where an ethic of

care imbues all court processes, offers a powerful vision for a transformed and dynamic

court.

238

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APPENDIX A Protection orders in Western Australia When the Children’s Court of Western Australia determines the protection application, it may make one of four protection orders: Type of Order Max Length of time Effect Protection Order (Supervision)

Up to 2 years. Can be extended only once for another period of not more than 2 years. Can be varied on the application of any party

This order allows DCP to supervise the wellbeing of the child while the child remains a parent/s responsibility. The child is not in the CEO’s care. The order may contain conditions to be followed by the child, a parent, or an adult with whom the child is living

Protection Order (time limited)

Up to 2 years. Can be extended more than once on application by DCP for periods of not more than 2 years. This order can be revoked on parents’ application

This order gives the CEO parental responsibility for the child for the period stated. The child can be returned to parents’ care while the order is current if DCP think the child will be safe.

Protection Order (until 18) Until the child’s 18th birthday. Parents can apply to have this order revoked

This order gives the CEO parental responsibility for the child until he/ or she reaches the age of 18. Can only be made when the court is satisfied that long-term arrangements should be made for the wellbeing of the child. The child can be returned to a parent’s care while the Order is current if DCP think the child will be safe.

Protection Order (enduring parental responsibility)

Until the child’s 18th

birthday. DCP must apply Parents can apply to have order revoked

This order gives parental responsibility of the child to any person or two people jointly other than the CEO or a parent of the child. The child is not in the care of the CEO. The order may include conditions about contact

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between the child and another person, such as the parent/s. Conditions can be changed, added or replaced. The court may order the CEO to make payments to the enduring parental carer.

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APPENDIX B

Flowchart of court process for contested cases in the Children's Court

Adapted from Family Inclusion Network of Western Australia, Finding Your Way

with DCP (2009:22–23)

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APPENDIX C Flowchart of court process for consented cases in the Children's Court Adapted from Family Inclusion Network of Western Australia, Finding Your Way with DCP (2009: 22-23)

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APPENDIX D Overview of Child Protection process in Australia

Source: Australian Institute of Health and Welfare (AIHW) (2010) Child protection

Australia 2008–09, Child Welfare Series, Number 47, Australian Institute of Health and

Welfare, Canberra.

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APPENDIX E Information Sheet

Social Work and Social Policy School of Social and Cultural Studies The University of Western Australia

35 Stirling Highway, Crawley WA 6009 Phone: 61 8 6488 2998 Facsimile: 61 8 6488 1070

Email: [email protected]

RESEARCH INFORMATION SHEET

BARRIERS TO ACHIEVING A HOLISTIC OUTCOME FOR PARENTS INVOLVED IN CARE PROCEEDINGS IN THE CHILDREN’S COURT CONTEXT.

You are invited to participate in a research study that will explore the therapeutic and non-therapeutic elements that exist in the protection and care proceeding process in the Children’s Court context. I am interested in your overall impressions of what you think is occurring in the courtroom, and what your perceptions are of the impact of child protection legal proceedings on parents. To do this, I will be considering the explicit and implicit therapeutic elements that exist in the protection and care proceeding process. You have been selected as a possible participant in this study because of your professional or personal involvement in a protection and care proceeding matter in the Perth Children’s Court. Purpose of the study There has been little investigation into the experience of parents involved in protection and care proceedings in the Children’s Court in the Australian context. The significance of this investigation is that it will happen at a time when major challenges are being articulated about how we manage child protection and child welfare decision-making in Australia. The purpose of this study is to explore aspects of the protection and care proceeding process that are either conducive or non-conducive to a therapeutic effect. This could include factors like the court process and difficulties faced by parents in protection and care proceedings, or explicit and implicit factors that influence court outcomes. The purpose is to gain a better understanding of how the Children’s Court can promote strengths and skills in parents, and promote family healing. Who is the researcher? The primary researcher is Alana Thompson, MSW, a PhD student from the Discipline of Social Work and Social Policy at the University of Western Australia.

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What is being asked of participants? If you volunteer to participate in this study, we would ask you to do the following things: Participate in an interview, which should take around 45 minutes. If there is more to say, a second interview can be scheduled. Interviews will take place at the location and time of your choosing, in agreement with the researcher. With your permission, interviews will be audiotaped. The interviews with the researcher will be conversational in style. The interviewer will ask you about your experience of being involved in a protection and care proceeding matter. This study does not directly involve children. However, parents are invited to advise their child/children of their involvement in this study if they so wish. How will your privacy be protected? All information provided by you will be treated as confidential by the researcher. At the beginning of this study, your name will be replaced by a code number so that your privacy is protected. With your permission, your interview will be audiotaped, then transcribed. Tape recording will be done so that the researcher can participate fully while you are being interviewed. It is also being done to accurately recall what you say for later analysis. You have the right to stop the recording at any time. After the interview, you also have the right to listen to the recording, review the transcript, and indicate if there are portions of the interview that you want to have deleted. When your audiotape is transcribed, and the content of all of the interviews is brought together to determine the results, this code number will be used. The audiotapes and any written notes will be kept in a locked filing cabinet at the University of Western Australia for a legally required number of years, and then destroyed. The researcher will be the only person with access to this information. You will not be identified in any reports or published articles that result from this research. Voluntary participation and your right to refuse Your involvement in this study is voluntary. You can decide whether or not to take part in this research. No one, including the Judge, will be informed whether you were interviewed or not. If you do volunteer to be in this study, you can also change your mind and withdraw your consent at any time without consequences of any kind. You may also refuse to answer any questions you do not want to answer and still remain in the study. If your participation raises any concerns or issues that you wish to discuss further, the researcher can link you with an appropriate health care professional. You may also end the interview at any time if you are uncomfortable continuing.

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Payment for participation No payment will be provided for your participation. Whom can you contact if you have a question about this study? If you would like to discuss any aspect of this study, please feel free to contact the Principal Researcher, Alana Thompson, MSW, on (08) 6488 2990 or the Principal Supervisor, Dr Maria Harries, on (08) 6488 2993. Who has given permission for this study to proceed? The Human Research Ethics Committee at the University of Western Australia has given ethics approval for this research.

Thank you for taking the time to read this Information Sheet

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APPENDIX F

Participant Consent Form

Social Work and Social Policy School of Social and

Cultural Studies The University of Western

Australia 35 Stirling

Highway, Crawley WA 6009 Phone: 61 8 6488 2998 Facsimile: 61 8 6488 1070


CONSENT FORM

BARRIERS TO ACHIEVING A HOLISTIC OUTCOME FOR PARENTS INVOLVED IN CARE PROCEEDINGS IN THE CHILDREN’S COURT CONTEXT.

Consent form for Judges/Magistrates, Legal Representatives, Court staff and Parents involved in care

proceedings in the Perth Children’s Court.

I, _________________________________________________________________________

(Given Names) (Surname) have read the information sheet explaining the study entitled ‘Barriers to achieving a holistic outcome for parents involved in care proceedings in the Children’s Court context’. I have read and understood the information given to me. Any questions I have asked have been answered to my satisfaction. I fully understand the purpose, extent and possible effects of my involvement. I understand that any report that will be published as a result of this study will not name or lead to the identification of any person involved in care proceeding matters in the Perth Children’s Court. I understand this research study is in accordance with the following regulations: The Young Offenders Act 1994 – Section 17, Confidentiality

(1) “Except as provided in this section, a person who directly or indirectly divulges any personal information obtained by reason of any function that person has, or at any time had, in the administration of this Act or any provision repealed by this Act commits an offence”. (d) “In a manner that could not reasonably be expected to lead to the identification of any person to whom the information relates”

The Children’s Court of Western Australia Act 1988 – Section 35, Restrictions on Reports of Proceedings

“A person shall not publish or cause to be published in any newspaper or other publication or broadcast or cause to be broadcast by radio or television a report of any proceedings in the

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Court, or in any other court on appeal from the Court, containing any particulars or other matter likely to lead to the identification of a child who is concerned in those proceedings”

I understand that: I may withdraw from the research at any time without explanation I will receive a copy of this consent form All information provided will be treated as strictly confidential and will not be released by the researcher unless required to by law.

I agree that research data gathered from the results of this study may be used for a published report, provided that no identifying data or names are used. Signature ______________________________________ Date ______________________ I, _____________________________________________________have explained the above

(Researcher’s full name) to the signatory who stated that he/she understood the same. Signature ________________________________________________ The Human Research Ethics Committee at the University of Western Australia requires that all participants are informed that, if they have any complaint regarding the manner, in which a research project is conducted, it may be given to the researcher or, alternatively to the Secretary, Human Research Ethics Committee, Registrar’s Office, University of Western Australia, 35 Stirling Highway, Crawley, WA 6009 (telephone (08) 6488-3703). All study participants will be provided with a copy of the Information Sheet and Consent Form for their personal records.

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APPENDIX G Email requesting interview with magistrates

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APPENDIX H Interview Framework — Magistrates, Lawyers and Court Staff

INTERVIEW FRAMEWORK

MAGISTRATES, LAWYERS AND COURT STAFF

Therapeutic jurisprudence is an approach to examining legal issues, the involvement of

legal systems and the impact of legal processes upon participant wellbeing. This

research will seek to broadly investigate how a therapeutic jurisprudence approach can

be understood and applied to the protection and care jurisdiction of the Children’s

Court.

This will be done by examining the effects of the therapeutic and non-therapeutic

elements of the legal process on the parents and families involved in these proceedings,

and by considering how existing laws and practices can be most therapeutically applied

within the Children’s Court. The ways in which court spaces can be designed to

empower and promote wellbeing in parents and families will also be examined.

The proposed study seeks to answer the following research questions:

How can existing laws, practices and procedures in the protection and care jurisdiction

of the Children’s Court be most therapeutically applied?

I will address this primary question by answering the following two secondary research

questions:



Children’s Court?

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involved in its proceedings? In relation to the Court process/system 1. Your overall impressions about how parents’ experience the court process. 2. Your impressions of the (morning) mention list process. 3. Your overall impressions of the pre-hearing conference process. 4. Do you have any expectations about the purpose of the pre-hearing conference? 5. Do you see the conference as a management tool or an opportunity for mediation? 6. What do you see as the parents’ role in the pre-hearing conference? 7. Your overall impressions of the trial process. 8. Your impressions about how parents experience the trial process. 9. Your impressions about the availability and/or access to legal aid in the court. 10.Your impressions about how parents manage the trial process if self-represented. 11.Your impressions of the workings the new legislation (Children and Community Services Act 2004 (WA). 12.Your thoughts on how the new legislation may/may not impact on parents’ experience of the court process. 13.What are your impressions about the language used in the Children’s Court? 14.What are your thoughts on the supports parents need to navigate through the child protection legal process? In relation to the Children’s Court spaces 1. Your overall impressions of the layout and design of the Children’s Court building. 2. Specifically, your impressions of the courtrooms, pre-hearing conference room and waiting room areas. 3. Your impressions of how parents and families would experience the physical layout and design of the Children’s Court. 4. Thoughts on how the spaces of the Children’s Court can be designed to empower and promote the wellbeing of parents and families involved in protection proceedings. (Other) 1. What changes if any do you think the Children’s Court can make in order to better assist parents in the future? 2. Any other suggestions for change?

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APPENDIX I

Interview Framework — Parents and Families

INTERVIEW FRAMEWORK

PARENTS AND FAMILIES

Therapeutic jurisprudence is an approach to examining legal issues, the involvement of legal systems and the impact of legal processes upon participant wellbeing. This research will seek to broadly investigate how a therapeutic jurisprudence framework can be understood and applied to the protection and care proceeding process in the Children’s Court context. This will be done by examining the effects of the therapeutic and non-therapeutic elements of the legal process on the parents and families involved in these proceedings, and by considering how existing laws and practices can be most therapeutically applied within the Children’s Court jurisdiction. The ways in which Court spaces can be designed to empower and promote wellbeing of parents and families also will be examined. The proposed study seeks to answer the following research questions: How can existing laws, practices and procedures in the protection and care jurisdiction of the Children’s Court be most therapeutically applied? I will address this primary question by answering the following two secondary research questions:



Children’s Court?




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In relation to the Court system / process 1. Your impressions about how parents experience the Court process. 2. Your overall impressions of the (morning) mention list process. 3. Your overall impressions of the Pre-hearing conference process. 4. Your overall impressions of the trial process. 5. Your overall impressions about the availability and/or access to legal aid in the Children’s Court. 6. What are your impressions about the language used in the Children’s Court? 7. What are your thoughts on the supports parents need to navigate through the Children’s Court legal process?

In relation to Court spaces 1. Can you tell me about your overall impressions of the layout and design of the Children’s Court building? 2. Can you tell me about your overall impressions of the layout and design of the courtrooms, pre-hearing conference room and waiting room areas? 3. Do you have any thoughts on how such spaces may be more functional for parents and families?

(Other) 1. What changes if any do you think the Children’s Court can make in order to better assist parents in the future? 2. Any other suggestions for change?

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APPENDIX J Human Subjects Research Ethics Approval Form

Research Ethics Research Services

M459

35 Stirling Highway, Crawley, WA 6009 Telephone: (08) 6488 3703 Facsimile: (08) 6488 8775

Email: [email protected] Our Ref. RA/4/1/1810 25 June 2007 Associate Professor M Harries Social Work and Social Policy — M256 University of Western Australia HUMAN RESEARCH ETHICS COMMITTEE Project: Barriers to achieving a holistic outcome

for parents involved in care proceedings in the children's Court context

Student: Alana Thompson - PhD - 20123461 Please be advised that ethical approval of the above project has been granted by the Human Research Ethics Committee. This project is approved on condition that the negotiated versions of the recruitment process and consent forms are submitted for final review and approval by the HREC before implementation. The Committee is bound by NHMRC Guidelines to monitor the progress of all approved projects until completion to ensure that they continue to conform to approved ethical standards.

The committee requires that all Chief Investigators report immediately anything that might affect or impact upon ethical approval of the project, including adverse events affecting subjects. Approval should be sought in writing in advance for any amendments to the original application. You are also required as a condition of this approval to inform the Committee if for any reason the research project is discontinued before the expected date of completion. A report form for completion will be sent to you twelve months from this date or one month after your indicated completion date. Please note that approval has been granted for a period of four years. Initial

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approval is for a period of one year, and, thereafter for future periods of one year at a time subject to the receipt of satisfactory annual reports. At the end of the four-year period you will be required to complete a new "Application to Undertake Research Involving Human Subjects" should you wish to continue with your research. However, in special circumstances, the Chair has the authority to extend the approval period in order to complete a project. Failure to submit a final report may result in delays for future applications. Please quote Project No RA/4/1/1810 all correspondence associated with this study. Yours sincerely KATE KIRK

Executive Officer (Human Research Ethics Committee)

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APPENDIX K Overview of process for child protection notification in Western Australia

The following is an overview of the Department for Child Protection (DCP) process on

receiving a notification of suspected abuse or harm. Child protection is a program

funded and delivered by DCP. The program is divided into metropolitan services

including eight districts (Cannington, Fremantle, Joondalup, Midland, Mirrabooka,

Perth and Rockingham) and country services that include nine districts (East

Kimberley, Goldfields, Great Southern, Murchison, Peel, Pilbara, South West, West

Kimberley and the Wheatbelt). An after-hours Emergency Child Protection Service

(Crisis Care) also operates within the program.

While any person can voluntarily make a report to DCP, mandatory reporters such as

medical practitioners, nurses, midwives, teachers, Western Australian police officers

are obligated to make reports to DCP. The Children and Community Services Act 2004

(WA) requires such professionals to make reports to DCP when in the course of their

employment they form a belief on reasonable grounds, that a child has been abused or

is the subject of ongoing abuse.

An investigation of any report made to DCP may lead to the making of a Protection

Application to the Children’s Court because DCP has determined that a child is in need

of protection. The Children’s Court can issue a range of protection orders. Some

protection orders transfer the custody or guardianship of children from the parent to

DCP, while others allow DCP to monitor children who remain in their parents’ care.

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APPENDIX L

Email requesting interview with lawyers and court staff

Social Work and Social Policy

School of Social and Cultural Studies The University of Western Australia

35 Stirling Highway, Crawley WA 6009

Phone: 61 8 6488 2998 Facsimile: 61 8 6488 1070


Dear Mr Johnson, My name is Alana Thompson and I am doing research for a doctoral thesis at the University of Western Australia. I commenced court observations of protection and care proceedings at the Perth Children's Court three months ago, and recently commenced the interview component of my research. I am seeking to interview lawyers and court staff who work within the protection and care jurisdiction of the Children's Court. What I would like to ask is whether you would be interested and available to participate in an interview that would take approximately 40–60 minutes to complete. I am happy to fit in with your schedule and meet at a location that is most convenient to you. I am attaching an Information Sheet to this email that outlines the background and purpose of this research. I would very much appreciate your assistance with this. I look forward to hearing from you. Yours sincerely Alana Thompson

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APPENDIX M Factors to be considered in determining 'the best interests of the child' (WA) Source: Ford, P 2007, Review of the Department for Community Development: Review Report, Available from: http://www.dcp.wa.gov.au.[20 September 2009].