Child Protection and Family Law Joining the Dots

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Child Protection and Family Law… Joining the Dots

Daryl Higgins & Rae Kaspiew

Australian Institute of Family Studies

AIJA Conference, Brisbane, 5-7 May 2011

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Overview

Policy and practice context

Overview of the Australian systems:

Child protection

Family law

Intersections and Gaps

Magellan – a case study

Recent research and reports addressing the issues

Concluding thoughts

Disclaimer: The views are the authors‟ and do not necessarily represent the views of the Institute or the Australian Government.

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Key issues

Prevalence of concerns about child safety in post- separation parenting disputes

Concerns about lack of effectiveness of current responses

Increasingly complex families presenting to both child protection and family law agencies/systems

Family violence; mental illness and substance addiction – key concerns

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Family Law Council (2002)

―There is no greater problem today than the problems of adequately addressing child protection concerns under the Family Law Act‖ (p. 15)

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Context of Child Protection Concerns

In the family law context, child protection concerns arise in two key ways:

1. where the child is alleged to be currently at risk from spending time in either parent‟s household

(through exposure to child abuse, neglect, or family violence); and/or

2. where concerns have arisen about the treatment of child child by either/both parents prior to

separation – and this history is argued to be relevant to post-separation parenting concerns.

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Allegations of family violence and child abuse in family law disputes

AIFS Research Report No 15:

Allegations of child abuse in:

23% of FCoA sample (general litigants) (n=109)

27.6% of FMC sample (general litigants) (n=116)

50% FCoA judicial determination sample (n=28)

18% FMC judicial determination sample (n=27)

Allegations of child abuse also common in Family

Dispute Resolution (FDR) sector (Bickerdike, 2007)

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Prevalence of family violence

AIFS Evaluation of 2006 Family Law Reforms showed Mothers‟ self-reports:

26% physically hurt

39% emotional abuse

35% no violence

Fathers‟ self-reports:

17% physically hurt

36% emotional abuse

47% no violence

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Child safety concerns

AIFS Evaluation of 2006 Family Law Reforms showed re: concerns about other parent:

Mothers‟ self-reports:

3.6% - concerns for self

9.1% - concerns for child

8.4% - both themselves and their child Fathers‟ self-reports:

1.6% - concerns for self

12.3% - concerns for child

2.6% - both themselves and their child

Kaspiew et al. 2009, Table 2.4

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Policy and practice context:

Aim: protecting children from harm in family law children cases

Concerns:

1. Federal family law system used as a default child protection mechanism

2. State child protection departments used as default mechanisms for assessing harm in the family law context

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Constitutional context

States have responsibility for child protection (public law issues i.e. state intervention in

family life)

Commonwealth government has

responsibility for family law issues (private disputes involving children in separated families)

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Child Protection: practice context

Highly proceduralised risk assessment processes;

Perceived as risk „averse‟ because of high level of public scrutiny;

Increasing burden on services and limited budgets result in need to prioritise resources to seen to be most at risk

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Child Protection Policy in Australia

Investigating and responding to allegations of harm to children:

responsibility of each of the 8 states/territories

massive increases in the workload of departments over the past decade (notifications have more than tripled)

has been largely focused on risk-assessments, and forensically driven

emerging trends towards differential approaches to family support

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Child abuse and neglect data

No prevalence data in Australia

A UK study surveyed a national random probability sample of 2,869 young people aged 18-24 years and found that, of this sample of the population:

21% had experienced physical abuse;

11% had experienced sexual abuse (prior to the age of 16 years);

6% had experienced neglect; and

6% had experienced emotional abuse.

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Headline statutory child protection activity for 1999-00 to 2006-07

Holzer (2008), based on AIHW (2008) NB: Data for NSW missing for 2003-04

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National child protection data snapshot

Large increase in the number of concerns notified to child protection departments in the past decade. Child Protection Service Activity data (AIHW, 2010) show:

1999-2000: 107,134 reports

2008-2009: 339,454 reports

2009-2010: 286,437 report

54,621 reports were subsequently found to involve children in need of protection in 2009-2010 (i.e., 19% of notifications „substantiated‟) – relates to 31,295 different children

These numbers have increased, whether considered in absolute terms, or in rates per 1000

Due to workload demands, cases are prioritised, and not all notifications are

investigated (e.g., 2007-08: only 56% of notifications had finalised investigations).

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Key stages of child protection system

Four key stages:

Notification

Mandatory reports

Intake and initial assessment

Investigation

Are there grounds for intervention?

Protocols for joint police investigations

Decision - case determination

Action – family support and/or court interventions

AIHW, 2010

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Family law legislative context

Parenting orders should:

Be in child best interests (FLA s65CA)

Maximise meaningful involvement of both parents (FLA s60B(1)(a))

Protect from harm from being

subjected/exposed to abuse, neglect or family violence (FLA s60B(1)(b))

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Family law practice context

Most parenting disputes handled in the family dispute resolution sector

Minority proceed to court

In current court system, most family law disputes are heard in the FMC (i.e., 79% of applications excluding divorces and consent orders: Semple Report)

FCoA has special case management system to deal with serious cases of sexual and physical abuse: Magellan

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Key concern

―The bulk of the work at the apex of the family law system in Australia—

those cases that come to family courts for judicial determination—

contain allegations of family violence and/or child abuse.‖

(Higgins & Kaspiew, 2011, p. 8)

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Overlapping legal frameworks and statutory responsibilities

Understanding the intersection between child protection and family law

Key agencies/systems:

Child protection departments

Juvenile courts

Police & Director of Public Prosecutions

Criminal courts & other courts of summary jurisdiction

Family Court / Federal Magistrates Court

Legal aid commissions

see Higgins (2007) Table 3.1 (on p. 35)

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Agency/

system

Jurisdiction Responsible

Focus Basis of decision-making / Burden of proof

Police State/territories Law enforcement Responsible for investigating alleged crimes and making the case to the DPP to lay charges if there is sufficient

evidence to mean a conviction is likely Criminal

courts

State/territories Criminal justice Criminal Standard of proof (beyond reasonable doubt)

Child Protection Depart- ments

State/territories Protection of children Risk assessment to determine whether there is a significant risk of harm (based on a mix of professional judgment and actuarial decision-making frameworks) Juvenile

Courts

State/territories Protection of children Care and protection matters are

determined on the civil standard of proof (balance of probabilities)

Family law system

Commonwealth Determination of private law disputes between two

Civil standard of proof (balance of probabilities)

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What is the question being asked?

Statutory child protection departments – Are you a protective parent? Is the child currently safe? Does the situation meet the threshold for intervention?

Children’s Courts – Are you an adequate parent?

What actions to take to improve parent capacity?

Family Courts – What pattern of time spent is in children’s best interests? Are they protected? Are you a ―friendly parent‖?

Police – Is there sufficient evidence to press charges?

Criminal Courts – Has alleged crime been proven?

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What is not directly asked?

Did abuse occur?

Is it likely to recur?

Family courts need answers to the following questions, yet they aren‟t central to any of these investigations:

Is the child at risk of harm in the household of either parent (or other caregiver)?

Would the child be safe if he/she were to spend time unsupervised with the parent against whom

allegations of abuse have been raised?

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The legal and investigatory gap in family law / child protection issues

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Bridging the gap: Magellan

Co-ordinated approaches to bringing together information from each of these agencies to ensure private family law disputes have;

Appropriate evidence

Timely handling

Processes to reduce trauma for children

Ensure safety

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What is Magellan?

The Family Court‟s Magellan case-management model is a world-first initiative for improving outcomes for vulnerable children and families in the family law system.

It is an inter-agency, collaborative, judge-led approach to case-management approach for responding to allegations of sexual or serious physical abuse.

A consortium of agencies in Victoria developed and implemented the new approach in a pilot project of 100 cases, which commenced in 1998.

The pilot was evaluated in 2001 before the case- management approach was progressively rolled out.

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What is Magellan? /…2

The Magellan case-management pathway consists of a team of Judges, Registrars and Mediators („Family

Consultants‟) who handle the case from start to finish.

Independent Children‟s Lawyers (ICLs) represent the interests of children.

Significant resources (i.e., uncapped legal aid; focused report from CP Department; family report; other expert

reports) are directed to the case in the early stages with an aim of resolving the case within six months.

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Magellan Evaluation

The aim of the evaluation was to examine:

the effectiveness of Magellan in responding to allegations of sexual abuse or serious physical abuse in parenting matters in the FCoA;

how Magellan is being implemented; and

perceptions of key stakeholders regarding its

effectiveness, successful features, and any barriers to its successful implementation / improvements.

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Total case duration

From date of application to date of case outcome:

Magellan-like cases:

471 days (15.4 months) Magellan cases:

332 days (10.9 months)

Difference = 133 days quicker (4.6 months)

**Magellan cases (excl. Brisbane):

304 days (10.0 months)

Difference = 167 days quicker (5.5 months)

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Distribution of case duration

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Key elements of the Magellan model

cooperation between all the agencies involved with families;

timeliness and prioritisation by the Court;

receipt a report from the statutory child protection department as early as possible;

good individual case-management by a dedicated team of a Judge, Registrar and Client Services Officer;

provision of un-capped Legal Aid funding for parties;

independent representation of children; and

a focus on children‟s best interests.

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Relationship with Child Protection Departments

Cooperation of the statutory child protection Department was essential

Through the Magellan stakeholder meetings; the

protocols outlining the role of the department; provision of the short, focused „Magellan Report‟

Understanding separate roles:

Dept: investigating allegations; ensuring safety (i.e., is there a protective, „good enough‟ parent?)

Court: children‟s best interests

Importance of the “Magellan Report”

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Magellan Report

Identify history and current concerns

Importance of clear guidelines:

“Early on, there were difficulties in getting the Department to meet timelines. When we asked for a report, they thought we wanted a big, fancy document. But I just said, „Forward the existing report you have.‟ Once they realised this, it was easy.” (Judge)

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Key Messages from Magellan

Magellan matters were believed to be shorter, often resolving without judicial determination

Magellan seen to deliver better outcomes for children and families.

Tight case-management procedures are critical to this, particularly the role of Magellan Judges and Registrars.

The importance placed on Magellan matters by the Court is reflected in the role that Judges play, and this was seen as one of the ways that the process gives parties a sense of procedural fairness.

Cooperation with the statutory child protection department was seen as critical to the success of Magellan.

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Key Messages from Magellan

Fewer court events, fewer judicial officers, more frequent early settlement

Although participants emphasised the success of Magellan, opportunities for improvements were identified, including:

streamlining procedures for cases referred from FMC;

greater uniformity across registries;

improving some isolated cases of poor communication; and

ensuring adequate resources.

Participants suggested consideration be given to:

listing practices

the best ways of meeting the therapeutic needs of children clarifying practice directions

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New research and emerging policy

AIFS Evaluation of 2006 Family Law Reforms (Kaspiew et al. 2009)

Australian Law Reform Commission and NSW Law Reform Commission, 2010 report: Family Violence – A National Legal Response

Reports by Professor Richard Chilsolm (2009) and Family Law Council (2009)

National Framework for Protecting Australia‟s Children

Family Law Legislation Amendment (Family Violence and Other Measures Bill (2011)

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New research and emerging policy

Common themes:

Provisions of the Family Law Act widely misunderstood

(shared parental responsibility ≠ equal time, and that family violence and child abuse are exceptions

Fears re: orders for costs if knowingly making false statements

Better education and training for professionals

Better cooperation between family law and child protection system professionals

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Joining up the dots… ?

Federal family law agencies and state/territory child protection departments operate with:

Different legislative imperatives

Different practice questions

Different outcomes

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Conclusion

Recent reports have highlighted the poor fit between child protection systems and the federal family law system.

Magellan has improved effectiveness of Court procedures, but is limited in its availability

Empirical evidence that:

Allegations of child abuse is common in post-separation parenting disputes in the FCoA, the FMC, and the family dispute resolution sector

Dispute resolution mechanisms are relying on overworked

state/territory child protection systems, which are not intended to assess risk in the federal family law context

Developments in policy create new opportunities to holistically and systematically address the gaps.

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Final Report

Report released by Family Court 16 October 2007

Available at:

www.aifs.gov.au/

institute/pubs/

magellan/index.html

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Presentation based on:

Higgins, D. J., & Kaspiew, R. (2011). Child

protection and family law… Joining the dots.

NCPC Issues 34. Melbourne: National Child

Protection Clearinghouse, Australian Institute of Family Studies.

www.aifs.gov.au/nch/pubs/issues/issues.html

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References

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